Shannon L. BELDING, Appellant, (Plaintiff Below) v. TOWN OF NEW WHITELAND, Indiana, Appellee. (Defendant Below) and Brian K. WHITEHEAD, Appellant, (Plaintiff Below) v. TOWN OF NEW WHITELAND, Indiana, Appellee. (Defendant Below)
No. 41S01-9310-CV-1161
Supreme Court of Indiana
Oct. 25, 1993
622 N.E.2d 1291
Dale W. Eikenberry, Wooden McLaughlin & Sterner, Indianapolis, for appellee.
ON PETITION TO TRANSFER
KRAHULIK, Judge.
Shannon Belding and Brian Whitehead (Plaintiffs-Appellants below) seek transfer after the Court of Appeals affirmed the entry of summary judgment in favor of the Town of New Whiteland on the basis of immunity pursuant to
On September 28, 1990, at approximately 11 o‘clock p.m., New Whiteland police officers Bryant and Howell observed an automobile southbound on U.S. 31 travelling 71 m.p.h. in a 55 m.p.h. zone. Officer Bryant activated the flashing lights of the squad car and signaled the automobile to pull over. Whitehead, the driver of the automobile, steered into a turn-around in the highway median. Officer Bryant stopped the squad car behind Whitehead, with approximately five feet between the bumpers. A portion of the rear of the squad car extended into the traveled portion of the lefthand southbound lane of U.S. 31. The headlights, taillights and flashing lights of the squad car remained operating. The area where the automobile stopped was illuminated with overhead streetlights.
The occupants exited the automobile and field sobriety tests were conducted.1 While the officers reviewed the results of the tests and Belding and Whitehead stood between the two parked cars, a third vehicle travelling southbound in the left-hand lane of U.S. 31 struck the rear of the police car. The collision caused the police car to jump forward injuring Whitehead and Belding.
Whitehead and Belding sued New Whiteland for negligence on the theory of respondeat superior. New Whiteland moved for summary judgment asserting law enforcement immunity under
The Court of Appeals, following our decision in Tittle v. Mahan (1991), Ind., 582 N.E.2d 796, held that because the officers’ activities were attendant to the effecting of an arrest, New Whiteland was immune
Our decision in Quakenbush v. Lackey (1993), Ind., 622 N.E.2d 1284, requires us to grant transfer. In Quakenbush, we held that if a plaintiff establishes a private duty owed by the law enforcement defendant or his employer to the plaintiff, then Section 3(7) does not confer immunity. That holding rejects the dicta found in this Court‘s decision in Tittle, 582 N.E.2d 796, and the holding in Seymour National Bank v. State (1981), Ind., 422 N.E.2d 1223, modified on reh‘g, 428 N.E.2d 203, appeal dismissed 457 U.S. 1127, 102 S.Ct. 2951, 73 L.Ed.2d 1344 (1982). As a result, the questions of (1) whether parking the police vehicle was attendant to effecting the arrest of those who may have broken the law, Tittle, 582 N.E.2d at 801, or (2) whether the officers’ conduct was so egregious as to remove the cloak of immunity, Seymour, 428 N.E.2d at 204, are no longer dispositive of this case.
Instead, the question is whether the New Whiteland police owed a private duty to the plaintiffs to exercise reasonable care in the parking of the police vehicle. The answer to this question is yes. As a general rule, motorists are obligated to exercise reasonable care in parking their vehicle. Although police department vehicles are “authorized emergency vehicles,”
Whether the officer‘s conduct fell below the level of care that an ordinarily-prudent person would exercise under the same or similar circumstances in parking the police vehicle is a question of fact. Summary judgment is inappropriate in such a circumstance.
Conclusion
Accordingly, we now grant transfer, reverse the trial court, vacate the opinion of the Court of Appeals, and remand this case for further proceedings.
DeBRULER and DICKSON, JJ., concur.
SHEPARD, C.J., concurs, with separate opinion.
GIVAN, J., dissents, with opinion in which SHEPARD, C.J., concurs.
GIVAN, Justice, dissenting.
I respectfully dissent from the majority opinion in this case. I disagree with the observation of the majority that the case of Seymour Nat‘l. Bank v. State (1981), Ind., 422 N.E.2d 1223, placed an improper interpretation upon the law enforcement section of the Indiana Tort Claims Act,
The opinion in the majority is an excellent argument to be used in the legislature to bring about a change in the language of the statute in order that law enforcement officers might be responsible for the acts described by the majority opinion. Seymour was decided correctly and followed the clear and unambiguous language of the statute.
I would deny transfer in this case.
SHEPARD, C.J., concurs.
SHEPARD, Chief Justice, concurring.
While I did not join the decision today in Quakenbush v. Lackey (1993), Ind., 622 N.E.2d 1284, I regard it as settling the issue and will treat Quakenbush as stare decisis until such time, if any, as the Indiana General Assembly elects to modify the Indiana Tort Claims Act. Accordingly, I join in the decision in this case and the remaining cases today on authority of Quakenbush.
Application of Law to Facts
The gist of plaintiff‘s complaint is that Lackey drove her squad car in a negligent manner. As such, the complaint alleges the breach of a private duty owed by Lackey to the plaintiffs. Accordingly, Section 3(7) does not provide immunity.
Whether Lackey‘s conduct fell below the level of care that an ordinarily-prudent person would exercise under the same or similar circumstances is a question of fact. Summary judgment is inappropriate in such a circumstance.