Indiana Municipal Law

Harness v. Schmitt, 924 N.E.2d 162 (Ind. Ct. App. 2010) – Governmental Immunity

In a recent Indiana Municipal law case, the presence of a police officer during the service of a wrongful eviction notice did not affect the police officer’s governmental employee immunity because the officer was present for the purpose of preventing a possible breach of the peace.

Mark Harness Jr. appealed from a grant of summary judgment in favor of the Town of Winona Lake and one of its police officers, Paul Schmitt. On January 12, 2007, Hunter Carlile went to the police station to enlist the help of Paul Schmitt to serve an eviction notice on Harness as well as to change the locks on Harness’s home. At the time, Harness was purchasing the house on contract from Carlile and had possession of the home. When Carlile and Schmitt arrived at the property, Harness was not present; however, Daniel Linton was. When Linton questioned the eviction, he noticed that Schmitt placed his hand on his gun. Linton decided not to resist or challenge the eviction because he felt threatened by Schmitt. So, Linton helped Carlile remove property from the house. Carlile also changed the locks.

The issue in this case is whether the trial court’s grant of summary judgment on the ground that Schmitt was engaged in law enforcement and thus, was protected by governmental immunity, was appropriate. In order to determine whether Ind. Code 34-13-3-3(8) provides a police officer with immunity, a court must determine whether the officer was acting within the scope of his or her employment when the injury to the plaintiff occurred and next, whether the officer was engaged in the enforcement of law at that time.

This court held that Schmitt was acting within the scope of his employment and was engaged in law enforcement when he accompanied Carlile to Harness’s home. The court assumed that there was a wrongful eviction in this case for the purposes of argument, although there was a dispute as to whether the eviction notice was valid. Even if Schmitt’s involvement in the eviction was negligent, he still could be immune from liability. A police officer’s performance of his duties in an otherwise illegal manner does not necessarily take those activities outside the scope of his employment or beyond the realm of law enforcement. The court declined to hold that Schmitt agreeing to accompany Carlile to Harness’s house in order to suppress a possible breach of the peace was outside of the scope of his employment because police officers are required to preserve the peace, to prevent offenses, to guard the public health, and to enforce laws. The court also declined to hold that an officer’s presence at a place where a breach of the peace might be anticipated is, as a matter of law, outside the definition of “law enforcement.” The court reasoned that because accompanying private individuals in situations where there is a concern that a breach of the peace may occur is a “routine part” of a police officer’s job, it does not want to discourage police officer’s from their routine police duties by denying immunity under the tort claims act.

Jeremy L. Fetty is an associate at Parr Richey whose practice focuses on corporate law, utility law, municipal law, and labor and employment law. The statements contained herein are for information purposes only and are not to be considered legal advice and should not be construed to form an attorney-client relationship. If you have questions regarding this article, please contact an attorney.

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