Giles v. Brown County ex rel. Board of Commissioners

SHARPNACK, Judge,

dissenting.

I respectfully dissent from the majority's holding that reverses the trial court's grant of summary judgment to Brown County. Based on Ind.Code § 34-18-3-3(19), the enhanced emergency communication system immunity provision of the Indiana Tort Claim Act ("ITCA"), and existing caselaw interpreting this provision, I would hold that Brown County is entitled to governmental immunity, and thereby affirm the trial court's grant of summary Judgment in favor of Brown County.

The trial court concluded that Brown County was entitled to immunity under Ind.Code § 34-13-3-3(19), which provides that:

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

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(19) Development, adoption, implementation, operation, maintenance, or use of an enhanced emergency communication system.

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Here, the undisputed facts reveal that Brown County operated an enhanced emergency communication system and that it contracted with Columbus Regional Hospital's ambulance service to "station two (2) ambulances ... in Brown County to provide emergency and non-emergency ambulance service." Appellant's Appendix at 34. In October 2000, Joey Giles experienced chest pains and called 911. The parties agree that Brown County's enhanced emergency communication system worked "promptly and efficiently" to notify the Hospital's ambulance service of the dispatch to the Giles house. (Appellant's Brief at 3; Appellee's Brief at 5.) Giles's affidavit designated as part of her opposition to Brown County's motion for summary judgment reveals that two volunteer firemen were at her home with Joey when she arrived home. (Appellant's Appendix at 180.) In Giles's Tort Claim Notice, which Brown County included as part of its designated evidence, she alleges that the Hospital's ambulance service did not dispatch an ambulance to her house despite the fact that the ambulance service had another ambulance on reserve. (Appellant's Appendix at 84.) Giles's affidavit further reveals that an ambulance from Bloomington Hospital was dispatched to her house. (Appellant's Appendix at 180.)

The majority states that a determination of whether Brown County had immunity under the ITCA "depends on whether the Hospital's decision not to dispatch a Columbus-based ambulance ... constitutes 'use of the Brown County E-911 system." Slip opinion at 5. I respectfully disagree. Pursuant to Ind.Code § 34-13-3-3, the determination of whether Brown County had immunity under the ITCA depends on whether the "loss resulted] from [Brown County's] use of an enhanced emergency communication system." Ind. Code § 34-13-3-3(19) (emphasis added).

We have previously construed this enhanced emergency communication system immunity provision in Barnes v. Antich, 700 N.E.2d 262 (Ind.Ct.App.1998), trams. denied, and Burns v. City of Terre Haute, 744 N.E.2d 1038 (Ind.Ct.App.2001), trans. denied.¹² In Barnes, Joseph Antich suffered a heart attack at home and dialed 911, which accessed the City of Gary's ("the City") enhanced emergency communication system. Barnes, 700 N.E.2d at 264. The dispatcher answered the call and assured Antich that an ambulance would be dispatched. Id. Three additional calls were made to 911, and the dispatcher assured the caller each time that an ambulance was on its way. Id. The City never dispatched an ambulance, and Antich died. Id. Thereafter, Antich's widow brought a wrongful death suit against the City. Id. The City filed a motion to dismiss and a motion for summary judgment, both asserting that the City was immune from suit under the enhanced emergency communication system immunity provision of the ITCA. Id. The trial court denied both motions, and the City appealed.

On appeal, we reversed the trial court's denial of the City's motion for summary judgment. Id. at 265. We reviewed the enhanced emergency communication system immunity provision and stated that "Indiana's General Assembly has declared that the provision of emergency medical services is a matter of vital concern affecting the public health, safety, and welfare of the people of Indiana" Id. (citing Ind. Code § 16-31-1-1). We held that the "operation of an emergency dispatch system constitutes a governmental function entitled to immunity from tort liability" and that the "present case f{elll squarely within [that] immunity [provision]." Id. at 265-266.

