Mangold Ex Rel. Mangold v. Indiana Department of Natural Resources

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE
INDIANA DEPARTMENT OF
GARY K. KEMPER NATURALRESOURCES:
Kemper, Barlow & Sparks
Madison, Indiana JEFFREY A. MODISETT
Attorney General of Indiana

J.T. WHITEHEAD
Deputy Attorney General
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
SWITZERLAND COUNTY SCHOOL
CORPORATION:

DANFORD R. DUE

LESLIE A. BEHRMAN

Stewart Due Doyle & Pugh, LLP
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

MATTHEW MANGOLD, a minor by his )
next friend, MICHAEL MANGOLD, )
) Supreme Court Cause Number
Appellant-Plaintiff, ) 78S01-0110-CV-479
)
v. )
)
INDIANA DEPARTMENT OF NATURAL ) Court of Appeals Cause Number
RESOURCES and SWITZERLAND ) 78A01-9903-CV-88
COUNTY SCHOOL CORPORATION, )
)
Appellees-Defendants. )

APPEAL FROM THE SWITZERLAND CIRCUIT COURT
The Honorable Carl H. Taul, Judge
Cause No. 78C01-9801-CT-002

ON PETITION TO TRANSFER

October 25, 2001

RUCKER, Justice

We grant transfer in this case and hold that on a complaint for
negligence, the common law duty of care that a school owes its students is
not dependent upon whether an injury a student suffers occurs on school
property. We also reaffirm that subsection nine of the Indiana Tort Claims
Act provides immunity to governmental entities only under very narrow
circumstances.

Factual and Procedural History

On March 12, 1997, a Department of Natural Resources (“DNR”)
conservation officer conducted a hunter education class for students at
Switzerland County Junior High School. The program was part of the
school’s science curriculum and addressed firearm safety. While
instructing the class, the officer dismantled a shotgun shell, showed the
students the component parts, and explained what the parts do when the gun
is fired. Among other things, the officer told the students that when the
firing pin strikes the primer, the primer “sparks” setting fire to the
powder. The officer also warned the students that they should never handle
ammunition unless accompanied by an adult.
Twelve-year-old Matthew Mangold attended the class. After school,
Matthew and his brother partially disassembled one of their father’s
shotgun shells. With his brother holding the shell with pliers, Matthew
struck the firing pin with a hammer and chisel. Rather than causing a
“spark” as Matthew expected, the shell exploded with a fragment striking
Matthew in the face and leaving him blind in the left eye.
Acting as next friend, Matthew’s father filed a complaint for
negligence against DNR as well as Switzerland County School Corporation
(“School”). The complaint alleged that DNR was negligent in its
instruction on firearm safety and School was negligent in its supervision
of the officer. Both DNR and School (referred to collectively as
“Defendants”) filed answers that included the affirmative defenses of
contributory negligence and immunity under the Indiana Tort Claims Act.
After conducting discovery, Defendants also filed motions for summary
judgment. DNR claimed immunity under the Indiana Tort Claims Act, and
School argued that it owed Matthew no duty. The trial court granted both
motions. Finding that DNR was immune under subsection nine of the Indiana
Tort Claims Act and that Matthew as well as his father were contributorily
negligent, on appellate review the Court of Appeals affirmed the trial
court’s grant of summary judgment in favor of DNR. Mangold v. Indiana
Dep’t of Natural Res., 720 N.E.2d 424, 430 (Ind. Ct. App. 1999). The Court
of Appeals also affirmed the trial court’s grant of summary judgment in
favor of School ruling that it owed Matthew no duty because “Matthew was
injured at his home and not at school.” Id. at 429. In order to address
the law in this area, we grant Matthew’s petition to transfer, but we
affirm the trial court.

Standard of Review

Our standard of review is the same as that used in the trial court:
summary judgment is appropriate only where the evidence shows that there is
no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Ind. Trial Rule 56(C); Tom Wat, Inc. v. Fink,
741 N.E.2d 343, 346 (Ind. 2001). All facts and reasonable inferences drawn
from those facts are construed in favor of the non-moving party. Tom Wat,
741 N.E.2d at 346. Review of a summary judgment motion is limited to those
materials designated to the trial court. T.R. 56(H); Tom Wat, 741 N.E.2d
at 346. We must carefully review a decision on a summary judgment motion to
ensure that a party was not improperly denied its day in court. Tom Wat,
741 N.E.2d at 346.

