ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
COURT OF APPEALS OF INDIANA
PATRICK R. RAGAINS TIMOTHY S. LANANE
Smith & Ragains Anderson, Indiana
EUCY OBANNON, )
vs. ) No. 48A02-9910-CV-698
CITY OF ANDERSON, et al., )
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Jack L. Brinkman, Judge
Cause No. 48D02-9703-CT-309
June 20, 2000
Appellant-plaintiff Eucy OBannon appeals the trial courts grant of summary judgment in favor
of appellee-defendant City of Anderson and its police department (the City). Specifically,
OBannon argues that the grant of summary judgment was error because the City
was not entitled to sovereign immunity pursuant to Ind. Code § 34-13-3-3(7).
The facts most favorable to the non-movant reveal that OBannon lived at 2226
Halford Street in Anderson, Indiana on October 6, 1995. On that night,
Anderson police officers were chasing an armed felon, Trevor Nunn, who had attempted
to kill a police officer. Nunn had also fired upon the officers
who assembled in front of OBannons home, to which he had retreated without
OBannons permission. The Anderson police officers fired shots into OBannons home, searched
her home, and seized her momentarily in the course of arresting Nunn.
On June 25, 1997, OBannon filed a complaint against the City based upon
this incident and alleging negligent infliction of emotional distress, trespass, and illegal search
and seizure. The City filed its answer and, on November 23, 1998,
filed affidavits and a motion for summary judgment. OBannon filed her response
to the motion on December 22, 1998 and a brief in support of
response to defendants motion for summary judgment. After hearing argument on the
motion for summary judgment, the trial court granted the Citys motion by entry
on June 10, 1999. OBannon now appeals.
DISCUSSION AND DECISION
OBannon argues that the City was not entitled to sovereign immunity under I.C.
§ 34-13-3-3(7), that there was a genuine question of fact regarding the Citys
common law duty to her, and that summary judgment should be reversed for
that reason. Specifically, she argues that the City and its police officers
had a private duty to her not to trespass on her property, not
to search her home or seize her person and not to negligently inflict
emotional distress. Appellants brief at 4.
We note initially our standard of review for a grant of summary judgment.
Summary judgment should be granted only if the designated evidentiary material shows
that there is no genuine issue of material fact and the moving party
is entitled to summary judgment as a matter of law. Askren Hub
States Pest Control v. Zurich Ins., 721 N.E.2d 270, 274 (Ind. Ct.
App. 1999). Upon review, we do not search the entire record for
evidence to support the judgment, but may only consider the evidence which has
been specifically designated to the trial court. North Shore Bay, Inc. v.
Hamilton, 657 N.E.2d 420, 422 (Ind. Ct. App. 1995). On appeal from
a grant of summary judgment, the appellant has the burden of proving that
the trial court erred in determining that there were no genuine issues of
material fact and that the moving party was entitled to judgment as a
matter of law. Sweet v. Art Pape Transfer, Inc., 721 N.E.2d 311
(Ind. Ct. App. 1999).
The Indiana Tort Claims Act renders immune from liability police officers acting in
the course of their employment and their governmental employers if a loss results
from the adoption or enforcement of or failure to adopt or enforce a
law . . ., unless the act of enforcement constitutes false arrest or
false imprisonment. I.C. § 34-13-3-3(7). Our supreme court has interpreted this
statute to mean that law enforcement immunity would not attach in suits which
were based upon a governmental units private duty to individuals, to which OBannon
refers. For example, our supreme court held that immunity would not attach
in suits based upon negligent driving of a squad car on the way
to the scene of a crime, Quackenbush v. Lackey, 622 N.E.2d 1284, 1290-91
(Ind. 1993); for negligent parking of a police vehicle, Belding v. Town of
New Whiteland, 622 N.E.2d 1291, 1293 (Ind. 1993); or the use of excessive
force in effecting an arrest, Kemezy v. Peters, 622 N.E.2d 1296, 1297
However, most recently, our supreme court has noted that the private and public
duty distinction has led to confusion in Indiana case law. Benton v.
City of Oakland City, 721 N.E.2d 224, 226 (Ind. 1999). It called
into question the cases which relied upon such reasoning and which are the
basis of OBannons claim. It substituted in the place of private/public duty
analysis the common law presumption that a governmental unit is bound by the
same duty of care as a non-governmental unit except where the duty alleged
to have been breached is so closely akin to one of the limited
exceptions that it should be treated as one as well.
