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by: Colin E. Flora
Unfortunately, this is not the first time we’ve discussed tragedy relating to a student during school hours and a resulting claim against the school. Today’s discussion looks to the recent decision from the Court of Appeals of Indiana in Murray v. Indianapolis Public Schools. After thorough analysis, a divided panel of the appellate court ruled that the case against Indianapolis Public Schools (“IPS”) for the death of one of its students while the student should have been in class may proceed to trial.
Other Notable Cases This Week
Before we jump into the details of the Murray decision, there are two other cases, this week, from Indiana’s appellate courts meriting note. The first is Denson v. Estate of Dillard, in which a passenger in a car was severely injured when the driver of the car suffered a heart attack and lost control of the vehicle. The driver was killed in the resulting wreck. The passenger brought a claim against the estate of the deceased driver, for the purpose of obtaining the driver’s insurance benefits, and against her own insurer to recoup underinsured motorist coverage. The court declined to adopt a specific “‘sudden medical emergency’ or ‘sudden loss of consciousness’ affirmative defense that has been adopted in several jurisdictions and provides that a sudden loss of consciousness while driving is a complete defense to an action based in negligence if such medical emergency or loss of consciousness was not foreseeable.” Instead, the court thought the matter resolvable under general principles of negligence.
The court turned to guidance from the Restatement (Second) of Torts § 283:
Section 283(C) of the Restatement explains that if “the actor is ill or otherwise physically disabled, the standard of conduct to which he [or she] must conform to avoid being negligent is that of a reasonable [person] under like disability.” In other words, a person under a temporary or permanent disability “may be required, under particular circumstances, to take more precautions than one who is not so disabled, while under other circumstances he may be required to take less.”Thus, “an automobile driver who suddenly and quite unexpectedly suffers a heart attack does not become negligent when he loses control of his car and drives it in a manner which would otherwise be unreasonable; but one who knows that he is subject to such attacks may be negligent for driving at all.”
The only evidence of the driver’s “knowledge of peril . . . show[ed] that [he] suffered a prior heart attack on October 5 or 6, 2016, and was hospitalized. He was prescribed home health care upon his discharge from the hospital, but the recovery goals were met and he was completely released from home health care as of November 16, 2016, without any restriction placed on his driving.” “While [the Passenger] designated evidence that show[ed] that [the driver] was prescribed medication for his heart, and that his prior heart attack would have put him on notice that he suffered from coronary artery disease, this evidence d[id] not equate to knowledge of peril or create an inference that a reasonable man in [his] position would have altered his behavior regarding driving.” Accordingly, the court of appeals affirmed the entry of summary judgment in favor of the driver’s estate “[u]nder the narrow and specific circumstances presented” in the case.
The other case of note is unfortunately an unpublished decision, making it not citable. Still, it sheds light on an often-overlooked, vital aspect of Indiana premises-liability law. The case was Marquez v. Love. The issue there was a neighbor helping a homeowner mend a broken window, ultimately leading to the neighbor falling off the roof after encountering a soft spot on the roof. The often-overlooked legal principle is “that ‘a possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.’” Most overlook that the injured person knowing of the harm is not alone sufficient to relieve the property owner of liability, as illustrated by this case:
We conclude that the danger of the weak spot on the roof was known and obvious to both Marquez and Love. Marquez made his observation of the exposed trusses and divots known to Allen, and Allen agreed that it made for a weak spot in the roof. That said, we conclude that the designated evidence generates an issue of material fact as to whether Love should have anticipated that Marquez would be harmed despite his knowledge of and the obviousness of the weak spot. On the one hand, there is designated evidence that Marquez had some experience working on roofs and that he knew to step cautiously on the trusses while inspecting the roof as to avoid harm. This designated evidence could lead a reasonable fact-finder to conclude that Love anticipated the possible harm to Marquez, but Marquez was fully capable of protecting himself against the danger presented by the weak spot. On the other hand, there is designated evidence that Allen never took any steps to assist Marquez in protecting himself against the potential harm, despite the facts that Allen knew Marquez had drunk beer and was without any safety equipment. This designated evidence could lead a reasonable fact-finder to conclude that Love should have anticipated the possible harm to Marquez and that Love failed to take any measures to protect him from that harm.
Murray v. Indianapolis
The facts of the case are fairly straight forward. Jaylan Murray was a 16-year-old student enrolled in an IPS school. Jaylan had a troubled childhood and would often run away from home, but would still attend school. Jaylan’s father informed the school principal about Jaylan’s issues.
