	  
FOR PUBLICATION                                         May 19 2014, 9:13 am




ATTORNEY FOR APPELLANT:                           ATTORNEY FOR APPELLEE:
THOMAS E. WHEELER II                              THOMAS W. BLESSING
MAGGIE L. SMITH                                   Hollingsworth & Zivitz, P.C.
Frost Brown Todd LLC                              Carmel, Indiana
Indianapolis, Indiana
                                                  IAN THOMPSON
                                                  Frazier Law Firm
                                                  Indianapolis, Indiana



                            IN THE
                  COURT OF APPEALS OF INDIANA

M.S.D. OF MARTINSVILLE,                           )
                                                  )
      Appellant-Defendant,                        )
                                                  )
          vs.                                     )
                                                  )
REBECCA JACKSON, individually and                 )       No. 55A01-1304-CT-182
As parent and legal guardian of C.J. a            )
Minor, and KELLI DEARTH,                          )
Individually and as parent and legal              )
Guardian of B.K., a Minor,                        )
                                                  )
      Appellees-Plaintiffs.                       )

                   APPEAL FROM THE MORGAN SUPERIOR COURT
                           The Honorable G. Thomas Gray
                           Cause No. 55D01-1109-CT-1984


                                         May 19, 2014
                              OPINION – FOR PUBLICATION

MATHIAS, Judge
       After Martinsville West Middle School students C.J. and B.K. were injured during

a school shooting by former student Michael Phelps (“Phelps”), C.J. and B.K. each filed

lawsuits against the Metropolitan School District of Martinsville (“the School District”)

alleging that the School District breached its duty to keep C.J. and B.K. safe. The School

District filed a motion for summary judgment, which the trial court denied.

       The School District now appeals the denial of its motion for summary judgment

and argues (1) that it is immune from liability pursuant to the Indiana Tort Claims Act,

(2) that the School District did not breach its duty to C.J. and B.K., and (3) that C.J. was

contributorily negligent.

       We affirm.

                              Facts and Procedural History

       On March 25, 2011, C.J. was an eighth-grader at Martinsville West Middle School

(“MWMS”). C.J. and Phelps, who had also been an eighth-grader at MWMS, were once

friends, but their relationship had deteriorated during the preceding few years and had

grown particularly antagonistic in 2011 after they both began sporadically dating the

same girl, N.A. Phelps remained close with N.A. In the spring of 2011, C.J. allegedly

began to spread offensive rumors about N.A., which caused further hostility between C.J.

and Phelps. Although the boys had never had a physical altercation at school, Phelps

once tried to start a fight with C.J. on a local street after a school basketball game.




                                               2
          During the four years Phelps was enrolled at MWMS,1 he accumulated a total of

fifty discipline referrals, forty-three of which were for disrespect toward school personnel

or failure to follow school rules. Phelps also had seven discipline referrals for harassing,

threatening, and physically assaulting other students. On March 2, 2011, three weeks

before the shooting, Phelps commented to some of his classmates that he wanted to “just

blow up the school.” Appellant’s App. p. 712. After Phelps’s classmates reported his

remark, the school suspended Phelps for ten days. Phelps remained barred from entering

school property except to take the ISTEP test. Because of his overall disciplinary history,

the school’s principal, Suzie Lipps (“Principal Lipps”) also initiated expulsion

proceedings against Phelps.2 However, before Phelps was expelled, and about a week

before the shooting, his mother withdrew him from school.

          Two days after Phelps made his comment about blowing up the school, on March

4, 2011, while Phelps was on school property to take the ISTEP test, he had an argument

with C.J. about N.A. A MWMS teacher overheard the argument and told C.J. “not to

feed into it and to walk away.” Appellant’s App. p. 137. According to C.J., this is the

only conversation he had with any school personnel regarding his ongoing problems with

Phelps. Around the same time, about two weeks before the shooting, Phelps again

threatened C.J. after a school basketball game. C.J.’s girlfriend, A.M., testified that she


1
    Phelps repeated the sixth grade.
2
  Principal Lipps also notified Phelps’s probation officer of Phelps’s threat. Following a March 2010
incident where Phelps threatened another student, Phelps was adjudicated a delinquent and placed on
probation for six months. After Phelps threatened to “blow up” the school, Phelps’s probation officer
unsuccessfully sought to revoke Phelps’s probation.


                                                 3
told two MWMS teachers that Phelps had threatened C.J. According to A.M., those

teachers did not report Phelps’s threats to the school administration.

        A.M. also testified that seven days before the shooting, on the afternoon of March

18, 2011, N.A. and A.M. were riding the school bus together when A.M. heard N.A. tell

Phelps over the phone that C.J. had made fun of her again. Phelps apparently made yet

another threat against C.J. during this conversation. After ending the phone call with

Phelps, N.A. told A.M. that “[C.J.] is doomed.” Appellant’s App. p. 158. A.M. testified

that she later warned C.J. of Phelps’s threat and C.J. responded, “I’m a big boy.” Id.

Neither A.M. nor C.J. reported this threat to school personnel.

        On the morning of the shooting, March 25, 2011, Phelps’s Facebook status read

“[t]oday is the day” and “[d]on’t use your mind, use your nine.” Appellant’s App. pp.

562, 751. Phelps arrived at the school around 7:00 a.m. He was wearing a dark-colored

hooded sweatshirt with the hood pulled over his head and moved toward the building so

as to avoid detection.

        Principal Lipps had developed a safety plan for the school3 and the school’s three

surveillance cameras, positioned at three of the school entrances, were functioning

properly that morning. One of the school’s entrances was unlocked from 6:30 a.m. to

7:30 a.m.; two other entrances were unlocked from 7:10 a.m. to 7:30 a.m.; and the five

school employees who were assigned to various positions around the school’s exterior to

monitor student arrival were in place beginning at 7:00 a.m. All of the monitors knew

3
  The safety plan also provided for a school anti-bullying policy which requires that anyone who is a
victim or witness to bullying report the behavior to the school office. Principal Lipps is responsible for
investigating claims of bullying.
                                                    4
Phelps and were aware that he was prohibited from being on school property. None of

the monitors noticed Phelps when he arrived at the school, although several students did.

No students reported Phelps’s presence to school personnel, even though “everybody

knew” that he was banned from school property and even though the students saw that

Phelps carried in his back pocket what appeared to be a wrench covered in a cloth.

