Greathouse v. Armstrong

GREATHOUSE, Repre Sandra Personal

sentative of the of Donald L. Estate

Greathouse, Deceased, Appellant, ARMSTRONG, Lawrence Office Commissioners County, Indiana, Appellees.

No. 88S01-9306-CV-692.

Supreme Court of Indiana.

June appealed, and the First Dis-

The estate Appeals affirmed the sum- trict Court of thereby upholding the trial mary judgment, special duty determination that no court's relationship existed between Mr. Great- Department and the Sheriff's and house County enable the estate which would any of a plaintiff as to recover for breach duty and that the Sheriff ac- discretionary functions tions constituted pro- Tort Act for which the Indiana Claims governmental vides Ind.Code v. Arm Greathouse 419, 424. The 601 N.E.2d strong jury Appeals affirmed the Court of also judgment for defendant Arm- verdict and strong. in its

The estate raised several issues the trial appeal including the claim that granting sum- court committed error when of the Sheriff's mary judgment favor County upon and the based special lack of relationship Mr. Great- duty or between Department and and the house solely grant transfer for County. We Pur- addressing this issue. purpose 11(B)(8), we Ind.Appellate Rule suant Harrison, Harrison, Beck & Patrick W. respect to the re- summarily affirm with II, Columbus, Hamilton, Sa- and Robert B. maining issues. lem, appellant. for Andrews, Chap- L. H. Roland William entry of trial court's We review the Cotner, Andrews, man, Wyle, Karen A. following judgment using the summary Chapman, Bloomington, and James Mann & standard: Kurnik, Stephenson & India- Stephenson, S. grant of from the party appealing The appellee. napolis, o persuade the must summary judgment judgment er- that the appellate tribunal DeBRULER, Justice. is no "that there roneously determined fact and material genuine issue as Road Following a fatal collision on State to a moving party is entitled County, Sandra Great- 58 in Lawrence Ind.Trial as a matter law." Greathouse, house, L. wife of Donald Thus, reviewing appel- 56(C). estate, initi- Rule representative of his personal the same issues court faces damages. late wrongful action for death ated and follows the trial were before granted a motion for sum- trial court Capello v. process, Burke the same certain defen- judgment in favor of mary 489; v. (1988),Ind., Brandon action, namely, the Board in the dants N.E.2d Ind. State County Commissioners determination The trial court's Sher- ("County") and the Lawrence ap- on "carefully serutinized be must ("Sheriff's Department"). iff' s non-prevailing that the peal" to assure 4, 1991, jury returned September On prevented from improperly party is not remaining Stan- verdict Indian day Ayres in court. having his ("Armstrong"). Armstrong ley (1986), Ind., Heights Dep't Vol. Fire 498 Armstrong's farm, situated on State Road N.E.2d borders the Auston Powder Plant. When Stanley called the Arm- Dept. Caylor-Nickel Revenue Clinic strong residence, Mrs. (1992), Ind., Armstrong 1818. "In informed him that the fatal accident had considering the summary judg- motion for already occurred. During telephone this ment, the contents of all pleadings, affida- conversation, the re- testimony vits and liberally are construed ceived the 911 call concerning Mr. Great- light most favorable to the non- house's collision. moving party." Ayres, 1234; 498 N.E.2d at v. Charleston Apartments South Kahf (1984), Ind.App., 461 N.E.2d 723. Where IL. undisputed material facts conflict or facts finding A immunity negli- assumes inferences, conflicting lead to summary gence Thus, but liability. requi- denies

