Preview:

FOR PUBLICATION
ATTORNEY FOR APPELLANTS: WILLIAM E. BECK II Kokomo, Indiana ATTORNEYS FOR APPELLEES: IAN L. STEWART MICHAEL R. MOROW Stephenson Morow & Semler Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

Dec 15 2009, 9:45 am

IN THE COURT OF APPEALS OF INDIANA
RICHARD PATRICK WILSON and BILLY DON WILSON, Appellants-Plaintiffs, vs. GENE ISAACS, SHERIFF OF CASS COUNTY, and BRAD CRAVEN, Appellees-Defendants. ) ) ) ) ) ) ) ) ) ) )

CLERK

No. 09A05-0906-CV-344

APPEAL FROM THE CASS SUPERIOR COURT The Honorable Thomas C. Perrone, Judge Cause No. 09D01-0708-CT-13

December 15, 2009

OPINION - FOR PUBLICATION

KIRSCH, Judge

Richard Patrick Wilson ("Patrick") and Billy Don Wilson ("Billy") (collectively, "the Wilsons") appeal the trial courts grant of summary judgment in favor of Gene Isaacs, Sheriff of Cass County and Deputy Brad Craven (collectively, "the Sheriff"). The Wilsons raise the following restated issues: I. Whether the trial court erred when it granted summary judgment in favor of the Sheriff on the basis that the Sheriff was immune from liability for injuries caused by the enforcement of a law pursuant to the Indiana Tort Claims Act ("ITCA"), Indiana Code section 34-13-3-3(8); and Whether the trial court erred when it granted summary judgment in favor of Deputy Craven because the Wilsons are barred under Indiana Code section 34-13-3-5 from pursuing a claim against him individually for actions taken within the scope of his employment.

II.

We affirm in part, reverse in part, and remand. FACTS AND PROCEDURAL HISTORY In September 2006, Deputy Craven was a volunteer reserve deputy with the Cass County Sheriffs Department, working an average of twenty-four hours per week. He had held this position since 2000 and completed a 40-hour "pre-basic" course at that time. Like other Cass County reserve deputies, Deputy Craven received a take-home car, clothing allowance, life and death benefits, and disability benefits in exchange for his employment with the Sheriffs Department. The Sheriffs Department also issued him a badge, a Taser, a handgun, a shotgun, and a can of mace. On March 6, 2005, Deputy Craven received certification in the use of a Taser by a certified instructor. On September 10, 2006, the town of Young America, located in Cass County, Indiana, had its annual fish fry, and several people were hosting backyard parties. Billy was one of
2

those throwing a party at his house; the party started around 8:00 p.m. and alcohol was being served. Town residents stopped by the party to visit, and at times, there were approximately thirty people in attendance. Before the party, Billy consumed two beers, and between 8:00 p.m. and 12:00 midnight, he drank four more beers and six to eight shots of tequila. Patrick, Billys brother, arrived at the party around 8:30 p.m., and between then and 12:00 midnight, he consumed five or six shots of peppermint schnapps. During the time of the party, there had been several fights and disturbances in the surrounding area. In one instance, a male wearing a red hooded sweatshirt threw rocks into the volunteer fire station located across the street from Billys house. A fireman who was hit with a rock caught and pinned the man in the red sweatshirt to the ground. The Wilsons intervened and told the firefighters that they would keep the man and the other partygoers in Billys backyard. In another incident, around 11:00 p.m., the girlfriend of Carl Wilson, Jr. ("Carl"), the Wilsons younger brother, was hit in the back of the head with an ear of corn by a juvenile. In retaliation, Carl hit the juvenile and "thumped him pretty good." Appellants' App. at 175. Cass County Sheriffs deputies had been called to Billys house around 9:30 or 10:00 p.m. because children had been throwing tomatoes at a womans car. When they arrived, they told Billy to have some of his guests move their parked cars. Initially, Billy took offense to this, but eventually complied with the officers request. Around midnight, Deputy Craven was dispatched to investigate the report that Carl had punched a juvenile in the head. Deputy Craven, who was wearing his full uniform and driving a marked Cass County Sheriffs