Appellant’s App. pp. 141, 252-53.

       Immediately before Phelps approached C.J. that morning, N.A. sought out C.J. in

the school’s vestibule and told him that Phelps had arrived at the school and planned to

“kick [C.J.’s] ass.”4 Appellant’s App. pp. 138-39. C.J. replied, “I don’t care.” Id. at 138.

C.J. then sent a text message to his mother to tell her that Phelps wanted to fight him.

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 entered the school’s vestibule and confronted C.J. around 7:15 a.m. He

threatened that C.J. “was about to get [expletive] up.” Appellant’s App. pp. 138-39, 497.

Phelps then left the vestibule, only to return a few minutes later. C.J. and B.K. were both

still in the vestibule when Phelps arrived. C.J. told Phelps that he did not wish to fight




4
  N.A. apparently knew that Phelps possessed a gun, and Phelps had stated to N.A. that he wanted to
shoot C.J., but N.A. did not warn C.J. that Phelps had a gun because she did not believe Phelps would
really use the gun to attack C.J.
                                                 5
and Phelps responded, “too bad,” pulled a stolen handgun5 from his waistband, and fired

two shots into C.J.’s stomach. The ejected shell casings from the bullets hit B.K.,

injuring his hand. After the shooting, Phelps fled the scene. C.J. was transported via

Lifeline to Methodist Hospital in Indianapolis.

          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 on July 11, 2011, 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.

          On September 20, 2011, approximately six months after the shooting, C.J. and his

mother, Rebecca Jackson sued the Martinsville Metropolitan School District, claiming

that the School District 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.

          Seven months later, on March 22, 2012, B.K.’s mother, Kelli Dearth (“Dearth”)

filed a similar lawsuit. The trial court consolidated C.J. and B.K.’s complaints. On

5
    Phelps apparently stole the handgun from the home of his former stepfather.
                                                     6
January 25, 2013, the School District filed its motion for summary judgment, arguing that

it was immune from liability pursuant to the Indiana Tort Claims Act, that C.J. was

contributorily negligent, and that the School District did not breach its duty to C.J. and

B.K. The parties filed briefs, and the trial court held a hearing on the motion on March 8,

2013. That same day, the trial court issued an order denying the School District’s motion

for summary judgment.

          The School District now appeals.6 7

                                            Standard of Review

          This case comes to us prior to trial, as a result of the trial court’s denial of the

School District’s motion for summary judgment. Our standard of review of summary

judgment appeals is well established:

          When reviewing a grant of summary judgment, our standard of review is
          the same as that of the trial court. Considering only those facts that the
          parties designated to the trial court, we must determine whether there is a
          “genuine issue as to any material fact” and whether “the moving party is
          entitled to a judgment as a matter of law.” In answering these questions,
          the reviewing court construes all factual inferences in the non-moving
          party’s favor and resolves all doubts as to the existence of a material issue
          against the moving party. The moving party bears the burden of making a
          prima facie showing that there are no genuine issues of material fact and
          that the movant is entitled to judgment as a matter of law; and once the
          movant satisfies the burden, the burden then shifts to the non-moving party
          to designate and produce evidence of facts showing the existence of a
          genuine issue of material fact.




6
    B.K. declined to file a separate appellate brief, but instead joined in C.J.’s appellee’s brief.
7
 We held oral argument in this appeal on April 26, 2014, at Taylor University in Upland, Indiana. We
extend our gratitude to the faculty, staff, and students for their hospitality and commend counsel for the
quality of their written and oral advocacy.
                                                         7
Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind. 2009)

(citations omitted).

       The party appealing a summary judgment decision has the burden of persuading

this court that the grant or denial of summary judgment was erroneous. Knoebel v. Clark

County Superior Court No. 1, 901 N.E.2d 529, 531-32 (Ind. Ct. App. 2009). Where the

facts are undisputed and the issue presented is a pure question of law, we review the

matter de novo. Crum v. City of Terre Haute ex rel. Dep’t of Redev., 812 N.E.2d 164,

166 (Ind. Ct. App. 2004).

       Importantly for this case, summary judgment is rarely appropriate in negligence

actions, since negligence cases are particularly fact sensitive and are governed by a

standard of the objective reasonable person. This standard is best applied by a jury after

hearing all of the evidence. See Kroger Co. v. Plonski, 930 N.E.2d 1 (Ind. 2010).

            I. Indiana Tort Claims Act Discretionary Function Immunity

       The School District argues that, because “the challenged actions involve the

performance of a discretionary function,” it is entitled to immunity under the Indiana Tort

Claims Act. Appellant’s Br. at 15. The Indiana Tort Claims Act (“ITCA”), Indiana Code

section 34-13-2-1 et seq., was enacted after our supreme court abrogated the common law

sovereign immunity of governmental units from tort liability. The ITCA governs tort

claims against governmental entities and public employees. Harrison v. Veolia Water

Indianapolis, LLC, 929 N.E.2d 247, 251 (Ind. Ct. App. 2010). Pursuant to the ITCA,

“governmental entities can be subjected to liability for tortious conduct unless the

conduct is within an immunity granted by Section 3 of [the] ITCA.” Oshinski v. N. Ind.

                                            8
Commuter Transp. Dist., 843 N.E.2d 536, 543-44 (Ind. Ct. App. 2006). The party

seeking immunity bears the burden of establishing that its conduct comes within the

ITCA. Peavler v. Bd. of Comm’rs of Monroe Cnty., 528 N.E.2d 40, 46 (Ind. 1988).

      The ITCA provides that a governmental entity or governmental employee who

acts within the scope of that employee’s duty will not be liable if a loss results from

“[t]he performance of a discretionary function[.]” Ind. Code § 34-13-3-3(7). The party

who seeks immunity bears the burden of establishing that its conduct falls within the

discretionary function exception.

      Prior to our supreme court’s decision in Peavler v. Bd. of Comm’rs of Monroe

Cnty., we distinguished between ministerial and discretionary acts in order to determine

if certain conduct is included within the immunity exception. Discretionary acts were

immune and ministerial acts were not. Harvey v. Bd. of Comm’rs of Wabash County,

416 N.E.2d 1296 (Ind. Ct. App. 1981).

      Historically, Indiana courts defined a ministerial act as “one which a person

performs in a given state of facts in a prescribed manner, in obedience to the mandate of

legal authority without regard to, or the exercise of, his own judgment upon the propriety

of the act being done.” Dep’t of Mental Health v. Allen, 427 N.E.2d 2, 4 (Ind. Ct. App.

