ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
ROBERT W. ROCK MARK DUDLEY
Anderson, Indiana Young Riley Dudley & DeBrota
COURT OF APPEALS OF INDIANA
CITY OF ANDERSON, ET AL, )
vs. ) No. 30A01-0002-CV-51
TIMOTHY DAVIS, )
APPEAL FROM THE HANCOCK SUPERIOR COURT
The Honorable Richard D. Culver, Judge
Cause No. 30D02-9809-CP-291
February 21, 2001
OPINION FOR PUBLICATION
The City of Anderson and Anderson police officer Steven Stoops (collectively, the City),
defendants below, appeal the courts judgment, following a bench trial, in favor of
Timothy Davis, plaintiff below. In particular, the City contends that it was
immune from liability for Daviss personal injuries pursuant to the Indiana Tort Claims
Act (ITCA, or the Act). We reverse.
The sole issue for our review is whether the City was immune from
liability for Daviss damages under the law enforcement immunity provision of the ITCA.
Facts and Procedural History
On May 24, 1995, Madison County Sheriff Scott Mellinger was driving when he
observed a teenage male walking along the road. The individual matched the
description of a teenager who had reportedly walked away from the Madison County
Juvenile Center, where he was being detained upon charges of auto theft.
When the juvenile realized he had been spotted, he retreated into a nearby
wooded area. Sheriff Mellinger called his office for assistance. Officers from
the Madison County Sheriffs department, including a county police dog and dog handler,
as well as officers from the Pendleton police department, the Anderson police department,
and the Indiana State Police, arrived and took positions on the perimeter of
the area in which the teenager was thought to be hiding. Officer
Stoops of the Anderson police department and his dog Chester eventually relieved the
Madison County Sheriffs department dog and its handler.
Among the officers who responded to Sheriff Mellingers call was Davis, who at
that time was the Chief Deputy in the Madison County Sheriffs department.
Davis parked his police vehicle near the edge of the wooded area into
which the suspect fled, and began to search the area on foot.
While walking around the area, he heard over the police radio in his
car that officer Stoops and Chester had arrived and were located somewhere in
the area. At one point, Davis heard something in the woods.
He proceeded to investigate, and encountered Madison County Sheriffs department Captain Thompson in
the vicinity of Captain Thompsons vehicle. Captain Thompson advised that officer Stoops
and Chester were in the area. At some point, Davis began to
walk back to his car.
Around this time, Chester alerted to what officer Stoops thought was the scent
of the suspect. Officer Stoops then made an announcement over his police
radio that he would deploy Chester in an off-leash search. Officer Stoops
also called out and announced that Chester would be released in the area.
Davis heard this announcement. Officer Stoops released the dog, and Chester
began to search the area. At some point he bolted, and officer
Stoops followed. When officer Stoops caught up with his dog, he saw
it attacking Davis. Davis sustained bites to his groin, forearm and leg,
which required extensive medical treatment.
On May 22, 1997, Davis filed a Complaint in the United States District
Court for the Southern District of Indiana against the City, officer Stoops, and
then-Anderson Police Chief Ronald Rheam. Davis alleged that the Citys use of
Chester under the circumstances amounted to excessive force and violated Daviss civil rights,
and that Chesters attack was caused by the defendantss negligence. The defendants
apparently moved for summary judgment on Daviss excessive force claims, and on the
ground that Daviss remaining negligence claims raised no federal issues. On April
30, 1998, the court issued its Order on Summary Judgment, rejecting Daviss allegations
of excessive force, and dismissing Daviss remaining negligence claims for lack of a
federal issue. The court contemporaneously issued its Order of Judgment, stating Daviss
excessive force claims were dismissed with prejudice, and that this determination constituted a
final judgment. There is no indication in the record that Davis appealed
On May 29, 1998, Davis filed another Complaint in the Madison County Superior
Court against the same defendants, this time raising only negligence claims. The
defendants denied Daviss allegations, and asserted the affirmative defense of governmental immunity under
the ITCA. They also contended that any excessive force claims implicated in
the complaint were barred pursuant to the doctrine of collateral estoppel. The
defendants moved for summary judgment based on their immunity claim on July 21,
1998. On September 9, 1998, venue was transferred to the Hancock County
Superior Court. The court denied the Citys summary judgment motion on June
11, 1999. On June 22, 1999, the defendants moved to dismiss Daviss
complaint on the ground that Davis was injured by the actions of a
co-employee, and that the trial court lacked subject matter jurisdiction pursuant to the
exclusivity provision in the Indiana Workers Compensation Act. The court had not
ruled on this motion by the time the matter proceeded to bench trial
on June 29 and 30, 1999.
The trial court issued its Judgment Order, as well as findings of fact
and conclusions of law, on January 4, 2000. The court rejected the
defendantss jurisdictional challenge, dismissed Chief Rheam for lack of evidence of his liability,
and concluded that the use of Chester under the circumstances was negligent.
