Conner v. State

OPINION

HOFFMAN, Senior Judge

Plaintiffs-Appellants Kim L. Conner and Elizabeth Conner (“the Conners”) ap--peal the trial court’s order granting summary judgment in favor of Defendants-Appellees the State of Indiana and the Indiana Department of Natural Resources (collectively, “the State”). We affirm.

The Conners raise a single issue for our review, which we restate as: whether the trial court erred in determining, as a matter of law, that the State did not owe a private duty to the Conners.

The facts most favorable to the nonmov-ants indicate that on May 28, 1995, the Conners visited the Chain-O-Lakes State Park, where they used a set of playground equipment located near the park’s beach. Kim Conner began using a swing, the seat of which was constructed of reinforced rubber and secured with metal rivets. As Conner was swinging, the rubber portion of the swing’s seat pulled away from the rivets, causing Conner to fall and suffer personal injuries.

On May 7, 1997, Kim Conner filed a complaint against the State asserting a claim for his injuries. Elizabeth Conner joined as a plaintiff asserting a claim for loss of consortium. The State thereafter filed a Motion for Summary Judgment alleging that no private duty was owed to the Conners. After considering the submissions of the parties, the trial court entered findings and conclusions granting the State’s motion.¹ (R. 183-89). This appeal ensued.

When reviewing a grant or denial of summary judgment, our well-settled standard of review is the same as it was for the trial court: whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Shell Oil Co. v. Lovold Co., 705 N.E.2d 981, 983-84 (Ind.1998). We must consider the pleadings and evidence sanctioned by Ind. Trial Rule 56(C) without deciding their weight or credibility. Summary judgment should be granted only if such evidence shows that there is no genuine issue of material fact and that judgment is warranted as a matter of law. Hanson v. Saint Luke’s United Methodist Church, 704 N.E.2d 1020, 1022 (Ind.1998). Although the nonmoving party has the burden of demonstrating that the grant of summary judgment was erroneous, we carefully assess the trial court’s decision to ensure that the nonmovant was not denied his day in court. Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 667 (Ind.1997). Summary judgment is rarely appropriate in negligence actions; however, summary judgment may be suitable to determine the legal question of whether a duty exists. Ashcraft v. Northeast Sullivan County Sch. Corp., 706 N.E.2d 1101, 1103 (Ind.Ct.App.1999).

The Conners contend that the trial court erred in granting summary judgment in favor of the State. According to the Con-ners, the State’s provision of playground equipment for the public’s use imposed a duty upon the State to affirmatively inspect and maintain it. Thus, the argument continues, the State’s failure to maintain the playground facilities in a reasonably safe condition amounts to an affirmative act of negligence, giving rise to the breach of a private duty owed to the Conners.

The existence of a duty is a question of law for the court. Ashcraft, 706 N.E.2d at 1103. In determining whether a duty exists, we balance three factors: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy concerns. Id. at 1103-04; Indiana State Police v. Don’s Guns & Galleries, 674 N.E.2d 565, 568 (Ind.Ct.App.1996), trans. denied. However, a plaintiff seeking to recover against a governmental entity for negligence must show more than a duty owed to the public at large. Aldridge v. Department of Natural Resources, 694 N.E.2d 313, 316 (Ind.Ct.App.1998), trans. denied. Rather, liability of a governmental entity will not be found unless the relationship between the parties is one that gives rise to a special or private duty owed to the particular plaintiff. Id.; Kantz v. Elkhart County Highway Dep’t, 701 N.E.2d 608, 611 (Ind.Ct.App.1998), trans. denied (quoting Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 283 (Ind.1994)). In Mullin, our supreme court articulated a three-part test for determining whether an otherwise public duty is converted into a private duty due to a special relationship between the parties. Mullin, 639 N.E.2d at 284. The test establishes the following elements as prerequisites for imposing a private duty on governmental defendants:

(1) an explicit assurance by the municipality, through promises or actions, that it would act on behalf of an injured party;

(2) knowledge on the part of the municipality that inaction could lead to harm; and

(3) justifiable and detrimental reliance by the injured party on the municipality’s affirmative undertaking.

Mullin, 639 N.E.2d at 284.

The Mullin test does not apply where the plaintiff alleges that the governmental entity engaged in an affirmative act of negligence. Henshilwood v. Hendricks County, 653 N.E.2d 1062, 1067 (Ind.Ct.App.1995), trans. denied. The test applies only in determining whether a duty is owed based upon a governmental entity’s alleged failure to act. Id.

In their complaint, the Conners alleged that the State was negligent in that it (1) failed to inspect the swing for broken or damaged parts; (2) failed to repair or replace the swing; and (3) failed to warn the Conners of the swing’s dangerous and unsafe condition. All of these counts allege failures to act and not affirmative negligence. See McCormick v. State, Department of Natural Resources, 673 N.E.2d 829, 838 (Ind.Ct.App.1996); Plummer v. Bd. of Commissioners of St. Joseph County, 653 N.E.2d 519, 522-23 (Ind.Ct.App.1995), trans. denied. The Mullin test is clearly applicable, and the record is devoid of any designated evidence that establishes an explicit assurance by the State, through promises or actions, that it would act on behalf of the Conners. Accordingly, as a matter of law, the Conners faded to establish the existence of a private duty.

The trial court properly entered summary judgment on the basis of the Mullin test.

Affirmed.

GARRARD, J., concurs. BAILEY, J., dissents with separate opinion.

1 . Specific findings and conclusions are not required in the summary judgment context, and although they offer valuable insight into the trial court's rationale for its judgment and facilitate our review, they are not binding on this court. Jones v. Western Reserve Group, 699 N.E.2d 711, 714 (Ind.Ct.App.1998), trans. denied.