Tom v. Voida

• Decision Date: 07 August 1995
• Docket Number: No. 49A05-9407-CV-293,49A05-9407-CV-293
• Citation: 654 N.E.2d 776
• Parties: Cheryl TOM, Individually and as Administratrix of the Estate of Wayne Lee Tom, deceased, Appellant-Plaintiff, v. Dawn VOIDA, Individually and in her Official Capacity as a Police Officer of the City of Indianapolis, Paul A. Annee, Individually and in his official Capacity as Chief of Police, Indianapolis Police Department, and The City of Indianapolis, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 776

654 N.E.2d 776

Cheryl TOM, Individually and as Administratrix of the Estate of Wayne Lee Tom, deceased, Appellant-Plaintiff, v. Dawn VOIDA, Individually and in her Official Capacity as a Police Officer of the City of Indianapolis, Paul A. Annee Individually and in his official Capacity as Chief of Police, Indianapolis Police Department, and The City of Indianapolis, Appellees-Defendants.

No. 49A05-9407-CV-293.

Court of Appeals of Indiana.

Aug. 7, 1995.

Transfer Denied Feb. 21, 1996.

Richard Kammen, Indianapolis, for appellant.

Andrew P. Wirick, Indianapolis, for appellees.

OPINION

SHARPNACK, Chief Judge.

Cheryl Tom ("Appellant") appeals the trial court's entry of summary judgment in favor of Dawn E. Voida, Paul A. Annee, and the City of Indianapolis (collectively, "the Appellees") on Appellant's complaint alleging the wrongful death and assault and battery of her son, Wayne Lee Tom. We affirm.

Appellant raises seven issues, of which only five require our resolution. Restated, those issues are:

1. whether the doctrine of res judicata or collateral estoppel is applicable in the present case;

2. whether there are genuine issues of material fact which preclude the entry of summary judgment in favor of the Appellees;

3. whether Voida was authorized to institute an investigatory stop of Tom or had probable cause to arrest Tom;

4. whether the Appellees are immune from suit under the Indiana Tort Claims Act; and,

5. whether the trial court's entry of summary judgment was erroneous because each of the elements of a wrongful death claim are present in this case.

The facts most favorable to the nonmovant, Appellant Cheryl Tom, are as follows. On December 10, 1988, at approximately 9:45 p.m., Indianapolis police officer Dawn Voida was on routine patrol when she received a radio run to an address on North Walcott for shots fired. When Voida was en route to the address, Voida observed a white male, Wayne Lee Tom, fall off of his bicycle and the bicycle fall on top of him. As Voida drove past Tom, she noticed that he was laying on his back with his arms and legs in the air "like a bug." Record, p. 549. Voida observed Tom through her rear view mirror and, upon observing that Tom was still on the ground, stopped and exited her vehicle. Voida was wearing full police uniform with her badge on the outside of her coat, and her vehicle was a marked police car. Voida did not suspect Tom of any crime at this point, and did not have reason to believe that he was connected with the situation on Walcott.

As Voida approached Tom, he began to stand and to pick up the bicycle. While still walking toward Tom, Voida asked "Hey, are you okay?" Record, p. 555. Tom did not respond and just looked at Voida. Voida then repeated her question, "Hey, are you okay?" Record, p. 555. Voida continued her inquiries as she approached Tom, who looked over his shoulder and continued looking at Voida as he started walking away, pushing the bicycle. Voida continued walking toward Tom and inquiring if Tom was hurt. Tom "picked up the pace" and began walking faster. Record, p. 557. Tom was now walking at a brisk pace, and Voida said " 'Hey. Wait a minute.' " Record, p. 558. At this point Tom looked sharply at Voida, threw down the bicycle, and began running.

Voida's deposition testimony reflects that when Voida first stopped her vehicle, she was concerned that Tom was hurt and she did not want to leave him out in the cold weather if he were not going to get up on his own. When Tom threw down the bike, however, her perception of the situation began to change, and her suspicions were aroused. Voida ordered Tom to stop. Tom did not comply, and Voida decided to pursue him. Voida then used her remote radio to inform headquarters that she was engaged in a foot pursuit.

Tom slipped and fell to the ground on his stomach, allowing Voida to catch up to him. Voida knelt on Tom in an attempt to handcuff him. Tom rolled over and knocked Voida over. Voida testified at her deposition that Tom then began attacking her. Tom took Voida by the hair and repeatedly hit her head against the concrete. Voida began yelling and screaming for help. Voida managed to push herself up somewhat at which point Tom got up and attempted to get away. Voida grabbed Tom's leg to prevent him from running, and Tom stepped on Voida's head. Voida screamed at Tom to stop standing on her head. Voida then lost her strength and let go of Tom's leg. Tom began to run.

