                                                                    FILED
                                                               Dec 18 2018, 9:14 am

                                                                    CLERK
                                                                Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court




ATTORNEYS FOR APPELLANTS                                  ATTORNEYS FOR APPELLEES
Karl L. Mulvaney                                          Caren L. Pollack
Nana Quay-Smith                                           Zachary J. Stock
Bingham Greenebaum Doll, LLP                              Indianapolis, Indiana
Indianapolis, Indiana
R. T. Green
Kellie C. Clark
Blackburn & Green
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Katrina Murray and Aquila F.                              December 18, 2018
Flynn, as Co-Personal                                     Court of Appeals Case No.
Representatives of the Estate of                          18A-CT-1955
Jaylan T. R. Murray, Deceased,                            Appeal from the Marion Superior
Appellants-Plaintiffs,                                    Court
                                                          The Honorable James A. Joven,
        v.                                                Judge
                                                          Trial Court Cause No.
Indianapolis Public Schools and                           49D13-1703-CT-11107
Arlington Community High
School,
Appellees-Defendants.



Riley, Judge.




Court of Appeals of Indiana | Opinion 18A-CT-1955 | December 18, 2018                   Page 1 of 16
                                STATEMENT OF THE CASE
[1]   Appellants-Plaintiffs, Katrina Murray and Aquila F. Flynn, as Co-personal

      Representatives of the Estate of Jaylan T.R. Murray (collectively, Appellants),

      appeal the trial court’s summary judgment in favor of Appellees-Defendants,

      Indianapolis Public Schools (IPS) and Arlington Community High School

      (Arlington) (collectively, School) on Appellants’ Complaint for wrongful death.


[2]   We reverse and remand for further proceedings.


                                                    ISSUES
[3]   Appellants present us with one issue on appeal, which we restate as the

      following three issues:


          (1) Whether Appellants waived their argument on appeal by failing to

              respond to the School’s motion for summary judgment;

          (2) Whether a genuine issue of material fact exists with respect to the

              School’s duty to supervise its students and monitor the School’s exits;

              and

          (3) Whether a genuine issue of material fact exists which precludes the entry

              of summary judgment based on contributory negligence.


                      FACTS AND PROCEDURAL HISTORY
[4]   Jaylan Murray (Jaylan) was a 16-year-old student at Arlington. Jaylan’s

      parents were divorced and he lived with his father, Marcus Murray (Marcus).

      At home, Jaylan was openly defiant to Marcus and would frequently run away.

      Court of Appeals of Indiana | Opinion 18A-CT-1955 | December 18, 2018     Page 2 of 16
      As a result, he had an open case file with the Indiana Department of Child

      Services (DCS). However, even though Jaylan would run away from home, he

      would usually still go to school. During Jaylan’s absences, Marcus knew that

      Jaylan would either be with a friend or with the girl across the street. Marcus

      would report Jaylan missing to the police, and DCS would pick Jaylan up and

      call Marcus to retrieve his son. “Usually, the police report kicks out to the

      school, and they would know that he’s a runaway.” (Appellants’ App. Vol. II,

      p. 43). In addition, Marcus had informed Stan Law, Arlington’s principal,

      about Jaylan’s issues.


[5]   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.


[6]   Marcus was later informed that, on February 3, 2016, Jaylan had gone to

      Arlington 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 Arlington’s

      knowledge, without signing out, and presumably through an unlocked and

      unmonitored exit. Arlington admitted that Jaylan had signed in at the front

      office on February 3, 2016 at 1:07 p.m. and did not sign out when he left. A

      surveillance video shows Jaylan walking past door #16 at approximately 1:24

      Court of Appeals of Indiana | Opinion 18A-CT-1955 | December 18, 2018    Page 3 of 16
      p.m. Arlington’s students are expected to enter and exit through the front

      entrance to the building and to sign in and out if arriving or leaving during the

      regular school day. The front entrance provides the only entry access to the

      building. “No other doors can be opened from the outside. . . . A non-

      compliant student could exit through any exit door, as fire codes prohibit

      locking exit doors.” (Appellants’ App. Vol. II, p. 60).


[7]   On March 20, 2017, Appellants filed a Complaint for wrongful death against

      the School, alleging that the School had been negligent for failing to properly

      supervise and monitor its students during school hours. On June 15, 2018, the

      School filed a motion for summary judgment, memorandum of law, and

      designation of evidence. In its motion, the School claimed that it was immune

      from any failure to adopt or enforce an attendance policy under the Indiana

      Tort Claims Act, and asserted that Jaylan was contributorily negligent in his

      own murder. On July 19, 2018, the trial court summarily granted the motion

      and entered summary judgment for the School.


