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City of Muncie v. Weidner7/22/2005
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(a) his failure to exercise reasonable care increases the risk of such harm; or
(b) he has undertaken to perform a duty owed by the other to the third person; or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
Ward v. First Ind. Plaza Joint Venture, 725 N.E.2d 134, 136 (Ind. Ct. App. 2000), trans. denied (quoting Restatement (Second) of Torts ยง 324A (1965)). Assumption of a duty creates a relationship between the parties and a corresponding duty to act in a reasonable manner. Id. (citing Delta Tau Delta, Beta Alpha Chapter v. Johnson, 712 N.E.2d 968, 975 (Ind. 1999)). The existence and extent of such a duty is ordinarily a question of fact; however, when the evidence is insufficient to establish such a duty, the court will decide the issue as a matter of law. Id.
I also agree with the majority that increase or decrease of the danger to the third party in question is a standard by which courts determine whether a duty has been assumed. In this context, there is no allegation that A.W. was near the Gothard property when the MFD inspected the property. Rather, the record indicates A.W. was mowing the lawn in question for a landlord the day after the MFD's response and had no reason to know of the MFD's previous visit to the Gothard property. Appellant's App. p. 123. As such, it was impossible for the MFD to increase the danger to A.W.
A reasonable person who witnesses a fire crew come to a nearby home after a storm and inspect the property would (and should) conclude that the responding fire crew would notify all persons endangered by the condition inspected by the crew, both on and near the property inspected. Accordingly, the mere act of witnessing the MFD near the Gothard property could have been enough for A.W. and any others similarly situated to assume the MFD would have warned all who might be endangered by the downed line. Observation or knowledge that a public safety official has inspected but not issued a warning may increase risk by discouraging caution and independent investigation-at least enough for the issue of duty to be decided by a jury.
Nonetheless, A.W. did not see or learn that the MFD had responded and inspected the Gothard property. Therefore, under the facts and circumstances of the case before us, A.W. could not have reasonably relied upon the absence of a warning from the MFD.
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