SEYMOUR NAT. BANK v. STATE

PRENTICE, Justice.

This cause is before us upon the petition of Defendant (Appellee), State of Indiana, to transfer the cause from the Court of Appeals, First District, that Court having reversed the trial court's granting of summary judgment in the defendant's favor, by opinion reported at 384 N.E.2d 1177.

Transfer is hereby granted pursuant to Ind.R.App.P. 11(B)(2)(b) in that the Court of Appeals has erroneously decided a new question of law, i.e. the interpretation to be placed upon the term "enforcement of a law," as used in the Indiana Tort Claims Act, Ind. Code § 34-4-16.5-3(7).1

The relevant facts were set forth by the trial court in its determination of Defendant's motion for summary judgment as follows:

Given these facts, the issue before us is whether Trooper Richey was engaged in the "enforcement of a law." If so, the Indiana Tort Claims Act immunizes the defendant from liability.

Plaintiffs contend that the term "enforcement of a law" is ambiguous and that therefore we should resort to rules of statutory construction. We do not accept that contention, for in our view, an officer engaged in effecting an arrest is in fact enforcing a law. And, in cases where a statute is clear and unambiguous, we have no choice but to hold it to its plain meaning. E.g., Lindley v. State (1978) 268 Ind. 83, 373 N.E.2d 886; Ott v. Johnson (1974) 262 Ind. 548, 319 N.E.2d 622; Cheney v. State ex rel. Risk (1905) 165 Ind. 121, 74 N.E. 892. Moreover, even if we were to accept Plaintiffs' contention, we perceive the Legislature's amendment of Ind. Code § 34-4-16.5-3(7)2 as having a clarifying effect on the statute insofar as all acts of enforcement save false arrest and imprisonment now render the State immune. In cases of ambiguity, we may resort to subsequent amendments in order to glean the Legislature's initial intent. See, e.g., Wilson v. State (1978) Ind., 383 N.E.2d 304; Hilligoss v. LaDow (1977) Ind. App., 368 N.E.2d 1365, appeal dismissed (1978) 436 U.S. 942, 98 S.Ct. 2840, 56 L.Ed.2d 783.

We agree with the trial court that Trooper Richey was engaged in the enforcement of a law, at the time the accident occurred. The immunizing section of the Tort Claims Act is therefore applicable. Accordingly, the decision and opinion of the Court of Appeals are ordered vacated, and the judgment of the trial court is affirmed.

GIVAN, C.J., and PIVARNIK, J., concur.

DeBRULER, J., dissents with opinion in which HUNTER, J., concurs.

HUNTER, J., dissents with opinion in which DeBRULER, J., concurs.

ON PETITION TO TRANSFER

DeBRULER, Justice, dissenting.

Operators of motor vehicles upon the public streets and highways, whether in the employ of another or not, owe a private legal duty to others using the streets, to use due care while driving. This duty is imposed upon governors, judges, legislators, public employees and private employees and citizens, alike, when taking the wheel. That the General Assembly should grant to any person a legal immunity from liability when operating a motor vehicle upon a public street, is an astounding proposition, as it is totally at odds with the pervasive regulation of that activity by the State.

The state police officer, in this case, in taking up pursuit of a suspect in his patrol car, carried two legal duties, one private and one public. As pointed out by Judge Robertson, in his discerning opinion for the First District Court of Appeals, the driver of an emergency vehicle, while permitted to operate it beyond the limits set for ordinary driving, nevertheless has a statutorily imposed duty towards private individuals to drive it during emergency runs with due regard for the safety of all persons. Ind. Code § 9-4-1-25. The officer in pursuing the suspect and attempting to arrest him was also acting in furtherance of a duty owed solely to the public, i.e., the duty to enforce the criminal laws. See, Simpson's Food Fair, Inc. v. City of Evansville, (1971) 149 Ind.App. 387, 272 N.E.2d 871. To give full rein under these circumstances to the one is to vitiate the other. Yet to permit that result is our unavoidable judicial duty.

