Minks v. Pina ( 1999 )

OPINION

BAKER, Judge

Plaintiff-Appellant Charles Minks appeals the trial court’s dismissal of his complaint against Defendants-Appellees the City of Hammond, the City of Hammond Police Department, Fred Behrens, Chief of Police, Officer Mark Steven Kruse and Officer James Neal Houpt (collectively “the Hammond defendants”) pursuant to an Ind. Trial Rule 12(B)(6) motion to dismiss.¹ Specifically, Minks argues that the trial court erred in finding that: (1) the Hammond defendants were immune from liability under the Indiana Tort Claims Act; (2) Minks had not stated a claim for relief under state law; and (3) Minks had failed to state a claim under 42 U.S.C. § 1983.

FACTS²

On January 14, 1996, Pina and his teenaged step-son, Victor Bolivar (“Bolivar”) attended a wedding celebration, where both consumed large quantities of intoxicating beverages. They left the party at approximately 11:50 p.m., and Pina was driving at his own insistence.

Pina and Bolivar were pulled over by Officer Kruse of the Hammond Police Department as they were traveling northbound on Calumet Avenue. Officer Kruse instructed Bolivar to drive the vehicle because Pina was too intoxicated to continue driving, and indicated that he would lock them both up if Bolivar did not drive. A second officer, Officer Houpt, arrived on the scene, and the two officers determined not to arrest or detain Pina and Bolivar because of the amount of time it would take to process the necessary paperwork. Subsequent blood alcohol tests revealed that Pina’s B.A.C. level was .266% and Bolivar’s B.A.C. level was .267%. Neither of the officers conducted field sobriety tests or checked to see if Bolivar had a valid driver’s license. Bolivar had never been issued a driver’s license in any state.

After the officers left, Pina apparently persuaded Bolivar ’ to allow Pina to continue driving. Pina drove his vehicle southbound on Calumet Avenue in Hammond, Indiana. Jason Minks was driving a vehicle owned by him and his custodial parent, Minks, northbound on Calumet Avenue at approximately midnight on that same date. Michael Nichols and Tracy Tyrka were passengers in that vehicle. Pina drove his vehicle into the rear of another vehicle, crossed the center line, and collided with Jason Minks’ vehicle. Jason Minks suffered serious injuries and ultimately died, as did his passenger, Michael Nichols. Tracy Tyrka, the other passenger in that vehicle, was injured in the accident.

Minks filed his first amended complaint for damages and jury demand on July 11, 1996. On September 6, 1996, the Hammond defendants filed their joint motion to dismiss and memorandum in support thereof. On November 6, 1996, the trial court granted that motion to dismiss.

On November 18, 1996, Minks filed a second amended complaint for damages and jury demand. Three defendants, Police Chief Behrens, Officer Kruse, and Officer Houpt, who were not named in the first complaint, were named in the second complaint. On December 19, 1996, the Hammond defendants filed a motion to dismiss the second complaint and memorandum in support thereof. On February 20, 1997, Minks filed his memorandum of law in opposition to the motion to dismiss. On April 7, 1997, the trial court granted the Hammond defendants’ motion to dismiss the second complaint. The trial court’s order read in part as follows:

The Court now finds that the named Defendants owed no private duty to the Plaintiff arid no special relationship to the Plaintiff. The Court further finds that the named Defendants are immune under I.C. 34^4-16.5-3-6.[sic] The Plaintiffs Complaint therefore fails to state a claim for relief under state law.

Plaintiffs claim for relief under 42 U.S.C. § 1983 must also fail. Though Plaintiff has added allegations into the Second Amended Complaint to answer the First Motion to Dismiss filed by the Defendants, the Plaintiffs Complaint still fails to state a claim for relief. The line of cases relied upon by the Defendants, under De-Shaney v. Winnebago, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249, requires that the Plaintiff demonstrate a greater danger to the motoring public than otherwise existed. Also see Reed v. Gardner, 986 F.2d 1122 (1993).

IT IS NOW THERFORE [sic] ORDERED that the Plaintiffs Second Amended Complaint against Defendants, City of Hammond, City of Hammond Police Department, Fred Behrens', Chief of Police, Officer Mark Steven Kruse and Office [sic] James Neal Houpt is hereby dismissed pursuant to Trial Rule 12(B)(6) for failure to state a claim for which relief can be granted.