1981). We classified conduct as discretionary “when it involves [discretion] on the part

of the officer to determine whether or not he should perform a certain act, and, if so, in

what particular way[.]” Adams v. Schneider, 71 Ind. App. 249, 124 N.E. 718, 720 (1919).

      However, in its 1988 decision, Peavler v. Bd. of Comm’rs of Monroe Cnty, our

supreme court expressly rejected the ministerial/discretionary distinction analysis,

                                            9
concluding that, 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.                In

rejecting the ministerial/discretionary distinction analysis, the supreme court observed

that:

        The ministerial/discretionary test does not advance the public policy of
        government immunity because it does not consider the type of decision
        protected by immunity. Rather, it considers only the resulting conduct and
        attempts to label that conduct. The ministerial/discretionary test defines
        “discretionary” in the negative: anything which is non-ministerial is
        discretionary. The test does not require an affirmative finding that the
        governmental action arose from the type of policy-making decision
        protected by governmental immunity.

Peavler, 528 N.E.2d at 45-46.

        The supreme court chose instead to adopt the planning/operational test, defining

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.” Id. at 45.

        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


                                             10
political process.” Id. at 45. The supreme court was unambiguous in its declaration that

it did not intend all decisions that involve “judgment or discernment” to be immune from

liability, since “[i]t would be difficult to conceive of any official act, no matter how

directly ministerial, that did not admit of some discretion in the manner of its

performance.” Id. at 43, 45. See also Veolia Water Indianapolis, LLC v. Nat’l Trust Ins.

Co., 3 N.E.3d 1 (Ind. 2014) (holding that the City’s failure to require for-profit water

company to follow terms of management agreement by properly maintaining water

supply to fire hydrants was not a discretionary function, and thus, statutory immunity

under the ITCA did not protect the city from liability for damages that resulted from a

fire that destroyed a restaurant when firefighters’ efforts were delayed due to a frozen fire

hydrant; the city made no deliberate policy decision to fail to require company to follow

the terms of a management agreement by properly maintaining fire hydrants’ water

supply, or make a conscious decision about policy formation which involved assessment

of competing priorities and a weighing of budgetary considerations or the allocation of

scarce resources).

       The School District contends that the safety plan implemented by Principal Lipps

and in place the morning of the shooting “resulted from a conscious balancing of risk and

benefits” and thus was entitled to immunity. Id. at 19. An affidavit by Principal Lipps

states, in relevant part:

       6. As the West Principal, I am responsible for all facets of West’s operation.
       I supervise staff, perform staff evaluations, oversee curriculum
       development and implementation and am responsible for overall student
       performance and achievement. In many respects, I am the Chief Executive
       Officer of West.

                                             11
7. Overseeing school operations so that students and staff have safe
learning and working environments is also part of my responsibilities as
Principal. Thus, I am responsible for the development of a plan for student
and staff safety at West.

8. West’s Code of Conduct for Students and Discipline Policy is an
important part of the safety environment at West. An excerpt from the
Student Planner setting forth these provisions is attached. The Anti-Bulling
[sic] Policy provides that that [sic] “anyone who is a victim of or a witness
to any type of hurtful or aggressive act to an individual student or group of
students should immediately report the incident to the office.”

9. A school safety plan must balance competing factors and resource
limitations that must be considered in providing a learning environment for
an educationally diverse student population. A school safety plan must
weigh the competing needs of providing a safe environment against the
obligation to creating [a] stimulating and open learning environment where
students have a reasonable degree of freedom and choices. Because of
financial limitations, which have become even more restrictive over the last
several years, school administrators throughout the State of Indiana and the
M.S.D. Martinsville must constantly prioritize all projects and programs
requiring funding to assure that a reasonable balance is struck between
educational programming and building security needs.

10. Providing a safe environment for staff and students requires a multi-
faceted approach. Prevention of acts of violence, while very important, is
not the only concern of a school safety plan. West is a public school and,
as such, it must accommodate the needs of students and visitors who, as a
practical matter, must have reasonable access [to] the building at various
times throughout the school day and at other times for after school activities
or other events.

11. With regard to building access, I, as principal, developed a plan that
was in place at the time of the shooting in this case and that considered
these factors. For example, the M.S.D Martinsville has a system for
numbering the exterior doors of each school to guide emergency personnel
to the appropriate part of the school in the event of a fire or medical
emergency. As Principal, I made certain that each entrance to West has a
unique number which is placed above the entrance consistent with the
district’s numbering system . . . .



                                     12
       12. Second, I developed a plan with the assistance of other staff that limited
       access to the school. All exterior doors . . . were generally locked during
       the day to prevent access to the building.

       13. Staff and students must have reasonable access to the building.
       Therefore, as part of the school safety plan, I determined that Doors 1, 2,
       and 3 needed to remain unlocked from 6:30 to 7:30 a.m. when students and
       staff generally arrived for the school day.

       14. To increase student and staff safety, especially during school arrival
       times when three of the doors are unlocked, I took other steps to reduce the
       chances of violent incidents. I had cameras installed at all exterior doors
       that were used by students to enter the building so as to record activity at
       those doors and to act as a deterrent to misconduct. By recording all
       activity at these entrances, I believed, based on my experience and training,
       that the likelihood of violence would be reduced because students and staff
       would know that their actions by these doors would be preserved for future
       disciplinary or criminal proceedings. I also determined that based upon the
       layout of the school building, financial resources, competing building needs,
       and the utility of additional cameras that the placement and number of
       cameras was sufficient to provide a safe school environment.

                                           ***

       17. I specifically considered how to place personnel during the mornings to
       monitor arrivals. One staff member was placed at a location where he or
       she could observe Door 2 as well as the front of the School….

       18. Before the shooting, I participated in regular meetings with the M.S.D.
       Martinsville’s leadership team and the district safety committee. A variety
       of school safety issues were discussed at these meetings. I, and the
       assistant principal, frequently re-evaluated West’s school safety plan in
       light of these meetings to determine what improvements or changes should
       be made to the security at West.