In construing the statutory terminology "enforcement of a law" Judge Robertson drew upon the fundamental rules that statutes in derogation of the common law will receive a strict construction and statutes will not be construed in a manner resulting in harsh or unjust consequences. To these I would add another which is that where two statutes are in apparent conflict they should be construed if it can be reasonably done, in a manner so as to bring them into harmony. Wayne Twp. v. Brown, (1933) 205 Ind. 437, 186 N.E. 841; Thompson v. Thompson, (1972) 259 Ind. 266, 286 N.E.2d 657. Here, the immunity statute is in derogation of the common law and at odds with the statutory command that emergency vehicles be operated with due care. At common law this state police officer would be required to respond in damages for injuries resulting from his negligent operation of the patrol car. To grant an immunity which would shield negligent and reckless conduct obviously leaves injured victims to suffer without any remedy. Were we to construe the vague immunity provision as being applicable only in circumstances in which the public employee's conduct involved a public duty only, impediment of the common law would be lessened, unjust consequences would be reduced in number, and the two statutes would be left viable and in harmony. This is the legal course charted by Judge Robertson, and I am convinced it is the correct one. I would therefore reverse and remand for trial as did the Court of Appeals.

HUNTER, J., concurs, with separate opinion.

ON PETITION TO TRANSFER

HUNTER, Justice, dissenting.

I must respectfully dissent from the majority opinion; I am unable to accept the proposition that the legislature intended the literal reading and application of Ind. Code § 34-4-16.5-3(7) (Burns 1980 Supp.) which the majority attributes to it here. The implications of the conclusion that our governmental entities enjoy absolute immunity in the "enforcement" of any law are very unsettling. We have, it appears, returned full circle to the anachronistic notion that "the King can do no wrong," for the majority's literal application of the statute means citizens have no recourse in law for a loss sustained at the hands of a governmental employee "enforcing" a law, even where the conduct may be malicious, grossly negligent, or in willful and wanton disregard for public safety or property.

Without question governmental entities must be accorded a certain immunity for the acts of its employees in the enforcement of laws. The circumstances which attend the need for law enforcement oftentimes demand immediate and aggressive action to insure the public welfare; because the acts accompanying the enforcement sometimes occur in public thoroughfares and places, unfortunately yet inevitably damage to private property or injury to innocent bystanders occasionally results.

Police officers, of course, are the governmental employees who confront such a situation on a regular basis. For that reason, our legislature has authorized programs for the law enforcement officers of this state, which expressly includes instruction in safety and the pursuit and apprehension of suspected criminals. Ind. Code § 10-1-3-1 et seq. (Burns 1981 Repl.); Ind. Code § 17-3-9-1 (Burns 1974).

Likewise, to minimize the risk of injury to innocent bystanders or private property, the state police, pursuant to the legislative powers delegated that body by the General Assembly, has adopted departmental rules and regulations to govern the conduct of its officers. Administrative Rules and Regs. § (10-1-1-4)-11 (Burns 1976). Therein, the following acts are prohibited and warrant disciplinary action:

The prohibition against gross negligence and wanton or malicious misconduct, as well as the police training program, is designed to protect life and property from needless harm or destruction at the hands of irresponsible conduct. It is incongruous that the legislature, in the face of these rules and the reasons therefor, would enact a statute by which the victim of such reprehensible conduct would be barred from obtaining redress from the offending governmental entity in our courts of law. And the conclusion that an injured citizen must endure the economic consequences without recompense is offensive when measured against the disability, death, and survivor benefits which, by statute, would be available to an officer injured or killed in the same incident. Ind. Code § 10-1-2-1 et seq. (Burns 1981 Repl.); Ind. Code § 19-1-24-1 et seq. (Burns 1974).

Can it reasonably be said that our legislature intended to grant absolute immunity to the governmental entity whose employee-officer, in pursuit of a shoplifter, might drive his automobile through a crowded playground at high speeds, thereby injuring children? It is an extreme example in fact, yet the literal application of the immunity provision is an extreme rule in law which will engender extraordinarily harsh results.