(R. 171-72).

DISCUSSION AND DECISION

I. Standard of Review

When reviewing a 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted, this court accepts as true the facts alleged in the complaint. Hudgins v. McAtee, 596 N.E.2d 286, 288 (Ind.Ct.App.1992). A T.R. 12(B)(6) motion to dismiss tests the legal sufficiency of the complaint. Right Reason Publications v. Silva, 691 N.E.2d 1347, 1349 (Ind.Ct.App.1998). When reviewing a T.R. 12(B)(6) motion to dismiss, we view the pleadings in the light most favorable to the non-moving party, and draw every reasonable inference in favor of that party. Id. We will affirm a successful T.R. 12(B)(6) motion when a complaint states a set of facts, which, even if true, would not support the relief requested in that complaint. Id. Moreover, we will affirm the trial court’s grant of a motion to dismiss if it is sustainable on any theory or basis found in the record. Id.

II. Indiana Tort Claims Act

Governmental immunity from suit is regulated by the Indiana Tort Claims Act (the Act), Ind.Code § 34-13-3-3.³ Yerkes v. Heartland Career Ctr., 661 N.E.2d 558, 560 (Ind.Ct.App.1995), trans. denied. Governmental entities are subject to liability for torts committed by their agencies or employees unless one of the immunity provisions of the Act applies. Id. Moreover, whether a governmental entity is immune from liability under the Act is a question of law for the courts, although it may include an extended factual development. State v. Livengood by Livengood, 688 N.E.2d 189, 192 (Ind.Ct.App.1997).

Here, the dispositive issue is whether the Hammond defendants are immune from liability under, subsection (7) of the Act.⁴ That exception to liability under the Act reads as follows:

A governmental entity or an employee acting within the scope of employment is not liable if a loss results from:

(7) the 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;....

Ind.Code § 34-13-3-3(7). Our supreme court has explained that the scope of “enforcement” extends well beyond traditional law enforcement activities, but is “limited to those activities in which a governmental 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.” Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 283 (Ind.1994) (citing Quakenbush v. Lackey, 622 N.E.2d 1284, 1287 n. 3 (Ind.1993)).

In an attempt to avoid the harsh result of this provision, Minks argues that his second amended complaint does not allege negligence for the failure to arrest Pina or Bolivar, but, rather, bases the alleged negligence on the officers’ actions after deciding not to make an arrest. Specifically, Minks asserts that the officers’ direction that Bolivar drive home instead of Pina did not constitute enforcement or failure to enforce the law.

While we recognize the egregious conduct of the officers in this instance, we are not persuaded that their actions were outside the scope of enforcement, or failure to enforce, which was contemplated by the Act.⁵ In his second amended complaint, Minks specifically alleges that the officers “knew or should have known that both of those individuals [Pina and Bolivar] were dangerous and were likely to cause bodily harm to others, if not controlled, yet they failed to exercise reasonable care to control them, in order to prevent them from doing such harm_” Record at 76. Therefore, it is apparent that the basis of Minks’ negligence claim is that the officers failed to properly enforce the law, placing the government’s activity squarely within the immunity provision. Moreover, we decline to establish a bright line rule that any actions after an officer determines not to arrest an individual are no longer considered enforcement.

Finally, while we whole heartedly agree with the dissent that the officers had several safe options available to them outside of making an arrest, we cannot disregard the Act simply to avoid a harsh result in the instant case. Any injustice that may occur from allowing the officers to hide behind a badge of immunity should properly be addressed by the General Assembly which adopted such legislation.

III. § 1983 CLAIM

A government official who, while acting under color of state law, deprives an individual of constitutionally protected rights may be subject to personal liability for civil damages pursuant to 42 U.S.C. § 1983. Eversole v. Steele, 59 F.3d 710, 717 (7th Cir.1995). The parties do not dispute that the first element “acting under color of state law” was sufficiently pleaded in the second amended complaint. The Hammond defendants argue that there was no proper allegation of deprivation of a constitutionally protected right sufficient to withstand their motion to dismiss. There are two parts to the second element: (1) a deprivation of a federally protected right, and (2) the defendant’s conduct must have caused the deprivation. Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 559 (1st Cir.1989).