Voida got up and continued the pursuit. Voida explained her decision to continue the pursuit as follows:

"A. Well, I, at that point I continued the chase because he had committed a felony, battery serious bodily injury [sic] on a police officer, and I'm going to catch him. I'm going to attempt to catch him and find out who this individual is the same as if he would have attacked a, quote unquote, normal citizen.

At this point I've asked him to stop, told him to stop, and, you know, originally then he flees from me, which is a misdemeanor and then at that point I go on to where I've initially apprehended him, if you will, although it's not really an apprehension when there is no control on my part.

The fight continues. I'm getting beat about the head, stepped on the head, and at that point it's battery on a police officer with serious injury and I continued to pursue him hopefully in order to make an apprehension."

Record, pp. 580-81.

As Voida chased Tom, she repeatedly yelled for him to stop and repeatedly radioed for assistance. Tom went over a fence and Voida followed. When Tom attempted to negotiate a second fence, he lost his balance and fell to the ground. Voida caught up to Tom and fell on top of him. The two again struggled, and Tom began hitting Voida in the face with his fist. Voida did not have her nightstick or flashlight, so she thought of using her chemical spray to subdue Tom. Voida's left arm was incapacitated, however, and she did not want to reach for her chemical spray with her right hand because Tom would have had free access to her gun. Voida then pulled her gun.

Voida pushed herself away from Tom, brought her gun out in front of her, and stated three times, " 'Please don't make me shoot you.' " Record, p. 593. Tom came at Voida again, with his hands raised, and Voida discharged her weapon. This first shot did not hit Tom. Tom moved back and then came at Voida again, this time with his arms more spread out. Voida fired a second shot which did hit Tom. The wound was fatal. ¹

On August 4, 1989, Appellant, the decedent's mother, filed her five count complaint for damages against the Appellees in the United States District Court, Southern District of Indiana, Indianapolis Division. Counts I and II of the complaint sought damages pursuant to 42 U.S.C. § 1983. In these federal claims, Appellant alleged that the Appellees had violated Tom's Fourth Amendment rights under the United States Constitution by seizing Tom without reasonable suspicion or probable cause and by using excessive force against him. Tom v. Voida (1992), 7th Cir., 963 F.2d 952, 955-56. Counts III and IV were state law wrongful death claims based on negligence. Count V was a state law tort claim based on assault and battery. The district court granted summary judgment in favor of the Appellees on the federal claims, and dismissed the pendent state claims without prejudice. Id. at 956. The United States Court of Appeals for the Seventh Circuit affirmed the judgment on May 8, 1992. Id. at 962.

In affirming the district court's judgment, the Seventh Circuit determined, in pertinent part, that: (1) Voida's initial questioning of Tom was noncoercive and required no suspicion of criminal activity; (2) Voida's initial attempt to cuff Tom was a justified incident to an investigatory stop; (3) the attempt to restrain Tom did not convert the Terry stop into an arrest; (4) even if Voida's attempt to cuff Tom constituted an arrest, Voida had probable cause at that point to justify an arrest; ² (5) that Voida was clearly justified in pursuing Tom after the first physical altercation because at that point she had more than probable cause to effect an arrest--he had committed crimes of fleeing and battery against her; and (6) Voida was justified in using deadly force against Tom because he already had inflicted serious bodily injury on her and threatened to continue inflicting injury on her. Tom, 963 F.2d at 956-62. The Seventh Circuit concluded that the district court did not err in its determination that Voida had not used excessive force as a matter of law and that, because Voida had not violated Tom's constitutional rights, there was no basis on which to hold the other defendants liable. Id. at 961-62. Accordingly, the Seventh Circuit affirmed the district court's entry of summary judgment in favor of the Appellees on Appellant's claims under 42 U.S.C. § 1983.

On September 11, 1992, Appellant filed her complaint for damages in the Marion County Superior Court, asserting her state law claims for wrongful death and assault and battery. In Count I of the complaint, Appellant, as the natural mother of Tom, alleged that "Tom was killed as a direct and proximate result of negligent and careless conduct on the part of Defendant Voida." Record, p. 15. This Count further alleged that Police Chief Annee "directly and proximately caused the above described injury" to Tom by failing to properly train and supervise Voida and to control her conduct, and by failing to discipline officers employing excessive force. Record, p. 15. Similarly, Appellant alleged that the City of Indianapolis caused Tom's injury by failing to properly train, supervise, and control Voida and Annee, and by failing to discipline officers using excessive force. Count II raised the same allegations as Count I, but was asserted by Appellant as the administratrix of the estate of Tom. The final count, Count III, incorporated the preceding paragraphs and alleged that the...