The court also again concluded that the defendants were not immune under the
ITCA, and entered judgment in favor of Davis in the amount of $200,000.
The City now appeals.
Discussion and Decision
A. Standard of Review
While the issue of a governmental entitys immunity from liability under the ITCA
may require extended factual development, the issue remains a question of law for
the courts. Minks v. Pina, 709 N.E.2d 379, 382 (Ind. Ct. App.
1999), trans. denied. We therefore review claims of governmental immunity de novo.
Mangold ex rel. Mangold v. Indiana Department of Natural Resources, 720 N.E.2d
424, 427 (Ind. Ct. App. 1999), rehg denied. We owe the trial
court no deference, and we will substitute our judgment for that of the
trial court if necessary. Pedrazza ex rel. Pedrazza v. Grande, 712 N.E.2d
1007, 1010 (Ind. Ct. App. 1999).
The City claims that it was immune from liability for officer Stoopss alleged
negligence pursuant to the law enforcement immunity provision of the ITCA. Davis
contends that the City is not immune because the use of Chester under
the circumstances did not constitute the enforcement of a law within the meaning
of the Act. Our analysis of these competing claims requires a brief
review of the confusing and perpetually fluctuating status of the immunity granted to
law enforcement personnel under the ITCA.
1. Law Enforcement Immunity Under the ITCA
In Campbell v. State, 259 Ind. 55, 284 N.E.2d 733, 737 (1971), the
Indiana Supreme Court ruled that governmental entities in Indiana owe a common law
duty to use ordinary and reasonable care under the circumstances, and have no
common law immunity for breaches of this duty except in cases involving the
failure to provide adequate police protection to prevent crime, the appointment of an
incompetent official, and erroneous judicial decision making. The Indiana General Assembly subsequently
enacted the ITCA, currently codified at Indiana Code sections 34-13-3-1 to 25, expanding
the immunity of governmental entities to certain cases where a common law duty
of care otherwise exists. See Ind. Code § 34-13-3-3. Among those
areas of governmental activity exempted by the ITCA from liability are certain law
enforcement activities. Section 3(7) of the ITCA, in its current form, provides:
A governmental entity or an employee acting within the scope of the employees
employment is not liable if a loss results from:
. . . .
the adoption and enforcement of or failure to adopt or enforce a law
(including rules and regulations), unless the enforcement constitutes false arrest or false imprisonment.
Ind. Code § 34-13-3-3(7).2. Application of Law
The Indiana Supreme Court originally interpreted this provision to mean that government entities
would be immune under the ITCA for all acts of enforcement save false
arrest and imprisonment. Seymour National Bank v. State, 422 N.E.2d 1223, 1226
(Ind. 1981), clarified on rehearing, 428 N.E.2d 203. The supreme court subsequently
disavowed Seymours broad view of law enforcement immunity under the ITCA on the
ground that Seymours interpretation was inconsistent with the intent of the legislature.
Tittle v. Mahan, 582 N.E.2d 796, 800 (Ind. 1991). In Tittle, the
court explained that by enacting the ITCAs law enforcement immunity provision, the legislature
intended to include only those activities attendant to effecting the arrest of those
who may have broken the law. Id. at 801. For other
actions taken by law enforcement officers, government entities would be subject to liability
to the extent allowable at common law. Id.
The supreme court revisited the issue and overruled Tittle two years later in
Quackenbush v. Lackey, 622 N.E.2d 1284 (Ind. 1993). In Quackenbush, the supreme
court expanded its definition of law enforcement beyond the bounds set by Tittle,
explaining that its conclusion in Tittle regarding the legislatures intent to immunize only
actual attempts to effect arrests had produced an unworkable rule of law, and
was, after further reflection, analytically unsound. Id. at 1287. The court
stated that the scope of the phrase adoption or enforcement of a law
. . . is not limited to traditional law enforcement activities such as
the arrest or pursuit of suspects by police. Rather, in its broader
(and correct) meaning, Section 3(7) applies to the decision of any governmental entity
and its employees about whether to adopt or enforce any statute, rule, or
regulation. Id. at n.3. Although Quackenbush expanded the meaning of law
enforcement under the ITCA,See footnote the court circumscribed the availability of immunity for such
enforcement. The majority in Quackenbush decided that, by enacting the law enforcement
immunity provision of the ITCA, the legislature actually intended to codify the common
law as it existed at the time the Act was passed. Id.
at 1290-1291. The court explained that when the ITCA was enacted, [t]he
state of the common law was such that governments and their employees were
subject to liability for the breach of private duties owed to individuals, but
were immune from liability for the breach of public duties owed to the
public at large. Id. at 1291. Thus, under Quackenbush, governmental entities
would be immune from liability for losses stemming from law enforcement activities that
breached public duties, but not for losses resulting from the violation of private
duties. The court went on to determine that the negligent operation
of a police car involved the breach of a private duty, and that
the officer in question was not immune from liability. Id.