Minks contends that Officers Kruse and Houpt deprived Pina and Bolivar’s rights to life and liberty and deprived Jason Minks of his right to life without due process. Minks claims that Pina and Bolivar were deprived of their liberty interests when they were directed by the officers in the manner in which they were to proceed on their way home after the officers determined not to arrest them. Minks claims that Jason Minks was deprived of his right to life when the officers failed to protect him from the known danger brought about by the officers’ failure to remove drunk drivers from the roadways. He alleges that the officers created a dangerous situation which exposed Jason Minks to danger.

Initially, we note that while neither party raises this point, we do not believe that Minks has standing to raise a deprivation of rights on behalf of Pina and Bolivar. Therefore, we will not address that contention and turn instead to the allegation of the deprivation of Jason Minks’ rights.

Minks’ allegation in the second amended complaint reads as follows:

As a direct and proximate result of the unconstitutional conduct of Officers Kruse and Houpt, the Plaintiffs decedent, Jason Minks, suffered serious injuries and endured physical and mental pain, incurred hospital and medical expenses and ultimately died as a result of said injuries; and the custodial parent and siblings of Jason Minks were proximately harmed and are entitled to all statutory and common law damages.

(R. 78). Therefore, for purposes of a T.R. 12(B)(6) motion to dismiss, Minks has alleged that the officers’ conduct caused Jason Minks’ deprivation. Next, we turn to the issue of whether the complaint sufficiently alleges the violation of a constitutionally protected right. Minks’ claim is one of substantive due process; that is that the officer deprived Jason Minks of his right to life without due process.

In DeShaney v. Winnebago County Dept. Of Social Services, 489 U.S. 189, 195, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), the United States Supreme Court stated that the Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.” The Court further stated that nothing in the language of the Due Process Clause itself requires the state to protect the life, liberty, and property of its citizens against invasion by private actors. Id. at 196, 109 S.Ct. 998. The Court went on to state that the clause is a limitation on the State’s power to act, not a guarantee of certain minimal levels of safety and security. Id.

In DeShaney, the custody of a young child was awarded to his father following a divorce. County social service authorities were contacted on several occasions about suspected child abuse. The county authorities took steps to protect the boy, but did not remove the boy from the father’s custody. Ultimately, the father beat the boy so severely that he suffered brain damage and was permanently mentally impaired. The boy’s mother and the boy brought a § 1983 action against the authorities claiming that they had failed to protect the boy from his father’s violence of which the county authorities should have known.

The Court stated that the Due Process Clause of the Fourteenth Amendment was intended to prevent government from abusing its power, or employing it as an instrument of oppression. Id. While acknowledging the tragedy involved in the case, the Court stated that the purpose of the Due Process Clause was to protect the people from the State, not to ensure that the State protected them from each other. Id. The Due Process Clause confers no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government may not deprive the individual. Id. The Court concluded its analysis by holding that a State’s failure to protect an individual against private violence does not constitute a violation of the Due Process Clause. Id. at 197, 109 S.Ct. 998.

In Reed v. Gardner, 986 F.2d 1122 (7th Cir.1993), cert. denied, 510 U.S. 947, 114 S.Ct. 389, 126 L.Ed.2d 337 (1993), police officers pulled over and removed the original driver of a vehicle leaving behind a drunk passenger. Subsequently, the passenger drove the vehicle, crossed the center line of a road, and caused á head-on collision with a family, the Reeds, in another vehicle. The collision resulted in one fatality, the loss of a fetus, and injuries to other passengers in the second vehicle. The Reeds brought a § 1983 claim against the officers involved in the initial stop which resulted in the drunk passenger assuming control over the first vehicle. The district court dismissed the § 1983 claims.

The Seventh Circuit Court of Appeals, in following DeShaney, stated that inaction by the state, even where a danger is known, is not enough to trigger a Due Process Clause obligation. Reed, 986 F.2d at 1125. The state must have limited in some way the liberty of a person to act on his own behalf. Id. The Seventh Circuit went on to say that DeShaney left open the door for liability in situations where the state created a dangerous situation or placed citizens in a position of increased vulnerability to danger. Id. The court wrote that DeShaney made it clear that police officers have no affirmative obligation to protect citizens from drunk drivers. Id. In the opinion of the court, police officers are not subject to § 1983 liability for exchanging one drunk driver for another drunk driver. Id. In that situation, the same danger to citizens exists with or without state intervention. Id.

