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Kemezy v. Peters

Supreme Court of Indiana
Oct 25, 1993
622 N.E.2d 1296 (Ind. 1993)

Summary

holding intentionally criminal and even wanton or willful use of force by police officer, may be within scope of employment where the wrongful acts "originated in activities so closely associated with the employment relationship as to fall within its scope"

Summary of this case from Strain v. Minnick

Opinion

No. 49S00-9304-CQ-479.

October 25, 1993.

Michael K. Sutherlin, Ida Coleman Lamberti, Indianapolis, for appellant Jeffrey Kemezy.

David B. Roesner, Joseph G. Edwards, Shirey and Edwards, Muncie, for appellees Bruce Qualls, and the City of Muncie.


This cause comes to us on the certification of three questions of state law from the United States District Court for the Southern District of Indiana, Indianapolis Division. This Court has jurisdiction to answer the certified questions pursuant to Indiana Rules of Appellate Procedure 15(O).

This case is currently postured with the District Court considering defendant Bruce Qualls' motion for summary judgment. The basis of the motion is Qualls' assertion of immunity under Ind. Code Ann. § 34-4-16.5-3(7) (West Supp. 1992).

The evidence most favorable to the nonmoving party, Jeffrey Kemezy, the plaintiff, which has been submitted in connection with the motion for summary judgment is as follows: On March 31, 1989, James Peters, a Muncie police officer, was working at a bowling alley as a security guard. Kemezy and some companions were patrons that evening. During the course of the evening, Peters and Kemezy were engaged in a physical confrontation which culminated in Peters placing Kemezy in handcuffs and informing him that he was under arrest. Peters then called the Muncie police department and requested that Kemezy be transported to the county jail.

Qualls and his partner were dispatched to transport Kemezy. When they arrived at the bowling alley, Kemezy was sitting on a bowling ball rack, handcuffed, dazed and complacent. Qualls pushed Kemezy into the bowling rack. In addition, outside, on the way to the patrol car, Qualls used his stun gun on Kemezy and struck him with either his fist or nightstick. Kemezy was then transported to the county jail.

Kemezy sued to recover for his alleged injuries, claiming, in part, that Qualls used excessive force. Qualls moved for summary judgment on the grounds that he was immune under Section 3(7). The District Court found that there was no controlling authority regarding whether an officer's intentionally-tortious use of excessive force in the course of an arrest or during a custodial detention is conduct entitled to immunity. Accordingly, the District Court certified three questions to this Court:

Ind. Code § 34-4-16.5-3 provides:
A governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from:
. . . .
(7) the adoption and enforcement of or failure to adopt or enforce a law (including rules and regulations), unless the act of enforcement constitutes false arrest or false imprisonment.

(1) If a law enforcement officer commits the intentional tort of assault and battery by using excessive force in the course of or after an otherwise lawful arrest, can the officer's intentionally tortious conduct be "enforcement of a law" for the purposes of Ind. Code § 34-4-16.5-3(7)?

(2) If a law enforcement officer commits the intentional tort of assault and battery by using excessive force in the course of or after an otherwise lawful arrest, can the officer's intentionally-tortious conduct be within the "scope of the employee's employment" for purposes of Ind. Code § 34-4-16.5-3?

(3) If a law enforcement officer's conduct constituting the intentional tort of assault and battery (as described above) can be within the scope of the officer's employment, and if such conduct also can be "enforcement of a law," can such conduct be "within the scope of the employee's employment" but yet not "enforcement of a law"?

Our recent decision in Quakenbush v. Lackey (1993), Ind., 622 N.E.2d 1284, addresses the ultimate issue underlying the certified questions. In Quakenbush, we held that the legislature intended that Section 3(7) confer immunity only when the plaintiff seeks recovery for the breach of a public duty, but provides no refuge to governmental entities or their employees for the breach of a private duty. Applying this principle to the facts in Quakenbush, we held that a law enforcement officer who was alleged to have negligently collided with a vehicle while on her way to the scene of a crime was not immune under Section 3(7).

