Greathouse v. Armstrong

• Decision Date: 24 June 1993
• Docket Number: No. 88S01-9306-CV-692,88S01-9306-CV-692
• Citation: 616 N.E.2d 364
• Parties: Sandra GREATHOUSE, Personal Representative of the Estate of Donald L. Greathouse, Deceased, Appellant, v. Stanley ARMSTRONG, Lawrence County Sheriff's Office and Commissioners of Lawrence County, Indiana, Appellees.
• Court: Indiana Supreme Court

Page 364

616 N.E.2d 364

Sandra GREATHOUSE, Personal Representative of the Estate of Donald L. Greathouse, Deceased, Appellant, v. Stanley ARMSTRONG, Lawrence County Sheriff's Office and Commissioners of Lawrence County, Indiana, Appellees.

No. 88S01-9306-CV-692.

Supreme Court of Indiana.

June 24, 1993.

Patrick W. Harrison, Beck & Harrison, Columbus, and Robert B. Hamilton, II, Salem, for appellant.

William H. Andrews, Roland L. Chapman, Karen A. Wyle, Cotner, Andrews, Mann & Chapman, Bloomington, and James S. Stephenson, Stephenson & Kurnik, Indianapolis, for appellee.

DeBRULER, Justice.

Following a fatal collision on State Road 58 in Lawrence County, Sandra Greathouse, wife of Donald L. Greathouse, and personal representative of his estate, initiated a wrongful death action for damages. The trial court granted a motion for summary judgment in favor of certain defendants in the action, namely, the Board of Commissioners of Lawrence County ("County") and the Lawrence County Sheriff's Department ("Sheriff's Department"). On September 4, 1991, the jury returned a verdict for the remaining defendant Stanley Armstrong ("Armstrong").

The estate appealed, and the First District Court of Appeals affirmed the summary judgment, thereby upholding the trial court's determination that no special duty or relationship existed between Mr. Greathouse and the Sheriff's Department and the County which would enable the estate as plaintiff to recover for any breach of a duty and that the Sheriff Department's actions constituted discretionary functions for which the Indiana Tort Claims Act provides governmental immunity. Ind.Code Sec. 34-4-16.5-3(6). Greathouse v. Armstrong (1992), 601 N.E.2d 419, 424. The Court of Appeals also affirmed the jury verdict and judgment for defendant Armstrong. Id.

The estate raised several issues in its appeal including the claim that the trial court committed error when granting summary judgment in favor of the Sheriff's Department and the County based upon governmental immunity and lack of special duty or relationship between Mr. Greathouse and the Sheriff's Department and the County. We grant transfer solely for the purpose of addressing this issue. Pursuant to Ind.Appellate Rule 11(B)(3), we summarily affirm with respect to the remaining issues.

We review the trial court's entry of summary judgment using the following standard:

The party appealing from the grant of summary judgment must persuade the appellate tribunal that the judgment erroneously determined "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). Thus, the reviewing appellate court faces the same issues that were before the trial court and follows the same process, Burke v. Capello (1988), Ind., 520 N.E.2d 439; Brandon v. State (1976), 264 Ind. 177, 340 N.E.2d 756. The trial court's determination must be "carefully scrutinized on appeal" to assure that the non-prevailing party is not improperly prevented from having his day in court. Ayres v. Indian Heights Vol. Fire Dep't (1986), Ind., 493 N.E.2d 1229, 1234.

Dept. of Revenue v. Caylor-Nickel Clinic (1992), Ind., 587 N.E.2d 1311, 1313. "In considering the motion for summary judgment, the contents of all pleadings, affidavits and testimony are liberally construed in the light most favorable to the non-moving party." Ayres, 493 N.E.2d at 1234; Kahf v. Charleston South Apartments (1984), Ind.App., 461 N.E.2d 723. Where material facts conflict or undisputed facts lead to conflicting inferences, summary judgment is inappropriate, even if the court believes the non-moving party will not succeed at trial. Excel Industries v. Signal Capital Corp. (1991), Ind.App., 574 N.E.2d 946, 947.

I.

On September 7, 1987, Donald Greathouse, while riding his motorcycle to work, died after colliding with a black angus bull that had wandered onto State Road 58. The bull, owned by Armstrong, escaped, along with other cattle, from its nearby confines before entering the public highway.

Approximately two hours before the fatal collision, the Lawrence County Sheriff Department's dispatcher, Andrew Sanders, received a call from a citizen who reported that cattle were on State Road 58 near the Auston Powder Plant. Following the Sheriff Department's policy, to the extent he understood it, Sanders attempted to identify and contact the owner of the cattle.

