The Indiana Supreme Court has affirmed a trial court judge’s finding that the city of Evansville and its animal control division are not liable in a dog attack that seriously injured a boy.
Siding with Vanderburgh Circuit Judge Carl A. Heldt, the Supreme Court found that the Indiana Court of Appeals was in error when it reversed Judge Heldt’s decision.
In the case of Misty D. Davis v. Animal Control – City of Evansville, et al., No. 82S01-1102-CV-77, Misty Davis filed a complaint against the city and its animal control division in 2007, two years after a Rottweiler attacked her six-year-old son. Davis claimed that animal control “was well aware of this dog’s violent propensities based upon numerous prior attacks by this dog,” yet failed to protect her son from the animal.
The trial court found that the city defendants were entitled to law enforcement immunity under the Indiana Tort Claims Act, which provides immunity to governmental entities for any loss resulting from the failure to enforce a law. Davis appealed that decision, claiming law enforcement immunity did not apply because the complaint is not based on the 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. The Court of Appeals majority agreed. Judge James Kirsch dissented.
In reversing the trial court’s decision, the COA relied on the Supreme Court 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, the Supreme Court 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.
In Mullin, the Supreme Court concluded that the scope of enforcement is limited to 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. Because the dispatcher in Mullin was not doing any of those things, the claim was not barred by the law enforcement provision.
“This was not the correct way to apply Mullin,” the Supreme Court stated of the COA reversal in Davis. “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 engaged in law enforcement.”
The Supreme Court stated that a dog with the same name had attacked someone before Davis’ son was attacked, but the owner’s address and name were different in both cases; therefore, it’s not certain whether the dog previously picked up and held temporarily by the animal control division is the same one that attacked Davis’ son.
Holding that the plaintiff's claim does constitute an allegation that the city defendants failed to enforce the law, the Supreme Court ruled Davis is not entitled to collect damages from the defendants.