“[T]he critical determination is not whether a governmental entity failed to follow procedures; it is whether a governmental entity or employee failed to enforce a 4 Indeed, Child Services admits that it “has never alleged that law enforcement immunity applies to it.” Child Services’ Br. at 10. 21 law.”
How later courts described this case
- “[T]he critical determination is not whether a governmental entity failed to follow procedures; it is whether a governmental entity or employee failed to enforce a 4 Indeed, Child Services admits that it “has never alleged that law enforcement immunity applies to it.” Child Services’ Br. at 10. 21 law.”
- applying immunity for city defendants who failed to enforce explicit animal control ordinances
Written by the judges who cited it.
The opinion
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Matthew J. McGovern David L. Jones
Evansville, Indiana Robert W. Rock
Evansville, Indiana
ATTORNEYS FOR AMICI CURIAE
INDIANA ASSOCIATION OF CITIES & TOWNS,
AND INDIANA MUNICIPAL LAWYERS ASSOCIATION
Timothy A. Manges
FILED
James P. Fenton
Patrick L. Proctor
Fort Wayne, Indiana
Jun 21 2011, 10:53 am
______________________________________________________________________________
CLERK
In the of the supreme court,
court of appeals and
tax court
Indiana Supreme Court
_________________________________
No. 82S01-1102-CV-77
SHAWN DAVIS B/N/F MISTY DAVIS,
Appellant (Plaintiff below),
v.
ANIMAL CONTROL – CITY OF EVANSVILLE,
EVANSVILLE HOUSING AUTHORITY, AND
CITY OF EVANSVILLE,
Appellees (Defendants below).
_________________________________
Appeal from the Vanderburgh Circuit Court, No. 82C01-0702-CT-75
The Honorable Carl A. Heldt, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 82A01-0911-CV-527
_________________________________
June 21, 2011
Sullivan, Justice.
Six-year-old Shawn Davis seeks to impose liability on the City of Evansville and its An-
imal Control department for injuries sustained when he was attacked in his neighborhood by a
Rottweiler. We conclude that Davis‘s claim is that the City failed to enforce its Animal Control
Ordinance. Because the Indiana Tort Claims Act provides immunity to governmental entities for
any loss resulting from the failure to enforce a law, Davis cannot recover from the City in these
circumstances.
Background
On February 18, 2005, a 60-pound Rottweiler named Romeo attacked six-year-old
Shawn Davis. Davis had been playing outside with Jessica Bays and her small dog. Davis had
pursued Bays‘s small dog down the sidewalk when Romeo, who was unleashed, ran out of the
house on the corner of the street and attacked Davis. Bays kicked Romeo away from the boy,
and Romeo ran back to the corner house from which it had come. Davis sustained serious inju-
ries to his arm and back as a result of the attack.
Bays recognized Romeo as a dog she had seen dropped off and picked up from the corner
house repeatedly for several weeks. In her deposition, Bays testified that she had called the City
of Evansville‘s Animal Control department (―Animal Control‖) several times within the week
prior to the attack to report that ―there was a very vicious dog running the neighborhood.‖ Ap-
pellant‘s App. 240. She reported that although she was not sure who the dog belonged to, she
knew ―the people that live[d] at the corner house of Harlan and Sycamore [were] supposed to be
taking care of it, and it [did not] seem like anyone [was] home.‖ Id. She saw an Animal Control
vehicle drive through the neighborhood once after she first called to report the dog.
In addition, Animal Control had received a report of a Rottweiler named Romeo biting a
child approximately six months prior to the attack on Davis. The dog involved was held for a
2
time after the biting incident and eventually released to its owner. That dog‘s owner and address
were different than the owner and address involved in the present case; it cannot be determined
conclusively from the record whether the same dog was involved in both attacks.1
In February, 2007, Davis‘s mother, as his next friend, filed a complaint against Animal
Control and the City of Evansville (referred to collectively as the ―City Defendants‖).2 The
complaint alleged that Animal Control ―was well aware of this dog‘s violent propensities based
upon numerous prior attacks by this dog‖ and that the City Defendants had failed to protect Da-
vis from the attack. Appellant‘s App. 14. The trial court granted the City Defendants‘ motion
for summary judgment following a hearing. Specifically, the trial court found that the City De-
fendants were entitled to ―law enforcement immunity‖ under the Indiana Tort Claims Act.
