dissenting.
I dissent. IND.CODE § 34-4-16.5-5(a) states that "[a] judgment rendered with respect to or a settlement made by a governmental entity bars an action by the claimant against an employee whose conduct gave rise to the claim resulting in that judgment or settlement."
Several decisions make clear that the suit against the individual employees in the present case was barred once the claim against the governmental entity was concluded for any reason. In Burks v. Bolerjack (1981), Ind., 427 N.E.2d 887, 889, our Supreme Court stated:
"The language of the statute is plain and unambiguous. If a governmental employee's conduct gives rise to a claim in tort against the employing governmental entity, any "judgment rendered with respect to the governmental entity, or any 'settlement' which the governmental entity executes, bars an action against an employee."
See also, Bd. of Com'rs of Cass County v. Nevitt (1988), Ind.App., 448 N.E.2d 333, 889 (plaintiff's removal of governmental entity from suit constituted a judgment pursuant to IND.CODE § 34-4-16.5-5(a) barring suit against the governmental employee);
Teague v. Boone (1982), Ind.App., 442 N.E.2d 1119 (failure to give notice of claim bars suit against employee as well as governmental entity);
Coghill v. Badger (1981), Ind.App., 418 N.E.2d 1201, 1213 (IND.CODE § 34-4-16.5-5(a) bars an action against a governmental employee when summary judgment granted for the political subdivision on the basis of failure to comply with the notice requirements of the Tort Claims Act).
The result is not altered by the Rasmus-sens' assertion that Hanas owed a specific duty to observe firemen boarding the truck, for safety purposes. The action is based upon the alleged failure to perform duties within the scope of Hanas employment with the City of Hammond. In order to avoid the dictates of IND.CODE § 34-4-16.5-5(a), the conduct on the part of Hanas would have had to have been so outrageous that it was beyond the scope of his employment. See, Jacobs v. City of Columbus, etc. (1983), Ind.App., 454 N.E.2d 1253, 1258-1262. The Rasmussens made no such allegation.
The trial court erred in not dismissing the suit against the individual governmental employees along with the governmental unit.