Tittle v. Mahan

• Decision Date: 19 February 1991
• Docket Number: No. 57A03-9004-CV-132,57A03-9004-CV-132
• Citation: 566 N.E.2d 1064
• Parties: Jacqueline R. TITTLE, as Personal Representative of the Estate of Terry N. Tittle, Deceased, and on her own Behalf and Glen Alvin Cochran, by his next friend, Beth Ann Cochran, Appellants (Defendants Below), v. Michael MAHAN; David Meyers; David Gladieux; Glen Harpel; Oscar Equia; Daniel L. Figel, Sheriff of Allen County, Indiana; Rosemary Mosley; and the City of Fort Wayne. Appellees (Plaintiffs Below).
• Court: Indiana Appellate Court

Page 1064

566 N.E.2d 1064

Jacqueline R. TITTLE, as Personal Representative of the Estate of Terry N. Tittle, Deceased, and on her own Behalf and Glen Alvin Cochran, by his next friend, Beth Ann Cochran, Appellants (Defendants Below), v. Michael MAHAN; David Meyers; David Gladieux; Glen Harpel Oscar Equia; Daniel L. Figel, Sheriff of Allen County Indiana; Rosemary Mosley; and the City of Fort Wayne Appellees (Plaintiffs Below).

No. 57A03-9004-CV-132.

Court of Appeals of Indiana Third District.

Feb. 19, 1991.

John B. Powell, Shambaugh, Kast, Beck & Williams, Fort Wayne, for appellants.

Phillip A. Renz, Larry L. Barnard, Miller Carson & Boxberger, Fort Wayne, for appellees Rosemary Mosley & the City of Fort Wayne.

John O. Feighner, George Sistevaris, Haller & Covlin, Fort Wayne, for appellees Michael Mahan, David Meyers, David Gladieux, Glen Harpel, Oscar Equia & Daniel L. Figel, as Sheriff of Allen County.

STATON, Judge.

The appellants appeal the grant of a summary judgment for the appellees raising the following two issues for our determination:

I. Whether police and custodial authorities have immunity under Indiana Code 34-4-16.5-3(7) (Supplement 1990) for the failure to exercise reasonable care in communicating information concerning a pre-trial detainee's medical needs or in responding to such medical needs.

II. Whether the trial court committed an error of law in determining, as a matter of law, that the defendants did not violate Tittle's constitutional rights thus precluding recovery under 42 U.S.C. Sec. 1983.

We affirm.

The facts viewed in the light most favorable to the appellants indicate that on April 14, 1987, Terry N. Tittle (Terry) was arrested and charged with criminal deviate conduct, robbery, and burglary. Upon being transported to the Detective Division of the Fort Wayne Police Department, he was interviewed by Detective Danny Jackson and Detective Rosemary Mosley. Terry was cooperative and described a drug and alcohol abuse problem. He appeared somewhat "spacy" and indicated that he had been recently released from the Richmond State Hospital for an alcohol and drug abuse problem but had been drinking beer and sniffing glue earlier in the day. He indicated that he was a little depressed that day because he had been turned down for unemployment benefits.

On April 15, 1987, Detective Mosley again interviewed Terry at the Allen County Lockup at his request. During the course of this interview, Terry stated that he felt very depressed, worse than the previous day. He also stated that some of the inmates told him that they had heard on the news that he had done some bad things. Terry indicated that if he had done those things he thought he should ask for the death penalty, because he did not want to live anymore. He noted that he was probably facing sixty to ninety years for the charged crimes, and he would not be able to see his child which his girlfriend was expecting, a prospect through which he did not know if he could live. At the close of the interview, he stood up with his head bowed and stated that he could not bear the thought of doing the things for which he had been charged.

Apparently subsequent to this interview, Detective Mosley spoke to Terry's mother, Jacqueline Tittle, who informed her that Terry had previously attempted to commit suicide. This information was not communicated to the jail authorities.

Both the medical screening questionaire and the psychiatric referral form indicated that Terry was very nervous. The arrest report indicated that he had a scar on his left arm. A nurse's report stated that a liason (apparently from the Allen County Mental Health Association) indicated Terry did not appear suicidal, but appeared to be experiencing withdrawal. Terry was placed on withdrawal medication, incarcerated in a receiving cell and placed on periodical observation. On the observation form, "suicide precautions" was checked as the purpose of the observation, although Vicki Stonebraker, the Director of Medical Services, indicated that Terry was not placed on suicide precaution. Between three o'clock p.m. on April 16 and two o'clock p.m. on April 18, he was checked on forty-two times, at intervals between ten minutes and five and a half hours, most intervals being a little over an hour. Stonebraker testified that had Terry been placed on suicide precaution, the longest interval between observations would be one hour. There was no television camera in the receiving cell.