On January 25, 2016, Jaylan ran away from home. Although Marcus knew where Jaylan was, on January 29, 2016, Marcus reported Jaylan's absence to the police. Jaylan was murdered on the afternoon of February 3, 2016, and his body was discovered around 4:02 p.m. at the apartment complex across the street from Arlington. Little is known about the circumstances surrounding Jaylan’s murder. The police report merely indicated that Jaylan’s death was caused by a firearm, and was not gang-related.
Where the school comes into the mix is that “Jaylan had gone to [school] around 1:00 p.m. and had signed in at the front desk. After seeing some of his friends at school, he had left the premises without [the school]’s knowledge, without signing out, and presumably through an unlocked and unmonitored exit.” A claim was brought against the school and the trial court granted summary judgment to the school, finding that the school was both immune from suit in this circumstance and that Jaylan’s contributory negligence otherwise barred the claim.
The first issue on appeal was not whether immunity applied or whether contributory negligence could be found as a matter of law. Instead, the issue was whether the appeal had been waived because the estate did not file a response to the motion for summary judgment. The court ruled that the appeal was not waived:
We agree with the School that as a general rule, a party may not present an argument or issue to an appellate court unless the party raised that argument or issue to the trial court. This rule exists because trial courts have the authority to hear and weigh the evidence, to judge the credibility of witnesses, to apply the law to the facts found, and to decide questions raised by the parties. Appellate courts, on the other hand, have the authority to review questions of law and to judge the sufficiency of the evidence supporting a decision. However, with respect to summary judgment, Indiana Trial Rule 56(C) stipulates that “summary judgment shall not be granted as of course because the opposing party fails to offer opposing affidavits or evidence, but the [c]ourt shall make its determination from the evidentiary matter designated to the [c]ourt.” As such, the summary judgment practice differentiates from other motions because it obligates the trial court to consider the merits and the designated evidence regardless whether a response is filed. This distinction has been recognized for several decades and Indiana's precedents have promulgated that the party opposing summary judgment has no obligation to respond to the motion until the moving party satisfies its burden and shifts the evidentiary burden to the non-moving party. Accordingly, even where, as here, the motion for summary judgment is unopposed, the movant is not entitled to judgment until the trial court has established that there is no genuine issue of material fact on an element of the claim and that judgment in the party's favor is proper. Our supreme court affirmed this practice in Warner Trucking, Inc. v. Carolina Cas. Ins. Co., when it cautioned that “[a] party opposing summary judgment is not required to come forward with contrary evidence until the moving party demonstrates the absence of a genuine issue of material fact.” “In other words, summary judgment is awarded on the merits of the motion, not on technicalities.”
The court then turned to the issue of immunity under the Indiana Tort Claims Act (“ITCA”):
The ITCA is in derogation of the common law and we therefore construe it narrowly against the grant of immunity.The party seeking immunity has the burden of establishing its conduct comes within the provisions of the ITCA. “Whether a particular governmental act is immune is a question of law for the court to decide, although the question may require extensive factual development.” The ITCA expressly states that “[a] governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from [t]he adoption and enforcement of or failure to adopt or enforce . . . a policy[.]” In the absence of a definition of ‘policy’ under the Act, the School interprets the phrase as encompassing its statutorily derived power to formulate and implement an attendance policy under the General School Powers Act. Accordingly, recasting Appellants’ common law negligence claim as a challenge to the School’s failure to adopt an attendance policy that would detain Jaylan in the school building, the School is immune from any liability pursuant to the ITCA's provisions.
Without having to decide whether the ITCA’s reference to a policy encompasses the School’s broad interpretation of an attendance policy, we cannot agree with the School that Appellants’ claim is predicated upon the School’s failure to enforce attendance. The designated section of Appellants’ Complaint contends that “[t]he incident and death of [Jaylan] was the proximate result of the negligence of [the School], for failing to properly supervise and monitor their students during school hours.” At no point during these proceedings have Appellants claimed that Jaylan should been forced to attend class or made a complaint about his possible suspension or expulsion. Rather, they advance the argument that as the School was aware of his truancy and his status as a runaway, the school should have supervised him until he could be safely released to his parents or the authorities. Accordingly, as the thrust of Appellants’ argument focuses on Jaylan’s safety and not the School's power to expel, suspend, or formulate the requirements for a student's school attendance, the School's immunity from liability pursuant to ITCA is not applicable.
