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Savieo v. City of New Haven4/7/2005
endant's Motion for Summary Judgment and dismisses this cause of action.
Appellant's App. at 7. Patrick now appeals.
Discussion and Decision
Our standard of review is well settled:
Summary judgment is appropriate only if the designated evidentiary material demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). Upon appeal, we apply the same standard as the trial court and resolve disputed facts or inferences in favor of the non-moving party. This court and the trial court are bound to consider only those matters which were designated to the trial court. The moving party bears the burden of establishing, prima facie, that no genuine issues of material fact exist and that he or she is entitled to judgment as a matter of law. In addition, the party appealing a grant of summary judgment bears the burden of persuading us that the trial court erred. .... The trial court's findings and conclusions are not binding upon this court, but do facilitate appellate review and offer insight into the trial court's rationale for its decision. On review, we will affirm the summary judgment if it is sustainable upon any theory or basis found in the record.
Unincorporated Operating Div. of Ind. Newspapers, Inc. v. Trs. of Ind. Univ., 787 N.E.2d 893, 900 (Ind. Ct. App. 2003) (some citations omitted), trans. denied.
Here, the trial court concluded that the City was entitled to immunity pursuant to Indiana Code Section 34-13-3-3(8) of the ITCA, which provides that " governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from the following: ... 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." Our supreme court has explained that 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. Whether a governmental entity is immune from liability under the ITCA is a question of law for the court to decide. Because the ITCA is in derogation of the common law, we construe it narrowly against the grant of immunity. The party seeking immunity bears the burden of establishing that its conduct comes within the ITCA.
Mangold ex rel. Mangold v. Dep't of Natural Res., 756 N.E.2d 970, 975 (Ind. 2001) (citations omitted). "Immunity assumes negligence but denies liability. 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." Bushong v. Williamson, 790 N.E.2d 467, 472 (Ind. 2003) (citations and quotation marks omitted). We review claims of governmental immunity de novo. Miller v. City of Anderson, 777 N.E.2d 1100, 1103 (Ind. Ct. App. 2002), trans. denied (2003). "We owe the trial court no deference, and we will substitute our judgment for that of the trial court if necessary." Id.
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." Miller, 777 N.E.2d at 1104. Patrick observes that " hile suicide or attempted suicide is not an act to be met with social approval, the fact is that it is not a
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