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09/03/87 CITY GARY v. DONALD COX

Filed: September 3, 1987.

THE CITY OF GARY, CITY OF GARY POLICE DEPARTMENT, AND CITY OF GARY POLICE OFFICER, DORIS ROGERS, APPELLANTS,
v.
DONALD COX, APPELLEE



APPEAL FROM THE HASPER CIRCUIT COURT, The Honorable E. Duane Daugherty, Judge, Cause No. C 263-79.

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

Author: Miller

MILLER, P.J.

Donald Cox, who was shot by a prisoner who escaped from the Gary Police, sued the City of Gary, its Police Department, Police Officer Doris Rogers, St. Mary Medical Center, and Claude Howard.[Footnote 1] Cox sought damages for alleged negligence which led to the shooting. The jury rendered a verdict of $75,000.00 against the City, and in favor of the Medical Center. The City of Gary, the Police Department, and Officer Doris Rogers (collectively referred to as "the City") bring this appeal alleging the trial court erred when it denied Rogers's and the City's motion for summary judgment asserting statutory immunity under IND. CODE 34-4-16.5-3(7) (West's 1986 Supp.) We agree and reverse.[Footnote 2]

DECISION

On June 24, 1978 Claude Howard, a prisoner of the Gary police, was recovering from surgery at the Gary Medical Center. He was considered dangerous because he had attempted to escape several times even while recuperating. At the time of his escape, he was being guarded by Officer Doris Rogers and, despite the fact he was handcuffed to a bed, managed to seize her revolver which she had placed on a nightstand while attempting to either answer a telephone or to loosen his handcuffs. After freeing himself, he fled to the parking lot where he accosted and shot Cox.

The City contends the trial court erred by denying its motion for summary judgment and thereby concluding there were material issues of fact unresolved. It's motion for summary judgment relied on the immunity to which it claims it is entitled under the Indiana Tort Claims Act, specifically I.C. 34-4-16.5-3(7), which states:

"Sec. 3. A governmental entity or an employee acting within the scope of his employment is not liable if a loss results from:

(7) the adoption and enforcement of or failure to adopt or enforce a law (including rules and regulations), unless the act of enforcement constitutes false arrest or false imprisonment[.]"

The trial court determined the City was not entitled to summary judgment based on the claim of immunity and the determination of such factual issues should be left to the jury.

On review of a denial of summary judgment we must assertain whether there is any genuine issue of material fact. Further, any doubt about the existence of such must be resolved against the moving party. Ogilvie v. Steele by Steele (1983), Ind.App., 452 N.E.2d 167.

There was no dispute Officer Rogers was on duty and in the act of guarding and maintaining custody of a prisoner. In his memorandum in opposition to City's motion for summary judgment and in his appellate brief Cox contends Rogers was not enforcing the law and thus is not entitled to immunity. Cox argues the enforcement of the law had already occurred prior to Rogers's involvement, and her act of guarding Howard was merely a custodial, not an enforcement, activity.

On the other hand, the City relies on the case of Seymour National Bank v. State (1981), Ind., 422 N.E.2d 1223, on reh. 428 N.E.2d 203, to support its contention Officer Rogers was enforcing the law and therefore immune from liability. In Se ymour a State Trooper involved in a high speed chase of a fleeing suspect collided with another vehicle causing a fatality. Our supreme court held the State was immune from suit under I.C. 34-4-16.5-3(7). Cox contends Seymour can be distinguished from the case at hand because Seymour involved an attempt to capture a criminal rather than to merely retain one. Cox claims here that the law had already been enforced once Howard was apprehended ...


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