FOR PUBLICATION

ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEES:

JAMES S. STEPHENSON W. SCOTT MONTROSS

Stephenson Morow & Semler Montross Miller Muller Mendelson
Indianapolis, Indiana & Kennedy

FILED
Indianapolis, Indiana

Mar 14 2011, 8:57 am

IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court

CITY OF PERU, PERU FIRE DEPARTMENT )

and CITY OF PERU CENTRAL )
COMMUNICATIONS SYSTEM, )
)
Appellants-Defendants, )
)
vs. ) No. 85A04-1010-CT-611
)
MATTHEW LEWIS and TRACY LEWIS, )
Individually and as parents and natural )
Guardians of VIRGINIA LEWIS, a )
Deceased minor child, JAMES LEWIS, )
a minor, and GRACE LEWIS, a minor, )
)
Appellees-Plaintiffs. )

APPEAL FROM THE WABASH CIRCUIT COURT

The Honorable William C. Menges Jr., Special Judge
Cause No. 85C01-0603-CT-117

March 14, 2011

OPINION – FOR PUBLICATION

BAKER, Judge
 Appellants-defendants City of Peru (Peru), the Peru Fire Department (Fire

Department), and the City of Peru Central Communications System (Central

Communications System) (collectively, the City Defendants) bring this interlocutory

appeal, challenging the trial court‟s denial of their motion for summary judgment

regarding the negligence action that was brought against them by appellees-plaintiffs

Matthew and Tracy Lewis, individually and as parents of their deceased child, Virginia,

and their two surviving children, James and Grace (collectively, the Lewises).

The City Defendants argue that they are entitled to a judgment as a matter of law

because the doctrine of governmental immunity defeats the Lewises‟ claims of

negligence on the part of a city fire department in fighting a fire and rescuing the fire

victims. Concluding that the doctrine of governmental immunity bars the Lewises‟

claims, we reverse the judgment of the trial court and remand with instructions that

summary judgment be entered in favor of the City Defendants.

FACTS

In January 2002, Peru‟s Board of Public Works and Safety entered into an

agreement with the Miami County Board of Commissioners, regarding the

implementation of a central communications center. The agreement provided that a

single communications center would dispatch city police, and fire services, county

deputies, township fire departments, and emergency medical services in response to 911

calls at a dispatch center. The interlocal agreement established a joint board known as

the Peru/Miami County Central Communications Executive Board, as well as a single

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communications operations committee. The Central Communications Executive Board

would in turn recommend a 911 communications director to be appointed by the Miami

County Commissioners.

On May 28, 2002, Miami County entered into an enhanced 911 service agreement

to establish its communications system with Business Communication Services, a

division of SBC Global Services, Inc. That agreement superseded other 911 agreements

between Miami County and Ameritech, and was in force and effect on March 11, 2004.

Ameritech provided enhanced 911 service to Miami County through its public safety

answering point, Miami County Central Dispatch.

On March 11, 2004, Tracy discovered a fire in the first floor living room of her

home. At approximately 6:20 p.m., Tracy dialed 911, reported the fire, and told the

operator that she and her children were on the second floor. Tracy also told the

dispatcher that she and the children would attempt to leave the residence.

The dispatcher radioed the Fire Department and advised that Tracy and her

children were upstairs and that they would try and leave the residence. Thereafter, the

911 dispatcher again radioed the Fire Department and advised that witnesses could see

flames and that it was “unknown if occupants are still inside or outside” the house.

Appellants‟ App. p. 56-57, 61, 64.

Several firefighters responded and arrived at the Lewises‟ residence at

approximately 6:22 p.m. Although some of the initial responders heard dispatch reports

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that people might still be in the house, others were informed that those individuals were

attempting to leave.

Donald Myers and Mark Boyer were the first firefighters to enter the house and

began to extinguish the fire in the living room. The fire was rolling up to the ceiling, and

it took Myers and Boyer approximately five minutes to suppress. Two other firemen

maintained positions outside the front door and kept the hose line straight and free of

kinks.

Captain Joseph Lester remained outside and spoke to one of the Lewises‟

neighbors as to whether anyone was still inside. Because the neighbor was not sure,

Captain Lester assumed that the house was still occupied. Captain Lester directed

firefighter Brian Edwards to the house to create a vent and allow heat and smoke to

escape. Firefighter Robert Daine started a fan on the front porch to push air into the

house and clear the smoke.

At some point, a second fire truck arrived. Captain Lester instructed those

firefighters to connect to a fire hydrant that was less than a block from the house.

Thereafter, Captain Lester told firefighter Chris Wolfe to hose down the upper level of

the exterior of the house. Daine and Edwards then took a second hose and went upstairs.

Edwards sought to search for fire that may have extended from the first floor to the

second floor and to search for occupants. There was a smoky haze upstairs with visibility

of approximately two feet.

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 After noticing a dog at the top of the stairs, Daine instructed Edwards to carry it

downstairs. When Edwards walked downstairs, Daine continued searching the hallway.