It should also be noted that the "enforcement" of laws is not the exclusive bailiwick of police officers. By express statutory provisions, assorted governmental officials are vested with the power to enforce specific laws. See, e.g. Ind. Code § 14-3-4-1 et seq. (Burns 1981 Repl.) (law enforcement division of Department of Natural Resources created to "enforce" conservation laws); Ind. Code § 16-1-4-2 (Burns 1973) (local health officers granted power to "enforce" health laws, ordinances, orders, and rules and regulations); Ind. Code § 22-8-1.1-35.6 (Burns 1974) (commissioner of Occupational Health and Safety Board has power to "enforce" a safety order, penalty assessment, or notice of failure to correct violation); Ind. Code § 22-2-9-4 (Burns 1974) (commissioner of Labor Division has duty to "enforce" wage claim laws); Ind. Code § 22-11-5-6 (Burns 1974) (state fire marshal has power to "enforce" all laws of state and cities regarding fires, explosives, combustibles, fire alarms and extinguishing equipment, and the investigation, prosecution, and suppression of arson).

From these few statutes it can readily be seen that the legislature has employed the term "enforcement" in a wide range of government-controlled activities which, depending upon the particular statutory context, gives rise to various connotations and interpretations of the word "enforcement." Furthermore, the legislature, in numerous other statutes, has refrained from use of the word "enforcement" but has granted powers which are designed to serve the purpose of law enforcement. See, e.g. Ind. Code § 22-8-1.1-23.1 (Burns 1974) (commissioner of Occupational Health and Safety Board or his representative has power to enter and inspect premises of employer for suspected violations); Ind. Code § 14-2-3-2 (Burns 1981 Repl.) (director of Division of Fish and Wildlife or his representative may enter into private property for the purpose of killing, removing, managing, or protecting a wild animal); Ind. Code § 14-2-9-1 (Burns 1981 Repl.) (director of Fish and Wildlife Division, game wardens and deputy game wardens have power to search boats, vehicles or any receptacle in which game could be found to secure evidence of a violation of fish and game laws).

I point out the existence of these latter enactments because in each the legislature has prescribed conduct which is in the nature of a search and seizure. Under the literal interpretive sense employed by the majority, a search and seizure conducted prior to a determination that a law has in fact been violated cannot be described as the "enforcement" of a law. Rather, it is a preliminary act from which enforcement may or may not follow; all such searches and seizures by officers of the state consequently fall outside the immunity statute under the interpretation proffered by the majority.

In short, behind the Court's opinion here today waits a Pandora's box of unsettling questions which will revolve around dubious distinctions between the "administration" and "enforcement" of laws. The source of that inevitable consternation is the fact that the term "enforcement" in Ind. Code § 34-4-16.5-3(7), supra, is ambiguous both in and of itself and in relation to the various statutes with which it must be construed and reconciled.

For these reasons, I, like Justice DeBruler, am persuaded by the statutory analysis ably outlined by Judge Robertson for the unanimous Court of Appeals. Seymour Nat. Bank v. State, (1979) Ind. App., 384 N.E.2d 1177. I share the opinion that the legislature embraced and enacted the common law of this state as it existed at the time Ind. Code § 34-4-16.5-3, supra, was passed. See Campbell v. State, (1972) 259 Ind. 55, 284 N.E.2d 733; Board of Commissioners of Delaware County v. Briggs, (1975) 167 Ind.App. 96, 337 N.E.2d 852; Simpson's Food Fair, Inc. v. City of Evansville, (1971) 149 Ind.App. 387, 272 N.E.2d 871.

Here, the plaintiff should have been permitted to present his claim to the jury. Were that the case, I agree with Judge Robertson that it would be imperative to a proper factual resolution that the jury be exposed to standards of police practice relative to the circumstances at issue. To that end, it would be appropriate to instruct the jury regarding the various rules of conduct enunciated in Administrative Rules and Regs. § (10-1-1-4)-11, supra, as well as the operative factors detailed by Judge Robertson:

I would clarify "the probability of harm to third persons" to indicate that "the harm" refers to injury which might flow from the hand of the criminal suspect as well as that of the law enforcement officer.

Unfortunately, however, there will be no opportunity for these guidelines to be implemented. Even more unfortunate are the ramifications of the rationale upon which the plaintiffs' action is barred. I dissent in both respects. The cause should be remanded for a trial on the merits.

DeBRULER, J., concurs in separate opinion.