ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
BARBARA RICHARDS CAMPBELL CATHERINE A. LAKE
Highland, Indiana KRISTIN A. ULHOLLAND
Steven P. Polick & Associates, P.C.
COURT OF APPEALS OF INDIANA
GLORIA OCONNELL; DIANE PAPPAS )
CHRISTOPHER LIS; GEORGE KEDANGAN and )
MARY KEDANGAN, as Husband and Wife; )
ALEX GERGELY and IRENE GERGELY, as )
Husband and Wife; RILEY STONE and )
SCHERRY STONE as Husband and Wife, )
vs. ) No. 45A03-0204-CV-115
TOWN OF SCHERERVILLE OF LAKE )
COUNTY, INDIANA, LAKE COUNTY TRUST )
AS TRUSTEE OF TRUST NUMBER 4931, d/b/a )
SHERWOOD LAKE APARTMENTS; TOWN )
MANAGEMENT, LLC BY HOWARD FINK and )
LARRY RUBIN IN THEIR RESPECTIVE )
OFFICIAL AND INDIVIDUAL CAPACITIES; )
and SHERWOOD LAKE APARTMENTS )
MAINTENANCE MEN PHIL (Last Name )
Unknown ) and MIKE (Last Name Unknown) IN )
THEIR RESPECTIVE AND INDIVIDUAL )
APPEAL FROM THE LAKE CIRCUIT COURT
The Honorable Lorenzo Arredondo, Judge
Cause No. 45C01-9812-CT-3107
November 21, 2002
OPINION - FOR PUBLICATION
Appellants Gloria OConnell, Diane Pappas, Christopher Lis, George Kedangan, Mary Kedangan, Alex Gergely,
Irene Gergely, Riley Stone, and Scherry Stone (collectively, Appellants) appeal the Lake Circuit
Courts order granting judgment on the pleadings to the Town of Schererville (Town).
Appellants raise three issues on appeal, which we consolidate into one and
restate as: whether the failure to provide adequate fire protection, one component of
which is a well-maintained infrastructure with adequate water supply, is a governmental activity
that falls within common law governmental immunity.
Facts and Procedural History
The facts most favorable to Appellants show that on January 18, 1998, a
fire occurred at Sherwood Lake Apartments, which is located in Schererville, Lake County,
Indiana. The fire began when two maintenance men at the Sherwood Lake
Apartment complex ignited a wall in an apartment while they were working on
a pipe in the kitchen of that apartment with a torch. Firefighters
from several different areas, including the Town of Schererville, arrived at the scene
of the fire. When the firefighters arrived, they attached a hose to
a nearby fire hydrant, but only a trickle of water came from the
hose. After obtaining insufficient water pressure from the first fire hydrant, the
firefighters moved the hose to two other nearby fire hydrants. Those hydrants
also produced insufficient water pressure. Without sufficient water pressure, the fire could
not be extinguished properly. One apartment building was completely destroyed, while another
was partially destroyed.
On December 31, 1998, Appellants brought suit against the Town claiming that the
Town was negligent in maintaining the fire hydrants. The Town filed a
motion for judgment on the pleadings on July 18, 2001, arguing that it
was a governmental entity and was therefore immune from liability due to claims
arising from fire protection. Appellees App. p. 36. The trial court
granted the Towns motion on September 28, 2001, and Appellants filed a Motion
to Correct Error on October 30, 2001, which was denied by the trial
court on January 17, 2002. Appellants now appeal. Additional facts will
be provided as necessary.
Standard of Review
This appeal is taken from the trial courts order, which purportedly grants a
motion for judgment on the pleadings. A judgment on the pleadings under
Indiana Trial Rule 12(C) attacks the legal sufficiency of the pleadings. Luhnow
v. Horn, 760 N.E.2d 621, 626 (Ind. Ct. App. 2001). When reviewing
a trial courts decision on a motion for judgment on the pleadings, we
only look to the pleadings. Circle Ctr. Dev. Co. v. Y/G Ind.,
L.P., 762 N.E.2d 176, 178 (Ind. Ct. App. 2002). The pleadings at
issue alleged that:
On January 18, 1998, defendant, Town of Schererville of Lake County, Indiana, was
material to this action, engaged in the business of municipal governmental entity and
in care and control of the fire hydrants located within the Sherwood Lake
Apartment complex within the Town of Schererville, Lake County, Indiana.
Defendant, Town of Schererville, failed to provide operable fire hydrants to serve plaintiffs.
Defendant, Town of Schererville, failed to provide adequate fire hydrants to serve plaintiffs.
Defendant, Town of Schererville, failed to provide adequate water pressure to serve plaintiffs.
Appellants App. p. 19.
Discussion and Decision
However, although denominated a ruling on the Towns motion for judgment on the
pleadings, the case is actually an appeal from the grant of a motion
for summary judgment, because the Appellants included attachments of excerpts of a deposition
with their motion to oppose the judgment on the pleadings, and the trial
court did not strike these attachments. Appellants App. pp. 99, 132.