Discussion

I. Matthew’s complaint against School
In Miller v. Griesel, 261 Ind. 604, 308 N.E.2d 701, 706 (1974), this
Court emphasized that schools are neither insurers of their pupils’ safety
nor strictly liable for any injuries that may occur to them. Nonetheless,
we recognized a “duty for school authorities to exercise reasonable care
and supervision for the safety of the children under their control.”
Miller, 308 N.E.2d at 706. We have asserted this formulation in subsequent
cases. See, e.g., Beckett v. Clinton Prairie Sch. Corp., 504 N.E.2d 552,
554 (Ind. 1987) (holding the trial court erred in determining as a matter
of law that the school did not breach its duty to a high school student
injured during baseball practice); Norman v. Turkey Run Cmty. Sch. Corp.,
274 Ind. 310, 411 N.E.2d 614, 618 (Ind. 1980) (finding no breach of duty
where a student was injured while running on the playground).
Seizing on the “supervision” language in Miller, the Court of Appeals
previously has declared that no duty exists where the injury to a student
occurs off school property. See Brewster v. Rankins, 600 N.E.2d 154, 158
(Ind. Ct. App. 1992) (holding that teacher and school had no duty to
prevent injury suffered by a child when his nine-year-old brother hit him
with a golf club because “the accident occurred off of School property and,
although Teacher and School acquiesced in the golf club’s use, the activity
was not supervised by School or its officials . . . .”); Swanson v. Wabash
Coll., 504 N.E.2d 327, 331 (Ind. Ct. App. 1987) (holding school not liable
for injuries sustained by a college student while practicing baseball at an
off-campus location because school had no “duty to supervise []
recreational baseball practices.”). Relying on Brewster and Swanson, the
Court of Appeals in this case likewise reasoned that School owed Matthew no
duty because his injuries did not occur on school property.
As this Court has previously observed, “Duty is not sa[]crosanct in
itself, but is only an expression of the sum total of those considerations
of policy which lead the law to say that the plaintiff is entitled to
protection.” Webb v. Jarvis, 575 N.E.2d 992, 997 (Ind. 1991) (quoting W.
Page Keeton et al., Prosser and Keeton on the Law of Torts § 53 (5th ed.
1984)). By declaring that a school may be held liable for the injuries
suffered by its students, we essentially have made a policy decision that a
school’s relationship to its students, the foreseeability of harm, and
public policy concerns entitle students to protection. We articulate this
expression of liability as a school’s duty to exercise “reasonable care and
supervision” for its students. Miller, 308 N.E.2d at 706. An approach
that focuses on rearticulating that duty based upon a given set of facts is
misplaced in our view because to do so presupposes that an issue which is
thought to be
settled must be revisited each time a party frames the duty issue a little
differently.[1] Rather, because a school’s duty to its students already
has been established, the focus shifts to whether a given set of facts
represents a breach of that duty.
Although the existence of duty is a matter of law for the court to
decide, a breach of duty, which requires a reasonable relationship between
the duty imposed and the act alleged to have constituted the breach, is
usually a matter left to the trier of fact. See Delta Tau Delta, Beta
Alpha Chapter v. Johnson, 712 N.E.2d 968, 974 (Ind. 1999). Only where the
facts are undisputed and lead to but a single inference or conclusion may
the court as a matter of law determine whether a breach of duty has
occurred. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1372 (Ind. 1992). As
applied to the facts in this case, the question is whether School breached
its duty of reasonable care and supervision by providing Matthew with
inaccurate information and inadequate warnings when it instructed him on
firearm safety. The fact that Matthew’s injuries occurred off school
property may have a bearing on the foreseeability component of proximate
causation. See Bader v. Johnson, 732 N.E.2d 1212, 1216-17 (Ind. 2000)
(stating that in a negligence action plaintiff must show: (1) duty owed to
plaintiff by defendant; (2) breach of duty by allowing conduct to fall
below the applicable standard of care; and (3) compensable injury
proximately caused by defendant’s breach of duty). However, we see no
relationship between the location of Matthew’s injuries and School’s duty
of reasonable care and supervision. Therefore, we conclude that the trial
court erred in granting summary judgment to School on the ground that, as a
matter of law, School owed Matthew no duty.
II. Matthew’s complaint against DNR
The Indiana Tort Claims Act (“ITCA”) allows suits against
governmental entities for torts committed by their employees but grants
immunity under the specific circumstances enumerated in Indiana Code
section 34-13-3-3. Peavler v. Monroe County Bd. of Comm’rs, 528 N.E.2d 40,
42 (Ind. 1988). Whether a governmental entity is immune from liability
under the ITCA is a question of law for the court to decide. Gibson v.
Evansville Vanderburgh Bldg. Comm’n, 725 N.E.2d 949, 952 (Ind. Ct. App.
2000), trans. denied. Because the ITCA is in derogation of the common law,
we construe it narrowly against the grant of immunity. Greater Hammond
Cmty. Servs., Inc. v. Mutka, 735 N.E.2d 780, 781 (Ind. 2000). The party
seeking immunity bears the burden of establishing that its conduct comes
within the ITCA. Peavler, 528 N.E.2d at 46.
DNR asserts that it is immune from liability in this case under
subsection nine of the ITCA which dictates: “A governmental entity or an
employee acting within the scope of the employee’s employment is not liable
if a loss results from: . . . the act or omission of anyone other than the
governmental entity or the governmental entity’s employee.” Ind. Code § 34-
13-3-3(9). Relying on Spier v. City of Plymouth, 593 N.E.2d 1255 (Ind. Ct.
App. 1992), DNR argues that it is immune under this subsection because “the
proximate cause of Matthew’s injuries” is the act of Matthew’s father in
“leaving live ammunition accessible to his son while he was at work.” Br.
of Appellee at 8.
We addressed subsection nine immunity in Hinshaw v. Board of
Commissioners of Jay County, 611 N.E.2d 637 (Ind. 1993), and specifically
rejected the rationale in Spier that subsection nine confers immunity to
governmental entities and employees when an unforeseeable act of a third
party is an intervening, proximate cause of the injury. Id. at 638. In
determining when governmental entities and employees may seek immunity
under subsection nine, we observed that “[t]he law has long recognized a
number of circumstances in which tort liability may be vicariously imposed
upon persons for the conduct of agents who are not employees or subject to
any right of control by the employer.” Id. at 640 (collecting cases).
Therefore, we narrowly construed subsection nine immunity, finding that it
only applies in “actions seeking to impose vicarious liability[2] by reason
of conduct of third parties” other than government employees acting within
the scope of their employment. Id. “Under such circumstances, the alleged
basis of governmental entity liability is the act or omission of a third
person not within the scope of employment as a government employee.” Id.