230. In addition, the supreme court noted that it is only after
a determination is made that a governmental defendant is not immune under the
[Indiana Tort Claims Act] that a court undertakes the analysis of whether a
common law duty exists under the circumstances. Id. at 232.
In this case, OBannons analysis fails to explain why the Citys actions should
not come under the immunity statute, I.C. § 34-13-3-3(7). The officers were
clearly seeking to enforce a law, and the act of enforcement did not
involve false arrest or false imprisonment. However, OBannon appears to argue that
the officers presence in her house was illegal or that excessive force was
used in effecting the arrest, thus endangering her and her grandchildren, humiliating her,
and causing her a loss of quality of life. We
will analyze her claims as one stating that the arresting officers actions were
in some way illegal, and for this reason sovereign immunity should not apply.
We first address the argument that shooting into her home gave rise to
tort liability unprotected by I.C. § 34-13-3-3(7). Excessive force claims are governed
by a Fourth Amendment objective reasonableness standard. Graham v. Conner, 490 U.S.
386, 388 (1989). The excessive force claim must be evaluated from the
perspective of the reasonable officer on the scene, rather than with the 20/20
vision of hindsight. Id. at 396-97. Factors to be considered in
determining the appropriate amount of force include the severity of the crime involved,
whether the suspect is an immediate threat to the officers, and whether the
suspect is attempting to resist or evade arrest. Id.
In Indiana, I.C.§ 35-41-3-3(b) reflects the same principles and provides in relevant
(b) A law enforcement officer is justified in using reasonable force if
the officer reasonably believes that the force is necessary to effect a lawful
arrest. However, an officer is justified in using deadly force only if
has probable cause to believe that the deadly force is necessary:
To prevent the commission of a forcible felony; or
(B) To effect an arrest of a person who the officer
has probable cause to believe poses a threat of serious bodily injury
to the officer . . . .
Furthermore, while the Fourth Amendment requires a search warrant before lawfully entering a
premises, the exceptions to this requirement include risk of bodily harm or death.
Harless v. State, 577 N.E.2d 245, 248 (Ind. Ct. App. 1991).
In this case, OBannon has not demonstrated that the officers use of force
was unwarranted or excessive. Instead, the officers actions were reasonable under a
Fourth Amendment analysis and I.C. § 35-41-3-3(b). Nunn had attempted to kill one
police officer and had fired at the assembled officers from inside OBannons home.
Record at 15, 17, 19. Thus, the officers acted legally when
they fired into OBannons home. Furthermore, the risk of bodily harm or
death was such that it was legal for the officers to enter into
her home without a warrant, to search the home, and to momentarily detain
OBannon in the process. See Harless, 577 N.E.2d at 248. These
acts were performed while officers effected the arrest of a fleeing, armed felon.
R. at 14-19. OBannon has not made any persuasive argument that
the police presence in her home was illegal or that they negligently breached
a duty to her. Because the officers were enforcing the law, and
their actions did not constitute false imprisonment or false arrest, their conduct is
immunized. I.C. § 34-13-3-3(7).
Furthermore, we note that this case is nearly identical to another in which
summary judgment was granted and upheld on appeal, State v. May, 469 N.E.2d
1183 (Ind. Ct. App. 1984). In that case, Indiana State Police officers
were chasing a fleeing murder suspect who took refuge in the home of
plaintiff May, seizing three hostages as he did so. May, 469 N.E.2d
at 1183. The state SWAT team fired tear gas and entered the home,
freeing the hostages. Id. The Mays sued the state seeking to
recover for damage to their home. Id. In that case, we
held the State immune from liability under the Indiana Tort Claims Act, reasoning
that the legislature granted immunity to a public entity for losses incurred while
the State or its employees enforced the law. Id. at 1183-84.
The facts in this case, as in May, constitute a clear instance of
a need for the policy of governmental immunity and a clear application of
I.C. § 34-13-3-3(7).
RILEY, J., and KIRSCH, J., concur.
The common law exceptions include: failure to prevent crime, appointment of
an incompetent official, or an incorrect judicial decision.