FOR PUBLICATION                                                           Oct 31 2013, 5:21 am




ATTORNEY FOR APPELLANT:                    ATTORNEY FOR APPELLEE:

JOE KEITH LEWIS                            KIRK A. HORN
Marion, Indiana                            Mandel Horn, P.C.
                                           Carmel, Indiana




                          IN THE
                COURT OF APPEALS OF INDIANA


RICHARD PRANCIK, b/n/f,             )
RENEE PRANCIK,                      )
                                    )
     Appellant,                     )
                                    )
            vs.                     )              No. 27A05-1302-CT-86
                                    )
OAK HILL UNITED SCHOOL CORPORATION, )
                                    )
     Appellee.                      )


                 APPEAL FROM THE GRANT SUPERIOR COURT
                      The Honorable Jeffrey D. Todd, Judge
                        Cause No. 27D01-1009-CT-883



                                October 31, 2013


                          OPINION - FOR PUBLICATION


BARNES, Judge
                                              Case Summary

          Richard Prancik b/n/f Renee Prancik appeals the trial court’s grant of summary

judgment in favor of Oak Hill United School Corporation (“Oak Hill”). We affirm.

                                                     Issue

          The issue before us is whether Oak Hill was entitled to summary judgment on

Prancik’s claim that Oak Hill breached a duty to him when a fellow student assaulted

him.

                                                    Facts

          The evidence most favorable to Prancik as summary judgment nonmovant is that

on November 24, 2009, Prancik was a seventh-grade student at Oak Hill Junior High

School. On that day, Prancik went into his classroom during a four-minute passing

period. K.M., a fellow student and acquaintance of Prancik, approached Prancik from

behind and placed him in a “choke hold” by putting his forearm around Prancik’s neck. 1

App. p. 90. As a result, Prancik lost consciousness and fell to the floor, causing facial

injuries. During this time the classroom teacher, Rita Nolan, was standing in the hallway

outside the classroom, in accordance with a school policy requiring teachers to supervise

hallways during passing periods as long as there were more students in the hallways than

in the classrooms. Nolan did not witness the incident, although she could have positioned

herself in the hallway so that she could see at least some, though not all, of the classroom

at the same time she was observing the hallway. K.M. had no school record of any

1
    It is not clear that K.M. was intending to be malicious, as opposed to engaging in horseplay.
                                                       2
previous violent behavior, nor had he and Prancik previously had conflicts. K.M.’s only

disciplinary history was related to use of profanity and not doing homework.

       On September 29, 2010, Prancik sued Oak Hill, alleging it had been negligent in

supervising its students, leading to K.M.’s injuring of him. Oak Hill moved for summary

judgment. On November 16, 2012, the trial court denied Oak Hill’s motion. Oak Hill

filed a petition to certify this order for interlocutory appeal. At a hearing on that petition,

Oak Hill alternatively requested that the trial court reconsider its earlier ruling, citing

additional legal authority it had discovered.       On February 12, 2013, the trial court

reversed its earlier ruling and granted summary judgment to Oak Hill. Prancik now

appeals.

                                          Analysis

       We review a trial court’s summary judgment ruling de novo. Miller v. Dobbs, 991

N.E.2d 562, 564 (Ind. 2013). We will affirm a grant of summary judgment “‘only if

there is no genuine issue as to any material fact and the moving party is entitled to a

judgment as a matter of law.’” Id. (quoting Overton v. Grillo, 896 N.E.2d 499, 502 (Ind.

2008)); see also Ind. Trial Rule 56(C). We must construe all evidence and resolve all

doubts in favor of the non-moving party, so as to avoid improperly denying that party’s

day in court. Id. Under Indiana Trial Rule 56(C), a summary judgment movant must

make a prima facie showing that there are no genuine issues of material fact that it is

entitled to judgment as a matter of law. Wabash County Young Men’s Christian Ass’n,

Inc. v. Thompson, 975 N.E.2d 362, 365 (Ind. Ct. App. 2012), trans. denied. If this

                                              3
occurs, the burden shifts to the nonmoving party to designate evidence establishing the

existence of a genuine issue of material fact. Id.

