MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                             FILED
regarded as precedent or cited before any                                     Jul 08 2020, 8:33 am

court except for the purpose of establishing                                      CLERK
the defense of res judicata, collateral                                       Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
David B. Wilson                                           James S. Stephenson
Franklin, Indiana                                         Pamela G. Schneeman
                                                          Stephenson Morow & Semler
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Neil Dixon, as Special                                    July 8, 2020
Administrator of the Estate of                            Court of Appeals Case No.
Clayton Dixon, Deceased, and                              20A-CT-146
Ella Dixon,                                               Appeal from the
Appellants-Plaintiffs,                                    Johnson Superior Court
                                                          The Honorable
        v.                                                Frank M. Nardi, Special Judge
                                                          Trial Court Cause No.
City of Greenwood,                                        41D04-1808-CT-116
Appellee-Defendant.



Kirsch, Judge.



Court of Appeals of Indiana | Memorandum Decision 20A-CT-146 | July 8, 2020                           Page 1 of 15
[1]   Neil Dixon, as Special Administrator of the Estate of Clayton Dixon,

      Deceased, and Ella Dixon (together, “the Dixons”) appeal the trial court’s grant

      of summary judgment in favor of the City of Greenwood (“the City”). This

      case arises out of Reese Keith’s (“Keith”) armed robbery of Clayton Dixon

      (“Clayton”) and his wife Ella Dixon (“Ella”) at their home and involves the

      Dixons’ claim that, but for negligence on the part of City’s police officers, Keith

      would not have committed the criminal acts against them. The Dixons sought

      to hold the City liable for the injuries and losses they suffered because of Keith’s

      crimes. On appeal, the Dixons raises several issues, of which we find the

      following dispositive: whether the trial court erred in determining that the City

      was entitled to governmental immunity under the Indiana Tort Claims Act

      (“ITCA”).


[2]   We affirm.


                                  Facts and Procedural History
[3]   On May 14, 2017 at approximately 1:15 p.m., Keith was involved in a car

      accident in Greenwood, Indiana, where he rear-ended another vehicle.

      Appellant’s App. Vol. II at 60; Appellant’s App. Vol. III at 59, 113. Keith did not

      remain at the scene of the accident and, instead, fled on foot. Appellant’s App.

      Vol. II at 60; Appellant’s App. Vol. III at 59, 113. He was located a short time

      later and arrested for the crimes of operating a vehicle while intoxicated, theft,

      possession of a hypodermic needle, leaving the scene of an accident, possession

      of a stolen vehicle, giving a false identity statement, and possession of


      Court of Appeals of Indiana | Memorandum Decision 20A-CT-146 | July 8, 2020   Page 2 of 15
      paraphernalia. Appellant’s App. Vol. II at 61; Appellant’s App. Vol. III at 59, 113.

      At this time, based on Keith’s appearance and behavior, the police believed that

      he was suffering a drug overdose, and he was taken by ambulance to

      Community South Hospital in Greenwood for evaluation. Appellant’s App. Vol.

      II at 61; Appellant’s App. Vol. III at 59, 114. Keith remained in custody while he

      was treated by the hospital staff. Appellant’s App. Vol. II at 61; Appellant’s App.

      Vol. III at 59. After the hospital staff examined Keith and medically cleared

      him, officers with the Greenwood Police Department transported him to the

      Johnson County Jail in Franklin, Indiana. Appellant’s App. Vol. II at 61;

      Appellant’s App. Vol. III at 60.


