dissenting
I respectfully dissent. The existence of a duty, that is, whether the law will impose an obligation on the part of a particular defendant to conform his conduct to a certain standard for the benefit of the plaintiff arises as a matter of law out of the relationship existing between the parties. Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991). The Webb court held that a court’s determination of whether a duty exists should involve the balancing of the three following factors: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy concerns. Id. at 995.
In Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 280, 283 (Ind.1994), the plaintiff alleged that a municipality had been negligent in failing to dispatch an ambulance in response to a 911 call. This is a discrete context in which the public policy considerations in favor of affording governmental immunity are so compelling that our General Assembly has since created a specific subdivision in the Indiana Tort Claims Act (“ITCA”) to provide governmental immunity for the losses arising out the “development, adoption, implementation, operation, maintenance, or use *746of an enhanced emergency communication system.” Ind.Code § 34-4-16.5-3(18); Barnes, as Mayor of the City of Gary v. Antich, 700 N.E.2d 262, 265 n. 5 (Ind.Ct.App.1998) (noting that Mullin preceded the adoption of the subsection of the ICTA providing immunity with respect to the operation of a 911 system), trans. denied. The Mullin court adopted the three-part private/public duty test noting that:
this test takes into account each of the three factors Webb [cited above] requires that we balance. Not only must the harm to the injured party be foreseeable, the relationship between the governmental entity and the injured person must be such that the governmental entity has induced the injured person justifiably to rely on its taking action for the benefit of that particular person to his detriment. The test also accommodates existing law reflecting a public policy that the mere existence of rescue services does not, standing alone, impose upon the governmental entity a duty to use them for the benefit of a particular individual .... where the governmental entity is aware of the plight of a particular individual and leads that person to believe that governmental rescue services will be used, and the individual detrimentally relies on that promise, it would be unfair to leave that individual worse off than if the individual had not sought assistance from the government at all.
Id. at 284-85.
Mullin cannot be reasonably interpreted to require that the private/public duty test be applied universally in a mechanistic manner in all cases which may involve the duty owed by a governmental entity. See id. at 285 (concurring and dissenting opinion of Justice Dickson). In fact, as stated by our supreme court:
Noting the nebulous nature of the concept of duty and [the] fact that no universal test for it ever has been formulated, this Court recently observed:
No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists.
Cowe v. Forum Group, Inc., 575 N.E.2d 630, 636 (Ind.1991) (quoting Gariup Constr. Co, Inc. v. Foster, 519 N.E.2d 1224, 1227 (Ind.1988) which quoted W. Prosser & W. Keeton, The Law of Torts § 53, at 359 (5th ed. 1984)).
We have already recognized that the Mullin test applies only in determining whether a duty is owed based on a governmental entity’s alleged failure to act. Serviss v. State, Dep’t of Natural Resources, 711 N.E.2d 95, 99 (Ind.Ct.App.1999) (noting that the Mullin test will not apply where the plaintiff alleges that the governmental entity engaged in an affirmative act of negligence which created the plaintiffs perilous situation), trans. pending; McCormick v. State, Dep’t of Natural Resources, 673 N.E.2d 829, 838 (Ind.Ct.App.1996); Henshilwood v. Hendricks County, 653 N.E.2d 1062, 1067 (Ind.Ct.App.1995).
Moreover, just as we cannot expect the private/public duty test to be universally applicable, we cannot expect the dichotomous “affirmative act of negligence/failure to take appropriate action” subset of the Mullin test to enjoy universal and mechanistic application. We have noted that the determination of the existence of a governmental duty does not necessarily require that the plaintiff couch his claim in terms of an affirmative act of negligence on the part of the State. See Serviss, 711 N.E.2d at 99-100 (holding that the State could properly be held liable for the failure to take adequate safety precautions after permitting plaintiffs to sled on a particular hill); Kantz v. Elkhart County Highway Dep’t, 701 N.E.2d 608, 611 (Ind.Ct.App.1998) (holding that a county could properly be held liable for its failure to remove an obstruction that rendered a county road unsafe), trans. denied; Harkness v. Hall, 684 N.E.2d 1156, 1161 (Ind.Ct.App.1997) (holding that a county could properly be held liable for its failure to maintain a *747roadway and bridge where an accident occurred); Henshilwood v. Hendricks County, 653 N.E.2d 1062, 1068 (Ind.Ct.App.1995) (holding that a county could properly be held liable for its failure to prevent a ditch from overflowing and its failure to warn property owners of high levels of bacteria).
As noted above, the Mullin test was established to address the precise issue of governmental liability for the negligent provision of rescue services; circumstances vastly different from those in the present case and which implicate entirely different policy considerations. Moreover, the Mullin test was expressly built on the underpinnings of the three-part balancing test set out in Webb, 575 N.E.2d at 995. Thus, the Mullin test is derivative of, and in no way supplants, the Webb balancing test. In balancing the three factors prescribed by Webb in the present case, I would note that: (1) the State operates the Chain-of-Lakes State Park, holds it open to the public, and maintains the playground equipment and swings for its patrons (including the Conners) to use while visiting the park; (2) it is reasonably foreseeable that a park patron will suffer injury should a swing break from not being maintained in a reasonably safe manner; and (8) the public policy concerns weigh in favor of imposing the duty upon the State, who operates the park and maintains the equipment, to maintain the equipment in a reasonably safe condition rather than upon the park patrons who visit the park on a temporary basis and who have every reasonable expectation that playground equipment made available to the public will be maintained in a reasonably safe condition. Therefore, I would hold that, under the present circumstances, the law imposes a duty upon the State to maintain the playground equipment at its park in a reasonably safe condition for the protection of its patrons. Accordingly, I would reverse the trial court’s entry of summary judgment.