FOR PUBLICATION                                          FILED
                                                       Jan 27 2012, 9:31 am


                                                              CLERK
                                                            of the supreme court,
                                                            court of appeals and
                                                                   tax court




ATTORNEY FOR APPELLANT:                      ATTORNEY FOR APPELLEE:

JUSTIN F. ROEBEL                             JOHN F. ITTENBACH
Assistant Corporation Counsel                Indianapolis, Indiana
Office of Corporation Counsel
Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

CITY OF INDIANAPOLIS,                        )
                                             )
       Appellant,                            )
                                             )
              vs.                            )       No. 49A02-1102-PL-89
                                             )
RHODORA EARL,                                )
                                             )
       Appellee.                             )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Cynthia J. Ayers, Judge
                           Cause No. 49D04-0904-PL-18356


                                  January 27, 2012

                            OPINION – FOR PUBLICATION

DARDEN, Judge
                             STATEMENT OF THE CASE

      The City of Indianapolis (the “City”) appeals the trial court‟s denial of its

summary judgment motion in an action filed by Rhodora Earl (“Earl”).

      We affirm.

                                         ISSUE

      Whether the trial court erred in denying the City‟s motion claiming that it
      was entitled to summary judgment under the law enforcement immunity
      provision of the Indiana Tort Claims Act.

                                         FACTS

      On a rainy day, at approximately 11:00 a.m. on May 8, 2008, Indianapolis Police

Officer Shannon Harmon responded in a marked police vehicle to a call regarding the

possible burglary of a home on Mead Drive. The police dispatch indicated a witness had

observed two persons forcing open the front door of the home and that a tan Chrysler 300

was parked in the driveway. Upon arrival at the home, Officer Harmon observed a tan

Chrysler 300 in the driveway with a person wearing green surgical gloves, later identified

as Michael Gaddie, in the driver‟s seat. Gaddie saw Officer Harmon and backed out of a

driveway in an apparent attempt to escape the officer.

      Gaddie fled through a residential area, and Officer Harmon, who had “activated

[his] emergency lights and sirens,” pursued him. (App. 53). By the time Gaddie reached

North Dearborn Avenue, he had, according to Officer Harmon‟s case report, “reached an

extremely high rate of speed and began to pull away from [Officer Harmon] in an attempt

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to elude [him].” Id. However, Officer Harmon did not stop the pursuit. Officer Harmon

reported that during pursuit through the residential area, Gaddie ran through stop signs

while Officer Harmon stopped at them. Officer Harmon also reported that Gaddie was

traveling up to sixty miles per hour during this point of the chase, while he was traveling

between forty and fifty miles per hour. Yet, Officer Harmon reported that he lost Gaddie

for only a short time.

       When Gaddie reached 62nd Street, he crossed the center line into the opposite

lanes and began traveling westbound in the eastbound lanes. Officer Harmon reported

that this action “[put] many vehicles and citizens at risk.” Id. However, Officer Harmon

continued the chase. Gaddie continued to travel westbound on East 62nd Street with

Officer Harmon in pursuit, eventually precipitating a four-car personal injury accident

when he hit Earl‟s car. Earl, who was making a legal turn into Glendale Mall, sustained

severe injuries. Officer Harmon estimated that his vehicle‟s highest speed during the

pursuit was between fifty and sixty miles per hour, while Gaddie reached speeds

approaching seventy miles per hour. Even though Officer Harmon stated that he drove

cautiously and obeyed traffic signs, he admitted that he was only one hundred yards

behind Gaddie when the accident occurred.

       Gaddie ran from the crash scene to Glendale mall but was soon apprehended by

Officer Harmon and another officer. Gaddie pled guilty to numerous offenses and was




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sentenced to twenty years incarceration, with ten years added for being a habitual

offender.

       After the accident, Earl sued the City for her injuries. In her amended complaint,

she alleged municipal liability based on Officer Harmon‟s decision to continue his pursuit

“without due regard of the safety of other drivers and pedestrians in the vicinity and in a

high traffic area . . . .” (App. 10). The City moved for summary judgment on the basis

that it was immune from liability under the law enforcement provision of the Indiana Tort

Claims Act (ITCA). After a hearing, the trial court denied the motion. The City sought

certification of the denial for interlocutory appeal, which the trial court granted on

January 12, 2011.       On March 18, 2011, this court granted jurisdiction over the

interlocutory appeal.

