Patrick v. Miresso

• Decision Date: 31 January 2005
• Docket Number: No. 45A03-0405-CV-224.,45A03-0405-CV-224.
• Citation: 821 N.E.2d 856
• Parties: Jeffrey PATRICK, City of Gary and City of Gary Police Department, Appellants-Defendants, v. Richard MIRESSO, Appellee-Plaintiff.
• Court: Indiana Appellate Court

821 N.E.2d 856

Jeffrey PATRICK, City of Gary and City of Gary Police Department, Appellants-Defendants, v. Richard MIRESSO, Appellee-Plaintiff.

No. 45A03-0405-CV-224.

Court of Appeals of Indiana.

January 31, 2005.

Stephen Bower, Cohen & Thiros, P.C., Merrillville, IN, Attorney for Appellants.

Steven W. Etzler, Schreiner, Malloy & Etzler, P.C., Highland, IN, Attorney for Appellee.

OPINION

CRONE, Judge.

Case Summary

Jeffrey Patrick and the City of Gary ("the City") (collectively, "Appellants") appeal the denial of their motion for summary judgment with respect to Richard Miresso's negligence claim. We affirm and remand for further proceedings.

Issue

We consolidate and restate the four issues Appellants present as whether the trial court erred in concluding that Appellants are not entitled to law enforcement immunity under Indiana Code Section 34-13-3-3(8) of the Indiana Tort Claims Act ("ITCA").¹

Facts and Procedural History

The facts most favorable to Miresso as the nonmoving party indicate that Patrick, a Gary police officer, was on duty in his marked police car on July 24, 2001. At approximately 5:30 a.m., Officer Patrick responded to a dispatch regarding an abandoned vehicle in the alley between Adams and Jefferson Streets. When Officer Patrick drove into the alley, he saw two men emerge from behind a garage carrying items in their arms. One of the men saw Officer Patrick's vehicle, dropped his items, and retreated toward the garage. The other man threw his items into a red Camaro parked in the alley and "drove away very quickly." Appellants' App. at 33 (Officer Patrick's affidavit). Believing that he had interrupted a burglary, Officer Patrick pursued the Camaro.

The Camaro drove north through the alley to 37th Avenue and turned east. As the Camaro reached Broadway, a couple blocks away, Officer Patrick estimated its speed at between sixty and seventy-five miles per hour. The Camaro drove through a red light at the intersection of 37th Avenue and Broadway. Officer Patrick slowed as he approached the intersection. Officer Patrick saw a southbound car on Broadway stopping and thought that a northbound van and car would also stop. He then entered the intersection against the red light and collided with the van, driven by Miresso. According to two witnesses, Officer Patrick's flashing lights and siren were not on when the accident occurred. Id. at 57 (deposition of William Hoffman), 60 (deposition of Tyrone Beird).²

On April 16, 2002, Miresso filed a four-count complaint under the ITCA against Officer Patrick, the City, the City of Gary Police Department ("the Police Department"), and the suspected burglar, identified as John Doe. Count I alleges that Officer Patrick, "while acting as an agent of the City of Gary, and/or individually was careless, negligent and/or wil[l]fully and wantonly reckless" in failing to, inter alia,"maintain a proper lookout for other vehicles" and "act as a reasonably prudent driver in order to prevent and avoid a collision[.]" Id. at 11-12. Count I further alleges that, "[a]s a direct and proximate result of [Officer Patrick's] negligent and/or intentional acts [,]" Miresso suffered personal injuries, property damage, and economic losses. Id. at 11-12. In Count I, Miresso seeks judgment against Officer Patrick, "jointly and severally with the City of Gary[.]" Id. at 13.³ Counts II, III, and IV allege additional "negligent and/or intentional" conduct by the City, the Police Department, and the John Doe, respectively.

On July 1, 2003, Appellants filed a motion for summary judgment in which they asserted that Officer Patrick "was engaged in the enforcement of the law at the time of the accident ... and as such there is statutory immunity under Indiana law." Id. at 22. Miresso filed a response, and Appellants filed a reply. On November 24, 2003, the trial court entered the following order:

The Court, having previously heard arguments of counsel and having taken under advisement [Appellants'] Motion for Summary Judgment, now finds and orders as follows:

....

2. Richard Miresso filed his complaint against Officer Patrick, The City of Gary, and the City of Gary Police Department alleging negligence for the damages sustained in the accident.

3. [Appellants] moved for summary judgment claiming that [Appellants] were immune from the action under the Indiana Tort Claims Act (hereinafter "ITCA").

....

8. In Benton v. City of Oakland City, 721 N.E.2d 224 (Ind.1999), the court indicated that it is for the legislature to determine when to insulate government from tort liability.

