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Savieo v. City of New Haven4/7/2005
ory grounds. In Benton v. City of Oakland City, 721 N.E.2d 224 (Ind. 1999), our supreme court observed,
hile older common law principles immunized governmental units from tort liability, that immunity was abrogated in a series of decisions beginning in the middle of this century. The last of these decisions was Campbell v. State, 259 Ind. 55, 284 N.E.2d 733 (1972). In Campbell, this Court reflected on the difficulties in distinguishing between "governmental functions" and "proprietary functions" and concluded that establishing categories of governmental immunity was best left to the legislature. We therefore abrogated the common law doctrine of sovereign immunity in almost all respects. The breadth of its language eliminating sovereign immunity made clear that after Campbell, the tort liability of a governmental unit would be exactly the same as a private defendant in almost all respects.
But the word "almost" in the preceding two sentences is important. Campbell did acknowledge "that some vestige of the governmental immunity must be retained." Id. at 62-63, 284 N.E.2d at 737 (quoting W. Prosser, Law of Torts ยง 131, at 986 (4th ed.1971)). Campbell identified three situations where governmental units would not be liable for "acts or omissions which might cause damage to persons": (1) where a city or state fails to provide adequate police protection to prevent crime, id. (citing Simpson's Food Fair, Inc. v. City of Evansville, 149 Ind.App. 387, 272 N.E.2d 871 (1971), transfer denied); (2) where a state official makes an appointment of an individual whose incompetent performance gives rise to a suit alleging negligence on the part of the state official for making such an appointment; and (3) where judicial decision- making is challenged, id. (citing Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967)).
Id. at 227 (footnotes omitted).
The Benton court stated that these common law exceptions to the general rule of governmental liability remain viable today:
We hold that Campbell is properly applied by presuming that a governmental unit is bound by the same duty of care as a non- governmental unit except where the duty alleged to have been breached is so closely akin to one of the limited exceptions (prevent crime, appoint competent officials, or make correct judicial decisions) that it should be treated as one as well.
We refuse to articulate a one-size-fits-all test for determining when a duty is so closely akin to one of the limited exceptions that it should be treated as one as well. As we have seen, the "governmental function-propriety function" test did not work. Neither has the public duty- private duty test. The best we can say as a general proposition is that because the duty of care is so pervasive, any additional exceptions will be rare and identified on a case-by-case basis.
Id. at 230 (footnote omitted).
Since Benton, our court has identified several such exceptions. See, e.g., City of Hammond v. Cipich ex rel. Skowronek, 788 N.E.2d 1273, 1283 (Ind. Ct. App. 2003) (holding that city was immune for "failure to provide adequate rescue services necessary to aid those in emergency situations[,]" where motorist intentionally drove vehicle into Lake Michigan), trans. denied; O'Connell v. Town of Schererville of Lake County, 779 N.E.2d 16, 21 (Ind. Ct. App. 2002) (holding that city was immune for failure to maintain adequate water supply for fire protection); Gates v. Town of Chandler, 725 N.E.2d 117, 120 (Ind. Ct. App. 2000) (same), opinion on reh'g, trans. denied. To the extent that the police are expected to prevent threatened suicides in non-custodial cases, we conclude that this duty is so cl
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