Carrell v. City of Portage, Ind.
Decision Date | 29 May 1985 |
Docket Number | Civ. No. H84-74. |
Parties | Brenda Joyce CARRELL, et al, Plaintiffs, v. CITY OF PORTAGE, INDIANA, et al, Defendants. |
Court | U.S. District Court — Northern District of Indiana |
James J. Nagy, Munster, Ind., for plaintiffs.
Kenneth Nowak, Merrillville, Ind., for City of Portage, Pat Witka and Marvin Owens.
Harry J. Jennings, Merrillville, Ind., for Maureen Nulf.
This matter is before the Court on a Motion for Summary Judgment filed by defendants City of Portage, Pat Witka, and Marvin Owens on December 7, 1984. Plaintiff Brenda Joyce Carrell, acting as Administrator of the Estate of Charlie Carrell, Jr., deceased, filed a Response to Defendants' Motion for Summary Judgment on January 8, 1985. Defendant City of Portage filed a Reply on January 14, 1985. The Defendants' Motion for Summary Judgment is DENIED.
This Court exercises diversity jurisdiction over the instant case under 28 U.S.C. § 1332. The plaintiff alleges an action for wrongful death arising out of a vehicle-pedestrian accident.
At approximately 1:00 a.m. on the morning of May 28, 1982, City of Portage firemen Pat Witka and Marvin Owens were returning from a fire in a firetruck when they observed Charlie Carrell stumbling in a drunken state on the side of U.S. Highway 20. The firemen parked their truck a short distance from Mr. Carrell and radioed the police for assistance. Before the police arrived, the firemen watched Mr. Carrell walk onto the highway in front of an oncoming automobile driven by Maureen Nulf. The firemen flashed a spotlight in the direction of the oncoming automobile and Mr. Carrell as a warning to the driver to avoid the pedestrian. Nulf's automobile struck Mr. Carrell and he later died. Brenda Joyce Carrell, as Administrator of Charlie Carrell's estate, now brings suit against Maureen Nulf, the two firemen, and the City of Portage, claiming that the negligent actions of all the defendants caused the wrongful death of Charlie Carrell.
Defendants City of Portage, Pat Witka, and Marvin Owens present two arguments for summary judgment under Rule 56, Fed. R.Civ.P. First, defendants argue that they are immune from liability under the Indiana Tort Claims Act, I.C. § 34-4-16.5-3(6) (1983), as the firemen acted within their discretionary function. Second, the defendants assert that they owed no duty to Charlie Carrell because no special relationship existed between them and no rescue was undertaken.
In reviewing a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, this court must judge whether the defendants present a claim involving no genuine issues of fact which entitles them to dismissal as a matter of law. Fed.R.Civ.P. 56. In this inquiry, the court draws all inferences of fact against the moving party and in favor of the party opposing the motion. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).
With this standard of review in mind, I address the question of immunity under the Indiana Tort Claims Act (ITCA). The Act provides in pertinent part that:
This statute codifies two requirements traditionally recognized as necessary in order for governmental immunity to apply to an individual actor: (1) the agent's action must have been within the scope of the agent's employment; and (2) the action must have been taken in the performance of a discretionary function. Board of Commissioners v. Briggs, 167 Ind.App. 96, 337 N.E.2d 852, 861 (1975). See Note, "Sovereign Immunity in Indiana — Requiem?", 6 Ind.L. Rev. 92, 104 (1972). Since the actions taken by firemen Owens and Witka were outside the scope of their employment, they cannot claim immunity from suit under the ITCA.
Under the 1982 version of I.C. § 22-11-5-8, all municipal fire marshals and chiefs of fire departments were made assistants to the state fire marshal for execution of these definitive provisions.
Affidavits of Owens and Witka, filed December 7, 1984.
The decision includes a caveat: Id.
The trooper was immune because the chase was within his sphere of duty and did not go beyond zealous execution of that duty. See also Jacobs v. City of Columbus, 454 N.E.2d 1253 (Ind.App.1983); Indiana State Police v. May, 469 N.E.2d 1183, 1184 (Ind. App.1984).
After Seymour, it appears that ITCA immunity requires as a minimum that the agent act within the general scope of his or her statutory duty. Even within the sphere of that duty, the Seymour Court noted, an agent may surpass the bounds of immunity. And so it is here. Owens and Witka had no duty as firemen to police the highways and effect rescues of pedestrians. Even if their close association with law enforcement officers gave rise to a putative duty to radio for help, it does not extend so far as to shield them from liability for an affirmative act,...
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