Appellant’s App. pp. 94-98 (internal citations omitted).

       The School District declares that the decisions made by Principal Lipps with

respect to MWMS’s safety plan are “quintessential discretionary functions” and argues,

“[t]he fact that Plaintiffs may disagree with the ultimate decisions the School made


                                            13
regarding its safety policy does not alter the underlying nature of the School’s decision in

the first place.” Id. at 21, 22.8

        To support its argument, the School District cites several cases from other

jurisdictions concluding that a school’s safety and security decisions are discretionary

functions which are immune from liability. In Mosley v. Portland School Dist., 843 P.2d

415 (Or. 1992), a high school student who was stabbed with a knife during a fight with

another student on school property brought a personal injury claim against the school

district and officials, alleging negligence in the school’s failure to properly supervise its

students, failure to provide adequate security for students, failure to prevent weapons

from being brought onto school grounds, and failure to end the fight before the knife was

used. The trial court entered judgment against the student. The Oregon Supreme Court

affirmed, observing that a “public body that owes a particular duty of care (such as that

owed by a school district to its students who are required to be on school premises during

school hours) has wide policy discretion in choosing the means by which to carry out that

duty.” Id. at 419.

        The School District also cites Randell v. Tulsa Independent School Dist., 889 P.2d

1264 (Ok. Ct. App. 1994), where a student sued the school district and the school’s

assistant principal for negligence. The plaintiff had been struck in the face after the

assistant principal broke up a fight between the plaintiff and three other students. In his


8
  Here, the School District cites Leo Mach. & Tool, Inc. v. Poe Volunteer Fire Dep’t, Inc., 936 N.E.2d
855, 862 (Ind. Ct. App. 2010) aff’d on reh’g, 940 N.E.2d 384 (Ind. Ct. App. 2011) (designated evidence
that a different course of action would have been better does not alter the immunity analysis as long as the
decision being challenged was in fact “undertaken after a conscious and informed risk/benefit analysis”).

                                                    14
complaint, the plaintiff argued that the school district failed to spend all of the money it

had available for security, that it did not have an adequate policy for breaking up crowds

or identifying student gang members, that it did not create or enforce policies to report

criminal acts of students to police, that it did not have security cameras, and that it failed

to act reasonably and prudently. The Court of Appeals of Oklahoma held that the

policies created by the school board regarding security were “discretionary acts for which

no liability can be imposed.” Id. at 1267.

       Next, the School District cites Kelly v. Lewis, 471 S.E.2d 583 (Ga. Ct. App. 1996),

where the estate of a high school student killed in a shooting sued the school’s principal

and one of its teachers, arguing that the defendants were aware of the risks of violent

crime against the students and failed to use ordinary care to protect the decedent, failed to

enforce the school’s security rules, and failed to provide adequate security. The Georgia

Court of Appeals affirmed the trial court’s judgment granting the defendants’ motion to

dismiss, noting that “‘making decisions requiring the means used to supervise school

children is a discretionary function of a school principal,’” and that “the teachers’ task to

monitor, supervise, and control students is a discretionary action protected by the doctrine

of official immunity.” Id. (quoting Guthrie v. Irons, 211 Ga. App. 502, 506, 439 S.E.2d

732 (1993)). It is important to note, however, that the Georgia court reached its decision

using the discretionary/ministerial act analysis expressly rejected by our supreme court in

Peavler.




                                             15
       Finally, the School District cites Pletan v. Gaines, 494 N.W.2d 38, 44 (Minn.

1992), where the Minnesota Supreme Court held that the school district’s district-wide

bus-boarding policy entitled the school district to discretionary function immunity.

       We first note that C.J.’s complaint does not allege that the MWMS safety plan was

negligently formulated.    Rather, it claims that C.J.’s injury resulted from negligent

implementation of the plan. See Greathouse v. Armstrong, 616 N.E.2d 364 (Ind. 1993)

(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). We further note 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 it to immunity.

       In its reply brief, the School District cites two repealed sections of the Indiana

Code which provided that “[p]rincipals have the authority to hire, transfer, suspend, lay

off, promote, discharge, and discipline school employees,” Ind. Code § 20-7.5-1-2(h)

(repealed in 2005), and that “[a] principal may take any action concerning the principal’s

school or a school activity within the principal’s jurisdiction that is reasonably necessary

to carry out or prevent interference with an educational function or school purposes.” Ind.

Code § 20-8.1-5.1-5 (repealed in 2005). The School District also quotes Beeching v.

Levee, 764 N.E.2d 669, 679 (Ind. Ct. App. 2002), where another panel of this court noted

that school principals “have the authority to write regulations governing student conduct”

and that “to the general public, a principal is perceived to have responsibility and

authority for operating a school and overseeing the education of its students.”

                                             16
       Importantly for our case, however, the court in Beeching went on to note that

       under Indiana law the only publicly elected, local school officials are
       school board members. While these elected school board members could
       easily be determined to be “public officials” because of their elective office,
       building principals are at least two employment levels removed from school
       board members. In most, if not all Indiana public school systems, building
       principals are appointed by system superintendents and ratified by vote of
       the system’s school board.

Beeching, 764 N.E.2d at 679 (internal citations omitted). The Beeching court declared

that, under the circumstances of that case, “public school principals are not ‘public

officials.’” Id. Although this conclusion was made in the context of a defamation action

the school principal brought against defendant Beeching, the court’s analysis is relevant

to the question of whether Principal Lipps’s safety plan constituted policy-making

immune from liability under the Peavler planning/operation test. Like the principal in

Beeching, Principal Lipps had the authority to, and did, write regulations governing the

conduct of students at Martinsville West Middle School. Like the principal in Beeching,

Principal Lipps stated in her affidavit that she is largely responsible for “all facets of

West’s operation.” Appellant’s App. p. 94. However, also like the principal in Beeching,

Principal Lipps is not a public official, and her role is not that of policymaker. She is “at

least two employment levels removed from [the] school board members” who are elected

public officials. Id.

