Indiana State Police Dept. v. Swaggerty, 37A03-8612-CV-346

• Decision Date: 18 May 1987
• Docket Number: No. 37A03-8612-CV-346,37A03-8612-CV-346
• Citation: 507 N.E.2d 649
• Parties: INDIANA STATE POLICE DEPARTMENT and Trooper James Spiller, Appellants (Defendants Below), v. Kellice SWAGGERTY, Melba Caldwell and Melba Ballinger, Appellees (Plaintiffs Below).
• Court: Indiana Appellate Court

Page 649

507 N.E.2d 649

INDIANA STATE POLICE DEPARTMENT and Trooper James Spiller Appellants (Defendants Below), v. Kellice SWAGGERTY, Melba Caldwell and Melba Ballinger Appellees (Plaintiffs Below).

No. 37A03-8612-CV-346.

Court of Appeals of Indiana Third District.

May 18, 1987.

Rehearing Denied July 9, 1987.

Michael S. Baechle, Whitted and Buoscio, Merrillville, for appellants.

John M. Kopack, Gilyan, Hanson & Kopack, Merrillville, for appellees.

HOFFMAN, Judge.

The Indiana State Police Department and Trooper James Spiller appeal from the denial of their motion for summary judgment of the claim filed against them in Jasper Circuit Court by Kellice Swaggerty, Melba Caldwell and Melba Ballinger (plaintiffs).

The relevant facts of this case are undisputed: On September 30, 1983, Trooper Spiller, an employee of the Indiana State Police Department, was on automobile patrol duty in Gary, Indiana. Shortly after 10:00 P.M. of that evening, Trooper Spiller heard a call on his radio from a Gary police officer who stated that he was in pursuit of a vehicle fleeing westbound on 5th Avenue in Gary and requested assistance. Trooper Spiller then notified Indiana State Police Post 13 that he was going to assist in the pursuit of the vehicle. Trooper Spiller, who already had his headlights on, then engaged his siren, his deck lights and his overhead red lights. As Trooper Spiller approached the intersection of 4th Avenue and Grant Street, he saw the traffic signal turn red and the plaintiffs' vehicle crossing the intersection in front of his vehicle. Although Trooper Spiller swerved away from the plaintiffs' vehicle, he could not avoid a collision with the vehicle.

After plaintiffs Swaggerty, Caldwell and Ballinger sued for damages, the Indiana State Police Department and Trooper Spiller moved for summary judgment on the basis that no genuine issue of material fact existed and that they were entitled to judgment as a matter of law. In moving for summary judgment, the Department and Trooper Spiller relied on the immunity granted by the Indiana Tort Claims Act and specifically IND.CODE Sec. 34-4-16.5-3(7) (1985 Supp.):

"Sec. 3. A governmental entity or an employee acting within the scope of his employment is not liable if a loss results from:

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(7) 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[.]" (Emphasis added.)

The trial court denied the Department's and Spiller's motion for summary judgment finding that a genuine issue of material fact existed as to whether Trooper Spiller was acting within the scope of his employment and enforcing a law at the time of the accident:

"Therefore, the Court finds that the operation of a police vehicle eleven blocks away from the chase at speeds in excess of 110 miles per hour on the early evening hours of busy thoroughfares and streets might be interpreted by a jury as an act so willful and wanton as to raise it beyond the scope of the employment of the police officer." ¹

In so ruling, the trial court relied on language of the Indiana Supreme Court taken from the opinion on a petition for rehearing in the case of Seymour National Bank v. State (1981), Ind., 428 N.E.2d 203, 204, where the Court discussed the limitations of the immunity from liability granted to law enforcement officers under IND.CODE Sec. 34-4-16.5-3(7):

"It does not follow, however, that the statute necessarily grants immunity for all acts of law enforcement officers committed while engaged in the enforcement of the law.... [A]n employee's acts, although committed while engaged in the performance of his duty, might be so outrageous as to be incompatible with the performance of the duty undertaken. In such a case, it cannot be said that an injury resulting therefrom resulted from the performance of the duty. Such acts, whether intentional or willful and wanton, are simply beyond the scope of the employment." (Footnote omitted.) 428 N.E.2d at 204.

The granting of a motion for summary judgment is proper when there is no dispute or conflict regarding a fact that is dispositive of the litigation. Hayes, Extrx. v. Second Nat'l Bank (1978), 176 Ind.App. 299, 302, 375 N.E.2d 647, 650. There was no dispute in this case that Trooper Spiller was on duty and in the act of assisting another law enforcement officer at the time of the accident. On motion for summary judgment, when the...