Seymour Nat. Bank v. State, 1-578A125

• Decision Date: 31 January 1979
• Docket Number: No. 1-578A125,1-578A125
• Citation: 179 Ind.App. 295,384 N.E.2d 1177
• Parties: The SEYMOUR NATIONAL BANK as guardian for Timothy Clyde O'Sullivan, The Seymour National Bank, as Special Administrator of the Estate of Deborah O'Sullivan, John L. O'Sullivan, Plaintiffs- Appellants, v. STATE of Indiana, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 1177

384 N.E.2d 1177

179 Ind.App. 295

The SEYMOUR NATIONAL BANK as guardian for Timothy Clyde O'Sullivan, The Seymour National Bank, as Special Administrator of the Estate of Deborah O'Sullivan, John L O'Sullivan Plaintiffs- Appellants, v. STATE of Indiana, Defendant-Appellee.

No. 1-578A125.

Court of Appeals of Indiana, In Banc, First District.

Jan. 31, 1979.

Kenneth A. Layton, Montgomer, Elsner & Pardieck, Seymour, for plaintiffs-appellants.

Lloyd H. Milliken, Jr., Locke, Reynolds, Boyd & Weisell, Indianapolis, Thomas C. Bigley, Jr., Sharpnack, Bigley, David & Rumple, Columbus, Theodore L. Sendak, Atty. Gen., Richard G. Potter, Deputy Atty. Gen., Indianapolis, for defendant-appellee.

ROBERTSON, Judge.

Plaintiffs-appellants Seymour National Bank, as guardian for Timothy Clyde O'Sullivan and as special administrator of the Estate of Deborah O'Sullivan, and John L. O'Sullivan (collectively referred to herein as O'Sullivan) appeal from a grant of summary judgment in favor of defendant-appellee State of Indiana (State).

We reverse.

O'Sullivan sought recovery against the State for injuries allegedly due to the negligence and/or willful and wanton misconduct of an Indiana State Trooper while in the performance of acts within the scope of his employment. ¹ Since issues of fact are not pursued by the parties, the posture of this case is reflected by the judgment of the trial court:

This cause having been submitted to the Court on the motion for summary judgment filed by the defendant, the State of Indiana, and upon pleadings, interrogatories and answers thereto, and affidavits in support of said motion for summary judgment, and the Court, having heard oral arguments thereon and having considered briefs filed by the parties herein, now finds:

1. On November 28, 1974, Sargent L. Richey (hereinafter Trooper Richey) was employed by the State of Indiana as a State Trooper for the Indiana State Police. Sometime after 11:00 A.M. on said date in the course and scope of his employment, Trooper Richey was on patrol in Jackson County, Indiana near the Uniontown exit of Interstate Highway 65.

2. At about the same time, C. W. Leffler (hereinafter Trooper Leffler) was also on patrol as a State Trooper on Interstate 65, heading in a northerly direction at a location north of Trooper Richey. In the course of his duties Trooper Leffler observed a Chevrolet Nova automobile proceeding southbound on Interstate 65, at what appeared to be an excessive rate of speed and equipped with a rear bumper in violation of the statute regulating bumper heights (IC 1971, 9-8-6-37.5). Because of traffic conditions Trooper Leffler deemed it inadvisable to move from the northbound lanes to the southbound lanes of Interstate 65 in order to pursue the Nova. Knowing that Trooper Richey was on patrol to the south, Trooper Leffler radioed Trooper Richey and advised him of the situation. Trooper Richey then took up a position at the Uniontown exit on Interstate 65 so that he could observe the Nova as it passed.

3. A short time later, the Nova came into Trooper Richey's view and although at this time it was not being operated at an excessive rate of speed, the bumper height appeared to be excessive. As soon as traffic permitted, Trooper Richey drove on to Interstate 65 and proceeded to follow the Nova and thereafter decided to stop it for investigation of the rear bumper height.

4. When Trooper Richey was finally able to position his vehicle beind (sic) the Nova, the driver, later identified as John J. Bunce, suddenly pulled around the vehicle in front of him. Immediately he cut back in front of the passed vehicle and maintained a position just a short distance ahead of the passed vehicle. Trooper Richey attempted to follow the Nova, but because of the position of the Nova in relation to the vehicle behind it, he was unable to get his police vehicle in behind the Nova to stop it with the minimum disruption of the traffic flow. After the lapse of some time Trooper Richey was able to get the attention of the driver of the car immediately behind the Nova. This driver reduced his speed permitting Trooper Richey to position his vehicle behind the Nova. He then signalled John Bunce to pull off the driving lane.