Therefore, the proper standard of review is that for summary judgment.
Summary judgment is a procedural means to halt litigation when there are no
factual disputes and to allow the case to be determined as a matter
of law. Langman v. Milos, 765 N.E.2d 227, 233 (Ind. Ct. App.
2002). The moving party bears the burden of showing that there
are no genuine issues of material fact. Id. If the moving
party meets this burden, the burden shifts to the non-moving party to present
facts showing the existence of a genuine issue for trial. Id.
The standard of review for the grant or denial of a motion for
summary judgment on appeal is the same as that used in the trial
court: whether there is a genuine issue of material fact and whether
the moving party is entitled to a judgment as a matter of law.
Corr v. Am. Family Ins., 767 N.E.2d 535, 537 (Ind. 2002).
Neither the trial court nor the reviewing court may look beyond the specifically
designated evidence to make its decision. Kennedy v. Guess Inc., 765 N.E.2d
213, 217 (Ind. Ct. App. 2002). All facts and reasonable inferences drawn
from those facts are construed in favor of the non-moving party. Corr,
767 N.E.2d at 538.
A governmental unit is subject to the same tort liability as a private
individual, with a few limited exceptions. Benton v. City of Oakland City,
721 N.E.2d 224, 227 (Ind. 1999). Under common law, a governmental unit
can assert sovereign immunity for: (1) failure to provide adequate police protection to
prevent crime; (2) appointment of an individual whose incompetent performance gives rise to
a suit alleging negligence on the part of the official for making such
an appointment; and, (3) judicial decision-making. Id. The idea behind immunity
is that, though the defendant might be a wrongdoer, social values of great
importance require that the defendant escape liability. Prosser and Keeton on Torts
§131 (W. Page Keeton et al. eds., 5th ed. 1984). The Benton
court identified adequate police protection, the governmental appointment process, and judicial decision making
as three of these social values, which require immunity. Our supreme court
emphasized that this list was not exhaustive and stated that any additional exceptions
would be rare and identified on a case-by-case basis, if the duty alleged
to have been breached is so closely akin to one of the above
exceptions that it should be treated as one. Benton, 721 N.E.2d at
Appellants argue that the trial court erred when it granted the Towns
motion for judgment on the pleadings because they believe the maintenance of fire
hydrants is included in a municipalitys infrastructure and that governmental immunity should not
apply to municipal infrastructure. Relying on City of Huntingburg v. Morgen, 90
Ind. App. 573, 162 N.E. 255 (1928), they contend that because the negligence
complained of was not the result of emergency personnel or firefighters extinguishing the
fire, but instead was inadequate water pressure from actual fire hydrants, this case
concerns the Towns infrastructure.
In City of Huntingburg, a man in the business of growing and selling
flowers brought a suit against the city of Huntingburg for damages incurred by
the failure of the city to furnish him with water in a sufficient
quantity and pressure to maintain his business. Id. at 573, 162 N.E.
at 256. A panel of this court concluded that the city was
not immune from liability because it supplied water for daily consumption, and therefore,
had the same liability as a private corporation engaged in the same business.
Id. at 579, 162 N.E. at 257. The court further concluded
that the purpose of supplying water to private consumers for private use is
distinguishable from the purpose of supplying water to the public for fire protection.
Id. at 578-79, 162 N.E. at 261.
Our case is distinguishable from City of Huntingburg because the malfunctioning hydrants do
not present an issue of private, commercial use of water. Rather, our
facts are the opposing comparison used by the City of Huntingburg court as
an example of well-settled immunity: supplying water to the public for fire protection.
Appellants also cite Campbell v. State, 259 Ind. 55, 284 N.E.2d 733 (Ind.
1972), for the proposition that the doctrine of sovereign immunity has been eroded
in Indiana. Campbell discussed City of Goshen v. Myers, 119 Ind. 196,
21 N.E. 657 (1889), which had previously held that a city could be
liable for injuries caused by damaged bridges located on public streets in the
city. Id. at 199, 21 N.E. 658-59. Campbell also discussed the
liability of municipalities under the governmental-proprietary function test, which was the standard at
that time. Campbell, 259 Ind. at 58, 284 N.E.2d at 735.
Under that standard, if a municipality was performing a proprietary function, it could
be held liable for negligence, but if it was performing a governmental function,
the municipality would be immune. Id. at 58, 284 N.E.2d at 735.
However, the governmental/proprietary function test was abrogated by Benton. 721 N.E.2d
Appellants also rely on Lamb v. City of Bloomington, 741 N.E.2d 436 (Ind.