The supreme courts recent decision in Benton v. City of Oakland City, 721
N.E.2d 224 (Ind. 1999) nullified much of Quackenbush. In Benton, the court
jettisoned Quackenbushs complicated conception of common law governmental duty and immunity, and explained
that under the common law as set forth in Campbell, governmental entities were
simply under a general duty to exercise reasonable care, subject to the common
law immunities identified in Campbell. Id. at 229-230. The court rejected
Quackenbushs distinction between private and public duties owed by government entities, determining that
the distinction was so highly abstract and almost metaphysical as to be unworkable
in practice. Id. at 230. Although Benton did not directly involve
immunity under the ITCA, the court reaffirmed the extensive protections from tort liability
afforded Indiana governmental units under the ITCA, and explained that analysis of this
immunity should focus on the ITCA itself rather than on judicially created tests
by stating that, [i]n returning to the moorings of Campbell, we also return
to the principle that it is the legislature, and not the courts, that
is in the best position to determine the nature and extent to which
governmental units in Indiana should be insulated from tort liability. Id. at
In light of our supreme courts abrogation of the public duty / private
duty test for ascertaining the existence of law enforcement immunity under the ITCA,
and the courts reaffirmation of the primacy of the intent of the legislature,
our task in this case is clear. We must determine whether, under
the terms of the ITCA, the City was entitled to immunity for officer
Stoopss alleged negligence. As noted above, the law enforcement immunity provision of
the ITCA shields a government entity or an employee acting within the scope
of the employees employment from liability for losses resulting from the enforcement of
. . . a law . . . unless the act of enforcement
constitutes false arrest or false imprisonment. Ind. Code § 34-13-3-3(7). There
is no question here that officer Stoops was the Citys employee at the
time of the incident, and Davis has not alleged false arrest or false
imprisonment. Moreover, Davis does not contend that officer Stoops was acting outside
the scope of his employment when he deployed Chester.
See footnote We must therefore
determine whether officer Stoops was engaged in the enforcement of a law at
the time of Chesters attack.
As noted above, the supreme court in
Mullin explained that the scope of
the term enforcement is limited to 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.
639 N.E.2d at 283. Davis contends that the Citys use of
Chester did not constitute law enforcement because the City used the dog despite
knowing that Chester had inappropriately attacked people in the past. Daviss argument
here essentially describes his negligence claim. Davis cites no authority, and there
appears to be none, suggesting that when a police officer performs his duties
in a negligent manner, the officer is no longer enforcing a law.
To exempt negligent acts from immunity under the Act, the explicit purpose of
which is to shield government entities from liability for losses resulting from the
performance of various governmental functions, would render the act largely meaningless. It
is, after all, the Tort Claims Act. Indeed, police officers may be
immune when their conduct is intentionally tortious, see City of Anderson v. Weatherford,
714 N.E.2d 181, 186 (Ind. Ct. App. 1999), trans. denied (holding that police
officers were immune from liability for damages resulting from alleged intentional infliction of
emotional distress), and even when it is egregious and apparently contrary to law.
Minks, 709 N.E.2d at 382-383 (holding that police officers who instructed an
intoxicated and unlicensed teenager, who was a passenger in a vehicle operated by
his intoxicated relative, to drive the vehicle home rather than go through the
effort of preparing arrest paperwork for the two intoxicated subjects, were immune from
liability for damages resulting from deaths of two innocent motorists, and injuries to
another, cause by the drunk driving relative).
Here, the City deployed Chester to assist in locating and apprehending an individual
who had escaped from a juvenile detention facility, where he was being held
on charges of auto theft, and who was evading recapture by the police.
The Citys use of Chester under the circumstances plainly constituted an activit[y]
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, and therefore amounted to the enforcement of a
law within the meaning of the ITCA.
Finally, we note that a portion of Daviss brief may be construed to
suggest that, regardless of whether Officer Stoops was enforcing a law in the
scope of his employment, the City is not entitled to immunity because Officer
Stoopss use of Chester to apprehend the fleeing subject under the circumstances amounted
to an unconstitutional use of excessive force. It is unclear if a
police officer enforcing the law in the scope of his employment would be
exempt from immunity under the ITCA if his actions amounted to excessive force,
or were illegal in some other way.
See footnote However, we need not determine
this question here because, as the City notes, the legality of the Citys
use of force was an issue resolved against Davis in the prior federal
court action, and Davis was collaterally estopped from raising it again in his
The doctrine of collateral estoppel bars the re-litigation in a subsequent action of
a fact or issue adjudicated in a prior lawsuit.
