Fries v. Fincher
622 N.E.2d 1294
Ind.
1993
Check Treatment

*1 1294 County C. Fries and Allen

Kenneth Com’rs, Baeverstad, Mark W. Board of County and Allen Kenneth C. FRIES Lutz, David Hunt Suedhoff Borror & M. Commissioners, Appellant, Board of Eilbacher, Wayne, appellants. Fort for Below) (Defendants v. Fincher, Gwendolyn Morgan, J. Gloria J. Wyss Myers, McNellis & Fort Riebenack FINCHER, Appellee. Gloria J. (Plaintiff Below) Wayne, appellee. for No. 02S03-9310-CV-1160. ON PETITION TO TRANSFER Supreme of Indiana. Court KRAHULIK, Judge. 25,

Oct. 1993. (Plaintiff-Appellee Fincher be

Gloria J. low) Ap transfer after the Court of seeks peals directed the trial court to enter sum mary against judgment her and in favor of County Kenneth Fries and the Allen C. (Appellants-De Board of Commissioners below). (1993), fendants Fries v. Fincher of Ind.App., 610 N.E.2d 291. In view our Quakenbush today in Lackey decision v. 1284, Ind., (1998), hold 622 N.E.2d we that liability are not immune from defendants Act, the Tort Claims Ann. under Ind. Code 34-4-16.5-3(7) (West Supp.1992).1 § Fries is enforcement offi- Kenneth a law Depart- County Allen Sheriff’s cer with the 6, 1990, to responded ment. he a On June by call for assistance another officer who chasing suspect on foot in Fort was a Wayne, Indiana. Fries activated the flash- vehicle, ing lights on his not his red but siren, wrong way down proceeded and the Near the of one-way a street. intersection Street, and Harrison Woodland Avenue a red car in south- Fries small the observed approaching of also bound land Harrison applied the intersection. Fries the brakes automobile, striking was to avoid the but the unable to avoid the collision and struck by Fincher. vehicle driven Gloria inju- her negligence Fincher sued in for summary ries. for Defendants moved they were judgment grounds on the that 3(7) under Section liability immune from in the enforce- engaged because Fries was (7) 34-4-16.5-3(7) provides: or adoption enforcement of failure 1. the and § Ind.Code (including governmental acting rules entity employee adopt to law and A or an or enforce a scope employee’s employment the regulations), within the of the act of enforcement con- unless is if a results not liable loss from: imprisonment. or false stitutes false arrest

1295 travelling public at the time the accident. stances while on a road- ment of a law of holding in Applying way. the Tittle v. Mahan See Ind. Code Ann. 9-21-1-8 § Ind., 796, (1991), (West 1992). the trial duty one, 582 N.E.2d court private This was a Fries’ actions denied the motion because owed to individuals. Fincher seeks recov- attempt not of an “actual to did arise out the ery private duty. for breach of this may of effect an arrest one who have bro- Accordingly, is immunity provided not un- appealed. Although the Fries 3(7). ken law.” Quakenbush, der Section 622 N.E.2d Appeals recognized Court of that there the at 1288. 3(7) no immunity is under Section unless Summary judgment appropriate only is plaintiff injuries to for

the seeks recover any genuine in the absence of issue of arising police out of attendant activities to 56(C). Here, material fact. Ind.Trial Rule arrest, effecting an the court held that question a of fact exists as whether to “immunity acts is not restricted to commit- Fries exercised reasonable care the under at of an arrest.” Rely- ted the scene actual Summary circumstances of this case. opinion on ing appellate the court’s in therefore, judgment, appropriate, was not Quakenbush (1992), Lackey Ind.App., v. correctly trial and the court denied defen- 1210, police which that 604 N.E.2d held on dant’s motion. way investigate their to a crime are im- liability, Ap- mune from civil the Court of were

peals held that defendants immune Conclusion “engaged Fries in a because Officer was grant transfer, opinion We vacate the of illegal quick response activity.” to a call of court, Appeals, the of Court affirm the trial The court instructed the trial court to enter and this to remand matter the trial court summary in of judgment favor the defen- proceedings. for further dants. grounds Fincher seeks transfer on the Tittle, 796, incorrectly N.E.2d

that 582 was DICKSON, JJ., and concur. DeBRULER applied. opinion Because we the vacated Quakenbush, Appeals the SHEPARD, C.J., concurs, of Court of in separate with however, need not we address Fincher’s opinion.

arguments they as relate to the Tittle case. GIVAN, J.,

Instead, dissents. we hold that defendants are not liability immune from because Fincher SHEPARD, Justice, concurring. Chief recovery private seeks for the of a breach duty. today did the in join While I not decision Quakenbush, 1288, In 622 N.E.2d at we Quakenbush (1993), Ind., Lackey 622 v. rejected the that notion law enforcement 1284, regard settling I it N.E.2d as the employers officers and their were immune Quakenbush issue will treat stare and as duty the of private for breach a under time, if any, decisis until such as the 3(7) if they engaged Section even were at Assembly modify Indiana General elects to fulfilling public time in the course of the a Accordingly, the Tort Act. Indiana Claims duty. the Such is case here. join I the in in decision this case and the scene, As Officer Fries headed the he to today remaining authority cases on of charged was with two duties. The first Quakenbush. duty duty was to enforce the law. This Quaken public large.

was owed to the at

bush, 1288; Campbell 622 at N.E.2d v. 62, (1972), 55, Ind. 259 284 N.E.2d

State

733, 737; Simpson City Food Fair v. of (1971), 387, 391, Ind.App. 149 Evansville 871, duty

272 N.E.2d 873. The second was use care the ordinary

to under eircum-