       To prevail on a negligence claim, a plaintiff must prove: (1) a duty owed by the

defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an injury to

the plaintiff proximately caused by the breach.       Id.   Summary judgment is rarely

appropriate in negligence cases. Id. “Nevertheless, a defendant is entitled to judgment as

a matter of law when the undisputed material facts negate at least one element of the

plaintiff’s claim.” Id. In particular, although the question of breach of duty is usually

one for a trier of fact, the question becomes one of law for the court if no reasonable fact

finder could conclude that a specific standard of care was breached. Cox v. Paul, 828

N.E.2d 907, 911-12 (Ind. 2005).

       Our focus in this case is whether there are any genuine issues of material fact that

could possibly establish a breach of duty on Oak Hill’s part towards Prancik. There are a

number of cases addressing the nature and scope of a school’s duty to prevent children

from coming to harm while in the school’s care and custody and the quantum of proof

necessary to establish a possible breach of that duty. Our supreme court addressed the

issue at length in Miller v. Griesel, 261 Ind. 604, 308 N.E.2d 701 (1974). In that case, a

fifth grader was injured by an exploding detonator cap brought to school by another

student while several students were alone in a classroom during a half-hour recess period.

In accordance with school policy, the teacher was absent from the classroom at the time,

although another teacher was periodically checking in on the students during the recess

                                             4
period. The student sued the teacher, principal, and school, the case proceeded to trial,

and the trial court granted the defendants’ motion for judgment on the evidence under

Trial Rule 50 at the end of the plaintiff’s case. Our supreme court affirmed.

       First, the court held that school authorities have a duty “to exercise reasonable care

and supervision for the safety of the children under their control.” Miller, 261 Ind. at

611, 308 N.E.2d at 706. As for the scope of that duty, the court stated:

              [S]chools are not intended to be insurers of the safety of their
              pupils, nor are they strictly liable for any injuries that may
              occur to them. The duty imposed by this legal relationship is
              a practical recognition by the law that school officials are
              required to exercise due care in the supervision of their
              pupils; that while they are neither an insurer of safety nor are
              they immune from liability. It is not a harsh burden to require
              school authorities in some instances to anticipate and guard
              against conduct of children by which they may harm
              themselves or others.

Id. at 612, 308 N.E.2d at 706-07.

       Applying that standard to the facts of the case, the court concluded that the trial

court properly granted the motion for judgment on the evidence because there was a total

absence of evidence that the defendants had breached their duty to the injured student.

Id. at 612-13, 308 N.E.2d at 707. The court noted that the plaintiff had “failed to show

the actual length of time the students were left unattended or that the activity in which

they were engaged was particularly hazardous or that any of the students in the room

were of a troublesome, mischievous nature . . . .” Id. at 613, 308 N.E.2d at 707. It also

observed:


                                             5
              [W]hat constitutes due care and adequate supervision depends
              largely upon the circumstances surrounding the incident such
              as the number and age of the students left in the classroom,
              the activity in which they were engaged, the duration of the
              period in which they were left without supervision, the case
              of providing some alternative means of supervision and the
              extent to which the school board has provided and
              implemented guidelines and resources to insure adequate
              supervision.

Id.

       In Norman v. Turkey Run Community School Corporation, 274 Ind. 310, 411

N.E.2d 614 (1980), two elementary school students were injured on a playground during

recess when they accidentally ran into each other while running backwards. At the time

of the incident, approximately seven or eight teachers were watching 188 children on the

playground, and there were “no abnormal, dangerous or extra-hazardous conditions

present prior to the collision.” Norman, 274 Ind. at 314, 411 N.E.2d at 616. Our

supreme court affirmed a grant of summary judgment in favor of the school in a lawsuit

brought by one of the injured children. The court stated, “No teacher can observe every

student at every instant on a playground. To look at one is to look away from another.”

