Quakenbush v. Lackey

604 N.E.2d 1210, 1992 Ind. App. LEXIS 1807, 1992 WL 364179

• Court: Indiana Court of Appeals
• Decided: December 14, 1992
• Docket: 49A04-9204-CV-113
• Status: Published

Opinions

CHEZEM, Judge.

Case Summary

Plaintiffs-Appellants, - Tricia - Quaken-bush, Samuel McAfee, Mac Medlin, and Larry Allen (sometimes collectively, "Appellants"), appeal from summary judgment granted to Defendants-Appellees, Florence E. Lackey and City of Indianapolis (Lackey). We affirm.

Issue

Whether Lackey was entitled to summary judgment based upon immunity under the Indiana Tort Claims Act.

Facts and Procedural History

Lackey, a patrol officer for the Indianapolis Police Department, was dispatched to a report of a man beating a woman in a parking lot. Lackey, driving a marked police car, was going to the disturbance at the time of the accident. Lackey crossed an intersection against the red light when her vehicle struck Quakenbush's vehicle. Quakenbush had entered the intersection on a green light. Lackey had no red or blue lights flashing, no siren on, no horn blowing, and no spotlight shining. She approached the intersection with only her headlights on. Medlin, Allen, and McAf-ee's claims were consolidated with Quaken-bush's claim because they were passengers in Quakenbush's vehicle at the time of the accident. The trial court found that:

[UJnder the uncontroverted facts of this case, the Defendant police officer, Florence Lackey, was, in the words of our supreme court in City of Wakarusa v. Holdeman [ (1991), Ind., 582 N.E.2d 802, reh. denied ], involved in an '... activity attendant to effecting the arrest of those who may have broken the law ...'. As such she was engaged in the 'enforcement of a law' and entitled to law enforcement immunity under the Indiana Tort Claims Act.

Discussion and Decision

When reviewing a summary judgment, the standard of review is whether there was no genuine issue of material fact and whether the moving party was entitled to judgment as a matter of law. Ind.Rul.Tr. Proc., Rule 56(C); Farm Bureau Co-op v. Deseret Title Holding Corp. (1987), Ind.App., 513 N.E.2d 193, reh. denied; Interstate Auction Inc. v. Central Nat'l. Ins. Group, Inc. (1983), Ind.App., 448 N.E.2d 1094, 1097. There are no issues of material fact which present error by the trial court. We must decide whether Lackey is entitled to immunity and therefore judgment as a matter of law.¹

Governmental entities and their employees such as police officers are subject to liability for torts committed by them, unless the activity giving rise to the tort falls within the exceptions enumerated in the Tort Claims Act. Id. at 798; Peavler v. Monroe County Bd. of Comm'rs (1988), Ind., 528 N.E.2d 40, 42, remand, 557 N.E.2d 1077, trans. denied. Lackey claims an exception from liability under the Tort Claims Act:

A governmental entity or employee acting within the scope of his employment is not liable if a loss results from:

% * % # # #

(7) the adoption and enforcement of or failure to adopt or enforce a law (including rules and regulations), unless the act of enforcement constitutes false arrest or false imprisonment.

1.C. § 84-4-16.5-8(7).

Appellants argue that Lackey is not entitled to immunity because her actions were not attendant to effecting an arrest. "Enforcement of a law" means "those activities attendant to effecting the arrest of those who may have broken the law." Tittle, 582 N.E.2d at 801. "[UJnless the injuries for which a plaintiff seeks recovery arose out of the actual attempts to effect an arrest of one who may have broken the law, there is not immunity to be found in Section 8(7)." Wakarusa, 582 N.E.2d at 803. We hold that the phrase "actual attempts to effect an arrest of one who may have broken the law" includes actions of officers dispatched to investigate identifiable criminals who may be in the act of committing crimes which increase the likelihood of immediate physical injury to others.

Our supreme court has demonstrated a willingness to extend immunity to officers in such situations:

In Seymour National Bank v. State, 422 N.E.2d 1223, we concluded that the State was immune from liability for the alleged negligence of a state trooper in operating his police car during a high speed chase of a criminal suspect. Rather than focusing, as the common law would have required, on what, if any, duty had been violated, the basis for the ruling was, simply, that an officer engaged in effecting an arrest is in fact enforcing the law. 422 N.E.2d at 1226. We continue to agree that, given the facts presented in Seymour, the result reached in that case was correct.

Tittle, 582 N.E.2d at 799-800.

This is not to say that any act within the scope of a police officer's duties merits immunity. Administrative and custodial duties performed by officers after an arrest do not warrant immunity. Id.; see City of Valparaiso v. Edgecomb (1992), Ind., 587 N.E.2d 96 (an officer leading a funeral procession is not effecting an arrest). Contrary to the dissent's characterization of the beating as a mere "squabble," an officer responding to a report of one inflicting physical injury onto another cannot be paralleled to "patrolling the highways looking for expired plates, issuing a parking ticket or a summons, obeying a superior's order while escorting a funeral procession, responding to a non-emergency radio dispatch, investigating an unleashed dog, directing traffic, or occupied with any of the many other duties and services required of a police officer...." Dissent, infra. Lackey, like the officer in Seymour, was "in the course of apprehending a suspect, which activity required split see-ond timing and decision-making." Tittle, 582 N.E.2d at 801. Lackey was dispatched to a scene where a man was allegedly beating a woman in a parking lot An officer so dispatched cannot make an arrest without first arriving at the scene, and the act of getting to the scene is part of the same transaction as the act of acquiring physical custody over the criminal.² We do not distinguish between emergency and non-emergency dispatches when there is a report of one inflicting physical injury onto another.

