Seymour National Bank v. State

HUNTER, Justice,

dissenting in part, concurring in part.

I concur with the majority in its conclusion that the scope of immunity established by the legislature in Ind.Code § 34-4-16.5-3(7) (Burns 1980 Supp.) does not embrace conduct of a willful and wanton nature. I must respectfully dissent from the majority opinion in two respects, however:

1. I am not persuaded the statutory phrase “enforcement of a law” is unambiguous; and

2. I am unable to join the conclusion the trial court should be affirmed in its decision to grant summary judgment.

*206The rationale for my position was fully explained in my dissent to this Court’s original opinion in this cause. Seymour Nat. Bank v. State, (1981) Ind., 422 N.E.2d 1223, 1227 (DeBruler, J., and Hunter, J., dissenting). For purposes of brevity, it is not necessary here to reiterate that analysis in toto.

Suffice it to say the term “enforcement,” however it might admit of a succinct definition, simply cannot be applied with any degree of exactitude or consistency to the wide range of governmentally-regulated activities. In the factual context before us — a high speed police chase prompted by facts sufficient to justify police action — we can resolutely describe the conduct as clearly within the ambit of the term “enforcement” of a law. With equal certainty it can be opined that time will yield up circumstances wherein litigation will turn on esoteric debate over whether particular governmental conduct constituted the “enforcement,” “administration,” or “implementation” of a law. Id. That the resolution of those disputes will be guided by the likes of Webster and Roget points up the ambiguity of the term “enforcement” which attaches not on its face, but in its application.

Conceding the applicability of the term to the instant case, it still cannot be said as a matter of law the police conduct at issue fell within the limited scope of the statute. Whether the police officer’s conduct constituted mere negligence, as within the statute, or willful and wanton misconduct, as outside the scope of immunity is a question of fact peculiarly incapable of resolution via summary judgment. That conclusion is necessitated by the strictures of Ind.R.Tr.P. 56 and our common law. See, e. g., Stapinski v. Walsh Const. Co., Inc., (1979) Ind., 395 N.E.2d 1251; Clouse v. Peden, (1962) 243 Ind. 390, 186 N.E.2d 1. Consequently, like the Court of Appeals, I believe the summary judgment rendered by the trial court was inappropriate.

This case is one of those upon which legal minds can properly differ. It is also one with significant ramifications. The legislature would do well to examine the language employed in Ind.Code § 34-4-16.5-3(7), supra, and clarify its import; meanwhile, troublesome questions surrounding the issue before us lie ahead.

For the foregoing reasons, I would vacate our original opinion and reinstate the opinion of the Court of Appeals found at Seymour Nat. Bank v. State, (1979) Ind.App., 384 N.E.2d 1177.

I dissent in part and concur in part.