Minks v. Pina, 45A03-9708-CV-273

• Decision Date: 30 April 1999
• Docket Number: No. 45A03-9708-CV-273,45A03-9708-CV-273
• Citation: 709 N.E.2d 379
• Parties: Charles MINKS, Appellant-Plaintiff, v. Javier PINA, City of Hammond, City of Hammond Police Department, Fred Behrens, Chief of Police, Officer Mark Steven Kruse, and Officer James Neal Houpt, Appellees-Defendants. Nancy Smith, Non-custodial parent, Delores Nichols, Intervening Plaintiff, Javier Pina, Defendant.
• Court: Indiana Appellate Court

Page 379

709 N.E.2d 379

Charles MINKS, Appellant-Plaintiff, v. Javier PINA, City of Hammond, City of Hammond Police Department, Fred Behrens, Chief of Police, Officer Mark Steven Kruse, and Officer James Neal Houpt, Appellees-Defendants Nancy Smith, Non-custodial parent Delores Nichols, Intervening Plaintiff Javier Pina, Defendant.

No. 45A03-9708-CV-273.

Court of Appeals of Indiana.

April 30, 1999.

David W. Holub, David M. Hamacher, Ruman, Clements, Tobin & Holub, P.C., Hammond, Indiana, Attorneys for Appellant.

David W. Weigle, David W. Weigle & Associates, Hammond, Indiana, Attorney for Appellees.

OPINION

BAKER, Judge

Plaintiff-Appellant Charles Minks appeals the trial court's dismissal of his complaint against Defendants-Appellees the City of Hammond, the City of Hammond Police Department, Fred Behrens, Chief of Police, Officer Mark Steven Kruse and Officer James Neal Houpt (collectively "the Hammond defendants") pursuant to an Ind. Trial Rule 12(B)(6) motion to dismiss. ¹ Specifically, Minks argues that the trial court erred in finding that: (1) the Hammond defendants were immune from liability under the Indiana Tort Claims Act; (2) Minks had not stated a claim for relief under state law; and (3) Minks had failed to state a claim under 42 U.S.C. § 1983.

FACTS ²

On January 14, 1996, Pina and his teenaged step-son, Victor Bolivar ("Bolivar") attended a wedding celebration, where both consumed large quantities of intoxicating beverages. They left the party at approximately 11:50 p.m., and Pina was driving at his own insistence.

Pina and Bolivar were pulled over by Officer Kruse of the Hammond Police Department as they were traveling northbound on Calumet Avenue. Officer Kruse instructed Bolivar to drive the vehicle because Pina was too intoxicated to continue driving, and indicated that he would lock them both up if Bolivar did not drive. A second officer, Officer Houpt, arrived on the scene, and the two officers determined not to arrest or detain Pina and Bolivar because of the amount of time it would take to process the necessary paperwork. Subsequent blood alcohol tests revealed that Pina's B.A.C. level was .266% and Bolivar's B.A.C. level was .267%. Neither of the officers conducted field sobriety tests or checked to see if Bolivar had a valid driver's license. Bolivar had never been issued a driver's license in any state.

After the officers left, Pina apparently persuaded Bolivar to allow Pina to continue driving. Pina drove his vehicle southbound on Calumet Avenue in Hammond, Indiana. Jason Minks was driving a vehicle owned by him and his custodial parent, Minks, northbound on Calumet Avenue at approximately midnight on that same date. Michael Nichols and Tracy Tyrka were passengers in that vehicle. Pina drove his vehicle into the rear of another vehicle, crossed the center line, and collided with Jason Minks' vehicle. Jason Minks suffered serious injuries and ultimately died, as did his passenger, Michael Nichols. Tracy Tyrka, the other passenger in that vehicle, was injured in the accident.

Minks filed his first amended complaint for damages and jury demand on July 11, 1996. On September 6, 1996, the Hammond defendants filed their joint motion to dismiss and memorandum in support thereof. On November 6, 1996, the trial court granted that motion to dismiss.

On November 18, 1996, Minks filed a second amended complaint for damages and jury demand. Three defendants, Police Chief Behrens, Officer Kruse, and Officer Houpt, who were not named in the first complaint, were named in the second complaint. On December 19, 1996, the Hammond defendants filed a motion to dismiss the second complaint and memorandum in support thereof. On February 20, 1997, Minks filed his memorandum of law in opposition to the motion to dismiss. On April 7, 1997, the trial court granted the Hammond defendants' motion to dismiss the second complaint. The trial court's order read in part as follows:

The Court now finds that the named Defendants owed no private duty to the Plaintiff and no special relationship to the Plaintiff. The Court further finds that the named Defendants are immune under I.C. 34-4-16.5-3-6. [sic] The Plaintiff's Complaint therefore fails to state a claim for relief under state law.

