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City of Anderson v. Davis2/21/2001
allenges the qualification and testimony of one of Davis's 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 Worker's Compensation Act. Because of our resolution of the governmental immunity issue, it is not necessary to address these claims.
The supreme court quickly reined in Quackenbush's 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 employee 's 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 employer 's business.'" Id. (quoting Kemezy v. Peters, 622 N.E.2d 1296, 1298 (Ind. 1993). In this case, there is no question that Officer Stoops's 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 officer's 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 court's 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 O'Bannon 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 officer's use of excessive f
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