dissenting.
I respectfully dissent. In order for Antich to prevail we must consider the evidence using a two-part analysis: (1) does a public or private duty exist between the City of Gary and Antich; and (2) if a private duty exists, is it covered under the Tort Claims Act, Ind.Code § 34-4-16.5-3(18).
The existence of a duty is a question of law for the court. Benthall v. City of Evansville, 674 N.E.2d 580, 583 (Ind.Ct.App.1996), trans. denied, 683 N.E.2d 593. The court balances three factors in determining whether a duty exists: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy concerns. Indiana State Police v. Don’s Guns & Galleries, 674 N.E.2d 565, 568 (Ind.Ct.App.1996), trans. denied, 683 N.E.2d 592. However, a plaintiff seeking to recover against a governmental entity for negligence must show more than a duty owed to “the public as a whole.” Id. (citing Greathouse v. Armstrong, 616 N.E.2d 364, 368 (Ind.1993)). The plaintiff must show that his or her relationship with the governmental entity is one which gives rise to a private duty owed to a particular plaintiff. Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 283 (Ind.1994).
In Mullin, the Indiana Supreme Court established the following elements necessary for the imposition of a private duty on a governmental defendant: “... (1) an explicit assurance by the municipality, through promises or action, that it would act on behalf of the injured party; (2) knowledge on the part of the municipality that an action could lead to harm; and (3) justifiable and detrimental reliance by the injured party on the municipality’s affirmative undertaking.” Id. at 284. In Mullin, the supreme court held that when a “... 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 governmental at all.” Id. at 284-85.
In the case of City of Gary v. Odie, 638 N.E.2d 1326 (Ind.Ct.App.1994), Katie Odie called the 911 emergency number four times and told the dispatcher that her husband was experiencing trouble breathing. The dispatcher knew that inaction could lead to harm. Each of the calls were answered by giving assurance to Odie that an ambulance was on its way. Thus, Odie was lulled into inaction by these continued assurances which deprived her of seeking alternative assistance. We held that a special duty was established between Odie and the City of Gary.
The facts in Antich are chillingly similar. There were four requests for emergency assistance and the agents and/or employees of *267the City of Gary responded to the emergency requests for assistance by repeatedly assuring the callers that an ambulance had been called. Antieh detrimentally relied on their assurances. Thus, a private duty existed between Antieh and the City of Gary. I would affirm the judgment of the trial court that finds a private duty.
Under the second prong of the analysis it must be determined whether such private duty is covered under the Indiana Tort Claims Act. Governmental entities and their employees are subject to liability for torts committed by them, unless the activity giving rise to the tort falls within one of the exceptions enumerated in the Act. Peavler v. Monroe County Bd. of Comm’rs, 528 N.E.2d 40, 42 (Ind.1988). Section 3(18) of the Act, pursuant to which the City of Gary seeks immunity, provides:
A governmental entity or an employee acting within the scope of the employee’s employment is not liable if a loss results from:
(18) the development, adoption, implementation, operation, maintenance, or use of an enhanced emergency communication system.
The act of calling and/or dispatching an ambulance does not necessarily relate to the operation and/or use of an enhanced emergency communication system. The habitual and customary operation and/or use of the 911 system would exclude the negligent abuse of the system by failing to serve the purpose of the system which was to provide emergency service. In this case, it is the failure to dispatch an ambulance after receiving four calls and assuring the parties, to their detriment, that an ambulance is on the way that is not covered by the statute.
In Hinshaw v. Board of Commissioners of Jay County, 611 N.E.2d 637 (Ind.1993), the supreme court interpreted the phrase “... if a loss results from ...” as it is used in Ind.Code § 34-4-16.5-3:
The introductory phrase ‘if a loss results from’ does not mean ‘if a loss also results from....’ In view of the absence of express declaration or unmistakable implication in the statute, we find that immunity is not conferred when the circumstances designated in the subsections do not encompass or directly relate to the specific government conduct for which liability is sought to be imposed.
Id. at 640.
If immunity is allowed in this ease, each time a call is made to an enhanced emergency communication system, no matter how egregious the conduct, the government would be immune. I cannot believe that the legislature intended this result.
I would affirm the decision of the trial court and deny the City of Gary’s motion for summary judgment.