Shell Oil Co.
v. Meyer, 705 N.E.2d 962, 968 (Ind. 1998). The former adjudication will
be conclusive in the subsequent action even if the two actions are on
different claims. Sullivan v. American Cas. Co., 605 N.E.2d 134, 137 (Ind.
1992). When determining whether a party is collaterally estopped from litigating an
issue, a court must consider whether the party against whom the judgment is
asserted had a full and fair opportunity to litigate the issue, and whether
it would be otherwise unfair under the circumstances to permit estoppel. Id.
Davis pursued his excessive force claims in the United States District Court.
The federal court entered summary judgment against Davis on these claims, a final
judgment from which Davis apparently took no appeal. Davis conceded in the
trial court that his excessive force claims were rejected by the federal court,
and he presents no argument upon appeal that he did not have a
full and fair opportunity to litigate his excessive force claim in the prior
action, or that application of collateral estoppel would be otherwise unfair. Thus,
the federal courts judgment dismissing Daviss excessive force claims must be given preclusive
effect here, and to the extent Davis argues that the City is not
entitled to law enforcement immunity because its use of Chester amounted to an
illegal use of excessive force, that argument would fail.
In sum, because Daviss damages resulted from officer Stoopss deployment of Chester, which
constituted the enforcement of law in the scope of his employment, the City
is immune from liability pursuant to the ITCA.
FRIEDLANDER, J., and MATTINGLY, J., concur.
The City also challenges the qualification and testimony of one of Daviss
experts, claims that Davis was contributorily negligent, and argues that the trial court
lacked subject matter jurisdiction over this case by virtue of the exclusivity provision
of the Workers Compensation Act. Because of our resolution of the governmental
immunity issue, it is not necessary to address these claims.
Footnote: The supreme court quickly reined in
Quackenbushs definition of law enforcement in
Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 283 (Ind. 1994),
in which the court explained that Quackenbush actually meant that the scope of
enforcement is limited to 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.
We would conclude that officer Stoops was acting within the scope of
his employment, if called upon to determine the issue. The supreme court
recently explained the meaning of scope of employment in the context of governmental
immunity in the case of
Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450
(Ind. 2000). The court explained that conduct . . . of the
same general nature as that authorized, or incidental to the conduct authorized, is
within the employees scope of employment. Id. at 453 (quoting Restatement (Second)
Agency § 229 (1958)). An act is incidental to authorized conduct
when it is subordinate to or pertinent to an act which the servant
is employed to perform, id. (quoting Restatement (Second) Agency § 229 cmt.
b (1958)), or when it is done to an appreciable extent to further
his employers business. Id. (quoting Kemezy v. Peters, 622 N.E.2d 1296, 1298
(Ind. 1993). In this case, there is no question that Officer Stoopss
use of his police canine Chester to find and apprehend a fleeing suspect
was intended to further the police activities of his employer, the City.
This was precisely the conduct that Officer Stoops was employed to perform, and
was accordingly in the scope of his employment.
In Kemezy, the supreme court applied the test from Quackenbush, which had
been issued the same day, and determined that the ITCA did not immunize
a police officers use of excessive force, reasoning that law enforcement officers owe
a private duty to refrain from using excessive force in the course of
making arrests. Id. at 1297. However, as noted above, the supreme
court in Benton explicitly disavowed the Quackenbush public duty / private duty test,
upon which the holding of Kemezy is based. Thus, the excessive force
exception to ITCA immunity announced in Kemezy cannot be regarded as good law
to the extent that it is based on the Quackenbush test. The
Act itself does not provide an explicit immunity exemption for excessive force or
other illegal acts. The only exceptions specifically recognized are false arrest and
false imprisonment. The interpretation of the ITCA to include a free standing
illegality or excessive force exception, without any explicit support in the Act itself,
would appear to run afoul of the supreme courts admonition in Benton that
it is the legislature, and not the courts, that is in the best
position to determine the nature and extent to which governmental units in Indiana
should be insulated from tort liability. Id. at 232. But see
OBannon v. City of Anderson, 733 N.E.2d 1, 1-2 (Ind. Ct. App. 2000)
(concluding that actions of City of Anderson police officers in effecting the arrest
of an armed felon who had attempted to kill a police officer did
not amount to excessive force, and that the officers were entitled to law
enforcement immunity under the ITCA). We also note that a police officers
use of excessive force or performance of his duties in an otherwise illegal
manner would not appear to take those activities outside the scope of his
employment, see Weatherford, 714 N.E.2d at 186 (noting that willful and wanton behavior,
and even intentional criminal conduct, may fall within the scope of employment), or
beyond the realm of law enforcement. See Minks, 709 N.E.2d at 382-383
(immunizing apparently unlawful actions by police officers who instructed an intoxicated and unlicensed
teenager to drive a vehicle rather than go through the effort of preparing