Court of Appeals of Indiana | Opinion 23A-CT-451 | October 30, 2023 Page 1 of 12

ATTORNEYS FOR APPELLANTS

Matthew R. Land

Brandon E. Tate

Waldron Tate Bowen Spandau LLC

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Pamela G. Schneeman

Knight Hoppe Kurnik & Knight, 

Ltd.

Carmel, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jerry Bewley and Deborah 

Bewley,

Appellants-Plaintiffs,

v.

Town of Speedway,

Appellee-Defendant.

October 30, 2023

Court of Appeals Case No.

23A-CT-451

Appeal from the

Marion Superior Court

The Honorable

James A. Joven, Judge

Trial Court Cause No.

49D13-2001-CT-2983

Opinion by Senior Judge Robb

Judges Weissmann and Kenworthy concur.

Robb, Senior Judge.
Court of Appeals of Indiana | Opinion 23A-CT-451 | October 30, 2023 Page 2 of 12

Statement of the Case

[1] Jerry and Deborah Bewley appeal the trial court’s grant of summary judgment 

to the Town of Speedway. The Bewleys sued the Town after the Town’s police 

K9 bit Jerry while the K9’s handler was pursuing a suspected felon. 

Concluding the Town is entitled to immunity under the Indiana Tort Claims 

Act, we affirm.

Facts and Procedural History

[2] On March 1, 2019, at 7:30 p.m. Officer Matthew Turpin of the Speedway 

Police Department (“SPD”) was dispatched to investigate a potential burglary. 

Officer Turpin is a trained K9 handler, and his K9 unit, Tom, was with him 

that night.

[3] Officer Turpin spotted a “suspicious vehicle[,]” Appellants’ App. Vol. II, p. 89,

which fled from him. He pursued, with lights and sirens activated. During the 

chase, a dispatcher advised Officer Turpin the vehicle had been reported as 

stolen.

[4] Meanwhile, Jerry Bewley (“Jerry”) had a part-time job delivering food for a 

restaurant. He arrived at a customer’s house in Speedway around 7:30 p.m. It 

was dark, but a streetlight illuminated the road in front of the customer’s house. 

Jerry was wearing navy blue pants and a jacket.
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[5] As Jerry and the customer conducted their transaction on the customer’s front 

porch, they heard police sirens and saw red and blue lights flashing in the 

distance. Next, Jerry saw a vehicle being chased by a SPD vehicle. The fleeing 

vehicle crashed into a parked car down the street, and two people “jumped 

out.” Id. at 51.

[6] The customer asked Jerry if he wanted to step inside her home, but Jerry 

declined. Instead, he went to the customer’s driveway and crouched next to her 

vehicle, positioning himself so he could look through its windows. Jerry 

watched as one of the men who had jumped out of the fleeing vehicle ran 

between the customer’s house and a neighbor’s house.

[7] Officer Turpin, who was driving the SPD vehicle, also saw a suspect run 

between two houses and out of sight. He stopped in front of the customer’s 

house and got out. Jerry did not hear Officer Turpin say anything. Jerry 

thought Officer Turpin should have seen him upon exiting the police vehicle, 

because “there was nothing between me and his car to obstruct any kind of 

view of me.” Id. at 55.

[8] Officer Turpin opened up the back door of his car and released the K9. The K9

ran directly to Jerry, who attempted to get away by climbing onto the hood of 

the customer’s vehicle. The K9 bit Jerry’s right leg and held on until Officer 

Turpin forced it to let go.
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[9] Jerry was eventually taken to a hospital for treatment. Meanwhile, another 

officer pursued the suspects and captured one of them. That suspect was 

charged with two Level 6 felonies and three misdemeanors.

[10] In January 2020, the Bewleys sued the Town, the SPD, and Officer Turpin. 

The Bewleys raised several claims, including alleging: (1) Officer Turpin 

negligently handled the K9; and (2) the Town was responsible for the officer’s

actions. The SPD and Officer Turpin were later dismissed from the case under 

circumstances not relevant to this appeal. In September 2022, the Town moved 

for summary judgment as to the Bewleys’ claims, arguing it was immune from 

liability under the Indiana Tort Claims Act (“ITCA”). The court granted the 

Town’s motion. This appeal followed.1

Issue

[11] The Bewleys raise one issue, which we restate as: whether the trial court erred 

in determining the Town was entitled to summary judgment on grounds of

immunity.

1 We held oral argument on October 10, 2023, at Rossville Middle/High School. We thank the parties for 

their presentations, and we thank the students and staff for their hospitality.
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Discussion and Decision

1. Standard of Review

[12] “We review summary judgment decisions de novo, applying the same standard 

of review as the trial court.” Johnson v. City of Michigan City, 172 N.E.3d 355, 

358 (Ind. Ct. App. 2021), trans. denied. A trial court shall grant a motion for 

summary judgment “if the designated evidentiary matter shows that there is no 

genuine issue as to any material fact and that the moving party is entitled to a 

judgment as a matter of law.” Ind. Trial Rule 56(C). 

