By Kevin Corcoran
A Marion County judge ruled Wednesday that a bystander injured in a 1999 high-speed police chase can sue the city and Indianapolis police for damages arising from his injuries.
Fatal collision: A 1999 police chase ended with two cars demolished and two passengers dead. The driver of the car hit by the fleeing motorist has sued the city. - The Star / 1999 file photo
Under Indiana law, government employees acting within the scope of their jobs cannot be held liable for losses resulting from law enforcement activities. This is called "law enforcement immunity."
• New thinking: In a 1981 case, Justice Roger DeBruler of the Indiana Supreme Court offered a dissenting view. DeBruler noted that governors, judges, legislators and other public and private employees are expected to operate motor vehicles with care at all times. So, he asked, why should police be given blanket immunity from liability?
• Appeals: The Indiana Court of Appeals adopted DeBruler's line of reasoning in a Lake County case decided in January, and Judge David Dreyer of Marion Superior Court seconded that court's logic in a ruling Wednesday. Both say a state law requiring drivers of emergency vehicles to show "due regard" for other motorists should supersede law enforcement immunity.
• Next: A case before the Indiana Supreme Court could settle the question.
Superior Court Judge David Dreyer rejected the city's claim that officers involved in the 50-second chase, which reached speeds of up to 80 mph, had "law enforcement immunity," a concept that has blocked other lawsuits after high-speed chases went awry.
"Police officers engaged in a chase are not entitled to immunity for negligence," Dreyer concluded. "It is therefore left to a jury to decide the fault in this case, that is, who caused the accident: the police officer, the suspect who chose to flee, or a combination of both?"
City and police officials had asked the court to dismiss the personal-injury lawsuit filed by Richard Garman, 27, a former Indianapolis resident who lives in Ohio.
Garman could not be reached for comment, but his lawyers were delighted by the decision.
"The whole point is cops shouldn't get to speed recklessly down the street in pursuit of minor violations," said Evansville lawyer Terry A. White. "There's a difference between chasing a bank robber and chasing someone who may or may not have a stolen license plate."
Garman was hit by a driver fleeing police. An officer suspected the car's plate was stolen, but that turned out to be wrong. Garman's fiancee was killed in the crash, as was a passenger in the fleeing car.
A trial in Garman's case is set for Sept. 27 but could be delayed. City attorney Kobi M. Wright said city officials disagreed with the ruling and were likely to appeal.
John Prince, who leads a police watchdog organization, said Garman's lawsuit and a similar suit in Lake County that's on appeal before the Indiana Supreme Court could prompt police departments to revise their chase policies, limiting officers' ability to pursue minor violators.
"It is unfortunate that it takes a lawsuit to make change, but if that's what it takes, it is a good thing," said Prince, who runs the Leaf/Radford Alliance, a Central Indiana watchdog group. "Some departments have taken huge steps in restricting chases, but IPD and the Marion County Sheriff's Department are almost backwards in their approach."
In his ruling, Dreyer said the state's tort-claim law does not prohibit lawsuits involving careless use of police vehicles -- even when police are trying to enforce the law.
Instead, Dreyer stated, another state law applies that says operators of emergency vehicles have a "duty to drive with due regard for the safety of all persons" and operators can be held liable for "reckless disregard for the safety of others."
Dreyer cited an appellate court ruling in a Lake County case issued in January. A bystander there was allowed to sue Gary police after an officer collided with his vehicle during a chase, causing injury.
The decision cleared an appellate court and is before the Indiana Supreme Court, which heard oral arguments in June. It typically takes the court months to issue a ruling. The court could uphold, reverse or modify that appellate ruling, reshaping the landscape for victims of police chases.
Dreyer's ruling and the Lake County case would lift a heavy burden on plaintiffs, who now must show police broke the law or acted with criminal intent when engaging in chases, said Scott A. Benkie, an Indianapolis lawyer who's challenged police immunity in the past and lost.
"This would break new ground," said Benkie. He represented Lester Bublitz, whose wife, Rebekah, and 7-month-old son were killed as bystanders in an I-465 pursuit in August 1997.
Their wreck was different from Garman's crash, Benkie said, because it involved the use of devices police lay in the road to puncture the tires of fleeing vehicles.
Garman could recover up to $300,000 to apply toward medical bills exceeding $280,000. His injuries from the crash included cuts to his liver and spleen, broken bones, glass embedded in his back and neck, chest and back pain and emotional distress and clinical depression caused by the death of his fiancee, J. Elizabeth Foster, 19, in the crash.
Patrolman Robert Rider began the nighttime pursuit on Nov. 7, 1999, after he saw a car at 38th Street and Byram Avenue and a computer check indicated its license plate was stolen. Police say Rider activated his siren, but the suspect's car, traveling east on 38th Street, ran the traffic lights at Illinois and Meridian streets.
A westbound car driven by Garman, then 21, was making a left turn onto southbound Meridian Street with the green arrow, according to police records. The car police were pursuing then collided with Garman's, sending his vehicle against a building on the southeast corner.
Police caught the fleeing driver, Jessie L. Smith, then 19, Indianapolis, shortly after the crash, which also killed Derrick Gray, 18, Indianapolis, a passenger in the car Smith was driving.
Smith was tried on seven charges, including two counts of fleeing police, causing death. But a Marion County jury acquitted Smith of the charges involving responsibility for the two deaths and the serious injuries suffered by Garman.
Smith was convicted of three counts of the lesser offense of resisting law enforcement. He was sentenced to three years in prison, and state records show he was released in May 2004.
Brian Poindexter, who prosecuted Smith, has said he thought the jury based its decision on the fact that Smith's license plate was not stolen and the chase was brief.
City officials say Foster's parents notified the city they intended to sue but didn't. Gray's estate never filed a crash-related claim against the city.
Call Star reporter Kevin Corcoran at (317) 444-2770.