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Savieo v. City of New Haven4/7/2005
FOR PUBLICATION
Case Summary
Patrick J. Savieo ("Patrick"), personal representative of the wrongful death estate of his father, Jon A. Savieo ("Jon"), appeals the trial court's grant of summary judgment in favor of the City of New Haven ("the City"). We affirm.
Issue
The dispositive issue is whether the City is entitled to immunity for any breach of its duty to prevent Jon's suicide.
Facts and Procedural History
The essential facts are undisputed. On July 1, 2002, Jon obtained a handgun from Patrick for the stated purpose of selling it. When Patrick's wife became concerned, Patrick phoned Jon, who threatened to shoot himself in the chest. Patrick immediately went to Jon's home, and his wife called the City police to report the suicide threat. Patrick and the two officers who responded to the call searched Jon's house for the handgun but could not find it. No one searched Jon or the chair in which he was sitting for a firearm. Lt. Herb Baatz, Jon's friend, also responded to the dispatch and dismissed the other officers. Jon claimed that he had sold the handgun to a friend and admitted that he had made the suicide threat to "get attention." Appellant's App. at 67. After discussing with Jon the issues that had prompted the threat and the possibility of seeking mental health treatment, Lt. Baatz requested that Patrick join him on the porch to discuss matters further. Shortly after Lt. Baatz and Patrick stepped outside, Jon fatally shot himself with the handgun.
On May 29, 2003, as personal representative of Jon's estate, Patrick filed a wrongful death claim against the City under the Indiana Tort Claims Act ("ITCA"), alleging that Lt. Baatz, "while acting as an agent and employee of [the City], was negligent in his handling of [Jon's] threatened suicide attempt." Id. at 10. On March 9, 2004, the City filed a motion for summary judgment based, inter alia, on several theories of statutory immunity under the ITCA and contributory negligence. See Ind. Code ยง 34-51-2-2 (exempting governmental entities from Indiana Comparative Fault Act). Patrick filed a response, and the City filed a reply. On May 5, 2004, the City filed a motion to strike certain matters filed by Patrick. On May 17, 2004, the trial court held a hearing on the City's motions and took matters under advisement. On June 16, 2004, the trial court entered the following order:
The Court, having read the briefs, reviewed the designated evidentiary material and the case law now concludes that there remain no genuine issues of material fact in dispute between the parties and that the City of New Haven is entitled to Judgment as a matter of law.
First, the Court concludes that the City of New Haven is entitled to immunity pursuant to the Indiana Tort Claims Act I.C. 34-13-3-3(8). Subsection 8 provides that: "The adoption and enforcement of or failure to adopt or enforce a law (including rules and regulations)..." In this cause of action, Officer Baatz could have placed Jon Savieo under an immediate detention pursuant to I.C. 12-26-4-1 which is titled "Authority of law enforcement officer to apprehend and charge individual." ....
That Officer Baatz did not do so clearly falls under the provisions cited above of the Indiana Tort Claims Act and its immunity provision cited above.
Moreover, this is not a case in which Jon Savieo was taken into custody. Unlike [Sauders v. County of Steuben, 693 N.E.2d 16 (Ind. 1998)], this is a matter in which Jon Savieo was contributorily negligent which, again, causes the Defendant to not be liable under the Indiana Tort Claims Act.
WHEREFORE, the Court now GRANTS the Def
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