[4]   When he arrived at the Johnson County Jail, Keith complained of pain

      associated with the earlier motor vehicle accident and the Greenwood Police

      Department officers took Keith to Johnson Memorial Hospital in Franklin for

      further medical evaluation. Appellant’s App. Vol. II at 62; Appellant’s Ap. Vol. III

      at 60. The officers remained with Keith while he was examined, and after he

      was medically cleared by the hospital staff, the officers transported him back to

      the Johnson County Jail. Appellant’s App. Vol. II at 62; Appellant’s App. Vol. III at

      60. When he arrived at the Johnson County Jail the second time, Keith

      appeared to suffer a seizure, and as a result, the Greenwood Police Department

      officers took Keith back to Johnson Memorial Hospital for yet another medical

      evaluation. Appellant’s App. Vol. II at 62; Appellant’s App. Vol. III at 60. The

      officers remained with Keith while he was examined by the hospital staff, and a

      doctor informed them that due to Keith’s seizure activity, the hospital could not

      Court of Appeals of Indiana | Memorandum Decision 20A-CT-146 | July 8, 2020   Page 3 of 15
      medically clear him and would have to keep him overnight, if not longer, for

      observation. Appellant’s App. Vol. II at 62; Appellant’s App. Vol. III at 60;

      Appellant’s Suppl. App. Ex. 5 at 1:05:05-1:06:45. The doctor asked the officers if

      they were going to “do a release.” Appellant’s Suppl. App. Ex. 5 at 1:05:05-

      1:06:45. The officers called their sergeant, who advised them that they should

      allow Keith to remain at the hospital to receive whatever medical care and

      treatment he required and return to their regular duties. Appellant’s App. Vol. II

      at 62; Appellant’s App. Vol. III at 60; Appellant’s Suppl. App. Ex. 5 at 1:05:05-

      1:06:45.


[5]   Another sergeant was at the hospital at that time, and after considering the

      charges for which Keith was arrested, confirmed that the officers could allow

      Keith to remain at the hospital to receive the medical care he required and

      return to their regular duties. Appellant’s App. Vol. II at 62; Appellant’s App. Vol.

      III at 60; Appellant’s Suppl. App. Ex. 5 at 1:05:05-1:06:45. At approximately

      11:00 p.m., the officers left Keith at the hospital and returned to their regular

      duties. Appellant’s App. Vol. II at 62; Appellant’s App. Vol. III at 60. At that time,

      Keith was either sedated or asleep in his hospital bed, was hooked up to

      medical monitors, and had an IV line inserted. Appellant’s Suppl. App. Ex. 5 at

      1:05:05-1:06:45; Appellant’s App. Vol. II at 78.


[6]   On May 15, 2017 at approximately 4:24 a.m., without the knowledge of the

      hospital staff, Keith got up out of his hospital bed and left the building.

      Appellant’s App. Vol. II at 63; Appellant’s App. Vol. III at 61. Wearing nothing but

      his hospital gown, he walked to the home of Clayton and Ella Dixon, who lived

      Court of Appeals of Indiana | Memorandum Decision 20A-CT-146 | July 8, 2020     Page 4 of 15
      near the hospital, and hid in their garage for several hours. Appellant’s App. Vol.

      II at 63; Appellant’s App. Vol. III at 61. When Clayton and Ella left their home

      to run errands, Keith entered the house and put on some of Clayton’s clothing.

      Appellant’s App. Vol. II at 63, 81; Appellant’s App. Vol. III at 61. When Clayton

      and Ella returned, Keith was still in their home and held them at gunpoint,

      using guns he found in the home. Appellant’s App. Vol. II at 63, 81; Appellant’s

      App. Vol. III at 61. Keith duct taped Clayton and Ella to chairs, placing them in

      fear, and left the scene by stealing their car.1 Appellant’s App. Vol. II at 63;

      Appellant’s App. Vol. III at 62.


[7]   On August 2, 2018, the Dixons filed a complaint, alleging that, upon taking

      custody of Keith and transporting him to the hospital in Franklin, the City had

      a duty to use reasonable care to control Keith’s conduct so as to prevent him

      from causing physical harm to others. Appellant’s App. Vol. II at 64; Appellant’s

      App. Vol. III at 62. The Dixons claimed that the City breached its duty of

      reasonable care in one or more of the following ways by:


                 (a) failing to take Keith to a secure medical facility for
                 evaluation;


                 (b) leaving Keith unattended at [the hospital] while he was
                 medically unstable;




      1
          Keith was later arrested, charged, and convicted for the crimes against Clayton and Ella.


      Court of Appeals of Indiana | Memorandum Decision 20A-CT-146 | July 8, 2020                     Page 5 of 15
              (c) failing to verify Keith’s identity and the outstanding warrants
              for Keith’s arrest before leaving Keith unattended;


              (d) failing to verify Keith’s identity and Keith’s criminal history
              before leaving Keith unattended; and


              (e) failing to use reasonable care in controlling Keith’s conduct to
              prevent Keith from harming others.


