City of Gary v. Kellogg, 3-983-A-291

Docket NºNo. 3-983-A-291
Citation519 N.E.2d 570
Case DateFebruary 17, 1988
CourtCourt of Appeals of Indiana

John P. Price, Jon D. Krahulik, Joseph H. Hogsett, Dan J. Carwile, Grace M. Curry, Bingham Summers Welsh & Spilman, Indianapolis, for appellants.

Hilbert L. Bradley, Terry C. Gray, Gary, J. Michael Katz, Katz Brenman & Angel, Merrillville, for appellees.

STATON, Judge.

The City of Gary, its former mayor, two police chiefs, and the Superintendent of the Indiana State Police (hereinafter collectively referred to as the "City") were defendants in a class action suit. The plaintiffs (hereinafter referred to as the "Citizens") contended that a City policy which denied them blank handgun application forms created a cause of action for damages under 42 U.S.C. Sec. 1983 and Ind.Code 35-23-4.1-5 (now codified at Ind.Code 35-47-2-3), the Indiana Firearms Act. After a jury trial, a verdict was returned against the City. Its appeal to this Court presents numerous issues for review. Because this court reverses the judgment of the trial court, the only issue addressed is whether the Citizens' cause of action was procedurally barred by their failure to comply with the Indiana Tort Claims Act, Ind.Code 34-4-16.5-12 (the Act).


The pertinent facts in this case are not disputed, and they have been previously reported in Motley v. Kellogg (1980), Ind.App., 409 N.E.2d 1207, 1208-09, trans. den. In Motley, the Court of Appeals affirmed a preliminary injunction prohibiting the City from further withholding handgun license applications. In the instant case, the relief sought was damages.

As its title implies, the Act applies to tort claims. Ind.Code 34-4-16.5-1. For tort claims against a political subdivision of the state, it provides that claims will be barred unless proper notice is given within one hundred eighty days. Ind.Code 34-4-16.5-7 (Supp.1987). It also provides that within ninety days after notice, the governmental entity must approve or deny the claim in writing or it is automatically denied. Ind.Code 34-4-16.5-10. Too, a person may not initiate suit unless a claim has been denied in whole or in part. Ind.Code 34-4-16.5-12.

The Citizens complied with the notice requirement, but they did not wait until their claim had been denied before initiating suit. The City raised this violation as a defense, but the trial court ruled that the Act did not apply.

It has often been reported that the purpose of the Act is to provide an opportunity for the State to investigate, determine liability, and prepare a defense to the claim. Burggrabe v. Board of Public Works (1984), Ind.App., 469 N.E.2d 1233, 1235-36, trans. den. The Act also protects the fiscal integrity of governmental bodies by limiting tort damages. Board of Commissioners of Hendricks County v. King (1985), Ind.App., 481 N.E.2d 1327, 1330. Since the Citizens' claim was one for monetary damages sounding in tort, it was error for the trial court not to apply the Act. Moreover, the plain language of the Act provides that no tort suit can be initiated until a claim has been denied, and failure...

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2 cases
  • Kellogg v. City of Gary, 45S03-9011-CV-710
    • United States
    • Supreme Court of Indiana
    • 8 Noviembre 1990 violated section 12 of the Indiana Tort Claims Act, Ind.Code Sec. 34-4-16.5-12, and was fatal to their claim. City of Gary v. Kellogg (1988), Ind.App., 519 N.E.2d 570. Because the holding of the Court of Appeals contravenes that of the United States Supreme Court in Felder v. Casey (19......
  • Bicanic v. McDermott, 88-2147
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 31 Enero 1989
    ...1988, on the authority of Werblo v. Hamilton Heights School Corp., 519 N.E.2d 185 (Ind.App. 1st Dist.1988), and City of Gary v. Kellogg, 519 N.E.2d 570 (Ind.App. 3d Dist.1988), decided in The defendants moved to "dismiss" the federal complaint on the basis of this decision. The district jud......

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