Breeck v. City of Madison, 40A01-9111-CV-349

Citation592 N.E.2d 700
Decision Date26 May 1992
Docket NumberNo. 40A01-9111-CV-349,40A01-9111-CV-349
PartiesBernard L. BREECK, Appellant-Plaintiff, v. CITY OF MADISON, Captain Eston Long, County of Jefferson, Dealton Bennett, and Bennett Marine Service, Inc., Appellees-Defendants.
CourtCourt of Appeals of Indiana

Charles B. Gleason, Melbourne Beach, Fla., Michael J. Donahoe, Epstein & Frisch, Indianapolis, for appellant-plaintiff.

Jon W. Webster, Webster & Webster, North Vernon, Frederic X. Shadley, Kathleen Fehr McClure, Benesch, Friedlander, Coplan & Aronoff, Cincinnati, Ohio, for City of Madison.

Robert L. Barlow, II, George A. Leininger, Cooper, Cox, Barlow & Leininger, Madison, for Captain Eston Long and County of Jefferson.

William Prime, Madison, for Dealton Bennett and Bennett Marine Service, Inc.

RATLIFF, Chief Judge.


Bernard L. Breeck ("Breeck") appeals from a partial summary judgment in favor of the City of Madison ("City"), Captain Eston Long ("Long") and the County of Jefferson ("County"), and Dealton Bennett and Bennett Marine Service, Inc. ("Bennett"), which prevents Breeck from pursuing his claims for punitive damages and violations of civil rights in an action for the return and repair of a barge. We affirm.


We restate and consolidate the issues on appeal as:

1. Did the trial court err in granting partial summary judgment in favor of City, Long, County, and Bennett on the issue of punitive damages?

2. Did the trial court err in granting partial summary judgment for the claims under 42 U.S.C. Sec. 1983 and on all other causes of action arising from any other federal statute or federal common law?

3. Are the trial court's orders granting partial summary judgment inadequate because of a failure to enter specific findings of fact?


Sometime in March of 1986, a barge allegedly owned by Breeck ("Barge") was beached on the bank of the Ohio River along City's riverfront. The Barge remained on the bank for several months, and no attempts to remove it were apparent. City officials became concerned that the Barge posed a safety hazard to the public, and tried to discover who owned the Barge so they could ask for it to be removed from the bank.

The Barge's owner was not found. City's Board of Public Works and Safety determined at a meeting on July 1, 1986 that the Barge was a nuisance and safety hazard and had been abandoned. Record at 195. Breeck denied any ownership of the Barge. Record at 447, 475-478, and 484. City contracted with Bennett on July 2, 1986 for removal of the Barge. Bennett began removing the Barge on that day, and its removal was completed several days later.

On the night of July 29, 1986, Breeck took the Barge from Bennett's facility where it had been stored. Bennett reported the Barge stolen. During the course of the removal and subsequent recovery of the Barge, Breeck was arrested for disorderly conduct by Long and other members of County's sheriff's department. This charge was later dismissed.

Breeck filed a complaint against City, Long, County, Bennett, and Madison Regatta, Inc. ("Madison") 2 on March 26, 1987. Breeck's claims were under 42 U.S.C. Sec. 1983 ("Sec. 1983"), 3 and also asked for punitive damages. On April 27, 1987, City filed a petition to remove the case to the United States District Court for the Southern District of Indiana because the complaint purported to state a cause of action under Sec. 1983. City filed a motion to dismiss the Sec. 1983 claims in federal court on May 21, 1987, which the federal court granted on June 11, 1987. Breeck filed a motion to remand the "tort claims and negligence actions" to state court on June 15, 1987, see Record at 30, which was granted on July 17, 1987.

Madison filed a motion for summary judgment on March 1, 1990. Bennett filed a motion for partial summary judgment on March 13, 1990. City, Long, and County filed motions for summary judgment on March 14, 1990. Breeck filed opposing motions. A hearing on the summary judgment motions was held on July 10, 1991. The trial court on July 25, 1991 granted partial summary judgments in favor of City, Long, County, and Bennett, and granted summary judgment in full in favor of Madison. On August 23, 1991, the trial court ordered the partial summary judgments entered as of July 25, 1991, and further found that there was no just reason for delay, thereby making the grants of partial summary judgment final appealable orders.

This appeal ensued. Other relevant facts will be stated in our discussion of the issues.