5. Trooper Richey stopped his vehicle a short distance behing (sic) the Nova and as he did so he observed what appeared to be bullet holes in the trunk lid. He also noticed that Mr. Bunce seemed to be fumbling with something down on the left side of the front seat. He proceeded cautiously to the left front door of the Nova positioning himself so that he could observe both southbound traffic and the movements of Mr. Bunce. When Mr. Bunce was unable to produce either a driver's license or vehicle registration, Trooper Richey requested him to come back to the police car where an identification check could be made. Bunce started to open the door in apparent compliance with Trooper Richey's request, but instead of getting out of the car, Bunce quickly accelerated and drove off at a high rate of speed bumping and knocking Richey backward.

6. Trooper Richey rushed to his car which at the time was located approximately 1 1/4 to 1 1/2 miles north of the Crothersville exit. As soon as traffic permitted and after activating a flashing red light located atop the police car and the siren, Trooper Richey commenced pursuit. He observed Bunce cut in front of traffic, nearly causing an accident, and then leave Interstate 65 at the Crothersville southbound exit which lead to U.S. 31. As he drove down the ramp, Bunce forced another car off the road. Bunce then disregarded the stop sign at the end of the exit ramp, slid on to U.S. 31, and drove south toward Austin, Indiana.

7. Trooper Richey advised the Seymour State Police Post that he was still in pursuit. In addition to the siren and flashing red light, he turned on the four-way flashers and head lights. As the two vehicles proceeded south on U.S. 31, they were both traveling at speeds in excess of 100 miles per hour. The distance between the two cars remained about 1/4 of a mile. Trooper Richey observed several vehicles proceeding southbound on U.S. 31 near the northern limits of Austin, and he saw at least two cars leave the road as Bunce passed them.

8. U.S. 31, as it approaches Austin, is upgrade for southbound traffic and then runs downgrade toward the junction of U.S. 31 and State Road 56. Trooper Richey felt it important that he reach the crest of the road before Bunce reached this intersection so that he could observe which road Bunce took. However, Trooper Richey was aware of the potential danger to traffic. He, therefore, reduced his speed to below 100 miles per hour as he approached the traffic ahead, believing that at the reduced speed he could still make the necessary observation.

9. There were, in fact, three vehicles proceeding south on U.S. 31 at the time Bunce approached Austin. First in line was a Mustang operated by Timothy Clyde O'Sullivan. Second in line was a vehicle operated by David Mains, and third in line was a vehicle operated by Larry Walker. David Mains observed the Nova pass the Walker vehicle. Realizing its excessive speed, he pulled his vehicle off to the right. After Bunce passed the Mains' vehicle, he moved the Nova farther to the left and passed the O'Sullivan vehicle which had not pulled off the road. As soon as the Nova passed him, Mr. Mains pulled his car back on to the road. Almost immediately he heard a siren and shortly thereafter observed a police car approaching him from the rear with a flashing red light operating. Both Mr. Mains and Mr. Walker yielded to the police car by pulling off the road. The O'Sullivan vehicle continued to proceed south in the driving lane. Trooper Richey moved into the northbound lane to pass the O'Sullivan car. However, shortly before reaching the intersection of U.S. 31 and Wilbur Avenue, Timothy O'Sullivan turned to the left in front of Trooper Richey and the collision occurred.

10. Subsequent to the collision, John Bunce was apprehended in Scottsburg. An examination of the Nova confirmed that the rear of the vehicle was riddled with bullet holes which appeared to be 38 caliber.

11. That on November 28, 1974, Section 3 of the Indiana Tort Claims Act, 34-4-16.5-3, provided in part as follows:

"Section 3. A governmental entity or an employee is not liable if a loss results from:

(7) The enforcement of, or failure to enforce, a law."

12. That the loss for which claim is made herein resulted from the enforcement of a law by Sargent L. Richey, an Indiana State Trooper employed by the defendant, State of Indiana.

13. That the State of Indiana is immune from civil liability for the losses suffered by the plaintiffs herein.

14. That there is no genuine issue as to any material fact, and the defendant is entitled to a judgment as a matter of law.

IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Court that the defendant's motion for summary judgment be, and the same hereby is, granted, and,

It is further considered, ordered and adjudged by the Court that plaintiffs recover nothing by their complaint herein.

Because the foregoing discloses a myriad of fact questions, it is clear that the trial court's conclusion was rooted in the doctrine of sovereign immunity as it remains in Ind.Code 34-4-16.5-3.

We believe the proper resolution of this case requires a brief excursus into the common law of this state prior to the effective date of IC 34-4-16.5-3. As a predicate, it is important to keep in mind that governmental immunity and sovereign immunity are not interchangeable terms. Sovereign immunity is only applicable to the state, while governmental immunity applies to all units of government.

Our courts were generally more willing to erode the harshness of governmental immunity at the local level because it could be accomplished without diluting the scope of sovereign immunity. This task was achieved by characterizing municipal...