MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                   Feb 27 2018, 9:12 am

court except for the purpose of establishing                                     CLERK
the defense of res judicata, collateral                                      Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE CITY
Sarah Graziano                                           OF COLUMBUS
Hensley Legal Group, PC                                  Joseph M. Hendel
Indianapolis, Indiana                                    Stephenson Morow & Semler
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Teresa Barton,                                           February 27, 2018
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         03A01-1709-CT-1978
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
Columbus Robotics, Inc.,                                 The Honorable Kathleen Tighe
Columbus Festival of Lights,                             Coriden, Judge
Inc., Paragon Meeting & Events,                          Trial Court Cause No.
LLC, The City of Columbus,                               03D02-1607-CT-4147
Indiana, and Reising Radio
Partners, Inc.,
Appellees-Defendants



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 03A01-1709-CT-1978 | February 27, 2018             Page 1 of 8
                                             Case Summary
[1]   Teresa Barton was injured while attending an annual parade held in Columbus.

      She filed a personal injury action against Columbus Robotics, Inc.

      (“Robotics”), Columbus Festival of Lights, Inc., the City of Columbus, Indiana

      (the City”), and Reising Radio Partners, Inc. (collectively “the Defendants”).

      The City requested dismissal on the basis that it was entitled to governmental

      immunity pursuant to Indiana Code Section 34-13-3-3(11). The trial court

      granted the City’s motion to dismiss, and Barton claims that this was error.

      Finding no error, we affirm.


                                 Facts and Procedural History
[2]   On December 6, 2014, Barton attended the annual Festival of Lights parade in

      Columbus. During the parade, a robotics display veered from its designated

      course and struck Barton, injuring her. Barton filed a personal injury action

      against Robotics. Based on Robotics’ responsive pleading, Barton filed a

      motion for leave to amend her complaint to add the remaining Defendants,

      which the trial court granted.


[3]   Shortly thereafter, the City filed a motion to dismiss Barton’s amended

      complaint, claiming that Barton stated no operative facts to put it on notice

      concerning its potential liability. Barton filed a second motion for leave to

      amend her complaint, which was granted. The City filed a Trial Rule 12(B)(6)

      motion to dismiss for failure to state a claim upon which relief can be granted,

      asserting that it was entitled to statutory governmental immunity. The trial


      Court of Appeals of Indiana | Memorandum Decision 03A01-1709-CT-1978 | February 27, 2018   Page 2 of 8
      court issued an order granting the City’s motion and dismissed the City as a

      defendant. This interlocutory appeal ensued. Additional facts will be provided

      as necessary.


                                     Discussion and Decision
[4]   Barton contends that the trial court erred in granting the City’s motion to

      dismiss. A Trial Rule 12(B)(6) motion to dismiss “tests the legal sufficiency of

      the complaint, requiring that we accept as true all facts alleged in the

      complaint.” Esserman v. Ind. Dep’t of Envtl. Mgmt., 84 N.E.3d 1185, 1188 (Ind.

      2017). “We review 12(B)(6) motions de novo and will affirm a dismissal if the

      allegations are incapable of supporting relief under any set of circumstances.”

      Id. (quoting Price v. Ind. Dep’t of Child Servs., 80 N.E.3d 170, 173 (Ind. 2017)).

      Additionally, we “affirm the dismissal if the decision is sustainable on any basis

      in the record.” Id.


           Section 1 – The City’s motion to dismiss did not present
                        matters outside the pleadings.
[5]   As a preliminary matter, we address Barton’s assertion that the City improperly

      raised matters outside the pleadings in its motion to dismiss. Matters outside

      the pleadings cannot be considered when ruling on a Trial Rule 12(B)(6)

      motion. Sinks v. Caughey, 890 N.E.2d 34, 39 (Ind. Ct. App. 2008). Trial Rule

      12(B) provides that where matters outside the pleadings are presented and not

      excluded by the trial court, the motion to dismiss under paragraph (6) “shall be

      treated as one for summary judgment.” “‘Matters outside the pleadings’ are


      Court of Appeals of Indiana | Memorandum Decision 03A01-1709-CT-1978 | February 27, 2018   Page 3 of 8
      ‘those materials that would be admissible for summary judgment purposes,

      such as depositions, answers to interrogatories, admissions, and affidavits.’”