In Burns, Alyson Burns collapsed at her parents' home and stopped breathing. Burns, 744 N.E2d at 1039. Her father called 911, and one of the dispatchers dispatched an ambulance to the house. Id. The dispatcher gave the ambulance driver directions "off the top of his head" and did not consult the computer mapping program that was part of the City of Terre Haute's ("the City") enhanced emergency communication system. Id. The dispatcher's directions were incorrect, and the ambulance drove past the Burns' house. Id. Burns's father again called 911, and the ambulance eventually arrived. Id. As a result of the dispatcher's misdirection, the ambulance took nine to ten minutes to arrive at the Burns' house, instead of the one minute that it should have taken. Id. Burns suffered permanent brain damage and sued the City, which subsequently was granted summary judgment based on the enhanced emergency communication system immunity provision of the ITCA. Id.

On appeal, we noted that "[clonsonant with the public importance of emergency medical services," the enhanced emergency communication system immunity provision of the ITCA immunizes a governmental entity for use of such a system. Id. at 1040 (referring to Ind.Code § 16-81-1-1). We applied Barnes and held that:

In the instant case, the facts and seetion 3(1[9] ) lead us to the same application of immunity. Burns's argument fails to take into account that E-911 embraces more than the computer maps that help guide emergency medical vehicles. When the Director of Vigo County's E-911 was asked what equipment E-911 owns or includes, he responded, "[Wle have got lots and lots of equipment." R. at 466. He went on to specify that E-911 boasted an equipment list twenty pages long, including: a central processing computer, four dispatch centers, computer mapping monitors, modems, "uninterrupted power supply" units, software, data bases, and telephone lines. R. at 466-68. The record also shows that three dispatchers furnished the human support crew for the City's dispatch center. R. at 134. Given the necessary interrelation of each of these components-including the human operators-within a fully operational E-911 system, we cannot say that [the dispatcher's] failure to check the map constituted nonuse of the E-911 system. Burns's loss, then, resulted from the use of an enhanced emergency communication system. Consequently, as a matter of law, the City was entitled to summary judgment.

Id. at 1040-1041.

It seems that the cases of Barnes and Burns, as well as the language of the statute, make clear that a governmental entity is entitled to immunity from suit for the use of an enhanced emergency communication system. I believe that the fact that the facts in Barnes do not reveal why the City failed to dispatch an ambulance to Barnes is of no moment. It seems that Burns makes clear that the use of an enhanced emergency communication system, even if misused by human error, still constitutes a use of that system that entitles the governmental entity to immunity under the ITCA.

The majority holds that "an enhanced emergency communication system would include communication equipment, computer hardware and software, a database of information, and personnel" but that "the Hospital was an emergency services provider but not part of the Brown County enhanced emergency communication system." Slip opinion at 8, 10. Thus, the majority seems to hold that the enhanced emergency communication system includes only the PSAP that receives incoming 911 calls and dispatches a public safety agency to respond to the calls and any equipment and personnel associated with the PSAP.

Based on our previous construction of the enhanced emergency communication system immunity provision, I must disagree that the responding agency, the Hospital's ambulance service that was dispatched by Brown County, would be excluded from the scope of Brown County's enhanced emergency communication system. Here, like in Burns, the point of the enhanced system, the response, did not occur as quickly as desired. I have a hard time not seeing that Brown County was using its enhanced emergency communication system and that, in the course of that use, a function of the system, the dispatch function, failed, perhaps resulting in the death of Joey Giles.

In summary, I disagree with the majority and would affirm the trial court's grant of summary judgment to Brown County based on the enhanced emergency communication system immunity provision of the ITCA. As a result, I further believe that my colleagues and I should address Giles's remaining equal protection argument. Thus, I respectfully dissent.

12 . At the time Barnes was decided, the enhanced emergency communication system iramunity provision was codified under subsection (18) of Ind.Code § 34-4-16.5-3, and at the time Burns was decided, the provision was codified under subsection (18) of Ind. Code § 34-13-3-3.