I believe the majority-relying on superseded case law-ignores the clear language of our supreme court. In Tittle v. Mahan (1991), Ind., 582 N.E.2d 796, and City of Wakarusa v. Holdeman (1991), Ind., 582 N.E.2d 802, our supreme court sharply limited the scope of the law enforcement exception to the Indiana Tort Claims Act holding that "unless the injuries for which a plaintiff seeks recovery arose out of the actual attempts to effect an arrest ... there is no immunity to be found in Section 3(7) [of the Tort Claims Act]." City of Wakarusa, supra, at 803 (emphasis added).
In spite of this clear mandate, the majority affirms. I would reverse and remand for trial.
FACTS
At about 11:24 p.m. on March 24, 1989, Indianapolis Police Officer Florence E. Lackey was fueling her police car at 21st and Sherman [R. 183] when she heard the following radio traffic:
Dispatcher. "B388 and 425, B3383 and 425, domestic disturbance, 9029 East Pi-nehurst, South Drive, Oaktree Apart ments. A man beating a woman, in the parking lot."
R. 58 (Official Police Transcript of Radio Traffic). Lackey, radio call B887, decided to respond:
"B837 to dispatcher"
Id.
Before she could, unit B888 acknowledged the call:
B333. "38th and Mitthoeffer" [One mile east of the location].
Id.
The rest of the radio traffic is as follows:
*1216Dispatcher. "Units are covering. 337-are you trying to volunteer for the run?"
B337. "It's on me. What's the apartment number again?"
Dispatcher. "It's happening in the parking lot. Complainant refused any information, just in the parking lot."
337. "Okay, I'm on the interstate, almost about Post." 1
Id. 58. (Information in [] added).
After volunteering for this non-emergency2 run and narrowly avoiding a collision at 30th and Post, Lackey ran a red light at 38th and Post and struck another vehicle, hospitalizing herself, the driver and two passengers of the other car. Her police car was demolished and the other car sustained damages of $2175. The Record shows Lackey testified that as she reached the intersection of 38th and Post, she could see ten (10) officers already on the scene [R. 212-213], which was the parking lot of-in Lackey's words-a "Go-Go Bar." R. 255. This bar is also described as a "Topless Bar" at R. 85. Lackey was driving at a very high rate of speed and was not using her red/blue roof lights, siren, horn, or spotlights.
Lackey moved for summary judgment claiming that she was immune from suit. Both trial courts and the majority conclude that the above litany shows that Lackey was "enforcing the law" and therefore, neither she nor her employer are responsible for her actions. I disagree.
DISCUSSION
Governmental immunity is controlled by the Indiana Tort Claims Act (Act). In general, governmental entities and their employees are subject to liability for torts committed by them, unless the activity giving rise to the tort falls within the exceptions enumerated in the Act. Peavler v. Monroe County Bd. of Comm'rs (1988), Ind., 528 N.E.2d 40, 42. At the time the Act was enacted,3 Indiana courts had determined that the king not only could do much wrong, but also could be held accountable for such wrongs. Tittle, supra, at 799. The doctrine of sovereign immunity for breaches of a private duty had been virtually abolished by judicial decisions. Id.
The legislature responded by enacting the Act and limited the judicially created rights to sue and recover from governmental entities and their employees. Id. The Act did not create a right to sue, but instead, regulated the common law right to bring such actions. The legislature granted immunity from suit for, inter alia, the "adoption and enforcement of or failure to *1217adopt or enforce a law." Id. Our supreme court first addressed the meaning of this phrase in Seymour National Bank v. State (1981), Ind., 422 N.E.2d 1223, mod. on reh'g, 428 N.E.2d 203, appeal dismissed by, 457 U.S. 1127, 102 S.Ct. 2951, 73 L.Ed.2d 1344 (1982). The court found that the State was immune from liability for the alleged negligence of a state trooper in operating his patrol car during a high speed chase of a criminal suspect. The basis for the court's ruling was that "an officer engaged in effecting an arrest is in fact enforcing a law." Id. at 1226. On rehearing, the Seymour court suggested in dicta that any act within the scope of a law enforcement official's employment would be immune. Seymour, 428 N.E.2d at 204. Nine years later, in Tittle, our supreme court stated that "[wle do not believe this [the dicta in Seymour ] reflects the legislature's intention." Tittle, at 800.