[8]   The following day, July 20, 2018, Appellants filed a motion to set aside the

      summary judgment. In their motion, they explained that on June 25, 2018—

      ten days after the School had moved for summary judgment—counsel had

      contacted the School’s counsel to request additional time to respond to the

      motion for summary judgment as they intended to conduct more extensive

      discovery and depose additional witnesses. The School’s counsel agreed to the

      request, advising in writing that they would not oppose the extension of time.

      However, due to confusion associated with a staffing change precipitated by

      Court of Appeals of Indiana | Opinion 18A-CT-1955 | December 18, 2018    Page 4 of 16
       one of Appellants’ counsels’ departure from the law firm, the request for an

       extension of time was inadvertently not filed and the trial court entered

       summary judgment. On August 3, 2018, the School opposed Appellants’

       motion to set aside. On the same date, and without a hearing, the trial court

       summarily denied Appellants’ motion to set aside the summary judgment.


[9]    Appellants now appeal. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                             I. Waiver of the Appeal


[10]   Prior to turning to the merits of Appellants’ appeal, we address the School’s

       threshold procedural argument that the claims advanced by Appellants are

       waived because they failed to respond to the School’s summary judgment

       motion. Acknowledging the authority to the contrary, the School nevertheless

       requests this court to reconsider the current precedents regarding a party’s

       failure to respond to a summary judgment motion, as they claim this case law

       to be unsanctioned by our supreme court, to be inconsistent with the purpose of

       the waiver rule, and to be contrary to the preservation of judicial economy.


[11]   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. GKC Ind. Theatres, Inc. v. Elk Retail Inv’r, LLC., 764

       N.E.2d 647, 651 (Ind. Ct. App. 2002). 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
       Court of Appeals of Indiana | Opinion 18A-CT-1955 | December 18, 2018        Page 5 of 16
       the parties. Id. 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. Id.


[12]   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. See, e.g., Layman v. Atwood, 370 N.E.2d 933,

       935 (Ind. Ct. App. 1977). 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. See,

       e.g., Templeton v. City of Hammond, 679 N.E.2d 1368, 1371 (Ind. Ct. App. 1997)

       (judgment reversed because the moving party’s designated evidence did not

       support summary judgment). Our supreme court affirmed this practice in

       Warner Trucking, Inc. v. Carolina Cas. Ins. Co., 686 N.E.2d 102, 103 (Ind. 1997),

       when it cautioned that “[a] party opposing summary judgment is not required


       Court of Appeals of Indiana | Opinion 18A-CT-1955 | December 18, 2018      Page 6 of 16
       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.”

       Murphy v. Curtis, 930 N.E.2d 1228, 1233 (Ind. Ct. App. 2010), trans. denied.


[13]   We recognize that “summary judgment is a lethal weapon and courts must be

       ever mindful of its aims and targets and beware of overkill in its use. Bunch v.

       Tiwari, 711 N.E.2d 844, 847 (Ind. Ct. App. 1999). As such, “Indiana

       consciously errs on the side of letting marginal cases proceed to trial on the

       merits, rather than risk short-circuiting meritorious claims.” Hughley v. State, 15

       N.E.3d 1000, 1004 (Ind. 2014). In light of the well-established precedent and in

       absence of a persuasive reason to deviate from this jurisprudence, we decline

       the School’s invitation to waive Appellants’ argument.


                                                   II. Negligence


                                             A. Standard of Review


[14]   In reviewing a trial court’s ruling on summary judgment, this court stands in the

       shoes of the trial court, applying the same standards in deciding whether to

       affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,

       891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we

       must determine whether there is a genuine issue of material fact and whether

       the trial court has correctly applied the law. Id. at 607-08. In doing so, we

       consider all of the designated evidence in the light most favorable to the non-

       moving party. Id. at 608. A fact is ‘material’ for summary judgment purposes if

       Court of Appeals of Indiana | Opinion 18A-CT-1955 | December 18, 2018     Page 7 of 16
       it helps to prove or disprove an essential element of the plaintiff’s cause of

       action; a factual issue is ‘genuine’ if the trier of fact is required to resolve an

       opposing party’s different version of the underlying facts. Ind. Farmers Mut. Ins.

       Group v. Blaskie, 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant

       of summary judgment has the burden of persuading this court that the trial

       court’s ruling was improper. First Farmers Bank & Trust Co., 891 N.E.2d at 607.


[15]   We observe that, in the present case, the trial court did not enter findings of fact

       and conclusions of law in support of its judgment. Special findings are not

       required in summary judgment proceedings and are not binding on appeal.

       AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct.