judgment inappropriate, is even if the court site negligence- elements of actionable non-moving believes the party will not sue- duty, breach and causation-need not be ceed at trial. Excel Signal Industries by considered deciding Capital Corp. Ind.App., 574 N.E.2d appropriateness governmental immuni- 946, 947. ty. However, gov- court finds the "[ilf immune, ernment is not may yet the case I be decided on the basis of failure of September On Donald Great- negligence. element of This should not be house, riding while motorcycle work, his confused with the threshold determination colliding died after angus with a black bull immunity." Cty. Peavier v. Monroe Bd. that had wandered onto State Road 58. (1988), Ind., Comm'rs 46- bull, by Armstrong, owned escaped, along cattle, with other nearby its confines entering before public high- A way. The Indiana Torts Claims Act Approximately two hours before the fa- (ITCA) provides governmental that en "[a] collision, tal Sheriff tity employee or acting within seope Department's dispatcher, Sanders, Andrew employment his liable if a loss re received a call from a citizen reported who performance sults from the of a discretion that cattle were on State Road 58 near the ary function." IC. § Auston Following Powder Plant. the Sher- particular Whether a discretionary is iff policy, to the extent he and therefore question immune is a of law it, understood attempted Sanders to identi- Peavier, determination the courts. fy and contact the owner of the cattle. 528 N.E.2d at 46. reported Based on the location of the Peqavier, Court, In this seeking cattle, telephoned Buck, Sanders Donald greater consistency effectiveness and in de farmer whose name depart- was on the termining governmental when conduct falls ment's "cattle call-out list." Buck in- within the class entitled immunity under formed Sanders that he did not own the 84-4-16.5-8(6), 1.C. adopted planning- cattle, suggested but he they might operational test. analysis, Under this belong to a farmer named Armstrong. governmental entities will not be held liable Thereafter, attempted Sanders to contact alleged negligence arising from deci Armstrong, Rush another cattle owner on sions which are made at a planning rather list," the "cattle call-out calling his resi- than operational level. dence several times over the next one half hours. Unable to contact Rush Arm- Through the planning-operational strong, Sanders test, decided to return to the distinguish we between decisions in list," "cattle call-out where he discovered volving the formulation of policy, basic en name of Armstrong. Stanley immunity, titled to regarding decisions by subsequent forward admini implementation of and carried or only the execution Depart the Sheriff Following strations.1 In policy, not entitled Alaska, procedures, Indemmity pre-determined Co. ment's dustrial attempted to contact the owner repeatedly 1983). (Alaska The critical P.2d following the test is "not inquiry during period associated with of the cattle judgment was exercised merely whether time of initial call and the the fatal the nature of whether but collision. Peavler, policy considerations." called for time, not ask the During this Sanders did Blessing v. Unit (quoting at 45 jailor they whether deputy available 1160, 1178 States, F.Supp. ed cattle, might nor did he knew who own enti (E.D.Penn.1978)). "The deputy send a the area to determine who bears ty seeking to establish Moreover, record might be the owner. the challenged proving that the burden during period, the shows that this time by made policy a decision or omission was require the assess- circumstances did not and bene balancing of risks the conscious competing priorities. The record ment of Wimmer, (citing at 46 Little v. fits." engaged that Sanders contains no evidence (1987); 580, 739 P.2d 564 Johnson 303 Or. balancing in of risks and bene- "conscious 8, 782, P.2d State, 794 n. 447 69 Cal.2d v. policy with formulation. fits" associated 240, 352, 8, n. 8 Cal.Rptr. 249 361 n. 73 (1968)). some discretion While Sanders exercised policy, the his ac implemented in he how Department contends The Sheriff's of executive tions did not rise to the level actions called that the nature of Sanders' protec afforded judgments that should be Essentially, the policy considerations. governmental immunity doe- tion under the in re Department argues that govern the conduct of the trine. When dispatcher en sponding complaints, a implementing depart employee in ment by prioritizing gages policy formulation perfor requires only regulations ment considering the competing and demands and pre-determined procedures, mance of Therefore, availability of scarce resources. conduct policy, such not the formulation response any complaint dispatcher's the judicial review as a is not immunized planning protected a inherently constitutes U.S., "discretionary function." Griffin assertions, the rec Despite these function. (1974). F.2d 1063 merely im clearly ord shows policy. While plemented pre-determined a Washington ap Supreme The Court judgment, professional Sanders exercised test in a simi plied planning-operational the the delibera did not constitute his decisions ac involving police dispatcher's lar case a policy. There formulation of basic tive an identical conclusion. tions and reached fore, decisions were we hold that Sanders' County, 100 King Chambers-Castantes by protected and not merely operational (Wash.1983). In 275, 669 P.2d 451 Wash.2d discretionary function Chambers-Castantes, plaintiff, an as the victim, county, depart the Sheriff's The evidence shows the sued the sault county sher public safety and the policy ment of maintained an unwritten iff, were liable for alleging that defendants procedures for the articulating appropriate timely respond proper in a and involving failing to loose dispatcher to follow cases plaintiff's call for assistance. manner policy procedures included livestock. developed by previous assault, County police a Sheriff originally King the After the receiving public Upon the a loose livestock on should ask owner, list dispatcher might knows who own whether this individual roadways complaint, cattle; (4) duty (1) on whether dispatcher and ask officers procedures ask direct to: they cattle. Should the who owns the complainant know knows who owns whether cattle; the loose (2) dispatcher locate the owner of complainant fail to does not know who if cattle, on-duty cattle, availability depending upon dispatcher "Call consults owns officers, may deputy dispatcher send a in order to seek out Out List for Cattle" owner; (3) potential cattle called from the site. if owner operators a cause of action where none previously received a total of eleven calls for assistance police arrived at existed. To damages, recover the estate before the seene one hour minutes must establish the three elements of action twenty later. Id. 669 P.2d at 454. In ruling that negligence: (1) able a by owed the defendants were not shielded from lia- to conform its conduct to a stan bility by the discretionary function excep- dard of care by necessitated its relationship tion to tort liability, the court held that with decedent; (2) "[a] a breach of that simple decision dispatch whether an duty; (8) offi- an injury proximately caused cer to the seene of a crime investigate or to by the breach. (1991), Webb Ind., v. Jarvis crime, more, without does not invoke a 575 N.E.2d also, 992. See Miller v. Griesel basic policy decision high level execu- 610-11, Ind. tive which would render the decision maker immune from Rather, suit. the decision is Moreover, in order for the estate to more properly operational, characterized as have standing to recover in a against suit for it type involves a of discretion exercised entities, there must have at an everyday operational level." Id. 669 been a breach of duty private owed to a P.2d at 456. individual. Campbell v. State agree We with Washington Court's 55, 63, Ind. 737. Liability judgment in Chambers-Castantes. Exer to an individual for damages will not lie cising professional judgment, without government when the entity owed duty a more, equivalent to the formulation public the whole, as a unless plaintiff the of policy. basic government Countless em can show special a duty or relationship ployees professional make judgments every which would entitle one recovery. Lewis day that do not constitute discretionary v. City Indianapolis (1990), Ind.App., of functions. example, For the Court Ap of 13, 16; N.E.2d also, See Crouch v. peals in Huntley v. City Gary (1990), of Hall Ind.App., N.E.2d held that when an "Generally, private, to be duty a must be ambulance driver chose to particu enter a particularized an individual." lar intersection, his actions were pro not Simpson's Fair, Food Inc. v. City Ev of tected from legal challenge by the immuni ansville Ind.App. 387, 391, 272 ty provided in I.C. § Al N.E.2d though the driver professional exercised judgment duty in driving exercise care through the the intersec safety of another tion, arises as a matter of the law court determined that he was not engaged in the formulation of out of some relationship policy existing basic between parties, decisions and it province at the is the time. of the to determine whether such relations policy If formulation every included give rise duty. Webb, to a 575 N.E.2d at which any involves choice, element of judg 995. The trial court correctly determined ment or ability to responsible make deci that the estate failed to show that special sions, every act would then fall within the duty or relationship existed between the discretionary exception. function Peavler, decedent and the Sheriff's Department and 528 N.E.2d at 43. There is no such broad the County. If any there was duty owed legislative purpose. The immunity provid by the Sheriff's County, ed the performance of discretionary func it was owed general to the public. tions in 34-4-16.5-8(6) I.C. does § not shield the Sheriff's from liabil Reviewing the evidence most fa ity for conduct associated implementa with estate, vorable to shows, it best, at that tion of its policies. established Sanders was aware that the loose cattle on highway represented potential risk to B. general public. However, Sanders did By removing the defense govern of not and could not have known that Mr. mental immunity we do thereby not create Greathouse was travelling to work on State the cattle Department to remove Sheriff's fatal accident. morning of the 58 the Road highway. from the record to show that nothing in the There is husband had late Greathouse's Mrs. summary judgment Consequently, De- the Sheriff's relationship with special Department and favor of Sheriff's to a County giving rise partment or affirmed, as is the County is duty. - special, individualized Armstrong. SHEPARD, C.J., argues and DICKSON Nevertheless, estate through KRAHULIK, Department, the Sheriff's JJ., concur. actions, affirmative gratuitously Sanders' GIVAN, J., in result with concurs Armstrong to Stanley duty assumed opinion. and, roadway cattle from remove his relationship therefore, special created a GIVAN, Justice, concurring in result on highway. The using the with motorists petition transfer. civil (Sec upon the Restatement relies estate majority result of the I concur in the ond) Torts, 3244.2 however, agree with the I cannot opinion; opinion govern- holding majority in the estate would be analysis, this Under apply not to the Sher- mental did Depart- to show that required iff{'s Appeals The Court of Department. Sanders, as- ment, through the actions 419 correct- reported at 601 N.E.2d opinion Armstrong to sumed law. question this ly handles highway, the cattle from remove deny transfer in this case. I would so, of harm to the increased the risk doing decedent, upon the relied who had evi- protection. The