9. The legislature has imposed a statutory duty to operate an emergency vehicle with due regard for the safety of all persons. I.C. § 9-21-1-8[.]

10. [Quakenbush] v. Lackey, 622 N.E.2d 1284 (Ind.1993) involved a negligence claim stemming from an accident involving an emergency vehicle. There the court focused on statutory duties, specifically referring to I.C. § 9-21-1-8 and I.C. § 9-13-2-6. The court determined that summary judgment was inappropriate because there was a question of fact, namely if the officer was negligent in the operation of his vehicle. Id. at 1290-1291.

11. The law enforcement immunity under [I.C. § 34-13-3-3(8)] of the ITCA does not grant immunity to government agencies or employees from liability for the breach of the duty of reasonable care as enumerated in I.C. § 9-21-1-8. [Quakenbush] at 1290, 1291.

12. Officer Patrick was clearly acting within his scope of employment as he was pursuing a suspect to a crime and therefore attempting to enforce the law as required by the ITCA.

13. However, there exist genuine issues as to a material fact in this case; namely, whether or not Officer Patrick breached the statutory duty of care for the safety of all persons set forth in I.C. § 9-21-1-8. Therefore, summary judgment is precluded herein.

It is therefore ORDERED that [Appellants'] Motion for Summary Judgment be and is hereby DENIED.

Id. at 8-10 (some citations omitted). Subsequent mediation was unsuccessful, and this belated interlocutory appeal ensued.⁴

Discussion and Decision

When reviewing a denial of summary judgment, our well-settled standard of review is the same as it was for the trial court. McClain v. Chem-Lube Corp., 759 N.E.2d 1096, 1100 (Ind.Ct.App.2001), trans. denied (2002).

We must determine whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. We must consider the pleadings and evidence designated pursuant to Ind. Trial Rule 56(C) without deciding their weight or credibility. Summary judgment should be granted only if such evidence shows there is no genuine issue of material fact and judgment is warranted as a matter of law.

The party moving for summary judgment has the burden of making a prima facie showing that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Once the moving party meets these two requirements, the burden then shifts to the non-moving party to show the existence of a genuine issue by setting forth specifically designated facts. Any doubt as to any facts or inferences to be drawn therefrom must be resolved in favor of the non-moving party.

Id. at 1100-01 (citations omitted). "Specific findings and conclusions are neither required nor prohibited in the summary judgment context. Although specific findings aid appellate review, they are not binding on this court." Id. at 1101 (citation and quotation marks omitted). The party appealing the denial of summary judgment bears the burden of persuading us that the trial court erred. Ind. Patient's Comp. Fund v. Wolfe, 735 N.E.2d 1187, 1190 (Ind.Ct.App.2000),trans. denied.

Appellants contend that the trial court erred in determining that they are not entitled to immunity under the ITCA. Our supreme court has explained that

[t]he ITCA ... governs lawsuits against political subdivisions and their employees. Among other things the statute provides substantial immunity for conduct within the scope of the employee's employment. See I.C. § 34-13-3-3 (setting forth twenty-two separate categories for which immunity attaches). Immunity assumes negligence but denies liability. The purpose of immunity is to ensure that public employees can exercise their independent judgment necessary to carry out their duties without threat of harassment by litigation or threats of litigation over decisions made within the scope of their employment.

Bushong v. Williamson, 790 N.E.2d 467, 472 (Ind.2003) (some citations and quotation marks omitted). "Whether a governmental entity is immune from liability under the ITCA is a question of law for the courts, although it may include an extended factual development." City of Hammond v. Reffitt, 789 N.E.2d 998, 1001 (Ind.Ct.App.2003), trans. denied. The party seeking immunity bears the burden of establishing that its conduct comes within the ITCA. King v. Northeast Security, Inc., 790 N.E.2d 474, 480 (Ind.2003).

Appellants contend that they are immune from liability under Indiana Code Section 34-13-3-3(8), which provides that "[a] government entity or an employee acting within the scope of the employee's employment is not liable if a loss results from ... [t]he 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."⁵ The trial court found, and neither party disputes on appeal, that Officer Patrick was acting within the scope of his employment in pursuing the fleeing burglary suspect.⁶ The trial court also determined, and Appellants do not dispute, that Officer Patrick's pursuit was an attempt to enforce the law as contemplated by Indiana Code Section 34-13-3-3(8).⁷See Quakenbush v. Lackey, 622 N.E.2d 1284, 1287 n. 3 (Ind.1993) (noting that scope of "adoption or enforcement of a law" in Ind.Code § 34-13-3-3(8) "is not limited to traditional...