Kyle A. DZIERBA

6 OCT 1987 - 4 SEP 2000

• BIRTH: 6 OCT 1987, Michigan City, La Porte, IN
• DEATH: 4 SEP 2000, Michigan City, La Porte, IN

INDEX

[N33602] Kyle A. Dzierba

BIRTH 6 Oct 1987
Michigan City, La Porte County, IN

DEATH 4 Sep 2000 (aged 12)
Michigan City, La Porte County, IN

BURIAL
Greenwood Cemetery
Michigan City, La Porte County, IN
MEMORIAL ID 196317253 ·

Parents

Father: Greg M. Dzierba

Mother: Tammy Lynn (Cuma) Dzierba

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Gregory DZIERBA and Tammy Cuma, Appellants-Plaintiffs, v. CITY OF MICHIGAN CITY, Appellee-Defendant.

No. 46A03-0301-CV-34.
Decided: November 10, 2003
Martin W. Kus,Newby, Lewis, Kaminski & Jones, LLP, La Porte, IN, Attorney for Appellants. Stacy J. Vasilak, Bruce P. Clark & Associates, Munster, IN, Attorney for Appellee.
OPINION

Twelve-year-old Kyle Cuma was swept into Lake Michigan and drowned while attending Michigan City's Oktoberfest festival. His parents, Gregory Dzierba and Tammy Cuma (the Appellants), filed a wrongful death lawsuit against Michigan City (the City), among others. Michigan City filed a motion for summary judgment on the ground that it owed no duty to Kyle. The Appellants appeal from the granting of the City's motion for summary judgment, presenting several issues for review. We consolidate and restate those issues as follows:

1. Did the City owe a duty to Kyle Cuma, the breach of which caused his death?

2. Was the City immune from liability pursuant to the Indiana Tort Claims Act?

We affirm.

The facts favorable to the Appellants, the nonmoving parties, are as follows. The City owns Washington Park, a recreational park located on the shores of Lake Michigan. Attractions in the park include a picnic area, a marina, and a beach. The City also owns land extending immediately west from the park, upon which is located a federal navigational structure known as the East Pier. The East Pier juts out into Lake Michigan and is approximately 1146 feet long. A lighthouse is located at the end of the East Pier. A concrete walkway was built on the top concrete tier of the East Pier. A person may access the walkway via a beachfront sidewalk located in Washington Park. One can then walk from the shore to the lighthouse using the walkway, which appears to be between ten and fifteen feet wide. Although the City owns all of the land upon which these structures were built, the East Pier is owned and maintained by the United States Corps of Engineers and the lighthouse is owned and operated by the United States Coast Guard.

At approximately 5:30 p.m. on September 4, 2000, Kyle was at Washington Park. The weather was stormy at the time. Kyle rode his bicycle along the walkway out to the lighthouse. Once there, he dismounted from his bicycle and stood near the lighthouse. As he stood there watching the waves break against the pier, a large wave broke over the walkway and washed him into the lake. He struggled to stay afloat but was unable to do so. Tragically, he drowned.

On November 29, 2001, the Appellants filed a wrongful death complaint for damages against the City under the Indiana Tort Claims Act. In it, the Appellants alleged that the City had been negligent in the following respects:  1) Failing to warn Kyle of the potentially dangerous conditions (high wind and water) on the pier;  2) failing to provide safety measures to prevent members of the public from being swept into the water;  3) failing to place gates at the entrance to the pier to prevent access to the pier when the weather was rough;  4) failing to place lifeguards on duty at the entrance to the pier in order to assist anyone who fell into the lake;  5) failing to provide railings, grips, guide ropes, or safety stations that Kyle could have held onto to prevent being swept into the lake;  and 6) failing to provide flotation devices or rescue devices of any kind to help those who fell into the lake. On September 19, 2002, the City filed a motion for summary judgment on the grounds that it did not own or control the pier in question, and therefore did not have a duty to inspect. The City also argued that it was immune from liability pursuant to the Indiana Tort Claims Act (the ITCA). On December 20, 2002, the court granted the City's summary judgment motion upon its conclusion that “there is no duty on the part of the defendant to the plaintiffs.” Appellants' Appendix at 3. The court did not address the issue of immunity.

We review a grant or denial of a summary judgment motion applying the same standard as the trial court. That is, we determine whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Catt v. Board of Com'rs of Knox County, 779 N.E.2d 1 (Ind.2002). “Summary judgment is appropriate only where the designated evidence shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Id. at 3. When conducting such a review, we construe all facts and draw all reasonable inferences from those facts in favor of the nonmoving party. Id.