      Holland v. Rizzo, 872 N.E.2d 659, 663 (Ind. Ct. App. 2007) (quoting Fox Dev.,

      Inc. v. England, 837 N.E.2d 161, 164 (Ind. Ct. App. 2005)), trans. denied.

      “Neither arguments of counsel nor allegations in memoranda qualify as

      evidentiary materials for purposes of a motion for summary judgment.”

      Richards-Wilcox v. Cummins, 700 N.E.2d 496, 499 n.3 (Ind. Ct. App. 1998).


[6]   Particularly, Barton challenges the City’s reference to having issued a permit for

      the parade, claiming that because she did not reference any permit in her

      complaint, the permit was a matter outside the pleadings. As such, according

      to Barton, the trial court should have denied the City’s motion and converted it

      to a motion for summary judgment, with discovery. However, the City’s

      motion to dismiss does not reference a permit but simply reads, “Columbus is

      immune from claims stemming from its approval of the Festival of Lights

      Parade and its route. Ind. Code § 34-13-3-3(11).” Appellant’s App. Vol. 2 at

      71. The challenged reference to a permit was included in the City’s supporting

      memorandum, which reads in part, “Columbus is being sued because it issued a

      permit and approved a parade to take place in the city.” Id. at 76. In short, the

      reference to a permit was made only as a part of counsel’s argument in the




      Court of Appeals of Indiana | Memorandum Decision 03A01-1709-CT-1978 | February 27, 2018   Page 4 of 8
      City’s memorandum and, as such, does not amount to the presentation of

      matters outside the pleadings.1


          Section 2 – The trial court did not err in granting the City’s
                               motion to dismiss.
[7]   Barton filed a negligence action against the Defendants for her personal

      injuries. In its motion to dismiss, the City asserted that it is entitled to

      governmental immunity under Indiana Code Section 34-13-3-3. “The purpose

      of [such] immunity is to ensure that public employees can exercise their

      independent judgment necessary to carry out their duties without threat of

      harassment by litigation or threats of litigation over decisions made within the

      scope of their employment.” Bartholomew Cty. v. Johnson, 995 N.E.2d 666, 672

      (Ind. Ct. App. 2013) (quoting Bushong v. Williamson, 790 N.E.2d 467, 472 (Ind.

      2003)). The issue of a governmental entity’s immunity is a question of law for

      the courts, to be reviewed de novo. Id. at 671-72 (quoting E. Chicago Police Dep’t

      v. Bynum, 826 N.E.2d 22, 26 (Ind. Ct. App. 2005), trans. denied (2006)).


               Immunity assumes negligence but denies liability. Thus, the
               issues of duty, breach and causation are not before the court in
               deciding whether the government entity is immune. If the court
               finds the government is not immune, the case may yet be decided



      1
        The City challenges as improper Barton’s references to (1) recent discovery that “has since revealed that the
      City did in fact play a role in the approval and designation of the parade route”; and (2) deposition testimony
      by a city representative indicating “that the City was responsible for decisions upon which a reasonable jury
      could find fault on the part of the City.” Appellant’s Br. at 12, 13 n.2. These assertions are based on
      statements not included in the record on appeal and thus are not proper for our consideration. See 3155 Dev.
      Way, LLC v. APM Rental Props., LLC, 52 N.E.3d 854, 860 (Ind. Ct. App. 2016) (“We are not permitted to
      consider evidence which is not contained within the record on appeal.”).

      Court of Appeals of Indiana | Memorandum Decision 03A01-1709-CT-1978 | February 27, 2018           Page 5 of 8
              on the basis of failure of any element of negligence. This should
              not be confused with the threshold determination of immunity.


      Id. at 672 (quoting Peavler v. Bd. of Comm’rs of Monroe Cty., 528 N.E.2d 40, 46-47

      (Ind. 1988)).