Based on the reported location of the cattle, Sanders telephoned Donald Buck, a farmer whose name was on the department's "cattle call-out list." Buck informed Sanders that he did not own the cattle, but he suggested that they might belong to a farmer named Armstrong. Thereafter, Sanders attempted to contact Rush Armstrong, another cattle owner on the "cattle call-out list," calling his residence several times over the next one and a half hours. Unable to contact Rush Armstrong, Sanders decided to return to the "cattle call-out list," where he discovered the name of Stanley Armstrong. Stanley Armstrong's farm, situated on State Road 54, borders the Auston Powder Plant. When Sanders called the Stanley Armstrong residence, Mrs. Stanley Armstrong informed him that the fatal accident had already occurred. During this telephone conversation, the Sheriff's Department received the 911 call concerning Mr. Greathouse's collision.

II.

A finding of immunity assumes negligence but denies liability. Thus, the requisite elements of actionable negligence--duty, breach and causation--need not be considered by the court in deciding the appropriateness of governmental immunity. However, "[i]f the court finds the government is not immune, the case may yet be decided on the basis of failure of any element of negligence. This should not be confused with the threshold determination of immunity." Peavler v. Monroe Cty. Bd. of Comm'rs (1988), Ind., 528 N.E.2d 40, 46-47.

A.

The Indiana Torts Claims Act (ITCA) provides that "[a] governmental entity or employee acting within the scope of his employment is not liable if a loss results from the performance of a discretionary function." I.C. Sec. 34-4-16.5-3(6). Whether a particular act is discretionary and therefore immune is a question of law for determination by the courts. Peavler, 528 N.E.2d at 46.

In Peavler, this Court, seeking greater effectiveness and consistency in determining when governmental conduct falls within the class entitled to immunity under I.C. Sec. 34-4-16.5-3(6), adopted the planning-operational test. Id. Under this analysis, governmental entities will not be held liable for alleged negligence arising from decisions which are made at a planning rather than operational level.

Through the planning-operational test, we distinguish between decisions involving the formulation of basic policy, entitled to immunity, and decisions regarding only the execution or implementation of that policy, not entitled to immunity. Industrial Indemnity Co. v. Alaska, 669 P.2d 561, 563 (Alaska 1983). The critical inquiry associated with the test is "not merely whether judgment was exercised but whether the nature of the judgment called for policy considerations." Peavler, 528 N.E.2d at 45 (quoting Blessing v. United States, 447 F.Supp. 1160, 1178 (E.D.Penn.1978)). "The governmental entity seeking to establish immunity bears the burden of proving that the challenged act or omission was a policy decision made by the conscious balancing of risks and benefits." Id. at 46 (citing Little v. Wimmer, 303 Or. 580, 739 P.2d 564 (1987); Johnson v. State, 69 Cal.2d 782, 794 n. 8, 447 P.2d 352, 361 n. 8, 73 Cal.Rptr. 240, 249 n. 8 (1968)).

The Sheriff's Department contends that the nature of Sanders' actions called for policy considerations. Essentially, the Sheriff's Department argues that in responding to complaints, a dispatcher engages in policy formulation by prioritizing competing demands and considering the availability of scarce resources. Therefore, the dispatcher's response to any complaint inherently constitutes a protected planning function. Despite these assertions, the record clearly shows that Sanders merely implemented a pre-determined policy. While Sanders exercised professional judgment, his decisions did not constitute the deliberative formulation of basic policy. Therefore, we hold that Sanders' decisions were merely operational and not protected by discretionary function immunity.

The evidence shows the Sheriff's Department maintained an unwritten policy articulating appropriate procedures for the dispatcher to follow in cases involving loose livestock. The policy included procedures originally developed by a previous Sheriff and carried forward by subsequent administrations. ¹ Following the Sheriff Department's pre-determined procedures, Sanders repeatedly attempted to contact the owner of the cattle during the period following the initial call and the time of the fatal collision.

During this time, Sanders did not ask the available deputy or jailor whether they knew who might own the cattle, nor did he send a deputy to the area to determine who might be the owner. Moreover, the record shows that during this time period, the circumstances did not require the assessment of competing priorities. The record contains no evidence that Sanders engaged in "conscious balancing of risks and benefits" associated with policy formulation.

While Sanders exercised some discretion in how he implemented the policy, his actions did not rise to the level of executive judgments that should be afforded protection under the governmental immunity doctrine. When the conduct of the government employee in implementing department regulations requires only performance of pre-determined procedures, and not the formulation of policy, such conduct is not immunized from judicial review as a "discretionary function." Griffin v. U.S., 500 F.2d 1059, 1063 (1974).

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