[13] When the defendant is the moving party, the defendant must show the 

undisputed facts negate at least one element of the plaintiffs’ cause of action or 

that the defendant has a factually unchallenged affirmative defense that bars the 

plaintiffs’ claim. Leo Mach. & Tool, Inc. v. Poe Volunteer Fire Dep’t, Inc., 936 

N.E.2d 855, 859 (Ind. Ct. App. 2010), aff’d on rehearing, 940 N.E.2d 384 (2011). 

“All facts and reasonable inferences from the designated evidence are construed 

in favor of the nonmovant.” Apuri v. Parkview Health Sys., Inc., 185 N.E.3d 383, 

386 (Ind. Ct. App. 2022), trans. denied. 

[14] The appellant bears the burden of proving the trial court erred in granting a 

motion for summary judgment. Crossno v. State, 726 N.E.2d 375, 378 (Ind. Ct. 

App. 2000). Even so, we “carefully assess the trial court’s decision” to ensure a 
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nonmovant was not improperly denied a day in court. Wisniewski v. Bennett, 

716 N.E.2d 892, 894 (Ind. 1999).

[15] In this appeal the parties ask the Court to consider the application of the ITCA 

and other statutes to the facts. A de novo standard of review applies to 

questions of statutory interpretation. Ladra v. State, 177 N.E.3d 412, 415 (Ind. 

2021). And the specific question of whether a “governmental entity is immune 

from liability under the [ITCA] is a question of law for the courts.” Gibson v. 

Evansville Vanderburgh Bldg. Comm’n, 725 N.E.2d 949, 952 (Ind. Ct. App. 2000), 

trans. denied.

2. Immunity Under the ITCA

[16] The ITCA “provides that governmental entities may be liable for torts 

committed by their agencies or employees.” Lee v. Bartholomew Consol. Sch. 

Corp., 75 N.E.3d 518, 525 (Ind. Ct. App. 2017). But “under certain 

circumstances, the governmental entity is entitled to immunity for those acts.” 

Id. “The purpose of immunity is to insure that public employees can exercise 

their independent judgment necessary to carry out their duties without threat of 

harassment by litigation or threats of litigation over decisions made within the 

scope of their employment.” Ind. Dep’t of Corr. v. Stagg, 556 N.E.2d 1338, 1343 

(Ind. Ct. App. 1990), trans. denied. Immunity under the ITCA “assumes 
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negligence but denies liability.” Putnam Cnty. Sheriff v. Price, 954 N.E.2d 451, 

453 (Ind. 2011). 

[17] “Because the [ITCA] is a statute in derogation of the common law, it must be 

strictly construed against limitations on the claimant’s right to bring suit.” 

Hinshaw v. Bd. of Comm’rs of Jay Cnty., 611 N.E.2d 637, 639 (Ind. 1993). “The 

party seeking immunity bears the burden of proving that its conduct falls within 

the [ITCA] and is, thus, shielded from liability.” Gibson, 725 N.E.2d at 953. 

[18] The Town’s claim of immunity is based on Indiana Code section 34-13-3-

3(a)(8) (2016), which provides in relevant part: 

A governmental entity or an employee acting within the scope of 

the employee’s employment is not liable if a loss results from . . . 

[t]he adoption and enforcement of or failure to adopt or enforce 

. . . a law (including rules and regulations) . . . unless the act of 

enforcement constitutes false arrest or false imprisonment.

This Court has explained, “the ‘enforcement’ spoken of in what is now Section 

3[a](8) of the ITCA means compelling or attempting to compel the obedience of 

another to laws, rules, or regulations, and the sanctioning or attempt to sanction 

a violation thereof.” St. Joseph Cnty. Police Dep’t v. Shumaker, 812 N.E.2d 1143, 

1150 (Ind. Ct. App. 2004), trans. denied. 

[19] In this case, Officer Turpin was chasing suspected felons when he released the 

K9, resulting in the K9 biting Jerry. The officer’s conduct, although presumed 

negligent according to precedent, falls within the immunity granted under 
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Section 3(a)(8) for enforcing the law. See Miller v. City of Anderson, 777 N.E.2d 

1100, 1104 (Ind. Ct. App. 2002) (officers immune from suit under the ITCA; 

they were enforcing law when they arrested Miller based on erroneous belief 

she was violating a protective order), trans. denied.