Id. at 316, 411 N.E.2d at 617. It also noted, “there was no indication that there was any

event [sic] dangerous condition, dangerous instrumentality or special knowledge of

students having a troublesome or mischievous nature being on the playground area

known to the supervising teachers at the recess.” Id. at 317, 411 N.E.2d at 618. Under

these circumstances, the court held that “school personnel here clearly exercised ordinary

and reasonable care for the safety of the children under their authority.” Id.

                                             6
       The case whose facts are most similar to the present case is McClyde v.

Archdiocese of Indianapolis, 752 N.E.2d 229 (Ind. Ct. App. 2001). There, a student was

assaulted and injured by a fellow student in a classroom as they were returning from

lunch. The teacher was following the class back to the room, but she was not yet in the

room at the beginning of the assault and was unable to stop it when she arrived. We held

that in order to hold the school liable for the assault and resulting injuries, the injured

student would be required to prove: (1) the assaulting student had a propensity towards

violence; (2) the school system or teacher was aware of this propensity; (3) the teacher

failed to adequately supervise the class; and (4) this failure allowed the opportunity for

the assault to occur, proximately resulting in injuries to the assaulted student. McClyde,

752 N.E.2d at 233. Because there was an unstricken affidavit from the injured student’s

mother, who was also a school employee, relating that the assaulting student was known

to have behavioral and “anger management” problems, that he had earlier on the day of

the assault verbally challenged her son, and that the teacher’s being at the end of the line

returning from lunch had allowed the assault to occur, we held there was sufficient

evidence to proceed to trial and reversed the trial court’s grant of summary judgment in

favor of the school. Id. at 234. It appears that in the absence of that affidavit, we would

have affirmed the trial court’s grant of summary judgment. See id. at 235.

       Miller, Norman, and McClyde all demonstrate that Indiana courts will not shy

away from holding as a matter of law that a school did not breach its duty to reasonably



                                             7
supervise the children in their care and control where the facts warrant such a holding.2

Here, there is no evidence that either Oak Hill or Nolan was aware of any violent

tendencies on K.M.’s part and, thus, they were not on any kind of notice that K.M.

needed to be closely watched to prevent aggressive or violent behavior by him. There

was no evidence of prior altercations between K.M. and Prancik. There also is no

evidence that the school’s policy of having teachers focus their attention on hallways

during passing periods instead of classrooms, so long as more students were in the

hallways than in the classrooms, had previously resulted in physical altercations in the

classrooms.      Particularly in the absence of such evidence, that policy of focusing

attention on where the greater number of students are located is eminently reasonable.

The amount of time that Prancik and K.M. would have been left unobserved in the

classroom would have been a matter of a few minutes; no more than four, the total

amount of the passing period, and likely less than that, as Nolan would have refocused

her attention on the classroom once more students arrived.

        Prancik posits that Nolan theoretically could have positioned herself so that she

could have looked back and forth between the hallway and the classroom and therefore


2
  There is language in both Norman and McClyde that seems to blur the line between duty and breach of
duty, and neither case was very clear as to whether they were addressing duty or breach of duty.
However, it is apparent to us that those cases addressed whether the facts were sufficient to establish a
possible breach of a school’s well-settled duty to reasonably supervise its students, not whether a duty
existed. Our supreme court has held that “because a school’s duty to its students already has been
established,” courts should not attempt to rearticulate that duty based upon a given set of facts “because to
do so presupposes that an issue which is thought to be settled must be revisited each time a party frames
the duty issue a little differently.” Mangold ex rel. Mangold v. Indiana Dep’t of Natural Res., 756 N.E.2d
970, 974-75 (Ind. 2001). Instead, courts in cases such as this should focus upon “whether a given set of
facts represents a breach of that duty.” Id. at 975.
                                                     8
could have noticed and intervened in K.M.’s behavior. Regardless, it is almost always

possible to speculate that something more could have been done in situations like this.