3

Department patrol car, had been instructed to bring Carl into custody. As Deputy Craven was arresting Carl, the Wilsons approached him and began demanding to know why Carl was being taken into custody. Although they knew of the earlier fight, the Wilsons did not think that the arrest was fair. Both of the Wilsons were visibly intoxicated at that time, and the officers told them to stop and not to approach any further. After arresting Carl, Deputy Craven was informed that there was a search going on for an individual wearing a red shirt who had been involved in an incident earlier in the night. He returned to Billys backyard, where about fifteen people were gathered, including a man wearing a reddish shirt. According to Deputy Craven, as he began to talk to this man, Billy approached and started yelling at the deputy, telling him not to question the man and to "get the hell away." Id. at 169. Deputy Craven told Billy to get back, to which Billy replied, "No." Id. at 170. Billy then raised his fist at the deputy and told him he would "kick his ass." Id. Deputy Craven ordered Billy to back up and put his hands behind his back several times, and Billy refused to do so. At this time, Patrick approached Deputy Craven from behind and grabbed him on the left shoulder. Deputy Craven told Patrick to get his hands off of the deputy and to back away from him. Patrick refused, and told the deputy to "get out of here." Id. Deputy Craven ordered Patrick to place his hands behind his back. Patrick continued to stand with his hands straight out to his side and yelling at the deputy. At this time, Billy, using an aggressive tone, asked Deputy Craven, "why he was being such an ass." Id. at 176. Patrick failed to follow the deputys orders, so Deputy Craven drew his Taser, pointed it at Patrick,

4

and warned him three times to put his arms down and place his hands behind his neck or the deputy would use the Taser on Patrick. Patrick refused to comply with Deputy Cravens demands. Deputy Craven then deployed his Taser, and Patrick immediately fell to the ground. After Patrick became compliant, Deputy Craven handcuffed him and put him into a police car. Billy was also handcuffed and placed in another police car. The Wilsons were both arrested and transported to the Cass County Jail. The Wilsons recount a different series of events. According to them, when Deputy Craven reentered Billys backyard to search for the man in the red shirt, he began questioning one of their guests. When Patrick heard this, he knew the identity of the man in the red shirt, so he walked up to Deputy Craven and tapped him on the left shoulder. As Patrick stepped around Deputy Craven to tell him this information, the deputy pulled out his Taser and pointed it directly at Patrick. Patrick believed that the Taser was a handgun being pointed at him, and he raised his hands while backing away. Deputy Craven ordered Patrick to keep his hands up and then to put his hands down. Not knowing which command to obey, Patrick asked the deputy, "Do you want them up or down." Id. at 177. Immediately after this question, Deputy Craven shot Patrick with the Taser, which sent Patrick falling backward and caused him to hit his head on a grill and then the concrete patio. Deputy Craven ordered Patrick, who was on the ground with the barbs from the Taser still attached to him, to roll over. Patrick replied that he could not roll over. Deputy Craven again ordered Patrick to roll over or he would be shot again with the Taser. Patrick was physically unable to comply with this request, and the deputy again deployed his Taser. Deputy Craven repeated the command

5

to roll over a third time and again shot Patrick with the Taser until another officer approached and told Deputy Craven, "thats enough." Id. at 186. Patrick was then handcuffed and placed in a patrol car. On August 30, 2007, the Wilsons filed a complaint against the Sherriff, alleging that they had suffered injuries as a result of Deputy Cravens use of excessive force in arresting them. The Wilsons contended that Deputy Craven was liable both individually and in his capacity as a sheriffs deputy. The Sheriff filed a motion for summary judgment, claiming immunity from liability under the ITCA and that any claims against Deputy Craven individually were barred. After a hearing on this motion, the trial court granted the motion for summary judgment and entered final judgment in favor of the Sheriff. The Wilsons now appeal. DISCUSSION AND DECISION I. Standard of Review When reviewing a grant or denial of summary judgment, we apply the same standard as the trial court. Jacobs v. Hilliard, 829 N.E.2d 629, 632 (Ind. Ct. App. 2005), trans. denied. We construe all facts and reasonable inferences to be drawn from those facts in favor of the nonmoving party. Id. Summary judgment is only appropriate when the designated evidence shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Id. The purpose of summary judgment is to terminate litigation about which there can be no material factual dispute and which can be resolved as a matter of law. Miller v. City of Anderson, 777 N.E.2d 1100, 1103

6

(Ind. Ct. App. 2002), trans. denied (2003). The trial courts order granting a motion for summary judgment is cloaked with a presumption of validity, and the party appealing from a summary judgment decision has the burden of persuading the court that the grant or denial of summary judgment was erroneous. Am. Home Assurance Co. v. Allen, 814 N.E.2d 662, 666 (Ind. Ct. App. 2004), trans. dismissed (2005). II. Immunity under Indiana Code Section 34-13-3-3(8) Governmental immunity from suit is regulated by the ITCA. Minks v. Pina, 709 N.E.2d 379, 382 (Ind. Ct. App. 1999) (citing Ind. Code

Download Richard Patrick Wilson and Billy Don Wilson v. Gene Isaacs, Sheriff of Cass Co.,

Indiana Law