concurring in result.
I fully concur with affirming the summary judgment in favor of James Collins. However, while I agree with the results reached as to the others, I do have concerns about the applicable law.
In determining whether a duty exists in a negligence action based on misfeasance, clearly, the proper balancing test to use is found in Webb v. Jarvis (1991), Ind., 575 N.E.2d 992, reh'g denied: (1) the relationship between the plaintiff and defendant; (2) foreseeability of harm to the plaintiff; and (8) public policy concerns. However, this case concerns the nonfeasance of the defendants. As stated in the majority opinion:
[Wlhen a defendant's alleged negligence arises from nonfeasance, ... as opposed to misfeasance, ... then the duty to act must arise from a special relationship between the parties Lather v. Berg (1988), Ind.App., 519 N.E.2d 755, reh'g denied. Absent a special relationship between a plaintiff and a defendant, we will not impose a duty on the defendant to take affirmative steps to prevent harm to the plaintiff. Ember v. B.F.D., Inc. (1986), Ind.App., 490 N.E.2d 764, modified and reh'g denied, 521 N.E.2d 981, trans. denied.
(At 809; my emphasis). I do not agree onee it is determined a special relationship does not exist, that we must continue analyzing the other factors in the Webb test to determine whether a duty exists. As stated in Lather, where the negligence action is for nonfeasance, absent a special relationship, no duty, and therefore no liability, will attach. 519 N.E.2d 755. That ends our inquiry as to each of the defendants, except Francis. If the fact-finder determines that Francis did have a special relationship with J.W., then the remaining factors of the Webb test are appropriately balanced with the presence of a special relationship to determine whether a duty should be imposed.