Bewley v. Town of Speedway
| Docket Number | 23A-CT-451 |
| Decision Date | 30 October 2023 |
| Parties | Jerry Bewley and Deborah Bewley, Appellants-Plaintiffs, v. Town of Speedway, Appellee-Defendant. |
| Court | Indiana Appellate Court |
Appeal from the Marion Superior Court The Honorable James A. Joven Judge Trial Court Cause No. 49D13-2001-CT-2983
ATTORNEYS FOR APPELLANTS
Brandon E. Tate
Waldron Tate
Bowen Spandau LLC
Indianapolis, Indiana
ATTORNEY FOR APPELLEE
Pamela G. Schneeman
Knight Hoppe Kurnik & Knight, Ltd.
Carmel, Indiana
[¶1] Jerry and Deborah Bewley appeal the trial court's grant of summary judgment to the Town of Speedway. The Bewleys sued the Town after the Town's police K9 bit Jerry while the K9's handler was pursuing a suspected felon. Concluding the Town is entitled to immunity under the Indiana Tort Claims Act, we affirm.
[¶2] On March 1, 2019, at 7:30 p.m. Officer Matthew Turpin of the Speedway Police Department ("SPD") was dispatched to investigate a potential burglary. Officer Turpin is a trained K9 handler, and his K9 unit, Tom, was with him that night.
[¶3] Officer Turpin spotted a "suspicious vehicle[,]" Appellants' App. Vol. II, p. 89, which fled from him. He pursued, with lights and sirens activated. During the chase, a dispatcher advised Officer Turpin the vehicle had been reported as stolen.
[¶4] Meanwhile, Jerry Bewley ("Jerry") had a part-time job delivering food for a restaurant. He arrived at a customer's house in Speedway around 7:30 p.m. It was dark, but a streetlight illuminated the road in front of the customer's house. Jerry was wearing navy blue pants and a jacket.
[¶5] As Jerry and the customer conducted their transaction on the customer's front porch, they heard police sirens and saw red and blue lights flashing in the distance. Next, Jerry saw a vehicle being chased by a SPD vehicle. The fleeing vehicle crashed into a parked car down the street, and two people "jumped out." Id. at 51.
[¶6] The customer asked Jerry if he wanted to step inside her home, but Jerry declined. Instead, he went to the customer's driveway and crouched next to her vehicle, positioning himself so he could look through its windows. Jerry watched as one of the men who had jumped out of the fleeing vehicle ran between the customer's house and a neighbor's house.
[¶7] Officer Turpin, who was driving the SPD vehicle, also saw a suspect run between two houses and out of sight. He stopped in front of the customer's house and got out. Jerry did not hear Officer Turpin say anything. Jerry thought Officer Turpin should have seen him upon exiting the police vehicle, because "there was nothing between me and his car to obstruct any kind of view of me." Id. at 55.
[¶8] Officer Turpin opened up the back door of his car and released the K9. The K9 ran directly to Jerry, who attempted to get away by climbing onto the hood of the customer's vehicle. The K9 bit Jerry's right leg and held on until Officer Turpin forced it to let go.
[¶9] Jerry was eventually taken to a hospital for treatment. Meanwhile, another officer pursued the suspects and captured one of them. That suspect was charged with two Level 6 felonies and three misdemeanors.
[¶10] In January 2020, the Bewleys sued the Town, the SPD, and Officer Turpin. The Bewleys raised several claims, including alleging: (1) Officer Turpin negligently handled the K9; and (2) the Town was responsible for the officer's actions. The SPD and Officer Turpin were later dismissed from the case under circumstances not relevant to this appeal. In September 2022, the Town moved for summary judgment as to the Bewleys' claims, arguing it was immune from liability under the Indiana Tort Claims Act ("ITCA"). The court granted the Town's motion. This appeal followed.[1]
[¶11] The Bewleys raise one issue, which we restate as: whether the trial court erred in determining the Town was entitled to summary judgment on grounds of immunity.
[¶12] "We review summary judgment decisions de novo, applying the same standard of review as the trial court." Johnson v. City of Michigan City, 172 N.E.3d 355, 358 (Ind.Ct.App. 2021), trans. denied. A trial court shall grant a motion for summary judgment "if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ind. Trial Rule 56(C).
[¶13] When the defendant is the moving party, the defendant must show the undisputed facts negate at least one element of the plaintiffs' cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiffs' claim. Leo Mach. & Tool, Inc. v. Poe Volunteer Fire Dep't, Inc., 936 N.E.2d 855, 859 (Ind.Ct.App. 2010), aff'd on rehearing, 940 N.E.2d 384 (2011). "All facts and reasonable inferences from the designated evidence are construed in favor of the nonmovant." Apuri v. Parkview Health Sys., Inc., 185 N.E.3d 383, 386 (Ind.Ct.App. 2022), trans. denied.