       App. 2004). However, such findings offer this court valuable insight into the

       trial court’s rationale for its review and facilitate appellate review. Id.


                                     B. Failure to Supervise and Monitor


[16]   In their Complaint, Appellants contend that the School breached its duty by

       “failing to properly supervise and monitor their students during school hours”

       in accordance with Indiana Code section 20-33-8-8. (Appellants’ App. Vol. II,

       p. 16). Focusing on the School’s duty to exercise ordinary and reasonable care

       in supervising Jaylan, Appellants claim that because the School was notified

       that Jaylan was a runaway minor before he appeared at the front office, the

       School should have taken measures preventing him from returning to the street.


[17]   In an attempt to be shielded by immunity derived from the Indiana Tort Claims

       Act (ITCA), the School characterizes Appellants’ claim as a failure to adopt or

       Court of Appeals of Indiana | Opinion 18A-CT-1955 | December 18, 2018         Page 8 of 16
       enforce a policy under Indiana Code section 34-13-3-3(8)(b). Interpreting

       ‘policy’ as an act within the School’s operational power, it claims that the

       foundation of Appellants’ contention is effectively the School’s “failure to adopt

       or enforce an attendance policy that would physically restrain Jaylan inside

       [Arlington].” (Appellees’ Br. p. 15).


                                                      1. ITCA


[18]   The ITCA is in derogation of the common law and we therefore construe it

       narrowly against the grant of immunity. Mullin v. Municipal City of South Bend,

       639 N.E.2d 278, 281 (Ind. 1994). The party seeking immunity has the burden

       of establishing its conduct comes within the provisions of the ITCA. Id.

       “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.” Barnes v. Antich, 700 N.E.2d 262, 265 (Ind. Ct. App. 1998),

       trans. denied. 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[.]” I.C. § 34-13-3-3(8)(B). 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. See I.C. §§ 20-5-1 to -6; Eukers v. State,

       728 N.E.2d 219, 222 (Ind. Ct. App. 2000). 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

       Court of Appeals of Indiana | Opinion 18A-CT-1955 | December 18, 2018      Page 9 of 16
       immune from any liability pursuant to the ITCA’s provisions. (Appellee’s Br.

       p. 15).


[19]   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.” (Appellants’ App.

       Vol. II, pp. 15-16). 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.


                                        2. Appellants’ Negligence Claim


[20]   Unlike a school’s immunity for enforcement of its attendance policy, we have

       long recognized that school authorities owe a “duty . . . ‘to exercise reasonable

       care and supervision for the safety of the children under their control.’”


       Court of Appeals of Indiana | Opinion 18A-CT-1955 | December 18, 2018    Page 10 of 16
       Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 974 (Ind. 2001) (quoting

       Miller v. Griesel, 308 N.E.2d 701, 706 (Ind. 1974)). 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.” LaPorte

       Cmty. Sch. Corp. v. Rosales, 963 N.E.2d 520, 524 (Ind. 2012). Although this duty

       may be “ordinary,” it is nonetheless sensitive to context. Moore v. Hamilton

       Southeastern Sch. Dist., 2013 WL 4607228, *8 (S.D. Ind. 2013). 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. Miller, 308 N.E.2d

       at 706 (citing Restatement (Second) of Torts § 320 (1965)). 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. Mangold, 756 N.E.2d at 974-

       75 (holding a school’s liability could extend to injury occurring off school

       property).


[21]   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. See Moore, 2013 WL 4607228, *9; DiBortolo

       v. Metro. Sch. Dist. of Wash. Tp., 440 N.E.2d 506, 509 (Ind. Ct. App. 1982).

       Court of Appeals of Indiana | Opinion 18A-CT-1955 | December 18, 2018     Page 11 of 16
       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. See, e.g.,

       Seiwert v. Spencer-Owen Cmty. Sch. Corp., 497 F.Supp.2d 942, 955 (S.D. Ind.

       2007) (holding that a breach of duty of care existed where school officials

       placed two students on a bus together when they had received warnings that

       one had threatened violence against the other.)


[22]   The designated evidence in light most favorable to Appellants reflects that 16-

       year-old Jaylan was a frequent runaway with an active DCS case file, and was

       reported missing on January 29, 2016. This information was “kick[ed] out to

       the school” to alert school officials because, even though Jaylan would run

       away from home, he would usually still go to school. (Appellant’s App. Vol. II,

       p. 43). Around 1:00 p.m. on February 3, 2016, while still a runaway and

       arriving after the start of the regular school day, Jaylan signed in at the front

       desk at Arlington. It appears that Jaylan left the school again later that

       afternoon through an unmonitored school exit.