      Appellant’s App. Vol. II at 64; Appellant’s App. Vol. III at 62. The Dixons further

      alleged that these breaches allowed Keith the opportunity to commit the crimes

      that victimized them and that the City should compensate them for their

      injuries and losses. Appellant’s App. Vol. II at 64; Appellant’s App. Vol. III at 62.


[8]   On August 2, 2019, the City filed a motion for summary judgment, arguing that

      it was entitled to immunity from the Dixons’ claims under both Indiana

      common law and under the ITCA, and that, even if it did not have immunity,

      the City could not be liable to the Dixons because it did not owe them a duty to

      protect them from Keith’s crimes. Appellant’s App. Vol. II at 40-56.


[9]   Clayton died on April 23, 2019, almost two years after the armed robbery, and

      his son, Neil Dixon, was appointed the Special Administrator of the Estate of

      Clayton Dixon to continue in litigating Clayton’s claims in this action.

      Appellant’s App. Vol. II at 70, 99-105; Appellant’s App. Vol. III at 58-64. On

      September 23, 2019, the trial court allowed the Dixons to file an amended

      complaint to reflect Neil Dixon’s status as the real party in interest as to his

      father’s claims. Appellant’s App. Vol. II at 86-87, 98. The trial court heard


      Court of Appeals of Indiana | Memorandum Decision 20A-CT-146 | July 8, 2020   Page 6 of 15
       argument on the City’s summary judgment motion on November 7, 2019, and

       after taking it under advisement, issued an order on January 10, 2020, granting

       the City’s motion and entering judgment in the City’s favor. The Dixons now

       appeal.


                                      Discussion and Decision
[10]   When reviewing the grant of summary judgment, our standard of review is the

       same as that of the trial court. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d

       1167, 1173 (Ind. Ct. App. 2012) (citing Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of

       Ind., Inc., 832 N.E.2d 559, 562 (Ind. Ct. App. 2005)), trans. denied. We stand in

       the shoes of the trial court and apply a de novo standard of review. Id. (citing

       Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695 (Ind. Ct. App. 2006)). Our

       review of a summary judgment motion is limited to those materials designated

       to the trial court. Ind. Trial Rule 56(H); Thornton v. Pietrzak, 120 N.E.3d 1139,

       1142 (Ind. Ct. App. 2019), trans. denied. Summary judgment is appropriate only

       where the designated evidence shows there are no genuine issues of material

       fact and the moving party is entitled to judgment as a matter of law. T.R.

       56(C). For summary judgment purposes, a fact is “material” if it bears on the

       ultimate resolution of relevant issues. FLM, 973 N.E.2d at 1173. We view the

       pleadings and designated materials in the light most favorable to the non-

       moving party. Id. Additionally, all facts and reasonable inferences from those

       facts are construed in favor of the non-moving party. Id. (citing Troxel Equip.

       Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind. Ct. App. 2005), trans.

       denied). The initial burden is on the moving party to demonstrate the absence of

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-146 | July 8, 2020   Page 7 of 15
       any genuine issue of fact as to a determinative issue, at which point the burden

       shifts to the non-movant to come forward with contrary evidence showing an

       issue for the trier of fact. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).


[11]   A trial court’s grant of summary judgment is clothed with a presumption of

       validity, and the party who lost in the trial court has the burden of

       demonstrating that the grant of summary judgment was erroneous. Henderson v.

       Reid Hosp. and Healthcare Servs., 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans.

       denied. We will affirm upon any theory or basis supported by the designated

       materials. Id. When a trial court grants summary judgment, we carefully

       scrutinize that determination to ensure that a party was not improperly

       prevented from having his or her day in court. Id.