[¶14] The appellant bears the burden of proving the trial court erred in granting a motion for summary judgment. Crossno v. State, 726 N.E.2d 375, 378 (Ind.Ct.App. 2000). Even so, we "carefully assess the trial court's decision" to ensure a nonmovant was not improperly denied a day in court. Wisniewski v. Bennett, 716 N.E.2d 892, 894 (Ind. 1999).
[¶15] In this appeal the parties ask the Court to consider the application of the ITCA and other statutes to the facts. A de novo standard of review applies to questions of statutory interpretation. Ladra v. State, 177 N.E.3d 412, 415 (Ind. 2021). And the specific question of whether a "governmental entity is immune from liability under the [ITCA] is a question of law for the courts." Gibson v. Evansville Vanderburgh Bldg. Comm'n, 725 N.E.2d 949, 952 (Ind.Ct.App. 2000), trans. denied.
[¶16] The ITCA "provides that governmental entities may be liable for torts committed by their agencies or employees." Lee v. Bartholomew Consol. Sch. Corp., 75 N.E.3d 518, 525 (Ind.Ct.App. 2017). But "under certain circumstances, the governmental entity is entitled to immunity for those acts." Id. "The purpose of immunity is to insure that public employees can exercise their independent judgment necessary to carry out their duties without threat of harassment by litigation or threats of litigation over decisions made within the scope of their employment." Ind. Dep't of Corr. v. Stagg, 556 N.E.2d 1338, 1343 (Ind.Ct.App. 1990), trans. denied. Immunity under the ITCA "assumes negligence but denies liability." Putnam Cnty. Sheriff v. Price, 954 N.E.2d 451, 453 (Ind. 2011).
[¶17] "Because the [ITCA] is a statute in derogation of the common law, it must be strictly construed against limitations on the claimant's right to bring suit." Hinshaw v. Bd. of Comm'rs of Jay Cnty., 611 N.E.2d 637, 639 (Ind. 1993). "The party seeking immunity bears the burden of proving that its conduct falls within the [ITCA] and is, thus, shielded from liability." Gibson, 725 N.E.2d at 953.
[¶18] The Town's claim of immunity is based on Indiana Code section 34-13-3-3(a)(8) (2016), which provides in relevant part:
A governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from . . . [t]he 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.
This Court has explained, "the 'enforcement' spoken of in what is now Section 3[a](8) of the ITCA means compelling or attempting to compel the obedience of another to laws, rules, or regulations, and the sanctioning or attempt to sanction a violation thereof." St. Joseph Cnty. Police Dep't v. Shumaker, 812 N.E.2d 1143, 1150 (Ind.Ct.App. 2004), trans. denied.
[¶19] In this case, Officer Turpin was chasing suspected felons when he released the K9, resulting in the K9 biting Jerry. The officer's conduct, although presumed negligent according to precedent, falls within the immunity granted under Section 3(a)(8) for enforcing the law. See Miller v. City of Anderson, 777 N.E.2d 1100, 1104 (Ind.Ct.App. 2002) (officers immune from suit under the ITCA; they were enforcing law when they arrested Miller based on erroneous belief she was violating a protective order), trans. denied.
[¶20] The Bewleys claim Indiana Code section 34-13-3-3(a)(8) does not immunize Officer Turpin's conduct because he violated a different statutory duty to restrain his K9.[2] The Indiana Supreme Court has addressed whether an officer's immunity under the ITCA could be rendered inapplicable by the officer's breach of a different statutory duty. In Patrick v. Miresso, 848 N.E.2d 1083 (Ind. 2006), a police officer pursued a burglary suspect by vehicle and collided with a vehicle driven by Miresso. Miresso sued, and the trial court denied the officer's motion for summary judgment. On appeal, the officer argued he was immune from liability because he was enforcing the law at the time of the accident. The Indiana Supreme Court disagreed, concluding the officer was not entitled to immunity under the ITCA. The Court noted a different statute requires persons operating emergency vehicles to drive with due regard for the safety of others. See id. at 1085 (citing Ind. Code § 9-21-1-8 (2009)). The two statutes were in conflict, because one immunized the officer from liability and the other subjected the officer to liability. Keeping in mind that courts must "limit or narrow common law governmental immunity, not expand it[,]"...
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