March 15, 2011
On March 14, 2011, the Indiana Court of Appeals issued a memorandum decision, uncitable as authority under
App. R. 65(D), in
City of Peru v. Lewis, Case No. 85A04-1010-CT-61, that held 1) that a division within a political subdivision is not its own separate political subdivision for the purposes of governmental immunity, and 2) that a political subdivision is immune from suit for the failure to provide adequate fire protection.
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In this case, the plaintiff discovered a fire in the first floor living room of her
home. She called 911 and the fire department arrived on the scene. However, the fire department did not immediately enter the house to look for the family. After the firemen eventually entered the house, they found the family, including one dead child. The plaintiffs filed a complaint against Peru, the Peru Fire Department, and others. Peru and the Peru Fire Department filed a motion for summary judgment, on the grounds that the plaintiffs' claims were "barred by common law immunity, which bars liability of governmental entities for negligent firefighting or rescue." The trial court denied that motion. An interlocutory appeal followed.
On appeal, the Court found that the plaintiffs' claims were too inclusive, because the complaint named too many defendants.
At the outset, we note that the Lewises sued Peru and its Fire Department. In accordance with
Indiana Code section 34-6-2-110, the definition of a political subdivision includes a city but not a division or department of a city. The "department" of a city is merely a vehicle through which government fulfills its policy functions and is not a governmental entity unto itself. And a non-existent entity cannot be sued or brought into court by summons or otherwise. As a result, the trial court should have dismissed the Fire Department — in its individual capacity — from the action.
The Court went on to find that Peru was entitled to governmental immunity.
When examining the various circumstances that were presented in these cases, we acknowledge that there is virtually no limit to the types of claims that citizens might advance concerning municipal inadequacies in providing adequate fire protection, such as adequate staffing, inadequate training, etc. As discussed above, the Lewises contend that the fire department was negligent in supplying fire protection without making a search for fire victims a priority; by favoring ventilation of the house instead of searching for victims; and by not communicating to firefighters that people might be in the house, which communication might have caused them to make potential rescue a more urgent priority once the first floor fire was under control. In our view, these allegations — however characterized — fall within the ambit of the failure to provide adequate fire protection and are subject to common law immunity in accordance with Lamb and Gates, both of which draw upon our Supreme Court's holding in Benton that concerns municipal services closely akin to the failure to prove police protection.
Although we are sympathetic to the Lewises' plight in light of this terrible tragedy, we are compelled to conclude that the doctrine of common law immunity bars their claims against the City Defendants. Thus, the trial court erred in denying the City Defendants' motion for summary judgment and we remand this case with instructions that the trial court enter summary judgment in favor of the City Defendants.
Sometimes, not even the most sympathetic facts can achieve a favorable outcome. Political subdivisions are immune from suits for inadequate fire protection. The Court's introductory point is also worth noting, though. Plaintiffs need not name all relevant departments within a political subdivision as defendants - naming the political subdivision itself is sufficient.
Lessons:
- A department within a political subdivision is not a political subdivision.
- Political subdivisions are immune from claims for negligent failure to provide adequate fire protection.
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