                                        DECISION

       The City contends that the trial court erred in denying summary judgment, arguing

that Indiana Code section 9-21-1-8(d)(1) does not apply under the circumstances to

deprive the City of immunity under the law enforcement provision of ITCA. Summary

judgment is appropriate if there is no genuine issue of material fact and the moving party

is entitled to judgment as a matter of law. City of Terre Haute v. Pairsh, 883 N.E.2d

1203, 1206 (Ind. Ct. App. 2008), trans. denied. The moving party bears the burden of

showing that there are no genuine issues of material fact and that it is entitled to judgment

as a matter of law. Boston v. GYN, Ltd., 785 N.E.2d 1187, 1190 (Ind. Ct. App. 2003),

                                             4
trans. denied.    We review only the designated evidentiary material in the record,

construing that evidence liberally in favor of the nonmoving party so as not to deny that

party its day in court. Myers v. Irving Materials, 780 N.E.2d 1226, 1228 (Ind. Ct. App.

2003).

         Governmental immunity in Indiana is regulated by ITCA. See Quakenbush v.

Lackey, 622 N.E.2d 1284, 1286 (Ind. 1993). Governmental entities and their employees

are subject to liability for torts committed by them, unless the activity giving rise to the

tort falls within one of the exceptions enumerated in the Act. Id. The City seeks

immunity under Indiana Code section 34-13-3-3(8), the law enforcement provision,

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 “[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.”

         However, the grant of immunity to law enforcement officers who fail to exercise

reasonable care while driving acts to sanction negligent and reckless conduct and results

in hardship to the individual injured by the enforcement. Quakenbush, 622 N.E.2d at

1290. Moreover, interpreting the law enforcement provision to confer immunity in every

situation involving the operation of police vehicles on public streets conflicts with

Indiana Code section 9-21-1-8(d)(1), which provides that a person who drives an




                                             5
authorized emergency vehicle, such as a police car, is not relieved from “the duty to drive

with due regard for the safety of all persons.” Id.

       In Patrick v. Miresso, 848 N.E.2d 1083, 1084 (Ind. 2006), our supreme court held

that a governmental unit and its police officer are not immune from liability for injuries

caused by the officer‟s negligent operation of police vehicle while pursuing a fleeing

suspect. The court noted with approval its statement in Quakenbush that a police officer

who, “„having decided to respond to the report of a law being broken . . . owes a duty of

driving with reasonable care to other travelers on the highway.” Id. at 1085 (quoting

Quakenbush, 622 N.E.2d at 1290). The Patrick court later stated, “We reassert the

viability of Quakenbush holding that the ITCA‟s „enforcement of . . . a law‟ 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 (citing I.C. § 9-21-1-8(d)(1)).

       On the same day that it handed down Patrick, our supreme court handed down

City of Indianapolis v. Garman, 848 N.E.2d 1087 (2006). In Garman, the plaintiff was

injured in a collision when his automobile was struck by a vehicle allegedly operated by a

fleeing suspect being pursued by an Indianapolis police officer in a high-speed chase. In

response to the plaintiff‟s complaint, the City and the Indianapolis Police Department

sought summary judgment asserting immunity under the law enforcement provision of




                                              6
ITCA. The trial court denied summary judgment, and our supreme court, based upon its

reasoning in Patrick, affirmed denial of summary judgment.

       In the present case, like in Garman, the injured party was struck by a vehicle

operated by a fleeing suspect.           Under the reasoning of Quakenbush, Patrick, and

Garman, Indiana Code section 34-13-3-3 does not act as blanket immunity, and the issue

of whether Officer Harmon acted “with due regard for the safety of all persons” is one for

the trier of fact to decide after taking into consideration the totality of the facts. Thus, the

trial court was correct in denying the City‟s motion for summary judgment.

       The City attempts to avoid the aforementioned cases by recasting the issue as

whether Officer Harmon was negligent in initiating the chase. As is apparent from

Garman, the issue of the propriety of the chase begins but does not end with the initiation

thereof. As the facts of Garman imply, an officer‟s operation of his vehicle during a

chase may violate Indiana Code section 9-21-1-8(d)(1) when the officer continues pursuit

under circumstances where a reasonable officer, who observes the dangerous activities of

the fleeing driver, would have called off the chase.1

       Affirmed.

FRIEDLANDER, J., and VAIDIK, J., concur.


1
 The City cites Chenoweth v. Estate of Wilson, 827 N.E.2d 44, 48 (Ind. Ct. App. 2005), in support of its
argument. In Chenoweth, we relied on St. Joseph County Police Department v. Shumaker, 812 N.E.2d
1143, 1144 (Ind. Ct. App. 2004), trans. denied, which reached the erroneous conclusion that Quakenbush
had been disavowed. We also relied in part on King v. Northeast Security, Inc., 790 N.E.2d 474 (Ind.
2003), a case that was distinguished in Patrick. See id. at 1086.

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