[12]   The Dixons contend that the trial court erred in granting summary judgment in

       favor of the City and finding that the City was entitled to immunity under the

       ITCA. Although the Dixons acknowledge that governmental entities are

       entitled to immunity under the ITCA in situations where the government

       entities are enforcing or failing to enforce a law, they argue that in the present

       situation the City was not enforcing the law when the officers made the

       decision to release Keith from custody. The Dixons assert that the release of

       Keith did not involve a decision to investigate a crime or whether to arrest

       Keith for committing a crime, and instead, the decision to release Keith was a

       violation of the statute requiring a person arrested without a warrant to be

       released only after a judicial officer makes a bond determination that

       considered the risk Keith posed to others.

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-146 | July 8, 2020   Page 8 of 15
[13]   Here, the trial court, in granting summary judgment in favor of the City,

       concluded that the City was entitled to immunity pursuant to Indiana Code

       section 34-13-3-3(8) of the ITCA, which provides that “[a] governmental entity

       or an employee acting within the scope of the employee’s employment is not

       liable if a loss results from the following: . . . [t]he 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 ITCA

       allows suits against governmental entities for torts committed by their

       employees but grants immunity under the specific circumstances enumerated in

       Indiana Code section 34-13-3-3. Savieo v. City of New Haven, 824 N.E.2d 1272,

       1275 (Ind. Ct. App. 2005) (citing Mangold ex rel. Mangold v. Dep’t of Natural Res.,

       756 N.E.2d 970, 975 (Ind. 2001)). The determination of whether a

       governmental entity is immune from liability under the ITCA is a question of

       law for the court to decide. Id. “Because the ITCA is in derogation of the

       common law, we construe it narrowly against the grant of immunity,” and the

       “party seeking immunity bears the burden of establishing that its conduct comes

       within the ITCA.” Id. Immunity assumes negligence but denies liability.

       Bartholomew Cty. v. Johnson, 995 N.E.2d 666, 672 (Ind. Ct. App. 2013) (citing

       Peavler v. Bd. of Comm’rs of Monroe Cty., 528 N.E.2d 40, 46-47 (Ind. 1988)).

       “‘The purpose of immunity is to ensure that public employees can exercise their

       independent judgment necessary to carry out their duties without threat of

       harassment by litigation or threats of litigation over decisions made within the

       scope of their employment.’” Id. (quoting Bushong v. Williamson, 790 N.E.2d

       467, 472 (Ind. 2003)).
       Court of Appeals of Indiana | Memorandum Decision 20A-CT-146 | July 8, 2020   Page 9 of 15
[14]   “For purposes of Indiana Code Section 34-13-3-3(8), ‘enforcement’ has been

       defined as ‘those activities in which a government entity or its employees

       compel or attempt to compel the obedience of another to laws, rules or

       regulations, or sanction or attempt to sanction a violation thereof.’” Savieo, 824

       N.E.2d at 1275 (quoting Miller v. City of Anderson, 777 N.E.2d 1100, 1104 (Ind.

       Ct. App. 2002), trans. denied). Indiana courts have found immunity under

       Indiana Code section 34-13-3-3(8) in circumstances involving the enforcement

       and non-enforcement of laws, where injury is caused by a decision to not arrest

       an individual for a violation of the law, regardless of whether the injury is to a

       third party or the individual who was not arrested. For example, in Minks v.

       Pina, 709 N.E.2d 379 (Ind. Ct. App. 1999), trans. denied, immunity was found

       against claims of injury by a third party caused by a drunk driver, where the

       driver was stopped by police and released on condition that the passenger drive

       the vehicle, but after being released, the original driver resumed driving and

       caused the accident which resulted in the plaintiff’s injury. Id. at 382-83. In

       City of Hammond v. Reffitt, 789 N.E.2d 998 (Ind. Ct. App. 2003), trans. denied,

       immunity was found where law enforcement officers discovered an intoxicated

       man sleeping in his car in a parking lot and decided to not arrest the man,

       leaving him sleeping in his car, where he was found dead the next day with the

       cause of death being cardio-respiratory arrest due to hypothermia associated

       with alcohol abuse. Id. at 1000, 1003. A panel of this court found that the

       officers’ decision not to make the arrest amounted to a failure to enforce the law