In this case Matthew is not seeking to impose vicarious liability on
DNR by reason of conduct of a third party “other than [a] government
employee acting within the scope of the employee’s employment.” Id.
Rather, Matthew’s complaint is founded upon the acts of the officer acting
within the scope of his employment for DNR. Therefore, the trial court’s
grant of summary judgment in favor of DNR cannot be sustained on the ground
that DNR is immune under subsection nine of the ITCA.

III. Contributory Negligence

Although summary judgment in favor of School cannot be sustained on
the ground that School owed Matthew no duty; and summary judgment in favor
of DNR cannot be sustained on the ground of immunity under the ITCA;
according to a majority of this Court, Matthew still is entitled to no
relief because of his own contributory negligence. This view is expressed
in the separate opinion of Chief Justice Shepard.
However, I take a different view. Contributory negligence is generally
a question of fact for the jury and as such is not an appropriate matter
for summary judgment. Butler v. City of Peru, 733 N.E.2d 912, 917 (Ind.
2000). Contributory negligence becomes a question of law for the court
where the facts are undisputed and only a single inference can reasonably
be drawn from those facts. Jones v. Gleim, 468 N.E.2d 205, 207 (Ind.
1984); see also St. John Town Bd. v. Lambert, 725 N.E.2d 507, 516 (Ind. Ct.
App. 2000).
In this jurisdiction children under the age of seven are conclusively
presumed to be incapable of contributory negligence; children between the
ages of seven and fourteen are rebuttably presumed to be incapable of
contributory negligence; and absent special circumstances, children over
the age of fourteen are chargeable with exercising the standard of care of
an adult. Creasy v. Rusk, 730 N.E.2d 659, 662 (Ind. 2000). Children
between the ages of seven and fourteen are required to exercise due care
for their own safety under the circumstances of a child of like age,
knowledge, judgment, and experience. Id.
The record shows that at the time of his injury Matthew was twelve
years old. As such, he is presumed to be incapable of contributory
negligence, although the presumption may be rebutted. Here, the officer
told the students that when the firing pin strikes the primer, the primer
“sparks” setting fire to the powder. When Matthew struck the firing pin
with a hammer and chisel, the shell exploded. Considering the standard to
which Matthew is held and the presumption attached to his conduct, I am
unprepared to say that as a matter of law Matthew was contributorily
negligent. It appears to me that such a determination should be made by a
jury as fact finder and should not be disposed of by summary disposition.
See, e.g., Brockmeyer v. Ft. Wayne Pub. Transp. Corp., 614 N.E.2d 605, 607
(Ind. Ct. App. 1993) (holding that the trial court erred in concluding that
a thirteen-year-old child who only paused at the centerline of a busy
street before crossing was contributorily negligent as a matter of law),
trans. denied; Maldonado v. Gill, 502 N.E.2d 1371, 1373 (Ind. Ct. App.
1987) (finding issue of contributory negligence of an eight-year-old child
who crossed in the middle of the street without yielding to traffic was a
question of fact for the jury), trans. denied. Accordingly, contrary to
the conclusion of the majority, I would reverse the grant of summary
judgment in favor of both School and DNR and remand this cause to the trial
court for further proceedings.
Conclusion
We hold that on a complaint for negligence, the common law duty of
care that a school owes its students is not dependent upon whether an
injury a student suffers occurs on school property. We also hold that
subsection nine of the Indiana Tort Claims Act provides immunity to
governmental entities only under very narrow circumstances. The judgment
of the trial court is hereby affirmed.
DICKSON, J., concurs.