Department for his

dence, to the es- most favorable viewed support such a position, does not

tate's

finding. De- record shows that actions, merely SAINTIGNON, through Sanders' Appellant,

partment, Danny cattle, in of the loose sought out the owner of the situation. to inform the owner order Indiana, Appellee. STATE efforts Clearly, cattle did of the loose locate. the owner to No. 49S00-9111-CR-941. harm to Mr. Great- increase the not risk Indiana. Supreme Court the Sher- It is uncontroverted house. attempted unsuccessfully iff's 29, 1993. June Armstrong prior to the to contact Moreover, lacking decedent accident. Depart with the Sheriff's

prior contact ac-

ment, knowledge of Sanders' had no Therefore, Stanley Arm- neither

tions. upon the relied

strong the decedent nor (a) care Torts, (1965) to exercise reasonable his failure (Second) 324A 2. Restatement harm, such or provides: the risk of increases undertakes, (b) perform a gratuitously con- to or for undertaken One who he has person, the third another the other owed sideration, to render services necessary recognize as which he should (c) reliance because of harm is suffered things, person protection or his of a third upon person third the other or the person subject liability the third is undertaking. resulting physical his failure harm protect his under- reasonable care to exercise taking, if

Case Details

Case Name: Greathouse v. Armstrong

Court Name: Indiana Supreme Court

Date Published: Jun 24, 1993

Citation: 616 N.E.2d 364

Docket Number: 88S01-9306-CV-692

Court Abbreviation: Ind.