Metropolitan Sch. Dist. of Martinsville v. Jackson, No. 55A01-1304-CT-182 (Ind. App. Ct. May 19, 2014)
Abstract: An Indiana Court of Appeals three-judge panel has upheld the trial court’s ruling denying the school district’s motion for summary judgment. The panel concluded the district was not entitled to immunity from the suit under the Indiana Tort Claims Act (ITCA) because the actions alleged to form the basis of the negligence claims were not discretionary functions. It also rejected the school district’s contention that the plaintiffs had failed to allege sufficient facts to raise a material question of fact for the jury on the issue of breach of duty. Lastly, the panel rejected the district’s assertion that one of the plaintiff’s negligence claims was barred by the affirmative defense of contributory negligence as a matter of law. Instead, it found that the question of contributory negligence was best left to a jury to decide.
Facts/Issues: During his four years at Martinsville West Middle School (MWMS) Michael Phelps accumulated 50 discipline referrals, seven of which involved harassing, threatening, and physically assaulting other students. After threatening to blow up the school, Phelps was suspended from school and banned from being on school grounds except to take an annual standardized test. MWMS Principal Suzie Lipps also initiated expulsion proceedings against Phelps. However, before Phelps was expelled, and about a week before the shooting, his mother withdrew him from school.
Phelps and C.J. had a number of verbal altercations, one of which was overheard by a teacher. C.J.’s girlfriend, A.M., claimed that she told two MWMS teachers that Phelps had threatened C.J., but the teachers did not report Phelps’ threats to the school administration. She also said that Phelps’ girlfriend, N.A., told her that Phelps had again threatened C.J. On the morning of the shooting, Phelps managed to avoid detection from the school surveillance cameras and entered MWMS. None of the school employees monitoring the entrances recognized him.
Shortly before Phelps approached C.J., N.A. warned C.J. that Phelps was on campus and planned to “kick [C.J.’s] ass.” C.J.’s mother told him via text message to go to the school’s office. However, C.J. remained in the school’s vestibule because he wanted to show Phelps that he was not afraid of him and because he didn’t believe that Phelps would actually assault him. Another MWMS student, B.K., and two other students also remained in the vestibule with C.J. Phelps then entered the vestibule and shot C.J twice in the stomach. The ejected shell casings from the bullets hit B.K., injuring his hand.
The State subsequently charged Phelps with attempted murder, aggravated battery, carrying a handgun without a license on school property, trespassing on school property, possession of a firearm on school property, and theft. The State later dismissed all counts except for the attempted murder count. The juvenile court waived jurisdiction and, following a bench trial, Phelps was found guilty of attempted murder. He was sentenced to thirty-five years executed in the Department of Correction, with five years suspended and five years of probation.
Following Phelps’ conviction, C.J. and his mother filed suit against the Metropolitan School District of Martinsville (MSDM) claiming the district had negligently failed to protect C.J. from Phelps. Specifically, C.J. argued that the School District was negligent when it left Door 2 unlocked, allowing Phelps to enter the school; when it failed to warn personnel monitors that Phelps posed a threat and to instruct them to specifically look for Phelps on school grounds after he was suspended; and when it failed to instruct personnel monitors to call 911 if Phelps was spotted on school property.
B.K. and his mother subsequently filed a similar lawsuit. The trial court consolidated C.J. and B.K.’s complaints. MSDM filed a motion for summary judgment, arguing that it was immune from liability pursuant to the ITCA, that C.J. was contributorily negligent, and that it did not breach its duty to protect C.J. and B.K. The trial court denied MSDM’s motion. MSDM appealed.
Ruling/Rationale: Indiana Court of Appeals panel affirmed the trial court’s decision. The appellate panel began by analyzing MSDM’s argument that it was entitled to immunity under the ITCA because “the challenged actions involve the performance of a discretionary function.” It noted that at one time, Indiana courts “distinguished between ministerial and discretionary acts in order to determine if certain conduct is included within the immunity exception,” but the Indiana Supreme Court’s decision in Peavler v. Bd. of Comm’rs of Monroe Cnty., 528 N.E.2d 40, 46 (Ind. 1988), rejected the ministerial/discretionary distinction analysis. Instead, the supreme court “concluded unless they can be properly characterized as policy decisions that have resulted from a conscious balancing of risks and benefits and/or weighing of priorities, discretionary judgments are not immune from legal challenge under the ITCA.”
The planning/operational test defines planning activities as those that “include acts or omissions in the exercise of a legislative, judicial, executive or planning function which involves formulation of basic policy decisions characterized by official judgment or discretion in weighing alternatives and choosing public policy” as well as “[g]overnment decisions about policy formation which involve assessment of competing priorities and a weighing of budgetary considerations or the allocation of scarce resources are also planning activities.” According to the appellate court: “Under Peavler, then, the discretionary function exception of the ITCA insulates from liability only planning activity, characterized as only those significant policy and political decisions which cannot be assessed by customary tort standards and as the exercise of political power which is held accountable only to the Constitution or the political process.”
