*1 summary judgment Board's motion for on those counts. CITY OF WAKARUSA and Ken (Defendant Appellant Below),
The denial of a motion for summary judgment interlocutory is an order and not a final subject It is therefore provisions Appellate of Ind. Rule HOLDEMAN, Appellee Monte W. 4(B)(6) appellant, after (Plaintiff Below). obtaining a trial court's certification of the No. 20A03-8912-CV-572. interlocutory appeal, petition Appeals grant Court of leave to Appeals interlocutory order. The denial Fourth District. summary judgment of a motion for is not appealable Appeals until Court of Sept. appeal. Bodor, leave to Scott v.
Inc.
Here, the trial entry court issued an 1, 1989,
making September entry on
summary judgment motions final. How
ever, certify the court did not 4(B)(6) App.R. conditions of appli were Furthermore,
cable. the Board pe did not
tition the request Court of
an interlocutory appealable, order be found
and we have not leave to take an interlocutory appeal of the denial of the summary
Board's motion for judgment on addition, Counts I and V. In judg no final
ment was entered on Counts I and V.
Therefore, those issues remain before the
trial court and are not before us.6 entry
We reverse the trial court's
summary judgment Landry against
the Board and the Board Members on II, III,
Counts and IV and remand to the
trial court to enter judgment in of the Board on
favor those counts. Lan-
dry's against action the Board Members as improper
individuals was should be entered on behalf of II, III,
the Board Members on Counts
IV also. Counts I and V are not before us
and remain before the trial court.
Reversed and remanded.
MILLER, P.J., BAKER, J., concur. support Landry's susceptible 6. The Board has cited several cases in claims are to state law rem- argument Landry's arguments of its federal law claims edies. We do not address these since properly not be decided the trial court because Counts I and V are before us. *2 "en the falls within
If Miller's 34- Ind.Code of law" standard forcing the he is if even 4-16.5-3(7),1 immune he is enforcing the law: negligently Barnard, Mil- Larry L. Keen, T. Robert from resulted in injury If the for Wayne, Fort Boxberger, ler, & Carson immunity is law, of a enforcement the appellant. entity governmental the to both and Smith, Mellinger Phillips Cynthia notwithstanding employee, to the and Elkhart, appellee. for Bowers, in a loss resulted enforcement the that the for but occurred not have would CHEZEM, Judge. duty was the in which manner negligent Summary Case performed. City of Wakaru- Defendants/Appeliants, Ind., Bank v. State Nat'l trial the Ken Officer sa and However, the issue 203, 204. We of denial court's could actions whether raised affirm. and "outrageous" considered be Issue immunity him deny would in deter- erred the Whether theory. immunity governmental under fact of issues material existed mining there activity-watching very nature for Motion Wakarusa's denying in and mirror, rear-view car's patrol the in traffic Judgment. Summary plates the license to check turning around Facts opposite di- traveling in the vehicles forward continuing to allow rection, while Miller Ken Officer February On con- be car-could patrol for the motion marshal (Miller), deputy a safety of oth- involved County, was sidered Wakarusa, in Elkhart may not have W. this Although Monte with ers. accident vehicle in a motor the well-be- disregard for a conscious travel was Miller (Holdeman). Holdeman reck- checking others, considered it could be Road 19 ing of on State ing northbound outrageous- traveling point south- less, the perhaps trucks plates license license the Indiana observing the In ness. was Miller bound. im- the limitations the mirror discussed rear-view in his looking plates offi- police he was liability granted While from munity his shoulder. over and manner, 8$4-4-16.5-8(7), as follows: this plates checking the IC under cers himof ahead traffic the to see failed Miller however, the follow, not It does and skidded his brakes applied He immunity necessarily statute vehicle. Holdeman's into (40) feet forty com- officers enforcement law acts of all atten- paying he admits Miller in the enforcement engaged while mitted and that himof ahead traffic to the tion acts, al- employee's law ... [AJn fault. his accident in the engaged while though committed Decision Discussion might be duty, his performance incompatible as to be reviewing a motion When duty undertaken. performance is review on the standard judgment, an said that be it cannot In such a whether court: trial it was same from resulted resulting therefrom injury fact material issue genuine there acts, duty. Such performance entitled party was moving whether wan- or intentional Farm law. em- beyond the simply ton are Holding Title Deseret Co-op. v. Bureau omitted). (Footnote ployment. 198. Corp. a law adopt enforce failure of or govern- ment 34-4-16.5-3(7) provides: A IND.CODE act regulations), unless (including rules acting within employee entity ment or false arrest false constitutes enforcement a loss if not liable is imprisonment. adoption and enforce- ... from: results Id.; also, State Police De- accident entitling him to enforcement partment v. Swaggerty law as a matter of law: Although the First Dis- "Willful or wanton misconduct means: trict characterizes quote the above from A course of action that shows an actual Seymour as dicta and a *3 expression mere or deliberate intention to injury; cause theoretical possibility in Riggin v. Bd. of A course of part action on the of the (1986), Trustees Ball State Univ. Ind. that, defendant under existing condi- App., 616, 489 N.E.2d (citing 681 Jacobs v. tions, shows either an utter indifference City Columbus, (1983), et al. Ind.App., disregard conscious for the safety of 1253, 454 N.E.2d ), trans. denied we do not others." agree with that characterization of our Su- Instructions, Indiana Pattern Jury Civil preme language. Court's present The (2nd Ed.1989). 5.71 § may provide an example just the kind of "Willful or misconduct is defined as con- outrageous conduct to which Seymour duct committed with an intentional or referring. The of whether reckless safety of oth- conduct constitutes example such an re- ers." quires a determination and factual should (6th Black's Dictionary Ed.1990). Law be left to the trier of fact. The majority ignores plain language The trial court's denial of summary judg- which limited theoretical ex- ment is affirmed. ceptions to enforcement of the law immuni-
ty to outrageous acts which are intentional
wanton,
STATON, J., coneurs.
fashioning a new
exception
"outrageous
termed
reckless-
HOFFMAN, P.J., dissents with
ness." Even in applying
ambigu-
this new
separate opinion.
exception,
ous
there is no evidence that
Officer Miller's conduct
"outrageously
HOFFMAN, Presiding Judge, dissenting.
reckless."
Recklessness
knowl-
I respectfully dissent.
edge
specific
of the
harm. An actor cannot
majority's
Until the
opinion, this Court
be reckless with regard to an unknown
and the
Indiana
Court have
never
potential
harm.
(1990),
Wallace v. State
found conduct to be
App.,
to Ind.
Wallace,
112 (DeBruler at 205-206 reh. Note, Sey- JJ., dissenting). Hunter, Interprets v. State Bank National mour Act: Can Tort Claims Ind. Wrong? do no
Enforcers LR. 705. inten- outrageously wanton or
tional, of law.
reckless entered sum- have
mary judgment. Claimant-Appellant, RYAN,
Becky L. DE- INDIANA OF BOARD
REVIEW AND EMPLOYMENT OF
PARTMENT SERVICES, K. Michael TRAINING Harris, L. Bonnell, Nanette A. Joe Hospital, Em-
McDermott, and Dunn
ployer-Appellees.
No. 93A02-9004-EX-202. District.
First
Sept.27,1990.