[8]   The City sought dismissal based on Indiana Code Section 34-13-3-3(11), which

      provides that a governmental entity or employee acting within the scope of

      his/her employment is not liable if a loss results from “[t]he issuance, denial,

      suspension, or revocation of, or failure or refusal to issue, deny, suspend, or

      revoke any permit, license, certificate, approval, order, or similar authorization,

      where the authority is discretionary under the law.” Barton does not dispute

      the discretionary nature of the City’s authority to allow a parade to take place

      on its streets. She simply maintains that her claims against the City do not fall

      within the statutory grant of immunity. We disagree. Barton’s second

      amended complaint includes the following allegations specific to the City:


              15. Upon information and belief, the City of Columbus
              designated and/or approved the streets, path and/or routes used for
              the Festival of Lights Parade in Columbus, Indiana.

              16. Upon information and belief, the City of Columbus
              designated and/or approved the areas that spectators of the Festival
              of Lights Parade would occupy during the Festival of Lights
              Parade in Columbus Indiana on December 6, 2014.


      Appellant’s App. Vol. 2 at 59 (emphases added). As is clear from the plain

      language of the complaint, Barton’s allegations directly address the City’s

      decision to “approv[e]” or provide “similar authorization” for the parade’s
      Court of Appeals of Indiana | Memorandum Decision 03A01-1709-CT-1978 | February 27, 2018   Page 6 of 8
       route and the spectators’ designated areas, thus tracking the language of Indiana

       Code Section 34-13-3-3(11).


[9]    Barton cites the following paragraphs of her complaint in arguing that she pled

       additional operative facts sufficient to avoid dismissal:


               18. The Defendants were required to exercise reasonable and
               ordinary care in the designation of the path and/or route of the
               Festival of Lights Parade in Columbus, Indiana on December 6,
               2014.

               19. The Defendants were required to exercise reasonable and
               ordinary care in the designation of the areas spectators could
               occupy during the progression of the Festival of Lights Parade in
               Columbus, Indiana on December 6, 2014.

               ….

               29. The Plaintiff was injured as a direct and proximate result of
               the Defendants’ negligent actions leading up to and occurring at
               the Festival of Lights parade of December 6, 2014. One or all of
               the Defendants’ negligence includes but is not limited to those
               actions alleged herein as well the following:

               ….

               e. The Defendants failed to have or ensure compliance with
               safety protocols by any participant showcasing the robotics which
               were included within the Festival of Lights parade.


       Id. at 59, 61.


[10]   Paragraphs 18 and 19 are not factual allegations at all; instead, they are merely

       recitations of the standard of care incident to negligence actions. In other

       Court of Appeals of Indiana | Memorandum Decision 03A01-1709-CT-1978 | February 27, 2018   Page 7 of 8
       words, these paragraphs do not allege facts to support any assertion that the

       City (or any Defendant) failed to use ordinary care in establishing the parade

       route and designating spectator viewing areas, but rather simply state that

       Defendants were required to do so. As for paragraph 29, we observe that it

       begins with a legal conclusion on the issue of causation. We reiterate that the

       issues of duty, breach of duty, and causation are not before the court in

       determining whether a government entity is immune. Johnson, 995 N.E.2d at

       672. We also note that subparagraph 29(e) alleges acts for which the City

       enjoys governmental immunity under Indiana Code Section 34-13-3-3(8)(A),

       that is, “[t]he adoption and enforcement of or failure to adopt or enforce … a

       law (including rules and regulations).” As stated, we will “affirm the dismissal

       if the decision is sustainable on any basis in the record.” Esserman, 84 N.E.3d at

       1188.


[11]   In sum, Barton’s complaint alleges operative facts for which the City is entitled

       to governmental immunity. As such, negligent or not, the City has no liability

       to Barton, and dismissal therefore was proper under Trial Rule 12(B)(6).

       Accordingly, we affirm.


[12]   Affirmed.



       Robb, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 03A01-1709-CT-1978 | February 27, 2018   Page 8 of 8