       Indeed, language found in 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. Indiana Code section 20-18-2-14 provides that “‘Principal’ refers

to the chief administrative officer of a school” (emphasis added). And while Indiana

                                             17
Code section 20-33-8-10 states that “[a] principal may take action concerning the

principal’s school or a school activity within the principal’s jurisdiction that is reasonably

necessary to carry out or prevent interference with an educational function or school

purposes,” including “writ[ing] regulations that govern student conduct,” Indiana Code

section 20-23-16-26 makes clear that it is the school board which “make[s] decisions

pertaining to the general conduct of the schools.” The statute provides that:

       The government of the common schools of a district is vested in the board.
       The board shall function with the authority, powers, privileges, duties, and
       obligations previously granted to or required of school cities and their
       governing boards regarding the:
              (1) purchase of supplies;
              (2) purchase and sale of:
                     (A) buildings;
                     (B) grounds; and
                     (C) equipment;
              (3) erection of buildings;
              (4) employment and dismissal of school personnel;
              (5) insuring property and employees;
              (6) making and executing of a budget;
              (7) borrowing money; and
              (8) paying the salaries and expenses of the:
                     (A) county superintendent; and
                     (B) employees;
       as approved by the board.

Ind. Code § 20-23-16-26.

       The federal District Court for the Southern District of Indiana has held that, in the

context of a 42 U.S.C. § 1983 claim brought against a school principal, “the school board

and not the Principal . . . has final policy making authority under Indiana law.” Harless

by Harless v. Darr, 937 F. Supp. 1339, 1349 (S.D. Ind. 1996). In Harless, the court noted




                                             18
Indiana’s statutory language9 allowing school principals to “take any action concerning

his school or any school activity within his jurisdiction which is reasonably necessary to

carry out or prevent interference with an educational function or school purposes”

including “establishing written rules and standards to govern student conduct” but held

that this delegation of authority to make “ad hoc decisions” to maintain order within the

school was distinguishable from the board’s authority to create final policy. Id.

        And in Oliver by Hines v. McClung, 919 F. Supp. 1206, 1216 (N.D. Ind. 1995),

the District Court for the Northern District of Indiana held that, in a section 1983 action

brought by a student against the school principal, “it would appear that while [Principal]

McClung and other principals in Indiana were delegated much authority by [Indiana

Code section] 20-8.1-5-2, that delegation was not absolute so as to grant principals the

power to make final policy for the school boards” and that “while McClung may have

had broad discretion to make decisions regarding the operation of the West Jay County

Junior High School, nothing in [section] 20-8.1-5-2 purports to grant him policy-making

authority.”

        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. Principal Lipps stated in her affidavit, “[a]s the West Principal, I am responsible for

9
   The court cited Indiana Code section 20-8.1-5-2(b), which has since been replaced with similar
language found in Indiana Code section 20-33-8-10(a) (“A principal may take action concerning the
principal's school or a school activity within the principal's jurisdiction that is reasonably necessary to
carry out or prevent interference with an educational function or school purposes.”)


                                                    19
all facets of West’s operation.” Appellant’s App. p. 94 (emphasis added). And it is

apparent that Principal Lipps, a person to whom Indiana law grants no policy-making

authority, was largely, if not entirely, the person responsible for developing the MWMS

safety plan. Her affidavit provides that “I, as principal, developed a plan that was in

place at the time of the shooting in this case and that considered these factors”; that “I

determined that Doors 1, 2, and 3 needed to remain unlocked from 6:30 to 7:30 a.m.

when students and staff generally arrived for the school day”; that “I had cameras

installed at all exterior doors that were used by students to enter the building”; and that “I

specifically considered how to place personnel during the mornings to monitor arrivals.”

Id. at 94-98.      Her affidavit indicates that she attended meetings with “the M.S.D.

Martinsville’s leadership team and the district safety committee” but the leadership team

and safety committee apparently had no direct involvement in the development of the

Martinsville West Middle School safety plan.10

        While it may be the case that, in developing the MWMS safety plan, Principal

Lipps was required to “balance competing factors and resource limitations that must be

considered in providing a learning environment for an educationally diverse student

population,” Id. at 94, it is important to note that Principal Lipps’s development of the

plan was not an action mandated by statute under the General Assembly’s policy-making

authority. Furthermore, unlike the Oregon, Oklahoma, and Minnesota cases cited by the

School District, Mosley, Randell, and Pletan, there is no evidence in the record that the

10
   Lipps’s affidavit provided that “I, and the assistant principal, frequently re-evaluated West’s school
safety plan in light of these meetings.” Appellant’s App. pp. 97-98.


                                                   20
elected officials on the school board, the School District’s policy-making body, played

any role in developing or approving the safety plan. And the Georgia appellate court case,

Kelly v. Lewis, has marginal, if any, relevance to our inquiry since it reaches its

conclusion using a ministerial/discretionary function analysis that has been considered

and rejected by our supreme court.

         Peavler dictates that the discretionary function exception under the ITCA grant

immunity only to those decisions and actions which constitute “the exercise of political

power . . . held accountable only to the Constitution or the political process.” Peavler,

528 N.E.2d at 45. Here, we have been directed to nothing to support the School District’s

contention that Principal Lipps’s development of the safety plan was an exercise of

political power under Peavler. At best this plan might be immune under the pre-Peavler

definition of the word “discretionary,” but it is not the type of policy-making that our

supreme court has since determined should be exempt from liability under the

planning/operation test. As with most discretionary decisions, Principal Lipps may well

have balanced factors and resource considerations in developing her plan, but that does

not mean that this activity rises to the level of protected policy-making by the school

board.     Under these facts and circumstances, the School District is not entitled to

immunity under the discretionary function exception of the ITCA.

                                     II. Breach of Duty

         The School District next argues that “the School 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 March 25th and shoot [C.J.].”

                                             21
       Negligence consists of: (1) a duty owed to the plaintiff by the defendant; (2) a

breach of that duty by the defendant; and (3) injury to the plaintiff proximately caused by

that breach. Foddrill v. Crane, 894 N.E.2d 1070, 1075 (Ind. Ct. App. 2008). “An

indispensable element of an action for negligence is that the act complained of must be

the proximate cause of the accident producing the injury.” Havert v. Caldwell, 452

N.E.2d 154, 158 (Ind. 1983). In defining proximate cause, the Indiana Supreme Court

has stated that a “negligent act or omission is the proximate cause of an injury if the

injury is a natural and probable consequence which, in light of the circumstances, should

reasonably have been foreseen or anticipated.” Id. Foreseeability of the injury is the

critical test for determining the defendant’s liability. Nat’l. R.R. Passenger Corp. v.

