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08/17/87 MELBADEAN WEBER v. CITY FORT WAYNE

Filed. As amended August 26 1988.: August 17, 1987.

MELBADEAN WEBER, APPELLANT (PLAINTIFF BELOW),
v.
CITY OF FORT WAYNE, FORT WAYNE POLICE, DEPARTMENT AND OFFICER WARREN K. NOTESTINE, APPELLEES (DEFENDANTS BELOW)



APPEAL FROM THE ALLEN SUPERIOR COURT, The Honorable Robert L. Hines, Judge, Cause No. S-86-187.

Miller, P.j., Young, J. and Staton, J. Concur.

Author: Miller

MILLER, P.J.

Melbadean Weber brought a personal injury action against the City of Fort Wayne, its police department, and Officer Warren Notestine after she was injured in an automobile collision in which Officer Notestine, driving a squad car on his way to investigate an independent traffic accident, struck Weber's car in the rear. The trial court granted all defendant's motion for summary judgment and found the officer was engaged in the performance of his law enforcement duties when the collision occurred and all defendants were therefore immune from liability under our Tort Claims Act, IND. CODE 34-4-16.5-3(7). Weber now appeals and claims that: (1) a material issue of fact exists as to whether Officer Notestine abandoned his investigation of the traffic accident prior to his collision with Weber; and 2) disputed inferences, which preclude summary judgment, may be drawn from the undisputed facts of the collision including; a) the investigation of a traffic accident is an administrative police function to which no immunity attaches, b) driving to the scene of an accident is preliminary to the law enforcement acts of investigation, and c) employment as a "law enforcement officer" and performance of acts which constitute "enforcing a law" are distinguishable.

We affirm.

FACTS

The undisputed facts of the collision are as follows: On the morning of February 17, 1984, Officer Notestine was on duty with the Fort Wayne Police Department ("FWPD"), patroling the north side of Fort Wayne in a marked FWPD squad car. At approximately 10:48 a.m., he was dispatched by radio to investigate a personal injury accident which had occurred in the 3700 block of North Clinton Street near its intersection with Coldwater Road. In accordance with departmental policy, he activated his emergency lights, siren and headlights and proceeded to the scene.

At approximately 10:50 a.m., Melbadean Weber was driving north on Coldwater Road to her office. Traffic was heavy and the right lane was backed-up due to the car collision at the nearby intersection with North Clinton Street. Melbadean Weber was driving in the far left lane. As Officer Notestine approached the scene of the accident, driving north on Coldwater, he saw that traffic was stopped in the right (east) northbound lane of Coldwater Road. Accordingly, he was traveling in the left (west) northbound lane of Coldwater Road. It was Officer Notestine's intention to proceed around the stopped traffic to the personal injury accident scene on the east side of the intersection with North Clinton Street.

When Officer Notestine was approximately one (1) block from the accident scene, driving north on Coldwater Road, he deactivated his siren but left on the squad car's emergency lights and bright headlights. At that time, he also radioed a Code 9 to the FWPD dispatcher, indicating that he had arrived at the accident scene. While looking to his right, Notestine failed to see Weber's vehicle and the traffic in front of him. Immediately thereafter, Officer Notestine struck the rear of Weber's vehicle, which had stopped in front of his squad car in the left northbound lane of Coldwater Road when the traffic light at North Clinton changed to red.

After proper notice under the Tort Claims Act, Weber filed a personal injury complaint on January 24, 1986 alleging Officer Notestine was negligent in the operation of the squad car and failed to both keep a lookout and keep his police car under control, thereby causing this rear-end collision. Weber alleged the City of Fort Wayne and its police department are vicariously liable for the officer's negligent acts. All defendants moved for summary judgment and on October 27, 1986 the trial court granted their motion as follows:

"The Court, having under advisement the matter of Defendants' Motion For Summary Judgment now finds that Defendant, Warren F. Notestine, is a Fort Wayne Police Officer involved in a rear-end collision with Plaintiff while the officer was engaged in the performance of his duties and en route to a personal injury accident; that the actions of Defendant Officer were in the performance of his duties while enforcing the law and all Defendants are immune under Indiana Code Section 34-4-16.5-1; that there is no material issue of fact. Defendants' Motion For Summary Judgment granted and Judgment entered that Plaintiff take nothing by her Complaint. Cost to Plaintiff."

Record, p.87.

ISSUES

Weber appeals and raises the following issues, restated, for our consideration:

I. Whether the trial court erred in granting summary judgment in favor of all defendants because a material issue of fact exists as to whether Officer Notestine abandoned his investigation of the independent traffic accident immediately before his collision with Weber.

II. Whether the trial court erred in granting summary judgment in favor of all defendants because disputed inferences may be drawn from the undisputed facts of the collision including a) the investigation of a traffic accident is an administrative police function to which no immunity attaches, b) driving to the scene of an accident is preliminary to the law enforcement acts of investigation, and (c) employment as a "law enforcement officer" and performance of acts which constitute "enforcing a law" are distinguishable.

DECISION

Our standard of review is well-settled regarding motions for summary judgment. In reviewing the grant of a motion for summary judgment, this court applies the same standard applicable in the trial court. Summary judgment is proper only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Indiana Rules of Trial Procedure, 56(C). A fact is material if it helps prove or disprove an essential element of the plaintiff's cause of action. Delk v. Board of Commissioners of Delaware County (1987), Ind.App., 503 N.E.2d 436. When reviewing a summary judgment, we must accept as true the facts alleged by the non-moving party. Romack v. Public Service Co. of Indiana (1986), Ind.App., 499 N.E.2d 768. Even if the facts are not disputed, summary judgment is not appropriate when conflicting inferences may be drawn from the facts. Steele v. Davisson, Davisson & Davisson, P.C. (1980), Ind.App., 437 N.E.2d 491.

A defendant seeking summary judgment must demonstrate the undisputed material facts negate at least one element of the plaintiff's claim. This is true even where, as here, the plaintiff would have the burden of proof at trial. McCullough v. Allen (1983), Ind.App., 449 N.E.2d 1168. To counter a summary judgment motion filed by the defendant and supported as provided by Indiana Rule of Trial Procedure 56, the plaintiff:

"may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, ...


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