Under Indiana law, law enforcement officers owe a private duty to refrain from using excessive force in the course of making arrests. City of Indianapolis v. Ervin (1980), Ind. App., 405 N.E.2d 55, 60; Peaches v. City of Evansville (1979), 180 Ind. App. 465, 471, 389 N.E.2d 322, 327, cert. denied, 444 U.S. 1033, 100 S.Ct. 704, 62 L.Ed.2d 669 (1980); Shipley v. City of South Bend (1978), 175 Ind. App. 464, 468, 372 N.E.2d 490, 493. See also Ind. Code Ann. § 35-41-3-3 (West 1986). Accordingly, the use of excessive force is not conduct immunized by Section 3(7).

The certified questions also seek guidance about whether intentional conduct is outside the scope of a law enforcement officer's employment. This question arises because of this Court's modified opinion in Seymour National Bank v. State (1981), Ind., 428 N.E.2d 203, 204, appeal dismissed 457 U.S. 1127, 102 S.Ct. 2951, 73 L.Ed.2d 1344 (1982), in which Justice Prentice wrote:

However, an employee's acts, although committed while engaged in the performance of his duty, might be so outrageous as to be incompatible with the performance of the duty undertaken. In such a case, it cannot be said that an injury resulting therefrom resulted from the performance of the duty. Such acts, whether intentional or willful and wanton, are simply beyond the scope of the employment.

. . . .

. . . With regard to those acts that are so incompatible with the performance of duty as to be outside the scope of the employment, there is no statutory grant of immunity either to the employee or to the governmental entity, which has no need for it, inasmuch as there is no basis for liability in it.

428 N.E.2d at 204 (footnote omitted). This language has properly been characterized as dicta. Tittle v. Mahan (1991), Ind., 582 N.E.2d 796, 798; Riggin v. Board of Trustees of Ball State Univ. (1986), Ind. App., 489 N.E.2d 616, 631; Jacobs v. City of Columbus (1983), Ind. App., 454 N.E.2d 1253, 1260.

In Indiana, an employee's tortious act may fall within the scope of his employment "if his purpose was, to an appreciable extent, to further his employer's business." Stropes v. Heritage House Childrens Ctr. (1989), Ind., 547 N.E.2d 244, 247. Even the commission of an intentional criminal act may be considered as being within the scope of employment if "the criminal acts originated in activities so closely associated with the employment relationship as to fall within its scope." Gomez v. Adams (1984), Ind. App., 462 N.E.2d 212 (security guard confiscated customer's identification; employer liable for conversion); Tippecanoe Beverages v. S.A. El Aguila Brewing Co., 833 F.2d 633 (7th Cir. 1987) (applying Indiana law) (employee converted cashier's check — employer liable for the conversion). The question of whether the tortious acts of an employee are within the scope of his employment is usually a question of fact, Stropes, 547 N.E.2d at 249, but may be determined as a matter of law. Boyle v. Anderson Fire Fighters Ass'n (1986), Ind. App., 497 N.E.2d 1073, 1078. However, the question of whether the governmental employee was acting within the scope of his employment at the time of the incident (not the degree of culpability) remains the central focus of the inquiry. Carver v. Crawford (1990), Ind. App., 564 N.E.2d 330, 333. Even willful or wanton behavior does not necessarily remove one from the scope of his employment. See Indiana Department of Correction v. Stagg (1990), Ind. App., 556 N.E.2d 1338, 1343.

Of course, we make no determination on the merits of the cause of action which is now before the District Court. Whether plaintiff has a surviving cause of action, once the rule we have stated is applied, is to be determined by the District Court and not this Court.

The certified questions answered, this cause is remanded to the District Court for further proceedings.

DeBRULER, GIVAN and DICKSON, JJ., concur.

SHEPARD, C.J., concurs, with separate opinion.


While I did not join the decision today in Quakenbush v. Lackey (1993), Ind., 622 N.E.2d 1284, I regard it as settling the issue and will treat Quakenbush as stare decisis until such time, if any, as the Indiana General Assembly elects to modify the Indiana Tort Claims Act. Accordingly, I join in the decision in this case and the remaining cases today on authority of Quakenbush.