Plaintiff's claim for relief under 42 U.S.C. § 1983 must also fail. Though Plaintiff has added allegations into the Second Amended Complaint to answer the First Motion to Dismiss filed by the Defendants, the Plaintiff's Complaint still fails to state a claim for relief. The line of cases relied upon by the Defendants, under DeShaney v. Winnebago, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249, requires that the Plaintiff demonstrate a greater danger to the motoring public than otherwise existed. Also see Reed v. Gardner, 986 F.2d 1122 (1993).

IT IS NOW THERFORE [sic] ORDERED that the Plaintiff's Second Amended Complaint against Defendants, City of Hammond, City of Hammond Police Department, Fred Behrens, Chief of Police, Officer Mark Steven Kruse and Office [sic] James Neal Houpt is hereby dismissed pursuant to Trial Rule 12(B)(6) for failure to state a claim for which relief can be granted.

(R. 171-72).

DISCUSSION AND DECISION

I. Standard of Review

When reviewing a 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted, this court accepts as true the facts alleged in the complaint. Hudgins v. McAtee, 596 N.E.2d 286, 288 (Ind.Ct.App.1992). A T.R. 12(B)(6) motion to dismiss tests the legal sufficiency of the complaint. Right Reason Publications v. Silva, 691 N.E.2d 1347, 1349 (Ind.Ct.App.1998). When reviewing a T.R. 12(B)(6) motion to dismiss, we view the pleadings in the light most favorable to the non-moving party, and draw every reasonable inference in favor of that party. Id. We will affirm a successful T.R. 12(B)(6) motion when a complaint states a set of facts, which, even if true, would not support the relief requested in that complaint. Id. Moreover, we will affirm the trial court's grant of a motion to dismiss if it is sustainable on any theory or basis found in the record. Id.

II. Indiana Tort Claims Act

Governmental immunity from suit is regulated by the Indiana Tort Claims Act (the Act), IND.CODE § 34-13-3-3. ³ Yerkes v. Heartland Career Ctr., 661 N.E.2d 558, 560 (Ind.Ct.App.1995), trans. denied. Governmental entities are subject to liability for torts committed by their agencies or employees unless one of the immunity provisions of the Act applies. Id. Moreover, whether a governmental entity is immune from liability under the Act is a question of law for the courts, although it may include an extended factual development. State v. Livengood by Livengood, 688 N.E.2d 189, 192 (Ind.Ct.App.1997).

Here, the dispositive issue is whether the Hammond defendants are immune from liability under subsection (7) of the Act. ⁴ That exception to liability under the Act reads as follows:

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

....

(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;....

IND.CODE § 34-13-3-3(7). Our supreme court has explained that the scope of "enforcement" extends well beyond traditional law enforcement activities, but is "limited to those activities in which a governmental entity or its employees compel or attempt to compel the obedience of another to laws, rules or regulations, or sanction or attempt to sanction a violation thereof." Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 283 (Ind.1994) (citing Quakenbush v. Lackey, 622 N.E.2d 1284, 1287 n. 3 (Ind.1993)).

In an attempt to avoid the harsh result of this provision, Minks argues that his second amended complaint does not allege negligence for the failure to arrest Pina or Bolivar, but, rather, bases the alleged negligence on the officers' actions after deciding not to make an arrest. Specifically, Minks asserts that the officers' direction that Bolivar drive home instead of Pina did not constitute enforcement or failure to enforce the law.

While we recognize the egregious conduct of the officers in this instance, we are not persuaded that their actions were outside the scope of enforcement, or failure to enforce, which was contemplated by the Act. ⁵ In his second amended complaint Minks specifically alleges that the officers "knew or should have known that both of those individuals [Pina and Bolivar] were dangerous and were likely to cause bodily harm to others, if not controlled, yet they failed to exercise reasonable care to control them, in order to prevent them from doing such harm...." Record at 76. Therefore, it is apparent that the basis of Minks' negligence claim is that the officers failed to properly enforce the law, placing the government's activity squarely within the immunity provision. Moreover, we decline to establish a bright line rule that any actions after an officer determines not to arrest an individual are no longer considered enforcement.

Finally, while we whole heartedly agree with the dissent that the officers had several safe options available to them outside of making an arrest, we cannot disregard the Act simply to avoid a harsh result in the instant case. Any injustice that may occur from allowing the officers to hide behind a badge of immunity should properly be addressed by the General Assembly which adopted such legislation.

III. § 1983 CLAIM

A government official who, while acting under color of state law, deprives an individual of constitutionally protected rights may be subject to personal liability for civil damages pursuant to 42 U.S.C. § 1983. Eversole v. Steele, 59 F.3d 710, 717 (7th Cir.1995). The parties do not dispute that the first element "acting under color of state law" was sufficiently...