Savieo v. City of New Haven
Decision Date | 07 April 2005 |
Docket Number | No. 02A03-0407-CV-317.,02A03-0407-CV-317. |
Citation | 824 N.E.2d 1272 |
Parties | Patrick J. SAVIEO, Personal Representative of the Wrongful Death Estate of Jon A. Savieo, Deceased, Appellant-Plaintiff, v. The CITY OF NEW HAVEN, Appellee-Defendant. |
Court | Indiana Appellate Court |
Dennis H. Geisleman, Dennis R. Brown, Law Office of Dennis H. Geisleman, Fort Wayne, IN, Attorneys for Appellant.
Stacy J. Vasilak, Bruce P. Clark & Associates Munster, IN, Attorney for Appellee.
Patrick J. Savieo ("Patrick"), personal representative of the wrongful death estate of his father, Jon A. Savieo ("Jon"), appeals the trial court's grant of summary judgment in favor of the City of New Haven ("the City"). We affirm.
The dispositive issue is whether the City is entitled to immunity for any breach of its duty to prevent Jon's suicide.
The essential facts are undisputed. On July 1, 2002, Jon obtained a handgun from Patrick for the stated purpose of selling it. When Patrick's wife became concerned, Patrick phoned Jon, who threatened to shoot himself in the chest. Patrick immediately went to Jon's home, and his wife called the City police to report the suicide threat. Patrick and the two officers who responded to the call searched Jon's house for the handgun but could not find it. No one searched Jon or the chair in which he was sitting for a firearm. Lt. Herb Baatz, Jon's friend, also responded to the dispatch and dismissed the other officers. Jon claimed that he had sold the handgun to a friend and admitted that he had made the suicide threat to "get attention." Appellant's App. at 67. After discussing with Jon the issues that had prompted the threat and the possibility of seeking mental health treatment, Lt. Baatz requested that Patrick join him on the porch to discuss matters further. Shortly after Lt. Baatz and Patrick stepped outside, Jon fatally shot himself with the handgun.
On May 29, 2003, as personal representative of Jon's estate, Patrick filed a wrongful death claim against the City under the Indiana Tort Claims Act ("ITCA"),1 alleging that Lt. Baatz, "while acting as an agent and employee of [the City], was negligent in his handling of [Jon's] threatened suicide attempt." Id. at 10. On March 9, 2004, the City filed a motion for summary judgment based, inter alia, on several theories of statutory immunity under the ITCA and contributory negligence. See Ind.Code § 34-51-2-2 ( ). Patrick filed a response, and the City filed a reply. On May 5, 2004, the City filed a motion to strike certain matters filed by Patrick.2 On May 17, 2004, the trial court held a hearing on the City's motions and took matters under advisement. On June 16, 2004, the trial court entered the following order:
Appellant's App. at 7.3 Patrick now appeals.
Our standard of review is well settled:
Unincorporated Operating Div. of Ind. Newspapers, Inc. v. Trs. of Ind. Univ., 787 N.E.2d 893, 900 (Ind.Ct.App.2003) (some citations omitted), trans. denied.
Mangold ex rel. Mangold v. Dep't of Natural Res., 756 N.E.2d 970, 975 (Ind.2001) (citations omitted). Bushong v. Williamson, 790 N.E.2d 467, 472 (Ind.2003) (citations and quotation marks omitted). We review claims of governmental immunity de novo. Miller v. City of Anderson, 777 N.E.2d 1100, 1103 (Ind.Ct.App.2002), trans. denied (2003). "We owe the trial court no deference, and we will substitute our judgment for that of the trial court if necessary." Id.
For purposes of Indiana Code Section 34-13-3-3(8), "enforcement" has been defined as "those activities in which a government 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." Miller, 777 N.E.2d at 1104. Patrick observes that "[w]hile suicide or attempted suicide is not an act to be met with social approval, the fact is that it is not a criminal act in the State of Indiana." Appellant's Br. at 10. While this observation is true as far as it goes, it is far from dispositive here.
The trial court found that Lt. Baatz could have detained Jon pursuant to Indiana Code Section 12-26-4-1, which provides:
The decision to take Jon into custody pursuant to Indiana Code Section 12-26-4-1 presumably would have resulted in his being searched and restrained. To the extent that Patrick's negligence claim is premised on Lt. Baatz's failure to apprehend Jon to prevent him from committing suicide, we agree with the trial court's conclusion that the City is entitled to immunity under Indiana Code Section 34-13-3-3(8). Granted, Indiana Code Section 12-26-4-1 does not criminalize conduct and thus cannot be "enforced" in the same sense as a statute outlawing murder, for example, but it does grant a law enforcement officer the discretion to compel another's obedience to the police powers of the state as defined by its laws and constitution, regardless of whether the person is suspected of committing a crime. The exercise of this discretion is the very essence of law enforcement; accordingly, we hold that police officers and their governmental employers are entitled to immunity if a loss results from the decision to apprehend (or not to apprehend) a mentally ill and dangerous person "in immediate need of hospitalization and treatment" pursuant to Indiana Code Section 12-26-4-1.
To the extent that Patrick's negligence claim is based on other grounds relating to Lt. Baatz's alleged acts or omissions in handling Jon's suicide threat, we must continue our immunity analysis. In its motion for summary judgment, the City also claimed that it was immune for the "[t]he performance of a discretionary function" under Indiana Code Section 34-13-3-3(7). We disagre...
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... ... within the scope of their employment.'" Savieo ... v. City of New Haven, 824 N.E.2d 1272, 1275 (Ind.Ct.App ... 2005) (quoting Bushong ... ...
- Savieo v. City of New Haven