Summaries of

Kemezy v. Peters

Supreme Court of Indiana
Oct 25, 1993
622 N.E.2d 1296 (Ind. 1993)

holding intentionally criminal and even wanton or willful use of force by police officer, may be within scope of employment where the wrongful acts "originated in activities so closely associated with the employment relationship as to fall within its scope"

Summary of this case from Strain v. Minnick

holding that "law enforcement officers owe a private duty to refrain from using excessive force in the course of making arrests," and that "the use of excessive force is not conduct immunized" under the ITCA

Summary of this case from Hudkins v. City of Indianapolis

holding that police officers owe a private duty to refrain from using excessive force when they are making arrests.

Summary of this case from Weaver v. Combs

holding that employee's tortious act may fall within the scope of his employment and render employer vicariously liable under certain circumstances

Summary of this case from Mullins v. Parkview Hosp., Inc.

holding that "[i]n Indiana, an employee's tortuous act may fall within the scope of his employment if his purpose was, to an appreciable extent, to further his employer's business."

Summary of this case from Ingram v. City of Indianapolis

stating "the use of excessive force is not conduct immunized by [the ITCA]"

Summary of this case from Price v. Marion Cnty. Sheriff's Dep't

noting that the "commission of an intentional criminal act" may be within an employee's scope of employment

Summary of this case from St. John v. Fritch

In Kemezy v. Peters, 622 N.E.2d 1296 (Ind. 1993), we said an employee's tortious act may fall within the scope of his employment "if his purpose was, to an appreciable extent, to further his employer's business."

Summary of this case from GABY v. DULIN

In Kemezy v. Peters, 622 N.E.2d 1296, 1298 (Ind. 1993), the Indiana Supreme Court held that when a police officer commits a tortious act it may fall within the scope of his employment "if his purpose was, to an appreciable extent, to further his employer's business."

Summary of this case from Pfenning v. Clarkson

In Kemezy v. Peters, 622 N.E.2d 1296, 1297 (Ind. 1993), the Indiana Supreme Court assumed that an officer could commit assault and battery by using excessive force in the course of a lawful arrest.

Summary of this case from Baldauf v. Davidson

In Kemezy v. Peters, 622 N.E.2d 1296 (Ind. 1993), which was decided the same day as Quakenbush, the Indiana Supreme Court ruled that police officers owe a private duty to refrain from applying excessive force, the breach of which duty does not give rise to immunity under the Indiana Tort Claims Act. Six years later, however, the state's high court rejected this "public duty" versus "private duty" distinction in Benton v. City of Oakland City, 721 N.E.2d 224, 230 (Ind. 1999).

Summary of this case from Campbell v. City of Indianapolis

In Kemezy v. Peters, 622 N.E.2d 1296 (Ind. 1993), the Indiana Supreme Court reaffirmed its holdings in Stropes and Gomez holding again that "[e]ven willful or wanton behavior does not necessarily remove one from the scope of his employment."

Summary of this case from Moore v. Hosier, (N.D.Ind. 1998)

In Kemezy v. Peters, 622 N.E.2d 1296, 1298 (Ind.1993), our supreme court found that an employee's tortious act may fall within the scope of his employment if his purpose was, to an appreciable extent, to further his employer's business.

Summary of this case from Ball v. Jones

In Kemezy, the supreme court applied the test fromQuackenbush, which had been issued the same day, and determined that the ITCA did not immunize a police officer's use of excessive force, reasoning that "law enforcement officers owe a private duty to refrain from using excessive force in the course of making arrests."

Summary of this case from City of Anderson v. Davis

In Kemezy v. Peters, 622 N.E.2d 1296 (Ind. 1993), we said an employee's tortious act may fall within the scope of his employment "if his purpose was, to an appreciable extent, to further his employer's business."

Summary of this case from Celebration Fireworks, Inc. v. Smith
Case details for

Kemezy v. Peters

Case Details

Full title:JEFFREY KEMEZY, APPELLANT, (PLAINTIFF BELOW) v. JAMES PETERS, INDIVIDUALLY…

Court:Supreme Court of Indiana

Date published: Oct 25, 1993

Citations

622 N.E.2d 1296 (Ind. 1993)

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