Daine and another firefighter, Garry Davenport, saw Grace lying in the hallway. As

Davenport carried Grace down the stairs, Daine went to the base of the stairwell and

yelled for additional help. Davenport also radioed for assistance after handing Grace to

Captain Lester. Two of the firefighters found Tracy in the master bedroom with Virginia

lying beneath her. They were taken downstairs and Edwards ran back up the stairs and

saw James in one of the other bedrooms. Virginia died as a result of the injuries she

sustained in the fire.

On December 22, 2005, the Lewises filed a complaint against the City Defendants,

the Board of Commissioners of Miami County (Board), and the Miami County Council

(Council). The Lewises alleged that the firefighters failed to follow appropriate

departmental procedures and did not search the Lewises‟ home in a timely manner to

determine whether anyone was inside. The Lewises claimed that all of the defendants

were responsible for Virginia‟s death from the injuries that she sustained in the fire. The

Lewises further asserted that the defendants were liable for the serious and permanent

injuries that Tracy and the other children suffered in the fire. Tracy and the children have

all incurred substantial medical expenses as a result of the fire. Matthew also advanced a

claim for loss of consortium.

On February 5, 2007, the trial court entered an agreed summary judgment order in

favor of the Board and Council. On December 23, 2009, the City Defendants filed a

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motion for summary judgment, on the grounds that the Lewises‟ claims were “barred by

common law immunity, which bars liability of governmental entities for negligent

firefighting or rescue.” Appellants‟ App. p. 24. In the alternative, the City Defendants

alleged that the City owed no duty to provide adequate firefighting or rescue services, the

Fire Department was not a proper party-defendant, and the City cannot be liable for any

failure to communicate by county central dispatch, and there is no entity known as the

“City of Peru Communications System.” Id. at 25.

Following argument on the motion on March 8, 2010, the trial court denied the

City Defendants‟ motion for summary judgment. After the trial court certified the order

denying the motion for summary judgment for immediate appeal, we accepted

jurisdiction for interlocutory appeal. The City Defendants then timely filed a timely

Notice of Appeal.

DISCUSSION AND DECISION

I. Standard of Review

We review an appeal from summary judgment de novo. Bules v. Marshall

County, 920 N.E.2d 247, 250 (Ind. 2010). Summary judgment is proper when there is

no genuine issue of material fact, and the moving party is entitled to judgment as a matter

of law. Indiana Trial Rule 56(C). All facts established by the designated evidence and

inferences therefrom are to be construed in favor of the nonmoving party. Dreaded, Inc.

v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270 (Ind. 2009). The trial court‟s order

granting or denying a motion for summary judgment is cloaked with a presumption of

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validity. Ellis v. Martinsville, No. 55A01-1003-CT-141, slip op. at 5 (Ind. Ct. App. Jan.

11, 2011). The party appealing from a summary judgment order has the burden of

persuading us that the decision was erroneous. Id.

II. The City Defendants‟ Claims

A. Peru Central Communications System and the Peru Fire Department

At the outset, we note that the Lewises sued Peru and its Fire Department. In

accordance with Indiana Code section 34-6-2-110, the definition of a political subdivision

includes a city but not a division or department of a city. The “department” of a city is

merely a vehicle through which government fulfills its policy functions and is not a

governmental entity unto itself. Slay v. Marion Cty. Sheriff‟s Dept., 603 N.E.2d 877, 887

(Ind. Ct. App. 1997). And a non-existent entity cannot be sued or brought into court by

summons or otherwise. Rich v. Fidelity Trust Co. of Indianapolis 137 Ind. App. 619,

632, 207 N.E.2d 850, 858 (1965). As a result, the trial court should have dismissed the

Fire Department—in its individual capacity—from the action.

The Lewises also sued Peru‟s Central Communications System. However, as

discussed above, central dispatch services in Miami County are provided through the

Miami County Communications Center, a county agency. Thus, even if dispatchers were

city employees, and not agents of Miami County, the city would still be immune from

liability for enhanced 911 operations. Ind. Code § 34-13-3-3(19); see also Barnes v.

Antich, 700 N.E.2d 262, 265 (Ind. Ct. App. 1998) (observing that the operation of an

emergency dispatch system constitutes a governmental function entitled to immunity

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from tort liability). As a result, the trial court should also have dismissed the Central

Communications System as a party defendant or considered it as another agency of the

City for purposes of common law immunity in this instance.

B. Peru‟s Contentions

Because we have concluded that the trial court should have dismissed the Fire

Department and Central Communication System from this action and/or granted

summary judgment in their favor, we now address the remaining issue that is before us:

whether Peru is entitled to governmental immunity in this instance. Peru maintains that

the trial court should have granted its motion for summary judgment because the doctrine

of common law immunity bars liability that is based on the failure of a city‟s firefighters

to adequately protect and rescue citizens from the fire.