Everton, 655 N.E.2d 360, 366 (Ind. Ct. App. 1995). The foreseeability of whether the

defendant’s act proximately caused the plaintiff’s injuries is a question for the trier of fact.

Id. at 366-67.

       In cases involving an alleged breach of a school’s duty owed to its students,

Indiana courts have held that schools have a “special duty,” beyond regular premises

liability, to exercise the level of care an ordinary, prudent person would exercise under

the same or similar circumstances. Swanson v. Wabash College, 504 N.E.2d 327, 330

(Ind. Ct. App. 1987); see also Miller v. Griesel, 261 Ind. 604, 611, 308 N.E.2d 701, 706

(1974) (“[T]he relationship of school pupils and school authorities should call into play

the well recognized duty in tort law that persons entrusted with children, or others whose

characteristics make it likely that they may do somewhat unreasonable things, have a

special responsibility recognized by the common law to supervise their charges.”).

                                              22
       Because there is “some remote risk of injury in all human existence,” Norman v.

Turkey Run Cmty. School Corp., 274 Ind. 310, 316, 411 N.E.2d 614, 617 (1980), the

duty imposed upon Indiana schools to protect their students has been necessarily defined

by the specific circumstances of each case. Under facts similar to those in the present

case, this court has held that a plaintiff has established that a school had a duty to protect

its student from criminal attack and breached that duty where the attacker had a

propensity towards violence; the school system or school personnel was aware of this

propensity; and school personnel’s failure to provide adequate supervision allowed the

attacker the opportunity to assault the student, proximately causing his injuries. See

McClyde v. Archdiocese of Indianapolis, 752 N.E.2d 229, 233 (Ind. Ct. App. 2001).

Consequently, we must determine whether genuine issues of material fact exist as to

whether the School District conformed to the standard of conduct required by its duty

with respect to C.J. See Ashcraft v. Ne. Sullivan Cnty. Sch. Corp., 706 N.E.2d 1101,

1104 (Ind. Ct. App. 1999).

       A. Foreseeability of the Shooting

       The School District argues that summary judgment in its favor is appropriate in

this case because the School District could not have foreseen that Phelps would come to

the school on March 25, 2011 to shoot C.J. The School District declares that public

schools “do not have the luxury of picking and choosing who they can educate” and that,

therefore, “school corporations are not and cannot be considered insurers against all risks

posed by a student towards others.” Appellant’s Br. at 32. The School District quotes

Roe v. North Adams Community School Corp., 647 N.E.2d 655, 660 (Ind. Ct. App.

                                             23
1995), where another panel of this court held, “[i]n order for the plaintiffs to recover

[against the school district], they were also bound to show that [the other student’s]

conduct was foreseeable by the school.” The School District emphasizes that Phelps’s

shooting of C.J. was a criminal act by a third party and that the “duty to anticipate and to

take steps against a criminal act of a third party arises only when the facts of the

particular case make it reasonably foreseeable that a criminal act is likely to occur.”

Appellant’s Br. at 34 (quoting Schlotman v. Taza Cafe, 868 N.E.2d 518, 521 (Ind. Ct.

App. 2007)).

       In analyzing the foreseeability factor of duty, we focus on whether the injured

person actually harmed was a foreseeable victim and whether the type of harm actually

inflicted was reasonably foreseeable. Webb v. Jarvis, 575 N.E.2d 992, 997 (Ind. 1991).

Such foreseeability does not mean that the precise hazard or exact consequences should

have been foreseen, but neither does it encompass anything which might occur. Crull v.

Platt, 471 N.E.2d 1211, 1215 (Ind. Ct. App. 1984), reh’g denied, trans. denied. Here, as

the moving party, the School District has the burden of demonstrating that, as a matter of

law, Phelps’s assault on C.J. was not foreseeable. See Kroger Co., 930 N.E.2d at 7.

       In this regard, the School District first argues that the affidavit of Phelps’s and

C.J.’s classmate, C.H., is “insufficient to create a genuine issue of fact” and must be

stricken from the record. Appellant’s Br. at 25. During a June 28, 2011 deposition taken

in criminal proceedings against Phelps, C.H. testified that she did not learn of Phelps’s




                                            24
plan to shoot C.J. until she saw Phelps’s Facebook status11 on the morning of March 25,

2011. She also testified that, prior to the shooting, she never notified Principal Lipps that

Phelps planned to shoot C.J.12 However, in a April 30, 2012 affidavit containing the

transcript of a recorded statement C.H. made as part of C.J.’s civil proceeding against the

School District, C.H. stated that she had learned of Phelps’s plan sometime prior to

March 25, 2011. In the affidavit, she further stated that, prior to the shooting, she “went

to Mrs. Lipps and told her there was going to be a shooting, but [Lipps] said [C.H. was]

nothing but a liar . . . she said that in her whole school career she never saw a shooting

and she was never going to see one.”13 Appellant’s App. p. 39.

          The School District requested that the trial court strike the affidavit because “a

nonmovant may not create issues of fact by pointing to affidavit testimony which

contradicts the witnesses [sic] sworn testimony in a prior deposition.” Appellant’s Br. at

27 (quoting Miller v. Monsanto Co., 626 N.E.2d 538, 544 (Ind. Ct. App. 1993)). The

School District notes that the trial court did not rule on the School District’s motion to

strike the affidavit. The School District asks that this court “strike the portions of

[C.H.’s] Affidavit that contradict her prior deposition testimony.” Appellant’s Br. at 28.


11
   Phelps’s status read, “Today is the day” and “Don’t use your mind, use your nine.” Appellant’s App.
pp. 750-752.
12
     The following exchange occurred between C.H. and Phelps’s defense counsel:
          Q: Did you and [N.A.] and a whole bunch of sixth graders tell Mrs. Lipps that [Phelps]
          was going to shoot [C.J.]?
          A: No. I didn’t tell Mrs. Lipps anything.
Appellant’s App. pp. 753-54.
13
  Shortly after the shooting, C.H.’s classmate, A.R., made a similar statement to a reporter from local
news station Fox 59.
                                                      25
The School District further argues that “[e]ven if not stricken, this Affidavit is

insufficient to create a genuine issue of fact as to whether the School had actual

knowledge of [Phelps’s] threat to shoot [C.J.] prior to the shooting.” Id., citing Gaboury

v. Ireland Rd. Grace Brethren, Inc., 446 N.E.2d 1310, 1314 (Ind. 1983) (“contradictory

testimony contained in an affidavit of the nonmovant may not be used by him to defeat a

summary judgment motion”).