SHEPARD, C.J., with whom SULLIVAN and BOEHM, JJ., join, concurs in Parts I
and II and delivers an opinion for the Court on Part III.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
INDIANA DEPARTMENT OF
Gary K. Kemper NATURAL RESOURCES:
Madison, Indiana
Jeffrey A. Modisett
Attorney General of Indiana

J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
SWITZERLAND COUNTY SCHOOL
CORPORATION:

Danford R. Due
Leslie A. Behrman
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

MATTHEW MANGOLD, a minor by his )
next friend, MICHAEL MANGOLD, )
)
Appellant (Plaintiff Below), ) 78S01-0110-CV-479
) in the Supreme Court
v. )
) 78A01-9903-CV-88
INDIANA DEPARTMENT OF NATURAL ) in the Court of Appeals
RESOURCES and SWITZERLAND COUNTY )
SCHOOL CORPORATION, )
)
Appellees (Defendants Below). )

APPEAL FROM THE SWITZERLAND CIRCUIT COURT
The Honorable Carl H. Taul, Judge
Cause No. 78C01-9801-CT-002

October 25, 2001

SHEPARD, Chief Justice.

All five Justices join Justice Rucker’s explication of the law on
governmental immunity as it applies to this case. The trial court and the
court of appeals wrongly held that the school and the Department of Natural
Resources were immune.

The trial court was correct, however, to grant summary judgment for
the defendants. This is not a case brought under Indiana’s Comparative
Fault Act, of course, because that Act does not apply to tort claims
against government entities. Ind. Code § 34-51-2-2. Instead, this case is
governed by the common law, under which even the slightest contributory
negligence by a plaintiff bars recovery. Sauders v. County of Steuben, 693
N.E.2d 16 (Ind. 1998).

Thus, to grant summary judgment to the defendants, the trial court
need only have been satisfied that a twelve-year-old who smashed live
ammunition with a hammer and chisel in the face of his recent firearm
safety instruction was minimally negligent as a matter of law. It was not
error for the court to reach that conclusion.

Sullivan and Boehm, JJ., concur.
-----------------------
[1] For example, in this case Matthew asserted, among other things,
that School “had a duty . . . to provide age appropriate curriculum to the
students and to teach that curriculum in an appropriate fashion.”
Br. of Appellant at 12. He cites no authority in support of this
articulation of School’s duty. And because this Court has already declared
the nature of the duty a school owes its students, it is unnecessary to
engage in the three-part Webb test to determine if the school has some
other additional duty. See Webb, 575 N.E.2d at 995 (declaring that in
defining duty, a court must balance: (1) the relationship between the
parties; (2) the reasonable foreseeability of harm to the person injured;
and (3) public policy concerns).

[2] See Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 147 (Ind. 1999)
(defining “vicarious liability” as “indirect legal responsibility” and
noting that it is a legal fiction by which a court can hold a party legally
responsible for the negligence of another, not because the party did
anything wrong but rather because of the party’s relationship to the
wrongdoer).