Brinkman v. City of Indianapolis

• Decision Date: 28 November 1967
• Docket Number: No. 20628,20628
• Citation: 141 Ind.App. 662,231 N.E.2d 169
• Parties: Louise BRINKMAN, As Administratrix of the Estate of Jack B. Brinkman, Deceased, Appellant, v. CITY OF INDIANAPOLIS and Carl V. Lambert, Individually and as a Police Officer of the City of Indianapolis Police Department, Appellees.
• Court: Indiana Appellate Court

Page 169

231 N.E.2d 169

141 Ind.App. 662

Louise BRINKMAN, As Administratrix of the Estate of Jack B.

Brinkman, Deceased, Appellant, v. CITY OF INDIANAPOLIS and Carl V. Lambert, Individually and

as a Police Officer of the City of Indianapolis

Police Department, Appellees.

No. 20628.

Appellate Court of Indiana, In Bank.

Nov. 28, 1967.

Rehearing Denied Dec. 14, 1967.

Hall, Frazier & Crokin, Indianapolis, William D. Hall, Indianapolis, of counsel. for appellant.

Michael B. Reddington, Corp. Counsel, City of Indianapolis, for appellees.

SMITH, Judge.

This appeal comes to us from the Marion Superior Court, Room No. 2, where this action was brought by the appellant, Louise Brinkman, as administratrix of the estate of Jack B. Brinkman, deceased, for funeral expenses, compensatory and punitive damages, and attorney fees resulting from the alleged wrongful death of the decedent, Jack B. Brinkman.

The facts, as alleged in substance in the amended complaint and disclosed by the record, are as follows:

The defendant-appellee, Carl V. Lambert, a police officer from the City of Indianapolis Police Department, was summoned to the residence of Mr. Brinkman at 11:30 P.M. on January 16, 1965, for the purpose of taking Mr. Brinkman to the hospital for medical care. Mr. Brinkman was very ill and running a high temperature. When Officer Lambert arrived, Mr. Brinkman's friends were present and explained the situation to said officer. Officer Lambert agreed to take Mr. Brinkman to the hospital, but after departing with Mr. Brinkman, Officer Lambert placed him under arrest, charging him with being a disorderly person, with drunkenness and with having a pre-mental condition. Mr. Brinkman was booked and put into the City of Indianapolis Jail without being given medical attention.

On January 17, 1965, about 1:00 A.M., Officer Lambert telephoned the appellant and informed her that he had arrested Mr. Brinkman. The appellant was told that she could not post bond or see her husband at that time. That same night, on January 17, 1965, Mr. Brinkman died in his jail cell.

An autopsy, which was performed soon after death, revealed that there was no alcoholic content in Mr. Brinkman's body. The cause of his death was determined to be lobar pneumonia of the left lower lobe and severe congestion of the remainder of both lungs.

The plaintiff's amended complaint further alleged in substance that Mr. Brinkman's death was caused by Officer Lambert and the City of Indianapolis, who breached their duty to the decedent by placing him in jail without furnishing him medical attention or care; and that Mr. Brinkman's death was a direct and proximate result of the defendants' gross carelessness and negligence, their gross and wanton misconduct, and their conscious disregard for his life when they knew or had reason to believe he was in need of immediate medical attention.

The defendant-appellees filed their demurrer to the appellant's amended complaint, which demurrer was sustained as to the defendant, City of Indianapolis, but overruled as to the defendant, Officer Lambert. The appellant refused to plead over as to the appellee, City of Indianapolis, and the trial court thereupon entered a judgment for appellee, City of Indianapolis, and against appellant on her amended complaint.

The appellant now maintains that the trial court erred in sustaining the demurrer of the appellee, City of Indianapolis, to the amended complaint; that such action was contrary to law; and that costs should not have been assessed against the appellant.

The issue presented by this appeal is whether or not the City of Indianapolis shall be held responsible for the consequences of the arrest made by police officer, Carl V. Lambert.

The appellant argues that Officer Lambert was engaged in a corporate or proprietary function at the time of the arrest, as compared to a governmental act, and that, therefore, the doctrine of governmental immunity does not apply to shield the city from liability.

The major exception to the rule of municipal tort immunity is that which involves functions that are regarded by the courts as proprietary. Cities are held to be liable for torts occurring in the performance of proprietary functions. Flowers v. Board of Commissioners of County of Vanderburgh et al. (1960), 240 Ind. 668, 168 N.E.2d 224. On the other hand, immunity, in the language of most courts, is an attribute of governmental functions exercised solely for the public at large and not for the private benefit of the municipality. City of Indianapolis v. Butzke (1940), 217 Ind. 203, 26 N.E.2d 754, 27 N.E.2d 350; City of Kokomo v. Loy (1916), 185 Ind. 18, 112 N.E. 994; City of Evansville v. Blue (1937), 212 Ind. 130, 8 N.E.2d 224.

The governmental-proprietary rule, however, often produces legalistic distinctions that are only remotely related to the fundamental considerations of municipal tort responsibility. As for example, it does not seem to be good policy to permit the chance that a school building may or may not be producing rental income at the time, determine whether a victim may recover for a fall into a dark and unguarded basement stairway or elevator shaft. Neither does it seem to be good policy to find that a municipal garbage truck is engaged in a nonimmune proprietary function when enroute from a wash rack to the garage while the same truck is engaged in an immune governmental function when enroute to a garbage pickup.

The inherent inequities found in the governmental-proprietary distinction and the availability of liability insurance as a substitute for and a supplement to governmental liability, have caused many states to abrogate the doctrine of municipal tort immunity. Holytz v. City of Milwaukee (1962), 17 Wis.2d 26, 115 N.W.2d 618; Spanel v. Mounds View School Dist. (1962), 264 Minn. 279, 118 N.W.2d 795; City of Louisville v. Chapman, (1967, Ky.), 413 S.W.2d 74; Bernardine v. City of New York (1945) 294 N.Y. 361, 62 N.E.2d 604, 161 A.L.R. 364; Molitor v. Kaneland Community Unit Dist. No. 302 (1959), 18 Ill.2d 11, 163 N.E.2d 89, 86 A.L.R.2d 469; Collopy v. Newark Eye and Ear Infirmary (1958), 27 N.J. 29, 141 A.2d 276; Muskopf v. Corning Hosp. Dist. (1961), 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457; Williams v. City of Detroit (1961), 364 Mich. 231, 111 N.W.2d 1; Hargrove v. Town of Cocoa Beach (1957, Fla.), 96 So.2d 130, 60 A.L.R.2d 1193; Stone v. Arizona Highway Commission (1963), 93 Ariz. 384, 381 P.2d 107; City of Fairbanks v. Schaible (1962), Alaska, 375 P.2d 201; Colorado Racing Commission v. Brush Racing Assn. (1957), 136 Colo. 279, 316 P.2d 582; Rice v. Clark County (1963), 79 Nev. 253, 382 P.2d 605; McAndrew v. Mularchuk (1960), 33 N.J. 172, 162 A.2d 820, 88 A.L.R.2d 1313; McDowell v. Mackie (1961), 365 Mich. 268, 112 N.W.2d 491; Haney v. City of Lexington (1965, Ky.), 386 S.W.2d 738, 10 A.L.R.3d 1362.

The extent to which a municipal corporation should be held liable for torts committed by its officers or employees in the course of their employment is a perplexing problem that has been the subject of litigation on many occasions. There has been a general apprehension that fraud and excessive litigation would result in unbearable costs to the public in the event municipal corporations were treated as ordinary persons for purposes of tort liability. On the other hand the unfairness to the innocent victim of a principle of complete tort immunity and the social desirability...