But just because immunity did not shield IPS did not mean that IPS could be held liable. So, the analysis turned to the underlying theory of liability: negligence. Notably, Indiana law has long recognized that schools owe a duty to supervise its students for the safety of the children under their control:
Accordingly, “[p]ublic schools in Indiana indisputably have a responsibility, albeit a basic one, towards their students. With respect to negligence, a public [ ] school has only one duty at common law—the duty to exercise ordinary and reasonable care.” Although this duty may be “ordinary,” it is nonetheless sensitive to context. Most obviously, the degree of care required is amplified when its objects are children, “whose characteristics make it likely that they may do somewhat unreasonable things,” and over whom the school exercises partial custodial care. There is no bright-line rule confining a school’s duty to events occurring on school grounds during school hours, though the particular circumstances of a student’s injury will bear on the factual questions of breach and causation.
Since it is the safety of a student, “not a more holistic measure of their well-being or educational fulfillment,” that lies at the heart of the common-law tort duty owed by schools, the facts appropriate for consideration are those tending to show the School’s negligence in face of a danger to Jaylan of which it was aware of should have been aware. Adolescents are more susceptible than other segments of the population to certain dangers, including substance abuse, auto accidents, and self-harm. Even though a school cannot be charged with an unlimited duty to guard against the possibility of a student’s injury, that calculus may well change, however, when the school has reason to know of a student’s heightened vulnerability.
Here, the school specifically knew of Jaylan’s frequency for being a runaway and that he had been reported missing. And, despite this knowledge, the school did not contact the parents or otherwise detain Jaylan when he arrived at school on the afternoon of February 3rd. That was sufficient to survive summary judgment.
That left only one remaining issue: whether Jaylan’s actions constituted contributory negligence, thereby barring his claim against the school. The court ruled that the question could not be resolved at summary judgment:
It is well established that a plaintiff is “contributorily negligent when his conduct falls below the standard to which he should conform for his own protection and safety.” Because “[n]egligence depends upon the lack of reasonable care that an ordinary person would exercise in like or similar circumstances,” “contributory negligence is the failure of a person to exercise for his own safety that degree of care and caution which an ordinary, reasonable, and prudent person in a similar situation would exercise.” Generally, contributory negligence is a fact for the jury. However, it may be a question of law appropriate for summary judgment “if the facts are undisputed and only a single inference can be drawn therefrom.”
Pointing to the designated evidence, the School contends that Jaylan was contributorily negligent to his own murder because he was engaged “in an illegal gun purchase on premises known for criminal activity.” As the School was unaware of Jaylan’s intentions, the School maintains that it could not have possibly anticipated the danger Jaylan faced when he left the building. On the other hand, Appellants point to conflicting evidence of Jaylan’s actions after he left the School’s premises and went to the apartments where he was killed.
* * * * *
Minors often engage in unwise behavior but those choices do not automatically make them contributorily negligent as a matter of law. While Jaylan’s decision to leave the School’s premises was ill-advised, in light of the conflicting designated evidence surrounding the reason for his truancy and his murder, it remains debatable whether Jaylan failed to exercise the same degree of care and caution which an ordinary, reasonable sixteen-year-old would exercise in a similar situation. Accordingly, as the record contains genuine issues of material fact to preclude summary judgment on the basis of contributory negligence, we reverse the trial court's judgment.
Astute readers may recognize that I mentioned at the start that the panel was divided. Typically, this is where I would discuss the merits of the dissent and which opinion I thought correct. But we do not have a dissenting opinion; instead, Judge Kirsch dissented without a separate opinion, leaving no further guidance for our discussion.
Join us again next time for further discussion of developments in the law.
Murray v. Indianapolis Pub. Schs., ---N.E.3d---, No. 18A-CT-1955, 2018 Ind. App. LEXIS 481, 2018 WL 6615191 (Ind. Ct. App. Dec. 18, 2018) (Riley, J.).
Denson v. Estate of Dillard, ---N.E.3d---, No. 18A-CT-1112, 2018 Ind. App. LEXIS 482 (Ind. Ct. App. Dec. 18, 2018) (Crone, J.).
Marquez v. Love, No. 18A-CT-1143, 2018 Ind. App. Unpub. LEXIS 1507,2018 WL 6615577 (Ind. Ct. App. Dec. 18, 2018) (Bradford, J.) (unpublished).
Warner Trucking, Inc. v. Carolina Cas. Ins. Co., 686 N.E.2d 102 (Ind. 1997) (Dickson, J.).
Indiana Tort Claims Act, codified at Ind. Code §§ 34–13–3–1 et seq.
Colin E. Flora,Indiana Court Examines Discretionary Function Immunity After Middle School Shooting Case, Hoosier Litig. Blog(May 23, 2014).
*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.