The Tittle court further explained that the dicta contained in Seymour was the basis for a number of cases decided by this court which expanded the law enforcement exception to such a degree that Judge Sullivan's statement in McFarlin v. State (1988), Ind.App., 524 N.E.2d 807, "to the effect that any action taken by a law enforcement official within the scope of his employment is immune [from suit]," appeared to be an accurate assessment of the state of the law. Tittle, at 800. The Tittle court then said: "We do not agree that this extension of the Seymour holding is warranted." Id.
The Tittle court then noted that the Act was in derogation of the common law and, thus, must be strictly construed. In addition, "when the legislature enacts a statute in derogation of the common law, this Court presumes that the legislature is aware of the common law, and does not intend to make any change therein beyond what it declares either in express terms or by unmistakable implication." Id. (citations omitted, emphasis added). The court noted that, in Seymour, it had concluded that the plain meaning of "enforcement of a law" included the actions of a police officer in hot pursuit of a eriminal suspect. Id. at 801. The court refused to extend this to post arrest activities. Id.
In City of Wakarusa, supra, the supreme court addressed the question of whether the law enforcement exception applied to routine patrol activities of a deputy sheriff. The court, referring to Tittle, stated it had held that "the term 'enforcement of a law' was limited to activity attendant to effecting the arrest of one who may have broken the law...." Wakarusa, at 803. "Thus, unless the injuries for which a plaintiff seeks recovery arose out of the actual attempts to effect 4 an arrest of one who may have broken the law, there is no immunity to be found in Section 8(7)." Id. (emphasis added).
The supreme court repeated its interpretation of the law enforcement exception about three months later in City of Valparaiso v. Edgecomb (1992), Ind., 587 N.E.2d 96. In Edgecomb, a police officer was escorting a funeral procession. While following the orders of a superior officer to leapfrog to the head of the procession, he collided with Edgecomb's car, injuring Edge comb. The trial court found that the officer was not entitled to immunity and this court reversed, concluding that because the officer's activity constituted performance of his duty, he was engaged in enforcing the law, and thus, was immune from suit. Edgecomb, supra, at 97 citing City of Valparaiso v. Edgecomb (1991), Ind.App., 569 N.E.2d 746, 747. The supreme court vacated our opinion and remanded the case to the trial court for further proceedings because the officer was not involved in making an arrest. Edgecomb, at 97 citing Tittle, supra, at 801.
*1218Here, Lackey volunteered to assist officers at the scene of-in the words of IPD-a domestic disturbance, a situation that her peers, the Police Review Board, considered to be a non-emergency rum. While en-route, she was involved in the accident that is the subject of these suits. Lackey had to arrive at the scene before she could make an arrest, assuming arguendo, that she-instead of the officers already present-would even be making an arrest. She never arrived.5 In attempting to respond to the scene to assist other officers, Lackey was engaged in the performance of her duties, just like the officer in Edgecomb. It is contrary to the holdings of our supreme court to state that the acts of being dispatched and then driving to, but not arriving at, a place where Lackey would possibly be capable of making an arrest is the same as "the actual attempts to effect an arrest of one who may have broken the law." Therefore, there is no immunity to be found in Section 8(7).
The majority fails to note that I.C. 384-4-16.5-3 lists seventeen (17) actions or conditions where immunity is granted. Only one of these involves emergency service personnel, the "law enforcement exception." There are many emergency situations involving life threatening situations where no immunity is granted to emergency personnel; e.g., firefighters responding to a fire in a building with people trapped, an ambulance dispatched to the scene of a cardiac arrest, fire/rescue personnel sent to the scene of a drowning or a chemical spill, etc. The legislature and our supreme court recognize that a police officer is unique among emergency personnel-he or she is armed with a deadly weapon and in certain situations, has the right and duty to use it. In a situation where the use of deadly force may be required, immunity is granted. In situations other than an arrest where an immediate or emergency response and/or a split second decision may be required, there is no immunity.