Such speculation is insufficient to avoid summary judgment. See Norman, 274 Ind. at

317, 411 N.E.2d at 618. The fact remains that Nolan has only one pair of eyes; contrary

to the belief of many generations of students, teachers do not in fact have eyes in the back

of their heads. She was acting reasonably in focusing her attention on the hallway rather

than the classroom at the moment the assault occurred.         Moreover, schools are not

required to constantly observe all students at all times, nor to guarantee that incidents

such as the one here never happen, in order to discharge their duty of adequate

supervision.

       Prancik also argues that reversal here is warranted by our supreme court’s decision

in King v. Northeast Security, Inc. and Metropolitan School District of Washington

Township, 790 N.E.2d 474 (Ind. 2003). In King, a high school contracted with a private

security firm to provide security at the school, including in the parking lot before and

after school, after several criminal incidents at the school in the previous two years. In

addition to the security firm, the school’s assistant principal normally stayed outside the

school building after classes were dismissed to personally monitor the students’

departure. One day, however, the assistant principal was absent and no other school

official replaced him in watching the students’ departure; on that particular day a student

was assaulted and beaten in the parking lot at the end of the school day. The injured



                                             9
student subsequently sued the school and the security firm, and the trial court granted

summary judgment in favor of both the school and the security firm.

       Our supreme court reversed summary judgment as to both. King, 790 N.E.2d at

487. The majority of the opinion addressed whether the school enjoyed immunity from

the student’s claims under the Indiana Torts Claim Act, with the court holding that it did

not. Id. at 484. The opinion also addressed at length whether the security firm owed a

duty to the student, with the court holding that it did. Id. at 487. In addition to these two

lengthy discussions, the court also briefly addressed whether, for summary judgment

purposes, there was sufficient evidence that the school did not exercise reasonable care in

its supervision of students. Id. at 484-85. The school claimed that it adequately fulfilled

its supervision responsibilities by contracting with the security firm, but the court rejected

this claim by noting, “whether merely entering a contract is all the [school] should have

done or was required to do in discharging its duty of care and supervision for the safety

of its students is a matter for the jury to decide . . . .” Id. at 485. The court also noted the

absence of the assistant principal who usually watched students leaving at the end of

school and the failure to replace him on that day. Id. The court did not engage in

discussion of how this case differed from ones such as Miller, Norman, or McClyde, nor

did it express any disapproval of them, but it ultimately held the school did not meet its

summary judgment burden of establishing as a matter of law that it had adequately

supervised its students. Id.



                                              10
         We conclude King does not compel reversal of summary judgment in favor of Oak

Hill. The primary argument of the school in King was that its contract with a private

security firm was enough to discharge its supervisory responsibilities. That is not a

consideration at all in the present case, as Oak Hill has not attempted to delegate its

supervisory responsibilities to a third party. Also, there was evidence that the school in

King was not following its own supervisory protocols at the time of the assault, due to the

absence of the assistant principal and the failure to find a replacement for him to watch

the departing students. Here, Nolan was acting in accordance with reasonable protocol

for supervising students at the time of the incident, neither she nor the school were on any

kind of notice that K.M. could be violent, either generally or towards Prancik

specifically, and he and Prancik were left unsupervised at most for a mere matter of

minutes. These undisputed facts lead us to the conclusion that as a matter of law, Oak

Hill did not breach its duty to reasonably supervise the students in its care.3

                                             Conclusion

         There are no genuine issues of material fact in this case, and Oak Hill is entitled to

judgment as a matter of law. We affirm the granting of summary judgment in Oak Hill’s

favor.

         Affirmed.

CRONE, J., and PYLE, J., concur.



3
  Having reached this conclusion, we need not address Oak Hill’s alternative argument that even if it
breached its duty to Prancik, K.M.’s conduct was an intervening or superseding cause of Prancik’s injury.
                                                   11