A divided panel of the Court of Appeals reversed. In an unpublished memorandum deci-
sion, the Court of Appeals held that the City Defendants were not entitled to either statutory law
enforcement immunity or common law immunity. Davis v. Animal Control – City of Evansville,
No. 82A01-0911-CV-527, 2010 Ind. App. Unpub. LEXIS 1197, 2010 WL 3377720, at *6 (Ind.
Ct. App. Aug. 27, 2010). Judge Kirsch dissented.
The City Defendants sought, and we granted, transfer, Davis v. Animal Control – City of
Evansville, — N.E.2d — (Ind. 2011) (table), thereby vacating the opinion of the Court of Ap-
peals, Ind. Appellate Rule 58(A).
1
Nevertheless, the Court of Appeals inferred in Davis‘s favor that the dog involved in the earlier biting
incident was the same dog that had attacked Davis and that Animal Control had notice of this dog and its
history. Davis v. Animal Control – City of Evansville, No. 82A01-0911-CV-527, 2010 Ind. App. Unpub.
LEXIS 1197, 2010 WL 3377720, at *4 (Ind. Ct. App. Aug. 27, 2010).
2
The complaint also named the Evansville Housing Authority as a defendant. However, the Evansville
Housing Authority has proceeded separately from the City Defendants and is not part of the proceedings
giving rise to this appeal. See Davis, 2010 WL 3377720, at *2 n.3.
3
Discussion
The dispositive issue in this case is whether the City Defendants are immune under the
Indiana Tort Claims Act (―ITCA‖) because they qualify for law enforcement immunity. That
provision of the ITCA provides:
A governmental entity or an employee acting within the scope of the employee‘s
employment is not liable if a loss results from the following:
...
(8) The adoption and enforcement of or failure to adopt or enforce a law (includ-
ing rules and regulations), unless the act of enforcement constitutes false arrest or
false imprisonment.
Ind. Code § 34-13-3-3(8) (2008).
Davis argues that law enforcement immunity does not apply because his complaint is not
based on the City Defendants‘ failure to enforce the law but rather on their failure to follow their
own procedures for determining whether an animal is dangerous as set forth in the Evansville
Animal Control Ordinance (―Ordinance‖). The Court of Appeals majority agreed.
In holding that the City Defendants were not immune under the law enforcement provi-
sion of the ITCA, the Court of Appeals relied on our decision in Mullin v. Municipal City of
South Bend, 639 N.E.2d 278 (Ind. 1994), limited on other grounds, Benton v. City of Oakland
City, 721 N.E.2d 224, 231 (Ind. 1999). In that case, we considered whether the failure of an
emergency dispatcher to send an ambulance to a house fire despite a department policy stating
that medics would be dispatched to all fire calls where someone was thought to be inside fell
within the parameters of law enforcement immunity. Mullin, 639 N.E.2d at 280-83. We con-
cluded that ―the scope of ‗enforcement‘ is limited to those activities in which a governmental
entity or its employees compel or attempt to compel the obedience of another to laws, rules or
regulations, or sanction or attempt to sanction a violation thereof.‖ Id. at 283. Because the dis-
patcher in Mullin was not doing any of those things, the claim was not barred by the law en-
forcement provision. Id.
4
The Court of Appeals reasoned that just as the dispatcher in Mullin had failed to follow
the city‘s ambulance dispatch procedures, the City Defendants here had failed to follow the
city‘s rules in declaring Romeo dangerous, and ―unless and until a dog is declared dangerous,
there is nothing to enforce against another.‖ Davis, 2010 WL 3377720, at *4. Thus, the Court of
Appeals concluded that ―[t]he City Defendants‘ failure to follow its own rules [did] not fall with-
in the definition of ‗enforcement‘ for purposes of statutory immunity.‖ Id.