One hour and forty-eight minutes after he was last observed on April 18, Terry committed suicide by hanging himself from a bunk in the cell.

This action was filed by Jacqueline Tittle as administrator of Terry's estate and on her own behalf and Glen Alvin Cochran, Terry's son (collectively, "Tittle") on September 13, 1988, alleging negligence and violation of constitutional rights on the part of the City of Fort Wayne, Detective Mosley, the Allen County Sheriff, and certain deputies (collectively, "Officers"). Summary judgment was entered in favor of Officers and Tittle appeals.

In reviewing the grant or denial of a motion for summary judgment, the appellate court applies the same standard as the trial court. Kopec v. Memorial Hospital of South Bend (1990), Ind.App., 557 N.E.2d 1367, 1368, transfer pending. Summary judgment is proper only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Indiana Rules of Procedure, Trial Rule 56(C). All facts and inferences to be drawn therefrom are viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a material issue must be resolved against the movant. Kopec, supra.

I. Tort Claims Immunity

Tittle contends that the trial court incorrectly determined that Officers were enforcing the law within the meaning of Indiana Code 34-4-16.5-3(7) when they committed the alleged acts of negligence. Indiana Code 34-4-16.5-3(7) provides:

Sec. 3. A governmental entity or an employee acting within the scope of his 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.

The "enforcement of the law" provisions of the Tort Claims Act have been the subject of much litigation since the adoption of the Act in 1974. "Law enforcement" within the meaning of the Act has been interpreted to "involve[ ] a broad continuum of duties." City of Gary v. Cox (1987), Ind.App., 512 N.E.2d 452, transfer denied. Immunity has been granted from liability for a defamation claim resulting from the investigation of a crime, Jacobs v. City of Columbus (1983), Ind.App., 454 N.E.2d 1253, transfer denied; a claim in intentional tort for property damage arising out of the firing of tear gas canisters into a house by police in order to capture a fleeing murder suspect, Indiana State Police v. May (1984), Ind.App., 469 N.E.2d 1183, rehearing denied; a claim for negligence for the actions of a police officer allowing a prisoner whom she was guarding to escape, Cox, supra; actions for negligence arising from collisions when officers were traveling to the scene of a crime, Carver v. Crawford (1990), Ind.App., 564 N.E.2d 330, Weber v. City of Fort Wayne (1987), Ind.App., 511 N.E.2d 1074, transfer denied, Crews v. Brockman (1987), Ind.App., 510 N.E.2d 707, transfer denied, Indiana State Police v. Swaggerty (1987), Ind.App., 507 N.E.2d 649, transfer denied; an action for wrongful death arising out of a collision while the officer was engaged in a high speed chase involving speeds of up to 100 miles per hour, Seymour National Bank v. State (1981), Ind., 422 N.E.2d 1223, modified, 428 N.E.2d 203; a wrongful death action for an officer's negligence in leaving a malfunctioning traffic signal to respond to a report of domestic violence, Board of County Com'rs v. Arick (1985), Ind.App., 477 N.E.2d 112, transfer denied; claims of negligence in the setting out of flares and regulating traffic around an automobile accident, Million v. Mullen (1990), Ind.App., 554 N.E.2d 1137, transfer denied, McFarlin v. State (1988), Ind.App., 524 N.E.2d 807; an action for negligence in failing to provide adequate traffic control in a congested area, State v. Flanigan (1986), Ind.App., 489 N.E.2d 1216, transfer denied; and a negligence action against a sheriff and employees for the attempted suicide of a pre-trial detainee. Sauders v. County of Steuben (1991), Ind.App., 564 N.E.2d 948. ¹

A. The Police

The uncontroverted facts indicate that Terry Tittle was not in the custody or under the care and control of the Fort Wayne Police Department when he committed suicide. Thus, if the City or Detective Mosley is to be liable, it must be for the failure of Detective Mosley to communicate the information which she gleaned from her interviews with Terry and his mother.

We do not find Detective Mosley's conduct to be distinguishable from the officers' conduct in the cases cited above. Tittle's action against Mosley and the City for failing to communicate information to prison authorities gained in the course of her investigation of a crime is similar to the cause of action for defamation which arose in the course of investigation of the crime in Jacobs. Both involved an act or omission in the course of performance of the police officer's duties. We do not find it significant that the officers in Jacobs were engaged in a pre-arrest investigation, rather than a post-arrest investigation like that conducted by Detective Mosley. In both cases, the officers sought to determine whether a law had been violated, a task clearly indispensible to the enforcement of the law. The only distinguishing factor is that Tittle alleges negligent rather than intentional conduct, a factor which does not save her cause of action against Mosley or the City. "If...