Fries v. Fincher

• Decision Date: 16 March 1993
• Docket Number: No. 02A03-9210-CV-347,02A03-9210-CV-347
• Citation: 610 N.E.2d 291
• Parties: Kenneth C. FRIES and Allen County Board of Commissioners, Appellants-Defendants Below, v. Gloria J. FINCHER, Appellee-Plaintiff Below.
• Court: Indiana Appellate Court

Page 291

610 N.E.2d 291

Kenneth C. FRIES and Allen County Board of Commissioners Appellants-Defendants Below, v. Gloria J. FINCHER, Appellee-Plaintiff Below.

No. 02A03-9210-CV-347.

Court of Appeals of Indiana Third District.

March 16, 1993.

Mark W. Baeverstad, David M. Lutz, Hunt, Suedhoff, Borror & Eilbacher, Fort Wayne, for appellants.

Gwendolyn J. Morgan, Wyss, McNellis, Riebenack & Myers, Fort Wayne, for appellee.

STATON, Judge.

Kenneth Fries and the Allen County Board of Commissioners (hereinafter "Fries") appeal the denial of a motion for summary judgment in a personal injury action commenced by Gloria Fincher. Pursuant to Ind. Appellate Rule 4(B)(6), this court granted Fries' petition for interlocutory appeal to address the following question of law: whether Fries was immune from liability for personal injury to Fincher because of the law enforcement provision of the Indiana Tort Claims Act ("Act").

We conclude that Fries was entitled to summary judgment based upon immunity under the Act.

On June 6, 1990, Officer Kenneth Fries of the Allen County Sheriff's Department responded to a call for assistance by another officer conducting an on-foot pursuit of a criminal suspect in the vicinity of Broadway and Jefferson streets in Fort Wayne. Fries activated the flashing red light on his vehicle and proceeded west on Woodland Avenue, an eastbound street. At the intersection of Woodland Avenue and Harrison Street, Fries' vehicle struck a vehicle driven by Gloria Fincher.

Fincher filed her complaint on June 8, 1992, alleging that Fries operated his vehicle in a negligent manner. On July 22, 1992, Fries filed a motion for summary judgment, alleging that he was engaged in the enforcement of a law at the time of the collision and was thus immune from liability under the Act. Fincher responded that Fries' actions, although admittedly undertaken within the scope of his employment, were so outrageous that they fell outside the scope of immunity.

On October 1, 1992, the trial court denied the motion for summary judgment, concluding that Fries' actions did not arise out of an "actual attempt to effect an arrest of one who may have broken the law." Record, p. 27. Fries' petition for certification of interlocutory appeal was granted by this court on December 10, 1992.

Immunity from liability for a governmental entity or an employee acting within the scope of his employment is controlled by the Indiana Tort Claims Act, IND.CODE 34-4-16.5-1, et seq. The Act provides in pertinent part:

"A governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from:

. . . . .

the 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;"

I.C. 34-4-16.5-3(7).

There is no immunity under this section unless the plaintiff seeks recovery for injuries arising out of police activities attendant to effecting an arrest. City of Valparaiso v. Edgecomb (1992), Ind., 587 N.E.2d 96, 97. ¹ Administrative and custodial duties performed by officers after an arrest do not warrant immunity. Quakenbush v. Lackey (1992), Ind.App., 604 N.E.2d 1210, 1212. However, immunity is not restricted to acts committed at the scene of an actual arrest. Id. at 1213. See Seymour National Bank v. State (1981), Ind., 422 N.E.2d 1223, (immunity existed where an officer responded to another officer's report of a suspicious vehicle and was involved in a collision during the vehicular chase which ensued); Crews v. Brockman (1987), Ind.App., 510 N.E.2d 707, reh. denied, trans. denied (officer en route to a domestic disturbance was immune from liability for injuries in collision which occurred before arrival at the scene of the altercation).

In the recent case of Quakenbush, supra, Officer Lackey was involved in a collision after she was dispatched to a scene where a man was allegedly beating a woman in a parking lot. Because of the collision--which occurred when Lackey entered an...