3. Potential Conflict Between the ITCA and Another Statute

[20] The Bewleys claim Indiana Code section 34-13-3-3(a)(8) does not immunize

Officer Turpin’s conduct because he violated a different statutory duty to 

restrain his K9.2

 The Indiana Supreme Court has addressed whether an 

officer’s immunity under the ITCA could be rendered inapplicable by the

officer’s breach of a different statutory duty. In Patrick v. Miresso, 848 N.E.2d 

1083 (Ind. 2006), a police officer pursued a burglary suspect by vehicle and 

collided with a vehicle driven by Miresso. Miresso sued, and the trial court 

denied the officer’s motion for summary judgment. On appeal, the officer 

argued he was immune from liability because he was enforcing the law at the 

time of the accident. The Indiana Supreme Court disagreed, concluding the 

officer was not entitled to immunity under the ITCA. The Court noted a 

different statute requires persons operating emergency vehicles to drive with 

2 The Town argues the Bewleys waived this claim because they did not present it to the trial court. We 

disagree. A party generally waives appellate review of an issue or argument if it is not presented to the trial 

court. Dedelow v. Pucalik, 801 N.E.2d 178, 183 (Ind. Ct. App. 2003). The Bewleys raised this claim during a 

hearing on the Town’s motion for summary judgment, preserving the issue for our review.
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due regard for the safety of others. See id. at 1085 (citing Ind. Code § 9-21-1-8 

(2009)). The two statutes were in conflict, because one immunized the officer 

from liability and the other subjected the officer to liability. Keeping in mind 

that courts must “limit or narrow common law governmental immunity, not 

expand it[,]” the Court resolved the conflict by concluding the ITCA’s 

immunity for enforcing the law did not apply to Miresso’s claim that the officer 

recklessly operated an emergency vehicle. Id. at 1086-87.

[21] In Wilson v. Isaacs, 929 N.E.2d 200 (Ind. 2010), the Indiana Supreme Court 

addressed a claim of excessive force rather than negligence, but the Court’s 

reasoning in that case is useful here. Wilson alleged police officers wrongfully 

used a taser on him three times, even after he was on the ground and immobile. 

The defendants prevailed on summary judgment, claiming they were enforcing 

the law under Indiana Code section 34-13-3-3(a)(8). On appeal, Wilson argued 

the officers were not entitled to immunity under the ITCA. The Court 

determined the ITCA’s grant of immunity conflicted with a separate statutory 

duty imposed on officers to avoid using unreasonable force on suspects. The

Court, following the holding in Miresso, concluded the officers’ alleged breach 

of the unreasonable force statute “restrains the statutory immunity from 

erecting a shield to liability for conduct contrary to the statute.” Id. at 203-04.

[22] In this case, the Bewleys claim the ITCA’s protections conflict with Indiana 

Code section 15-20-1-4 (2014), which provides in relevant part:
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(a) Except as provided in subsection (b), the owner of a dog 

commits a Class C misdemeanor if:

(1) the owner recklessly, knowingly, or intentionally fails to take 

reasonable steps to restrain the dog;

(2) the dog enters property other than the property of the dog’s 

owner; and

(3) as the result of the owner’s failure to restrain the dog, the dog 

bites or attacks another person without provocation, resulting in 

bodily injury to the other person.

[23] In response, the Town argues Indiana Code section 15-20-1-4 is inapplicable to 

the Bewleys’ case due to an exception set forth in Indiana Code section 15-20-1-

6 (2008):

An owner of a dog is exempt under section 4 of this chapter if the 

dog commits an act described in section 4 of this chapter during 

the period that the dog is owned by:

(1) the United States;

(2) an agency of the United States; or

(3) a governmental entity (as defined in IC 34-6-2-49);
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and the dog is engaged in assisting the owner or the owner’s 

agent in the performance of law enforcement or military duties.

[24] The parties have not directed us to a statutory definition of “law enforcement or 

military duties.” In general, we take words and phrases in their “plain, 

ordinary, and usual meaning unless a different purpose is manifested by 

statute.” JKB Sr. v. Armour Pharm. Co., 660 N.E.2d 602, 605 (Ind. Ct. App. 

1996), trans. denied. Officer Turpin deployed the K9 to help him apprehend

suspected felons, which may reasonably be understood as a law enforcement 

duty based on a plain, ordinary, and usual understanding of that phrase.

[25] The Bewleys argue the exception set forth in Indiana Code section 15-20-1-6 is 

inapplicable because Officer Turpin’s actions were so “unreasonable and 

excessive” as to fall outside the definition of a law enforcement duty. Reply 

Brief, p. 9. We disagree. The Bewleys alleged negligence, not excessive force, 

in their complaint. Further, if immunity exists, the degree of a governmental 

defendant’s culpability and the nature of its tortious conduct are not relevant 

considerations. State, Dep’t of Nat. Res. v. Taylor, 419 N.E.2d 819, 823 (Ind. Ct. 

App. 1981).

[26] In sum, Indiana Code section 15-20-1-4, the dog bite statute, does not apply 

here because Officer Turpin’s conduct falls under the law enforcement duty 

exception set forth in Indiana Code section 15-20-1-6. Absent any statutory

conflict between Indiana Code section 15-20-1-4 and Indiana Code section 34-
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13-3-3(a)(8), the ITCA immunizes Officer Turpin’s conduct because he was 

enforcing a law when he released the K9. The trial court did not err in granting 

summary judgment for the Town.

Conclusion

[27] For the reasons stated above, we affirm the judgment of the trial court.

[28] Affirmed.

Weissmann, J., and Kenworthy, J., concur.