We recognize that while U.S. Supreme Court decisions pertaining to federal questions are binding on state courts, lower federal court decisions may be persuasive, but have non-binding authority on state courts. Indiana Dept. of Public Welfare v. Payne, 622 N.E.2d 461, 468 (Ind.1993), trans. denied. We respectfully consider those decisions of the Seventh Circuit. Id. In light of the U.S. Supreme Court decision in DeSha-ney, and the decision of the Seventh Circuit in Reed, we agree with the trial court that Minks has not stated a claim which would subject the officers to § 1983 liability.

Minks further argues that the remaining Hammond defendants are liable under § 1983 because the execution of the custom of not arresting or detaining drunk drivers by Hammond police officers results in injury to the motoring public. As we have previously held, if the plaintiff suffered no constitutional violation, as a matter of law, no custom, practice or policy could have proximately caused the plaintiffs constitutional rights to be violated. See Slay v. Marion County Sheriffs Dept. 603 N.E.2d 877, 882 (Ind.Ct.App.1992). Therefore, we find that the trial court did not err in either of its determinations regarding Minks’ § 1983 claims.

CONCLUSION

In light of our resolution of the issues set forth above, we conclude that the trial court properly granted the Hammond defendants’ T.R. 12(B)(6) motion to dismiss based upon the Indiana Tort Claims Act. We further hold that the trial court correctly determined that Minks failed to state a claim based upon § 1983.

Judgment affirmed.

SHARPNACK, C.J., concurs. RATLIFF, S.J., concurs in part and dissents in part, with opinion.

1 . Defendant Javier Pina (“Pina”) was named in the complaint but is not a party to this appeal.

2 . Due to the high quality of the briefing done by the parties, oral argument is not necessary. The petition for oral argument is denied.

3 . At the time of trial, the Act appeared in Ind. Code § 34-4-16.5-3. However, it is now located at I.C. § 34-13-3-3.

4 . Because we find this issue dispositive, we need not address whether the Hammond defendants are immune under subsections (6) and (9) of the Act or whether Minks has stated a claim for relief under state law.

5 . Additionally, while not necessary to our resolution of this issue, we feel compelled to confront the dissent’s argument that the Hammond defendants owed a private duty to Minks. Indiana case law has consistently held that a private duty arises when the relationship between the parties creates a duty owed to a particular individual and not the public at large. See Mullin, 639 N.E.2d at 283; Greathouse v. Armstrong, 616 N.E.2d 364, 368 (Ind.1993); Aldridge v. Indiana Dept. of Natural Resources, 694 N.E.2d 313, 316 (Ind.Ct.App.1998), trans. denied; Simpson’s Food Fair, Inc. v. City of Evansville, 149 Ind.App. 387, 391, 272 N.E.2d 871, 874 (1971). Moreover, in Mullin, our supreme court adopted the following three-part test to determine if such a duty has arisen:

(1) an explicit assurance by tlie municipality, through promises or actions, that it would act on behalf of the injured party;

(2) knowledge on the part of the municipality that inaction could lead to harm;

(3) justifiable and detrimental reliance by the injured party on the municipality’s affirmative undertaking.

Id. at 284.

Applying this test, the Hammond defendants clearly did not owe a private duty to Minks. The Hammond defendants had no contact with Minks and, therefore, could not have offered any assurances specifically to him or caused him to rely. Moreover, we do not believe that it is our place to follow in the footsteps of the supreme judicial court of Massachusetts towards the abolition of the public duty rule which has so recently been applied by our supreme court in Mullin. See Jean W. v. Commonwealth, 414 Mass. 496, 610 N.E.2d 305 (1993) (announcing, in a plurality opinion, its intent to abolish the public duty rule because the rule had not been predictably applied and had often been criticized as resulting in a "tortured analysis ... to avoid such harsh results without squarely facing the underlying problem” and specifically noting its decision in Irwin v. Ware, 392 Mass. 745, 467 N.E.2d 1292 (1984) as such an example of this unpredictability)-