       and was therefore entitled to immunity under Indiana Code section 34-13-3-

       3(8). Id. at 1003.
       Court of Appeals of Indiana | Memorandum Decision 20A-CT-146 | July 8, 2020   Page 10 of 15
[15]   Immunity has also been found in other circumstances involving the

       enforcement and non-enforcement of laws and acts or omissions taken by law

       enforcement officers within their law enforcement capacity. Immunity has

       been found where a law enforcement officer was alleged to have been negligent

       in failing to make an arrest that would have prevented a murder. Severson v. Bd.

       of Trustees of Purdue Univ., 777 N.E.2d 1181, 1202 (Ind. Ct. App. 2002), trans.

       denied. A law enforcement officer’s failure to pursue delinquency charges of

       child molestation against a perpetrator was also found to be immune under the

       statute. F.D. v. Ind. Dep’t of Child Servs., 1 N.E.3d 131, 139 (Ind. 2013).

       Immunity has been found for failure to enforce the law when an inmate was

       negligently released on a lower bond than what had been specified by the trial

       court. St. Joseph Cty. Police Dep’t v. Shumaker, 812 N.E.2d 1143, 1151 (Ind. Ct.

       App. 2004), trans. denied. A law enforcement officer was found to be immune

       against a negligence claim based upon the officer’s failure to take an individual

       into custody to prevent that individual from committing suicide. Savieo, 824

       N.E.2d at 1275-76. Immunity was also found for a city’s failure to prevent a

       plaintiff’s injuries by failing to enforce its procedures for determining whether

       an animal was dangerous. Davis v. Animal Control-City of Evansville, 948 N.E.2d

       1161, 1165 (Ind. 2011).


[16]   Here, Keith was in the custody of the City’s officers when he had a medical

       emergency that necessitated that he be taken to the hospital. Once there, the

       hospital staff informed the officers that due to Keith’s seizure activity, the

       hospital could not medically clear him and would have to keep him overnight,

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-146 | July 8, 2020   Page 11 of 15
       if not longer, for observation. After consulting with a supervisor, who advised

       the officers that they should allow Keith to remain at the hospital to receive

       whatever medical care he required and return to their regular duties, the officers

       released Keith from their custody and left him at the hospital to receive medical

       treatment. The officers’ actions in releasing Keith from their custody were

       essentially unarresting him and making the determination to not sanction

       Keith’s violation of the law at that time. We conclude that the City’s officers

       were involved in the enforcement of the law when they released Keith to the

       hospital for medical treatment as the officers’ decision was, in fact, a decision

       not to enforce the law and was subject to immunity under the ITCA. See

       Shumaker, 812 N.E.2d at 1151 (concluding that the “enforcement” spoken of in

       section 3(8) of the ITCA means compelling or attempting to compel the

       obedience of another to laws, rules, or regulations, the sanctioning or attempt to

       sanction a violation thereof, and the failure to do such).


[17]   The Dixons also assert that the City cannot be immune under the ITCA

       because the ITCA does not shield the officers from liability for breach of a

       statutory duty and that the decision to release Keith was a violation of the

       statute requiring a person arrested without a warrant to be released only after a

       judicial officer makes a bond determination that considered the risk the person

       posed to others. However, although the Dixons make this contention, there is

       no citation to the statute or any cogent argument regarding the City’s violation

       of this statute in its argument regarding immunity under the ITCA. In their

       argument concerning whether the City had a duty of care to them and in their


       Court of Appeals of Indiana | Memorandum Decision 20A-CT-146 | July 8, 2020   Page 12 of 15
       reply brief, the Dixons do cite Indiana Code section 35-33-7-1, which states, “a

       person arrested without a warrant for a crime shall be taken promptly before a

       judicial officer: . . . in the county in which the arrest is made.” Ind. Code § 35-