Allowing officers immunity only for acts committed while the criminal is in custody strips officers of necessary immunity. Many police dispatches involve dangerous fleeing felons or violent persons who most likely would flee if it were known that the police were called. Public safety will be endangered if our interpretation of "actual activities attendant to effecting an arrest" is too narrow. The active pursuit of dangerous criminals and quick responses to calls of illegal activity will be reduced if officers must fear personal liability.

Appellants urge us to apply Wakarusa. Lackey's situation can be distinguished from that in City of Wakarusa v. Holdeman. The officer in Wakarusa was not dispatched to a crime scene and was not granted immunity because there was no identifiable criminal. Such is not the case for Lackey. The dispatch to Lackey indicated that there was an identifiable person who may have broken the law and who was inflicting physical harm on another person. Thus, Lackey is entitled to immunity.

We must qualify our position on immunity to the extent that our next step should be to decide whether Lackey acted within the scope of her employment. Lackey is not entitled to immunity unless she acted "within the scope of [her] employment." 1.C. § 84-4-16.5-8(7).³ This is an entirely separate issue from the issue of whether Lackey was making actual attempts to effect an arrest of one who may have broken the law. Although the Police Review Board found otherwise, in their complaint Appellants alleged that Lackey was within the scope of her employment when the accident occurred. Lackey and the City of Indianapolis admitted such in their replies to the complaint. Therefore, we do not consider the issue of scope of employment due to the agreement of all parties.

Affirmed.

BAKER, J., concurring with separate opinion. MILLER, J., dissenting with separate opinion.

1 . - Our supreme court vacated the opinions of the Court of Appeals to the extent that they relate to the application of the Indiana Tort Claims Act and the issue of immunity for those who enforce the law. Tittle v. Mahan (1991), Ind., 582 N.E.2d 796, 801. We are limited in precedent to cases whose holdings are not superseded by the holdings in Tittle v. Mahan. Appellants filed a Motion for Additional Authority which cited to an unpublished opinion of the Indiana Court of Appeals. Indiana Appellate Rule 15(A)(3) prohibits the citation of unpublished authority in a brief filed with the Indiana Court of Appeals. We have held that it is inappropriate to cite unpublished opinions to the Court. Miller Brewing Company v. Best Beers of Bloomington (1991), Ind.App., 579 N.E.2d 626, 633, n. 4, reh. denied; Qazi v. Qazi (1986), Ind.App., 492 N.E.2d 692, 693, n. 2. reh. denied, trans. denied; Drake v. City of Gary (1983), Ind.App., 449 N.E.2d 624, 626, n. 1; Warner v. State (1980), Ind.App., 406 N.E.2d 971, 973, n. 8.

2 . The fact that other police officers were at the scene before Lackey does not mean her activities were not attendant to effecting an arrest. Nor does it mean there was no need for assistance from Lackey. The dispatch implies she was needed to secure an arrest. It is not relevant that she volunteered to take the call. Such was her duty and is quite common when a dispatch is broadcasted to all officers in an area. The fact remains that there was a dispatch regarding one who was inflicting physical injury onto another. To state that because she did not arrive at the scene means she was not needed ignores the reality of the situation before the accident. Although hindsight provides 20/20 vision, we cannot expect an officer to be able to see into the future to determine whether they will, in fact, be needed to secure an arrest. Officers must assume that once they accept a dispatch, it is necessary for them to arrive at the scene.

3 . It is well-settled that "a statute (such as the Tort Claims Act) which is in derogation of the common law must be strictly construed against limitations on a claimant's right to bring suit." Tittle, 582 N.E.2d at 800; Collier v. Prater (1989), Ind., 544 N.E.2d 497, 498. Under a canon of strict construction, Lackey may have acted outside of the scope of her employment when she violated Indianapolis Police Department General Order 8.00, Section V.C., which states:

1. Police vehicles approaching a red traffic signal or stop sign shall stop and yield the right-of-way to all moving vehicles and pedestrians within the intersection and to those approaching in a manner which would cause them to become a hazard. The police vehicle operator may proceed with caution only when the way is clear.

2. Only when responding to an emergency situation, or when properly operating a Departmental vehicle under pursuit conditions may an officer disregard an automatic traffic control signal or stop sign. In both instances, however, the officer shall approach the intersection with caution and be prepared to stop. The officer may proceed only when the way is clear.

It is undisputed that Lackey did not stop and yield the right-of-way at the intersection. Lackey did not have her lights and sirens on at the time of the accident and she acted in violation of Departmental rules. A finding that Lackey did not act within the scope of employment for purposes of immunity does not impute negligence onto her. In such case, "the controlling question becomes whether defendants owed plaintiff a private duty for the breach of which the law permits a recovery." Wakarusa, 582 N.E.2d at 804. We do not consider this issue due to the stipulations of all parties. Nonetheless, an officer who follows departmental protocol will most likely not behave negligently and should be granted immunity if all requirements for immunity are satisfied.