When reviewing the propriety of a ruling on a motion for summary judgment, this court applies the same standard applicable to the trial court. Webb v. Jarvis (1991), Ind., 575 N.E.2d 992, 994. We must consider the pleadings and evidence sanctioned by Ind. Trial Rule 56(C) without determining weight or credibility. Id. Only if such 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 should summary judgment be granted. Id. The movant bears the burden of proving the propriety of summary judgment, and all facts and inferences to be drawn therefrom are viewed favorably to the non-movant. Jackson v. Warrum (1990), Ind.App., 535 N.E.2d 1207, 1210. Summary judgment will be affirmed on appeal if it is sustainable on any theory or basis found in the record. Wingett v. Teledyne Industries, Inc. (1985), Ind., 479 N.E.2d 51, 54.

Issue One

We first address the trial court's grant of partial summary judgment in favor of City, Long, County, and Bennett on the issue of punitive damages. We find that the trial court properly granted summary judgment.

There is no right to punitive damages absent a special showing. Travelers Indemnity Co. v. Armstrong (1982), Ind., 442 N.E.2d 349, 362. To award punitive damages, some evidence is required which is inconsistent with the hypothesis that the tortious conduct was the result of a mistake of law or fact, honest error of judgment, over-zealousness, mere negligence or other such noniniquitous human failing. Id. Furthermore, the public interest must be served by the imposition of punitive damages. Id. at 362-363. Such damages must be proven by clear and convincing evidence. Id. at 363.

On the basis of these tenets of punitive damages under Indiana law, we find that Bennett and Long were entitled to summary judgment. Bennett was acting pursuant to a contract it had with City. See Record at 11. Long was acting in the course of his duties as a member of County's sheriff's department; indeed, charges were filed against Breeck following his arrest. See Record at 9. Even construing the materials submitted for the summary judgment determination in the light most favorable to Breeck, the conduct he alleges does not approach the level of egregious behavior required to recover punitive damages. The trial court thus properly granted summary judgment to these parties on the issue of punitive damages.

Summary judgment in favor of City and County on the punitive damages issue was also proper. In the Indiana Tort Claims Act, IND.CODE Sec. 34-4-16.5-4 states that a "government entity is not liable for punitive damages." As defined by IND.CODE Sec. 34-4-16.5-2(c), a government entity is the "state or a political subdivision of the state." The definition of a political subdivision in IND.CODE Sec. 34-4-16.5-2(f) includes cities and counties. Therefore, City and County may not be held liable for punitive damages under the Indiana Tort Claims Act.

Similarly, City and County are not liable for punitive damages under Sec. 1983, the federal statute under which Breeck sought relief. Municipalities and other local government units are included among those "persons" to whom Sec. 1983 applies. Monell v. Department of Social Services (1978), 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611, 635. However, a municipality is immune from liability for punitive damages under Sec. 1983. City of Newport v. Fact Concerts, Inc. (1981), 453 U.S. 247, 271, 101 S.Ct. 2748, 2762, 69 L.Ed.2d 616, 635 5; cf. Smith v. Wade (1983), 461 U.S. 30, 51, 103 S.Ct. 1625, 1637, 75 L.Ed.2d 632, 651 (punitives may be assessed in actions under Sec. 1983 when defendant's conduct is shown to be motivated by evil motive or intent, or when it involves callous indifference to federally-protected rights of others). Thus, City and County are immune from any punitive damage claim by Breeck and this portion of summary judgment was proper.

Issue Two

Breeck also argues that the trial court erred in granting summary judgment on his substantive claims under Sec. 1983 and other federal claims. We find that summary judgment was proper. 6

To maintain an action under Sec. 1983, Breeck needed to show a deliberate plan or course of action by City and County, namely, that Breeck suffered a constitutional deprivation by a municipality's policy or custom. Hossman v. Blunk (7th Cir.1986), 784 F.2d 793, 796. This Breeck has failed to do.

The policy or custom which causes a deprivation of a plaintiff's constitutional rights cannot be inferred from a single deprivation alone. Id. at 796-797; cf. Ross v. United States (7th Cir.1990), 910 F.2d 1422, 1430 (where particular course of action is authorized by municipality's authorized decisionmakers, it represents policy rightly attributed to governmental entity, and in such a case, there is no need to resort to proof of policy's multiple applications to attribute its existence to municipality). Furthermore, a sufficient causal link must be shown between the policy or custom and the constitutional deprivation which the plaintiff alleges. Jones v. City of Chicago (7th Cir.1986), 787 F.2d 200, 203.

Here, Breeck has failed to show issues of material fact regarding a policy or custom City or County had which caused a deprivation of his constitutionally-protected rights. He alleges only that his barge, which he had previously...

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