Ct. App. 2001), to support their contention that there is potential liability for
malfunctioning inanimate infrastructure and non-liability for protection by actual personnel. In Lamb,
a group of tenants brought an action against the city of Bloomington alleging
negligence because of the failure to provide adequate fire protection. Id. at
438. Their allegations included negligent maintenance of equipment, negligent performance of duty
to extinguish fire, and intentional failure to maintain equipment, among others. Id.
The court held that the failure to provide adequate fire protection should
be treated as an exception to governmental tort liability, and that the city
was immune from liability. Id. at 441. While Appellants interpret Lamb
to stand for the proposition that only failure to provide adequate fire protection
in the form of actual personnel is immune from liability, the tenants in
Lamb also alleged negligent maintenance of equipment and intentional failure to maintain equipment.
Id. at 438. These counts also fell within the Lamb courts
holding of governmental immunity. Id. at 441.
The facts in this case are strikingly similar to Gates v. Town of
Chandler Water Department, 725 N.E.2d 117 (Ind. Ct. App. 2000). In Gates,
an action was brought against the town of Chandler alleging negligence arising out
of the towns failure to maintain an adequate water supply and pressure to
extinguish a fire that occurred at the Gatess home. Gates v. Town
of Chandler Water Dept, 720 N.E.2d 1192, 1194 (Ind. Ct. App. 1999).
The Gates court, upon rehearing in light of the decision in Benton, held
that the failure to provide adequate fire protection should be regarded as an
exception to governmental tort liability, and that the Water Department was immune from
liability. Gates, 725 N.E.2d at 120. The court stated that adequate
fire protection is so closely akin to adequate police protection that fire protection
should be treated as an exception to governmental tort liability. Id. at
119. This is because:
[b]oth services are essential for public safety, which is the primary function of
government. Both are required to sustain a well-ordered society that values and
protects the lives and property of its citizens. Police and fire protection
rank together in the essential nature of the services provided. Government provides
fire protection as an essential public service because fire, like crime, is a
The Gates court also affirmed the long recognized common law rule that
a municipality is not liable to a person whose property is destroyed by
fire even if the damage may have occurred because of the failure to
provide adequate equipment or a sufficient supply of water to extinguish the fire.
Id. This includes insufficient water pressure, insufficient lengths of hose, or
improperly functioning fire hydrants. Id. Thus, the Gates reasoning controls our
Appellants want to denominate the issue in this case as one involving negligent
repair and/or maintenance of infrastructure.
See footnote However, this case focuses on adequate fire
protection, one component of which is a well-maintained infrastructure with adequate water supply.
Because adequate fire protection is so closely akin to adequate police protection,
it should be treated as an exception to governmental tort liability.
720 N.E.2d at 119.
Appellants also argue that the Town owed them a special duty to repair
and maintain the fire hydrants. There is no admissible evidence supporting an
alleged previous failure of the fire hydrants at issue, either in the Appellants
complaint or in the deposition transcript that was attached to their motion in
opposition of the judgment on the pleadings. As we are only to
look to the pleadings and designated materials in making a decision on whether
a grant of summary judgment is correct, this allegation cannot be reviewed.
There is no question that
Benton relaxed Indianas prior doctrine of governmental immunity.
There is also no question that the precise scope of that immunity
will remain undefined.
Few, if any, scholars and commentators could be found today to defend the
full extent of governmental immunity. On the other hand, no one today
urges that a judicial remedy be given for all the injuries that may
result from mistaken governmental action, or that the courts should decide when governmental
action of a political nature is mistaken. The proper sphere of governmental
immunity will remain a vital question even under systems that relax the indefensibly
broad immunity which still prevails in most of our states.
Fowler V. Harper, Fleming James, Jr. & Oscar S. Gray, The Law of
Torts, § 29.3 (2d ed. 1986). However, we remain convinced that adequate
fire protection, including all of its necessary infrastructure components, is so closely akin
to adequate police protection that it is entitled to exception from the Benton
rule that governmental tort liability is generally coextensive with private tort liability.
BARNES, J., and VAIDIK, J., concur.
The Appellants also argue that sovereign immunity does not apply to
fire hydrants, and the Town had a non-delegable duty to adopt standards and
codes relating specifically to fire hydrants. They base this on Indiana Code
section 36-1-3-3, the Home Rule, which states [a]ny doubt as to the existence
of a power shall be resolved in favor of its existence. They
also rely on 675 Indiana Administrative Code 22-2.2-84 (1998), which states [a] water
supply capable of supplying the required fire flow, for firefighting purposes, as determined
by local ordinance, shall be provided to all premises upon which Class 1
buildings or portions of Class 1 buildings are hereafter constructed. We believe
adequate water supply and functioning hydrants are components of adequate fire protection, and
as a matter of public policy, it is difficult to justify making governments
the guarantors of all the fire hydrants within their jurisdiction, which their fire
departments might use.
Appellants make no claim in their complaint and only passing mention in their
brief of alleged failure to repair the fire hydrants at issue after alleged
previous malfunction, a different claim.