In Campbell v. State, 259 Ind. 55, 284 N.E.2d 773 (1972), our Supreme Court, in

concluding that “establishing categories of governmental immunity was best left to the

legislature,” took the step to abrogate “the common law doctrine of sovereign immunity

in almost all respects.” Benton v. City of Oakland City, 721 N.E.2d 224, 227 (Ind. 1999)

(discussing Campbell, 259 Ind. at 62-63, 284 N.E.2d at 737). However, the Court made

clear that “the word „almost‟ . . . is important” because “some vestige of the

governmental immunity must be retained.” Id. (quoting Campbell, 259 Ind. at 62-63,

284 N.E.2d at 737 (quoting W. Prosser, Law of Torts § 131, at 986 (4th ed. 1971)). The

Court preserved three contexts in which, “[u]nder common law, a governmental unit can

assert sovereign immunity. . . .” O‟Connell v. Town of Schererville, 779 N.E.2d 16, 18-

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19 (discussing Benton, 721 N.E.2d at 227). Emphasizing that this list was not exhaustive

and that “any additional exceptions would be rare and identified on a case-by-case basis,”

the Court put forth the following contexts in which sovereign immunity would be

preserved: “(1) failure to provide adequate police protection to prevent crime; (2)

appointment of an individual whose incompetent performance give rise to a suit alleging

negligence on the part of the official for making such an appointment; and, (3) judicial

decision-making.” Id. at 18-19 (citing Benton, 721 N.E.2d at 227). “The idea behind

immunity is that, „though the defendant might be a wrongdoer, social values of great

importance require [ ] that the defendant escape liability.‟” Id. at 19 (quoting Prosser

and Keeton on Torts § 131 (W. Page Keeton et al. eds., 5th ed. 1984)).

In Gates v. Town of Chandler, 725 N.E.2d 117 (Ind. Ct. App. 2000), we

recognized that common law immunity was necessary with regard to negligence claims

involving fire protection:

[A]dequate fire protection is so closely akin to adequate police protection

that fire protection should be treated as an exception to governmental tort
liability under Campbell. Both services are essential for public safety,
which is the primary function of government. Both are required to sustain a
well-ordered society that values and protects the lives and property of its
citizens. . . . Police and fire protection rank together in the essential nature
of the services provided. . . . Government provides fire protection as an
essential public service because fire, like crime, is a common enemy.

Id. at 119. The Gates court concluded that

Essentially, we affirm the long-recognized common law rule that a

municipality is not liable to an owner of property destroyed by fire even
though the destruction may have resulted from the failure to provide
suitable equipment or an adequate supply of water with which to fight the

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 fire. . . . Nor is a municipality subject to liability for negligently failing to
timely provide an adequate number of firefighters who are competent to
fight the fire and fit for duty.

Id.

Also instructive is our decision in Lamb v. City of Bloomington, 741 N.E.2d 436

(Ind. Ct. App. 2001), where the plaintiffs alleged that the Bloomington Fire Department

was negligent in fighting a fire that caused a fatality and destroyed several apartments

that resulted in other property damage and losses. The plaintiff claimed, among other

things, that the fire department negligently performed its duty in responding to the fire

and extinguishing it. Id. at 438.

The trial court dismissed the complaint, and on appeal, we determined that

common law immunity applied to any potentially-negligent acts performed in response to

the fire and fighting the fire itself were protected under the common law. Id. at 441-42.

In particular, we held that the defendants‟ “negligent performance of duty to extinguish

[the] fire[ ] clearly [fell] within the ambit of failure to provide adequate protection.” Id.

at 441. Thus, the defendants were entitled to common law immunity.

Finally, most recently in Ellis, we affirmed the trial court‟s grant of summary

judgment in favor of Martinsville and its fire department on the grounds of common law

governmental immunity. The designated evidence established that the fire department

remained on the scene of the fire until it was “pretty much extinguished,” other fire

departments were on the scene, and the defendant fire department was providing mutual

aid to the fire department that was actually in control. Slip op. at 13-14. Thus, it was

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determined that the fire department did not engage in willful or wanton misconduct in

providing fire assistance to another fire department that would preclude application of

common law governmental immunity in the property owners‟ negligence action. Id.

When examining the various circumstances that were presented in these cases, we

acknowledge that there is virtually no limit to the types of claims that citizens might

advance concerning municipal inadequacies in providing adequate fire protection, such as

adequate staffing, inadequate training, etc. As discussed above, the Lewises contend that

the fire department was negligent in supplying fire protection without making a search

for fire victims a priority; by favoring ventilation of the house instead of searching for

victims; and by not communicating to firefighters that people might be in the house,

which communication might have caused them to make potential rescue a more urgent

priority once the first floor fire was under control. In our view, these allegations—

however characterized—fall within the ambit of the failure to provide adequate fire

protection and are subject to common law immunity in accordance with Lamb and Gates,

both of which draw upon our Supreme Court‟s holding in Benton that concerns municipal

services closely akin to the failure to prove police protection.

Although we are sympathetic to the Lewises‟ plight in light of this terrible tragedy,

we are compelled to conclude that the doctrine of common law immunity bars their

claims against the City Defendants. Thus, the trial court erred in denying the City

Defendants‟ motion for summary judgment and we remand this case with instructions

that the trial court enter summary judgment in favor of the City Defendants.

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 The judgment of the trial court is reversed and remanded.

VAIDIK, J., and BARNES, J., concur.

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