Although in my opinion our supreme court's language-Le., "actual attempts to effect an arrest'"-is clear, I agree with Judge Baker's implication that perhaps a more definitive statement would be helpful. For example, when an officer is in the actual process of making an arrest, ie., face to face with a suspect (or in hot pursuit), that officer is: (1) making (or attempting to make) an arrest; (2) engaged in law enforcement activities; and (8) immune to suit under Section 8(7). Where that officer is merely doing his or her duty; e.g., patrolling the highways looking for expired license plates, issuing a parking ticket or a summons, obeying a superior's order while escorting a funeral procession, responding to a routine non-emergency radio dispatch, investigating an unleashed dog, directing traffic, or occupied with any *1219of the many other duties and services required of a police officer, there is no immunity under Section 8(7). In other words, it seems to me that when a suspect's arrest rights under the Fourth and/or Fifth Amendments attach-then immunity under Section 3(7) attaches to the officer.
In summary, I disagree with the majority. Driving seven and a half (7%) miles through a major metropolitan area at a very high rate of speed, without using any warning devices, to the scene of an anonymously reported squabble in the parking lot of a topless bar-a type of complaint that is considered to be a mon emergency by the Indianapolis Police Department-is not the legal or factual equivalent of hot pursuit. Thus, Officer Lackey was not engaged in enforcing a law within the meaning of the Tort Claims Act. This case should be reversed.
. This location is about two and a half miles (2%) south and west from the reported domestic disturbance. In her deposition, Lackey testified that she actually was at 21st and Sherman, which is about five miles west of Post and I-70. R. 183. The Indianapolis City Map indicates that the route Lackey took from 21st and Sherman to 38th and Post is a distance of about seven and one half (7%) miles. The Police Transcript of Radio Traffic [R. 58-59] shows that six minutes and - thirty-one seconds elapsed-between the time she acknowledged the run and when she reported the accident-which includes the time she needed to complete the fueling of her vehicle at 21st and Sherman and the time she was stunned and unable to reach her radio immediately following the accident.
. The Indianapolis Police Review Board made, inter alia, the following findings:
a. Officer Lackey was on a non-emergency run. - (Emphasis added).
b. She violated the Department Policies at the time of the collision.
c. She was not in control of the police car during that time.
d: The light was red at the time for her.
e. She could have prevented it from happening as she was responding to assist officers already on the scene of a domestic disturbance. (Emphasis added.)
Tr. Vol. I, p. 149.
The experts, here Lackey's fellow officers, consider this type of call to be a non-emergency. It requires an immediate response, but not an emergency response-IPD recognizes that there is a difference. I refer my colleagues to R. 145-148A, the official IPD vehicle operator's guide, for IPD procedures.
. The first version was LC. 34-4-16.5-1 et seq. (1971). The current version was enacted in 1974.
. "Effect, v. To do, to produce; to make, to bring to pass; to execute; enforce; accomplish." Black's Law Dictionary 605 (4 ed. 1968). See e.g., To Effect a Robbery: "Any assault with intent to rob is an attempt to effect a robbery." United States v. Spain (1940), D.C.Ill., 32 F.Supp. 28, 30.
. Judge Chezem's "slippery slope/floodgate" argument misses the point. First, of course, our supreme court addressed this kind of argument twenty years ago finding that "[i]t is unnecessary to sound the fire alarm until the fire has started." Haas v. South Bend Comm. School Corp. (1972), 259 Ind. 515, 289 N.E.2d 495, 500.
Second, the argument is paralogistic. A police officer who fails to arrive at the scene of a possible crime because of carelessness, negligence, or recklessness, is less than worthless. He (or she) has been put on the street to "protect and serve" the public, not to place innocent members of the public in peril simply because the officer uses poor judgment. It is better for an officer to get to the scene thirty seconds later-than not get there at all. Contrast this to the officer, who while in the process of failing to arrive, injures third parties An accident involving a police officer (like Lackey's) ties up more police officers-which of course, prevents them from enforcing the law-and requires the response of additional emergency vehicles, eg., ambulances, fire/rescue, and cleanup equipment, thereby creating risks of additional accidents (all while the original suspect most likely goes on his merry way). It seems to me that personal accountability creates an incentive for police officers to use their heads and improve their judgment, which in turn improves law enforcement.
Third, Judge Chezem misunderstands the above comment-Nothing in this comment indicates that Lackey was or was not needed (that information is in the Record and was decided by her peers). What I am saying is that unless she arrives, she is/was worthless, to which Judge Chezem agrees: "[Olnce they [officers] are dispatched that it is necessary for them to arrive at the scene." See n. 2, Judge Chezem's opinion.