Robert E. Stochel
Glenn S. Vician
Jeffrey A. Modisett
Crown Point, Indiana
Bowman, Heintz, Boscia & Vician, P.C.
Merrillville, IndianaAttorneys for Appellees
Attorney General of Indiana
Deputy Attorney General
Robert E. Stochel
Glenn S. Vician
Jeffrey A. Modisett
MICHAEL G. SERVISS and
SANDRA M. SERVISS,
Appellants (Plaintiffs below),
STATE OF INDIANA, DEPARTMENT OF
Appellees (Defendants below).
) Supreme Court No.
) Court of Appeals No.
December 29, 1999
While walking up a snow-covered hill in a state park, plaintiff Sandra Serviss was
struck by a sled and injured. The defendant governmental entities contend they owe no duty
to plaintiff to protect her from sledding accidents. Following our recent decision in Benton
v. City of Oakland City, we find
government owed plaintiff the common law duty of
ordinary and reasonable care to maintain a public recreational facility in a reasonably safe
A summary of the facts most favorable to the judgment reveal that on January 22,
1995, Sandra Serviss and her husband, Michael, drove to Indiana Dunes State Park to go
sledding. After paying a fee to enter the park, the Servisses were told by a park employee
that sledding was only permitted at a hill known as Devil's Slide.
The Servisses proceeded to this area where at least 10 sleds [were] being operated.
(R. at 120.) They ascended the hill using a pedestrian walkway which had been created
by people trampling the snow. The walkway was approximately four to five feet wide and
was situated along a line of trees and brush that ran up the hill on the right-hand side.
Michael Serviss rode his sled down the hill one time and at the base of the hill exited the sled, walking to their car in the parking lot immediately across from the sledding hill. Meanwhile, Sandra started down the hill on a sled with her niece, but became frightened by
the height of the hill and disembarked. Sandra headed back up the hill off to the right in an
attempt to avoid other sledders, however, she was struck from the left side by another
sledder and was injured.
The Servisses filed a complaint against the State and its Department of Natural
Resources (collectively, State), asserting that the negligent operation of the park caused
her injuries and resulted in loss of consortium. The trial court granted the State summary
judgment after concluding that it enjoyed discretionary function immunity under the Indiana
Tort Claims Act (ITCA)See footnote
and that it did not owe the Servisses an actionable duty to
protect them from sledding accidents.
A divided Court of Appeals reversed. Serviss v. State, Dep't of Natural Resources, 711 N.E.2d 95 (Ind. Ct. App. 1999). The majority held that the trial court erred in finding immunity because the State did not assert it or presented no evidence to support it. Id. at 98. The majority also found that the trial court improperly employed this Court's three-part test announced in Mullin v. Municipal City of South Bend, 639 N.E.2d 278 (Ind. 1994),See footnote 2
because the Servisses' complaint alleged an affirmative act of negligence by the State as
opposed to a failure to act. Serviss, 711 N.E.2d at 100. Specifically, the majority found
that the State created the Servisses' peril by requiring them to sled on a particular hill,
therefore, the court applied its own test announced in Henshilwood v. Hendricks County,
653 N.E.2d 1062, 1067 (Ind. Ct. App. 1995), transfer denied.,See footnote
to determine that the State
owed the Servisses a private duty. Serviss, 711 N.E.2d at 100.See footnote
(nonfeasance). Benton, slip op. at 5. In acknowledgment of this difficult distinction and
other legal principles that Indiana courts [had] enunciated . . . in the course of deciding tort
claims filed against governmental units, we undertook a detailed reexamination of the law.
Returning to the framework this Court had established over 25 years earlier in
Campbell v. State, 259 Ind. 55, 284 N.E.2d 733 (1972), we
reaffirmed in Benton that all
governmental units are bound, both directly and under the theory of respondeat superior, by
the common law duty to use ordinary and reasonable care under the circumstances.
Benton, slip op. at 19.
And while the government is insulated from liability in the performance of a few exceptional tasks, Campbell is properly applied by presuming that a
governmental unit is bound by the same duty of care as a non-governmental unit.
slip op. at 13.
In Benton, we considered the claim of a plaintiff injured in a municipal recreational facility. After a fourteen-year-old boy sustained injuries while swimming at a public swimming area, he sued the city claiming it was negligent in its operation of the lake. We ultimately held that the city was not entitled to summary judgment as a matter of law on the issue of its long-recognized duty to maintain a public recreational facility in a reasonably safe manner. Id. at 20 (citing City of Bloomington v. Kuruzovich, 517 N.E.2d 408, 414 (Ind. Ct. App. 1987) ([T]he state and its units are liable for failure to maintain reasonably
safe parks.); Mills v. American Playground Device Co., 405 N.E.2d 621, 627 (Ind. Ct.
App. 1980) (defining a municipality's duty as one to exercise ordinary care to make public
parks reasonably safe for persons rightfully frequenting and using the parks and equipment), reh'g denied;
Clayton v. Penn Central Transp. Co., 176 Ind. App. 544, 549, 376
N.E.2d 524, 527 (1978) (citing Campbell and reversing summary judgment for the defendant city on the issue of duty as material facts existed as to whether a duty of reasonable
care was owed to the individual children and parents to make the park a safe place for
children to play); Sherfrey v. City of Brazil, 213 Ind. 493, 495, 502, 13 N.E.2d 568, 569,
572 (1938) (Minor severely injured [in a city park] when he ran into a bed of concealed
fire.) ([A] municipality may be liable for its negligence in the management of its public
parks); City of Terre Haute v. Webster, 112 Ind. App. 101, 103, 105, 40 N.E.2d 972, 973
(1942) (Minor injured in a city park where he stepped and fell into a hole just west of a
certain stone drinking fountain . . . [while approaching] to get a drink.) ([A] city is liable
for structural defects in a city park where [the] structural defects are due to a lack of reasonable care on the part of [the] city to make [the] park a reasonably safe place for persons
using [the] park for park purposes.) (collecting cases)).
Here, we agree with the Court of Appeals's result, if not its reasoning, in acknowledging the government's duty to maintain a public recreational facility in a reasonably safe manner. Thus, the State was not entitled to summary judgment on the issue of duty as genuine issues of material fact remain with respect to whether the State was negligent in its
operation of the Indiana Dunes State Parks.
We therefore (1) grant transfer; (2) adopt and incorporate by reference Part I of the
Court of Appeals's opinion addressing governmental immunity; (3) vacate the remainder of
the opinion of the Court of Appeals; and (4) remand to the trial court for further proceedings
consistent with this opinion.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur
(3) justifiable and detrimental reliance by the injured party on the municipality's affirmative undertaking.
Mullin, 639 N.E.2d at 284.