The Court of Appeals rejected MSDM’s contention that decisions made by MWMS’ principal with respect to the school’s safety plan are “quintessential discretionary functions.” It also found unconvincing the cases from other jurisdictions cited by MSDM that concluded a school’s safety and security decisions are discretionary functions which are immune from liability.
The appellate court first pointed out that the plaintiffs were claiming the injuries injury resulted from “negligent implementation of the plan,” rather than negligent formulation of the plan. It emphasized that “under the Peavler planning-operational test, decisions involving formulation of basic policy are entitled to immunity while decisions regarding only execution or implementation of that policy are not.” In addition, the Court of Appeals noted that “even if C.J. did allege negligent formulation of the safety plan, MWMS’s safety plan was not created in a way that would entitle the School District to immunity.”
While acknowledging MWMS’ principal has authority to create regulations governing student conduct, the principal “is not a public official, and her role is not that of policymaker.” It pointed out that “Indiana Code Article 20 indicates that a school principal’s role is mostly administrative, while the responsibility for creating policy lies with the school board.” It also cited Harless by Harless v. Darr, 937 F. Supp. 1339, 1349 (S.D. Ind. 1996), which held that “the school board and not the Principal . . . has final policy making authority under Indiana law.”
The Court of Appeals concluded: “Under our reading of Indiana case law, Indiana statutes, and the evidence before us, Principal Lipps’s safety plan does not entitle the School District to discretionary function immunity under the Indiana Tort Claims Act and the Peavler planning/operation test.”
The appellate court next turned to MSDM’s argument that MWMS officials “exercised reasonable care for the protection of its students and that it was not foreseeable to the School that [Phelps] would trespass onto school property the morning” of the incident and shoot C.J. It stated: “It is well settled that summary judgment is especially inappropriate where the critical question for resolution is whether a defendant exercised the requisite degree of care under the factual circumstances.” Based on the record, the Court of Appeals concluded “that there exist genuine issues of material fact on this issue and that the School District has not proved as a matter of law that the shooting was not foreseeable.”
In regard to the implementation of the safety plan, the Court of Appeals found that because there is “the unresolved question of whether the shooting was foreseeable, it follows that there remains this question: if the School District knew or should have known that Phelps posed a threat to C.J.’s safety, should it have taken more steps to protect C.J. from Phelps?” It concluded that “reasonable persons could differ as to whether there is a sufficient relationship between the School District’s general duty to supervise and protect its students and its alleged failure to take adequate measures to protect C.J. from Phelps.” As a result, the appellate court found that the issue of whether there was a breach of duty on the part of MWMS officials was best left to a jury.
Finally, the Court of Appeals tackled the issue of whether C.J.’s alleged contributory negligence barred his suit against MSDM. While acknowledging that the state legislature had adopted a comparative negligence scheme, which eliminated the contributory negligence defense as an absolute bar, it pointed out that the legislature had specifically provided that the new comparative fault scheme would not apply to governmental entities. As a result, a government could still assert contributory negligence as an absolute bar to recovery in a negligence suit.
However, the Court of Appeals pointed out that in order for the defense to succeed at the pretrial stage, “the evidence would have had to overwhelmingly establish, and without grounds upon which reasonable men may disagree, that C.J. was able to realize and appreciate the danger with which he was confronted.” The appellate court, as it had with the breach of duty issue, found the question of contributory negligence was one a jury should resolve because MSDM was arguing Phelps’ shooting of C.J. was unforeseeable to it, while at the same time asserting that C.J. should have foreseen that he would be vulnerable to a shooting when he decided to remain in the vestibule in which Phelps confronted C.J.
Metropolitan Sch. Dist. of Martinsville v. Jackson, No. 55A01-1304-CT-182 (Ind. App. Ct. May 19, 2014)
[Editor's Note: COSA member Thomas E. Wheeler II of Frost Brown Todd LLC , Indianapolis, IN, argued the case on behalf of MSDM.
In May 2014, Legal Clips summarized a decision of an Illinois Court of Appeals in Malinski v. Grayslake Cmty. High Sch. Dist., which held that a school district was entitled to immunity under the state’s Tort Immunity Act (TIA) from a lawsuit alleging that the district failed to provide a safe environment from peer bullying. Under the TIA, school districts are immune from damages caused by an employee’s discretionary–as opposed to ministerial–acts. The court, applying Illinois precedent, rejected the student’s contention that the school’s application of a bullying policy in a specific circumstance is ministerial in nature. It concluded instead that the manner in which school officials respond to a bullying incident is discretionary and the school district is shielded from liability under the TIA, unless the bullying policy mandates a particular response.]