       The School District acknowledges that MWMS teacher Mrs. Kempe overheard an

argument between Phelps and C.J. when Phelps was on school grounds to take the ISTEP

test and that C.J. subsequently told Mrs. Kempe that Phelps wanted to fight with him.

The School District argues, however, that this is “insufficient to establish that the School

should have known that [Phelps] intended to harm [C.J.] the morning of March 25,”

emphasizing that the conversation between C.J. and Kempe occurred three weeks prior to

the shooting. Appellant’s Br. at 24. The School District also underscores that, prior to

the shooting, Phelps had been withdrawn from school by his mother; that Phelps and C.J.

had never been involved in a physical altercation with each other at school; that Phelps

had never been involved in physical violence at school beyond fist fights; and that even

the juvenile court did not consider Phelps to be enough of a danger to others to revoke his

probation after he commented that he wanted to blow up the school. Appellant’s Br. at

29.

       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. Randolph Co. Hospital v. Livingston, 650 N.E.2d

                                            26
1215, 1217 (Ind. Ct. App. 1995), trans. denied. Under the facts and circumstances before

us in the record prior to trial, we conclude 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. Phelps had a lengthy history of serious misbehavior in

school; threatened to blow up the school; and was on school grounds, presumably in

close proximity to the personnel monitors, for thirty minutes prior to the shooting. He

had made threats against C.J., of which at least one MWMS teacher was aware. The day

before the shooting, another MWMS student had made a threat to shoot a teacher. Given

these facts, a jury could conclude that it is foreseeable that a shooting would occur at

MWMS. The unstricken affidavit of C.H. also creates genuine issues of material facts as

to whether the School District had specific warning about Phelps’s attack. See McClyde,

752 N.E.2d at 235 (concluding that an affidavit relied on exclusively by plaintiff can be

sufficient to create genuine issues of material fact precluding grant of defendant’s motion

for summary judgment).

       We further note that the School District’s argument regarding the affidavit

containing C.H.’s recorded statement is misguided. The principles the School District

cites do not apply to the use of C.H.’s affidavit. While it is true that our courts have held

that “contradictory testimony contained in an affidavit of the nonmovant may not be used

by him to defeat a summary judgment motion where the only issue of fact raised by the

affidavit is the credibility of the affiant,” Gaboury v. Ireland Rd. Grace Brethren, Inc.,

446 N.E.2d 1310, 1314 (Ind. 1983), the stated purpose for this rule is to “prevent a party

from generating its own genuine issue of material fact by providing self-serving

                                             27
contradictory statements without explanation.” Crawfordsville Square, LLC. v. Monroe

Guar. Ins. Co., 906 N.E.2d 934, 939 (Ind. Ct. App. 2009) (emphasis added). Here, it is

the deposition and affidavit of a non-party witness that allegedly conflict. Furthermore,

the deposition with which C.H.’s affidavit allegedly conflicts occurred within a different

case altogether, Phelps’s criminal proceeding. Therefore, it is not likely the case that

C.H. made contradictory statements in a self-serving attempt to avoid a damaging

admission she made in a deposition in a separate proceeding.

       Under these facts and circumstances, we conclude that the question of whether the

shooting was foreseeable to the School District is one that is best resolved by the trier of

fact rather than through summary judgment.

       B. Implementation of Safety Plan

       The School District next contends that it exercised reasonable care in providing for

the safety of its students, noting that Principal Lipps had implemented (1) a school-wide

policy prohibiting threats, bullying, and fighting; (2) a door numbering system; (3) an

electronic door locking system; (4) a video surveillance system; and (5) the placement of

personnel monitors around school grounds during the time in which students arrived in

the morning. The School District further emphasizes that when Phelps threatened to

“blow up the school,” he was suspended immediately and expulsion proceedings were

initiated. The School District declares, “there is no scenario whereby a school can go

into the type of extended lockdown requested by Plaintiffs every time two students are

threatening to fight each other—occurrences that law enforcement in this case described

as ‘typical’ among adolescent boys.” Appellant’s Br. at 33.

                                            28
       Given 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? A recent opinion by another panel of this court, Prancik v. Oak Hill United Sch.

Corp., 997 N.E.2d 401 (Ind. Ct. App. 2013) trans. denied, involves facts that are

somewhat similar to the facts of this case, but can be distinguished in two important ways.

There, a junior high school teacher left two students unsupervised in her classroom

during a four-minute passing period to supervise the hallway. While the teacher was in

the hallway, one of the students assaulted the other, injuring him. This court affirmed the

trial court’s grant of the school’s motion for summary judgment, concluding that the

school was not negligent for failing to prevent the attack since there was no evidence that

the school was on notice that the attacker could be violent and no evidence that the

assault happened as a result of any failure by the teacher to follow school protocol.

       Viewing the facts liberally in a light most favorable to C.J., as our standard of

review requires, it seems to us 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. There exist genuine issues of material fact here, in light of the continued conflict

between the two boys, Phelps’s extensive disciplinary history, including discipline

referrals for harassing, threatening, and assaulting other students, and Phelps’s threat to

blow up the school. Therefore, this issue is more appropriately a question for the trier of

fact. See Drake by Drake v. Mitchell Cmty. Sch., 628 N.E.2d 1231, 1234-35 (Ind. Ct.

                                            29
App. 1994) aff’d in part, vacated in part on other grounds (holding that summary

judgment was inappropriate where a reasonable jury could have found that a school

hosting a social event inside a grain elevator “breached its duty to exercise reasonable

care to warn the students and/or protect them from a known danger, exposure to

histoplasmosis” resulting from pigeon droppings inside the elevator).

                           III. C.J.’s Contributory Negligence

       The School District next argues that summary judgment in its favor is required

because C.J. was contributorily negligent “in failing to follow his mother’s directions to

leave the vestibule and go to the office and report the threats.” Appellant’s Br. at 36.

