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City of Anderson v. Davis2/21/2001
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 Quackenbush's 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, " 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 232.
2. Application of Law
In light of our supreme court's abrogation of the public duty / private duty test for ascertaining the existence of law enforcement immunity under the ITCA, and the court's 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 Stoops's 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 employee's 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 City's 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. We must therefore determine whether officer Stoops was engaged in the "enforcement of a law" at the time of Chester's 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 City's 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. Davis's 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
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