The Supreme Court decided that law enforcement immunity doesn’t apply to police officers operating an emergency vehicle chasing a criminal who cause injury to a third party. They did so because they found that the duty to operate an emergency vehicle with “due regard” for the safety of all persons under IC 9-21-1-8 negates the law enforcement immunity conferred by the legislature under IC 34-13-3-3(8).
So, the Supreme Court ruled contrary to my suggestion of how the case should be decided. But the Court’s opinions do not address my argument, so I don’t know where I went wrong. I wonder if the defendants raised a similar argument.
My argument was based on statutory construction: “â€œ[I]t is only after a determination is made that a governmental defendant is not immune under the ITCA that a court undertakes the analysis of whether a . . . duty exists under the circumstances.â€ (The ellipses omit ‘common law’, but I do not believe common law duties ought to be treated any differently than statutory duties under these circumstances.)
As I wrote before:
Using this principal of immunity jurisprudence, you have to make the immunity determination first. Either the defendant is immune or not. Immunity exists in spite of duty. Itâ€™s not that the tortfeasor hasnâ€™t breached a duty of care. Thatâ€™s the whole point. The tortfeasor has acted negligently but the legislature has granted immunity in spite of the negligent breach of a duty.
So, first you look at ITCA (the immunity statute) and ask whether the police officerâ€™s act constituted law enforcement. If so, the governmental entity and its employees are immune from liability. End of analysis. Itâ€™s only after youâ€™ve established that immunity does not exist that you worry about whether a duty has been breached, regardless of whether it is a duty imposed by statute or by common law.
So I don’t know if my reliance on prior caselaw regarding how to analyze immunity statutes is misplaced or if I am misconstruing the cases or what. But there does not appear to be any such bifurcated approach in these cases. The court seems to say merely that the duty imposed by the legislature limits the law enforcement immunity granted by the legislature.