       “Contributory negligence” is the failure of a plaintiff to exercise the reasonable

care an ordinary person would use for his own protection and safety. Funston v. Sch.

Town of Munster, 849 N.E.2d 595, 598 (Ind. 2006). In 1985, Indiana largely put to rest

its common law defense of contributory negligence “that barred recovery on a plaintiff’s

negligence claim if the plaintiff was even slightly at fault.” Penn Harris Madison Sch.

Corp. v. Howard, 861 N.E.2d 1190, 1193 (Ind. 2007).                In its place, Indiana’s

Comparative Fault Act created a modified comparative fault scheme whereby “‘any

contributory fault chargeable to the claimant diminishes proportionately the amount

awarded as compensatory damages . . . .’” Hopper v. Carey, 716 N.E.2d 566, 575 (Ind.

Ct. App. 1999), trans. denied (quoting Ind. Code § 34-51-2-5). But “the claimant is

barred from recovery if the claimant’s contributory fault is greater than the fault of all

persons whose fault proximately contributed to the claimant’s damages.” Ind. Code § 34-

51-2-6.

                                             30
       However, the legislature specifically provided that the new comparative fault

scheme would not apply to governmental entities. See Ind. Code § 34-51-2-2. “This

exemption for governmental entities from comparative fault means that the common law

contributory negligence principles apply when a governmental entity is the defendant in

negligence litigation.” Penn Harris Madison Sch. Corp. v. Howard, 861 N.E.2d 1190,

1193 (Ind. 2007). And “Indiana law requires that contributory negligence on the part of

the plaintiff bars any recovery against government actors.” Clay City Consol. Sch. Corp.

v. Timberman, 918 N.E.2d 292, 300 n. 6 (Ind. 2009).

       Since the School District is a governmental entity, if C.J. were found to be

contributorily negligent, he would be barred from recovery. Roddel v. Town of Flora,

580 N.E.2d 255, 259 (Ind. Ct. App. 1991). The general rule on the issue of the plaintiff’s

contributory negligence is that the plaintiff must exercise that degree of care to protect his

or her own safety that an ordinary reasonable person would exercise in like or similar

circumstances. Sawlani v. Mills, 830 N.E.2d 932, 941 (Ind. Ct. App. 2005), trans. denied.

Contributory negligence is conduct on the part of the plaintiff that contributes as a legal

cause to the harm he has suffered and falls below the standard to which he is required to

conform for his own protection. Piatek v. Beale, 994 N.E.2d 1140, 1147-48 (Ind. Ct.

App. 2013) aff’d on reh’g, trans. denied.

       Contributory negligence is generally a question of fact for the jury where the facts

are subject to more than one reasonable inference. Jones v. Gleim, 468 N.E.2d 205, 207

(Ind. 1984). However, where the facts are undisputed and only a single inference can

reasonably be drawn therefrom, the question of contributory negligence becomes one of

                                             31
law. Id. Indiana courts have found contributory negligence as a matter of law in cases in

which the voluntary conduct of the plaintiff exposed him to imminent and obvious

dangers which a reasonable man exercising due care for his own safety would have

avoided. Id.

       The School District claims that C.J. “had actual knowledge of the specific risk of

an imminent attack from [Phelps] that could result in serious injury or even death.”

Appellant’s Br. at 41. The School District emphasizes that:

       [Phelps] had previously threatened [C.J.] with a chain outside school
       grounds. A student of [C.J.’s] age could appreciate the risk of serious injury
       that could result from [Phelps’s] use of such a weapon. Further, as
       discussed in the preceding subsection, [C.J.] himself has admitted that he
       had actual knowledge and appreciation of the specific risk that [Phelps]
       presented with the threats to “kick his ass” and that he ‘‘was about to get
       [expletive] up.”

       Nevertheless [C.J.] chose to stay in the vestibule and wait for [Phelps] to
       come back, despite being told by his mother to leave and go to the office.

Id.

       For the trial court to have ruled that contributory negligence was present as a

matter of law, “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. Dibortolo v. Metro. Sch. Dist. of

Washington Twp., 440 N.E.2d 506, 512 (Ind. Ct. App. 1982). The School District has

laboriously argued that Phelps’s shooting of C.J. was unforeseeable to the School District,

yet it claims that C.J. should have foreseen that he would be vulnerable to a shooting




                                            32
when he decided to remain in the vestibule in which Phelps confronted C.J. This is

precisely the type of genuine issue of material fact that should be resolved by a jury.

       Moreover, in a society where bullying is a pervasive and confusing problem,

especially among young, school-aged children, we question whether the issue of

contributory negligence can be properly resolved as a matter of law, especially when, as

here, a victim is not the initial aggressor in an altercation, but merely fails to meekly walk

away from an attacker who is violently disposed, and especially where the victim appears

to have been unaware that the attacker was armed. Because the issue of contributory

negligence is generally not appropriate for summary judgment and because, in the present

case, the facts are subject to more than one reasonable inference, we conclude that the

trial court did not err in finding that the issue of C.J.’s contributory negligence is most

appropriately a matter for the jury. See Randolph Co. Hospital, 650 N.E.2d at 1217;

Maldonado by Maldonado v. Gill, 502 N.E.2d 1371, 1373 (Ind. Ct. App. 1987); see also

Stowers v. Clinton Cent. Sch. Corp., 855 N.E.2d 739 (Ind. Ct. App. 2006) (holding that

material issues of fact exist as to whether a high school student football player was

contributorily negligent, as a matter of law, and whether the student had actual

knowledge of the specific risk and incurred the risk, thus precluding grant of summary

judgment to school on wrongful death claim brought by parents of the student, who

collapsed due to heat related problems after summer football practice and later died).

                                      IV. Conclusion

       For all of these reasons, we conclude that the trial court’s denial of the School

District’s motion for summary judgment was proper. The School District has not met its

                                             33
burden of showing that it is entitled to discretionary function immunity under the ITCA,

since C.J. and B.K. challenge the implementation rather than formulation of the safety

plan, and since the safety plan was not the result of the type of policy decision-making

protected by the statute. Furthermore, there exist genuine issues of material fact as to

whether the School District breached its duty to protect C.J. and B.K. and whether C.J.

was contributorily negligent in a manner which proximately caused his injuries.

      Affirmed.

ROBB, J., and BRADFORD, J., concur.




                                           34