       33-7-1(a)(1) (emphasis added). The Dixons contend that the statute’s

       requirements would have been satisfied by the City’s officers transferring

       Keith’s custody to the Johnson County Sheriff and that upon accepting custody

       of Keith, the Sheriff would have accepted the statutory duty to take Keith

       before a judicial officer. It is clear that under Indiana law that once Keith was

       incarcerated based upon the arrest that it would have been the obligation of the

       Sheriff, who was detaining him, to bring him before a judicial officer if he did

       not post bond pursuant to the Johnson County bond schedule. However, the

       City’s officers were never able to get Keith to the point where he was medically

       stable enough to be incarcerated in the Johnson County jail as he had three

       medical emergency situations after his arrest that necessitated that he be taken

       to the hospital.


[18]   In Patrick v. Miresso, 848 N.E.2d 1083 (Ind. 2006), our Supreme Court held that

       the ITCA’s law enforcement immunity “does not shield governmental entities

       and personnel from liability resulting from a breach of the statutory duty to

       operate emergency vehicles ‘with due regard for the safety of all persons.’” Id.

       at 1087 (quoting Ind. Code § 9-21-1-8(d)(1)). There, the statute violated by the

       law enforcement officer, Indiana Code section 9-21-1-8, specifically applied to a

       person who drives an authorized emergency vehicle when: (1) responding to an

       emergency call; (2) in the pursuit of an actual or suspected violator of the law;


       Court of Appeals of Indiana | Memorandum Decision 20A-CT-146 | July 8, 2020   Page 13 of 15
       or (3) responding to, but not upon returning from, a fire alarm. Ind. Code § 9-

       21-1-8(a). It specifically directed to whom the statute applied and how the

       specified individuals should conform their actions.


[19]   Here, however, the statute that the Dixons maintain was violated by the City’s

       officers does not specify to whom the statute is directed and who must take the

       arrestee promptly before a judicial officer. Therefore, the plain language of the

       statute does not support the notion that the City’s officers as the arresting

       officers, as opposed to the Sheriff as the custodian of individuals after being

       booked into the jail, had a duty to take Keith promptly before a judicial officer.

       Additionally, our Supreme Court has stated that the purposes of Indiana Code

       section 35-33-7-1’s requirement that an arrestee be promptly taken before a

       judicial officer are to: advise arrestees of the charges against them; advise

       arrestees of their constitutional rights; provide arrestees with attorneys if they

       cannot afford to hire one; and determine whether there is sufficient evidence

       that the crime charged has been committed and that the accused has committed

       it. May v. State, 502 N.E.2d 96, 104-05 (Ind. 1986) (citing Nacoff v. State, 256

       Ind. 97, 102, 267 N.E.2d 165, 168 (1971)). Thus, the statute’s purpose is to

       protect the arrestee’s constitutional rights and not to protect the general public

       or persons like the Dixons.


[20]   Further, as noted by the previously-cited cases, the officers could have made the

       decision not to arrest Keith, and at any time during their investigation, they

       could have made a determination that reasons existed to terminate the arrest

       prior to incarceration, such as the discovery of exculpatory evidence. See Reffitt,

       Court of Appeals of Indiana | Memorandum Decision 20A-CT-146 | July 8, 2020   Page 14 of 15
       789 N.E.2d at 1003; Minks, 709 N.E.2d at 382-83. Due to Keith’s continued

       medical issues, the officers decided to release him to the care of a hospital for

       medical treatment, terminate the arrest, and resume their other duties. In doing

       so, they were making a decision to not enforce the law and are therefore

       immune under Indiana Code section 34-13-3-3(8) of the ITCA. Having so

       concluded, it is unnecessary for us to consider whether the City is entitled to

       immunity under the common law or whether the City had a duty of care to the

       Dixons. See Shumaker, 812 N.E.2d at 1151. The trial court did not err in

       granting summary judgment in favor of the City.


[21]   Affirmed.


       Najam, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-CT-146 | July 8, 2020   Page 15 of 15