This was not the correct way to apply Mullin. Mullin did not hold that there was no law
enforcement immunity because city employees did not follow procedures; it held that there was
no law enforcement immunity because in responding to a fire emergency, the city was not en-
gaged in law enforcement. In Mullin, the city had tried to argue that law enforcement immunity
extended to its employees‘ failure to follow its ambulance dispatch procedures. 639 N.E.2d at
282. To the contrary, we said that what was required to establish immunity was that the activity
be one in which government either compels obedience to laws, rules, or regulations or sanctions
or attempts to sanction violations thereof.
Like Mullin, the critical determination is not whether a governmental entity failed to fol-
low procedures; it is whether a governmental entity or employee failed to enforce a law. In Mul-
lin, we held that responding to a fire emergency is not an activity involving government compul-
sion to obey laws, rules, or regulations or sanctions or attempts to sanction violations thereof.
But in this case, we believe it is clear that the plaintiff's claim does constitute an allegation that
the City Defendants failed to enforce the law. In granting summary judgment for the City De-
fendants, Judge Carl A. Heldt said the following about Davis‘s claim that he was entitled to re-
cover because of the City Defendants‘ failure to follow procedures:
[A]ll of the regulations and procedural steps contained in the subject ordinance
were designed to enforce [Evansville, Ind., Animal Control Ordinance] § 9.90.30
(G) [(2006)] which states that ―no person shall own, keep, or harbor a dangerous
animal within the city; except for dangerous animals in compliance with the or-
ders of the Commission as provided above.‖
5
Appellant‘s App. at 339-40. In his dissent in the Court of Appeals, Judge Kirsch makes much
the same point:
Th[e] procedures [that Davis complains were not complied with] are the enforce-
ment provisions of the [O]rdinance. They provide the procedures for determining
if an animal is dangerous and for seizing such an animal. Had the City followed
such procedures, it would have been enforcing a law, and its failure to follow such
procedures is a failure to enforce a law, a failure that is immune under the Indiana
Tort Claims Act.
Davis, 2010 WL 3377720, at *6 (Kirsch, J., dissenting).
We agree. The Ordinance contains an explicit prohibition: ―No person shall own, keep,
or harbor a dangerous animal within the city; except for dangerous animals in compliance with
the orders of the Commission . . . .‖ Evansville, Ind., Animal Control Ordinance § 9.90.30(G)
(emphasis in original deleted). The Ordinance provides that either a citizen or an Animal Con-
trol official can commence a proceeding to have an animal declared dangerous, id. § 9.90.30(C),
or an Animal Control official can declare an animal dangerous without such a proceeding, id. §
9.90.30(F); that certain precautionary measures may be imposed if an animal is declared danger-
ous, id. § 9.90.30(E); that a fine that may be imposed for failure to comply with such precautio-
nary measures, id. § 9.90.30(E)(12); and that the animal may be destroyed if none of such pre-
cautions would be sufficient, id. § 9.90.30(D). In our view, each of these procedures constitutes
an ―activit[y] in which a governmental entity or its employees compel or attempt to compel the
obedience of another to laws, rules or regulations.‖ Mullin, 639 N.E.2d at 283. As such, the al-
leged failure of the City Defendants to follow these procedures constitutes at worst a ―failure to .
. . enforce a law‖ for which the City Defendants are immune from liability under Indiana Code
section 34-13-3-3(8).
Because the City Defendants are immune under the ITCA, we need not and do not ex-
press any opinion as to the availability of any common law immunity.
6
Conclusion
The City Defendants are entitled to law enforcement immunity. We affirm the judgment
of the trial court.
Shepard, C.J., and Dickson, Rucker, and David, JJ., concur.
7