[23]   Children have been skipping school “[s]ince at least the days of Huck Finn and

       Tom Sawyer.” Kazanjian v. School Bd. of Palm Beach Co., 967 So 2d 259, 263

       (Fla. 2007). Therefore, a school need not possess a crystal ball to understand

       that a student who has been reported a runaway before may run away again,



       Court of Appeals of Indiana | Opinion 18A-CT-1955 | December 18, 2018     Page 12 of 16
       and to know that meeting its duty to protect him might require additional

       attention to protective measures.


[24]   Here, the School admitted Jaylan to the building and then let him roam the

       halls unsupervised after signing in without contacting Murray, the police, or

       DCS and with the knowledge that Jaylan could depart the premises from any

       unsecured door and run away again at any time. While the designated facts

       could support a conclusion that the School failed to exercise reasonable care to

       supervise and monitor Jaylan given its presumed awareness of Jaylan’s

       propensity to run away, reasonable minds might differ as to the particular

       extent and scope of the School’s duty to ensure Jaylan’s safety under these

       circumstances and, as such, the issue remains a factual one, and should

       properly be presented to the trier of fact. Stephenson v. Ledbetter, 596 N.E.2d

       1369, 1371-72 (Ind. 1992) (“Only where the facts are undisputed and lead to but

       a single inference or conclusion may the court as a matter of law determine

       whether a breach of duty has occurred.”) Accordingly, the issue before us is not

       appropriate for summary judgment and we reverse the trial court.


                                          III. Contributory Negligence


[25]   Despite our conclusion that summary judgment cannot be granted on the

       School’s duty to supervise and monitor Jaylan, we may nevertheless affirm the

       trial court’s grant of summary judgment if we find that Jaylan was

       contributorily negligent for his injuries.




       Court of Appeals of Indiana | Opinion 18A-CT-1955 | December 18, 2018    Page 13 of 16
[26]   When a tort claim is filed against a governmental actor, such as a public school,

       the Comparative Fault Act—which provides that “any contributory fault

       chargeable to the claimant diminishes proportionately the amount awarded as

       compensatory damages for an injury attributable to the claimant’s contributory

       fault, but does not bar recovery”—does not apply. I.C. §§§ 34-51-2-2; -5; -6. See

       Towers v. Clinton Cent. Sch. Corp., 855 N.E.2d 739, 745 (Ind. Ct. App. 2006),

       trans. denied. Rather, the common-law doctrine of contributory negligence

       applies. Lee v. Bartholomew Consol. Sch. Corp., 75 N.E.3d 518, 523 (Ind. Ct. App.

       2017). Therefore, “if a plaintiff is negligent to even a small degree and that

       negligence proximately contributes to his claimed damages, contributory

       negligence will operate as a complete bar to this action.” Id.


[27]   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.” Hill v. Gephart, 54 N.E.3d 402, 406 (Ind. Ct. App.

       2016), clarified on reh’g, trans. denied. 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.” Id.

       Generally, contributory negligence is a fact for the jury. Id. 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.” Id. at 406-07.




       Court of Appeals of Indiana | Opinion 18A-CT-1955 | December 18, 2018      Page 14 of 16
[28]   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.” (Appellees’ Br.

       p. 19). 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.


[29]   Jaylan’s friend told Marcus that Jaylan left the School to purchase marijuana,

       not to purchase a gun. Marcus was informed by the detective investigating his

       son’s murder that Jaylan had previously purchased a gun and that he went to

       School to talk to a friend. Little is known about the circumstances surrounding

       Jaylan’s murder. Although the police report indicated that Jaylan’s death was

       caused by a firearm, the report only concluded that his death was not gang-

       related.


[30]   Minors often engage in unwise behavior but those choices do not automatically

       make them contributorily negligent as a matter of law. See Doe v. Lafayette Sch.

       Corp., 846 N.E.2d 691, 700 (Ind. Ct. App. 2006), reh’g denied. 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

       Court of Appeals of Indiana | Opinion 18A-CT-1955 | December 18, 2018    Page 15 of 16
       fact to preclude summary judgment on the basis of contributory negligence, we

       reverse the trial court’s judgment.


                                              CONCLUSION
[31]   Based on the foregoing, we reverse the trial court’s summary judgment because

       genuine issues of material fact exist as to the School’s duty to supervise its

       students and to preclude the entry of summary judgment on the basis of

       contributory negligence.


[32]   Reversed and remanded for further proceedings.


[33]   Robb, J. concurs

       Kirsch, J. dissents without separate opinion




       Court of Appeals of Indiana | Opinion 18A-CT-1955 | December 18, 2018     Page 16 of 16
