Indiana has not adopted a due care or negligence exception to "enforcement of a law" immunity. But see: Seymour Nat. Bank v. State, supra, (1981), Ind., 422 N.E.2d 1223, 1226-1227, reh. 428 N.E.2d at 205-206 (DeBruler and Hunter, JJ., dissenting). Note, Seymour National Bank v. State Interprets the Indiana Tort Claims Act: Can the Enforcers do no Wrong? (1983) 16 Ind. L.R. 705.

5-3(7) (West Supp. 1992). In doing so, we abandon the dicta of our earlier decision in Tittle v. Mahan (1991), Ind., 582 N.E.2d 796, and overrule our earlier decision in Seymour Nat'l. Bank v. State (1981), Ind., 422 N.E.2d 1223, modified on reh'g 428 N.E.2d 203. Tricia B. Quakenbush, Samuel McAfee, Mac Medlin, and Larry Allen (Plaintiffs-Appellants below) seek transfer after the Court of Appeals affirmed the grant of summary judgment against them and in favor of Florence Lackey and the City of Indianapolis (Defendants-Appellees below).

Clement argues that the ITCA applies only to Indiana and its governmental agencies. The Kentucky appellees argue that the ITCA does grant them immunity, and argues the actions of the Kentucky police were within the scope of immunity granted to Indiana police in Seymour National Bank v. State (1981), Ind., 422 N.E.2d 1223 modified in 428 N.E.2d 203 (1981) appeal dismissed in 457 U.S. 1127, 102 S.Ct. 2951, 73 L.Ed.2d 1344 (1982). This court agrees with the Kentucky appellees.

5-3(7) (West Supp. 1990), and decide whether law enforcement officials and their employers are immune from liability in connection with the treatment of pre-trial detainees. We now grant transfer to re-evaluate some of our earlier statements in Seymour Nat'l. Bank v. State (1981), Ind., 422 N.E.2d 1223, mod. on reh'g. 428 N.E.2d 203, and conclude that the immunity granted by Section 3(7) of the Tort Claims Act does not encompass the treatment of pre-trial detainees and is limited to circumstances surrounding the apprehension of suspects. FACTS

Our supreme court has demonstrated a willingness to extend immunity to officers in such situations: In Seymour National Bank v. State, 422 N.E.2d 1223, we concluded that the State was immune from liability for the alleged negligence of a state trooper in operating his police car during a high speed chase of a criminal suspect. Rather than focusing, as the common law would have required, on what, if any, duty had been violated, the basis for the ruling was, simply, that an officer engaged in effecting an arrest is in fact enforcing the law. 422 N.E.2d at 1226.

The Quakenbush court noted that the first case interpreting the ITCA's law enforcement immunity provision was Seymour National Bank v. State, 422 N.E.2d 1223 (Ind. 1981), modified on reh'g, 428 N.E.2d 203, in which a state trooper collided with a vehicle while pursuing a car that had fled from a traffic stop. The Seymour majority held that the State was entitled to law enforcement immunity under Indiana Code Section 34-13-3-3(8), rejecting the plaintiffs' claim that the term "enforcement of a law" is ambiguous:

They began to label those limited exceptions that Campbell carved out from the general rule of liability (failure to prevent crime, etc.) as "public duties," giving rise to convoluted analysis that seemed to support an entirely separate test for duty in cases involving a governmental defendant. See, e.g., Board of Comm'rs of Delaware County v. Briggs, 167 Ind. App. 96, 108, 337 N.E.2d 852, 862 (1975) ("We note initially that there seems to be no easy way of determining what is a private duty or what is a public duty."), reh'g denied; Indiana State Highway Comm'n v. Clark, 175 Ind. App. 358, 364, 371 N.E.2d 1323, 1327 (1978) ("[T]he State has misconstrued the respective meanings of private duty, public duty, and discretionary act."); Seymour Nat'l Bank v. State, 179 Ind. App. 295, 384 N.E.2d 1177, 1183 (1979),overruled on other grounds, 422 N.E.2d 1223 (Ind. 1981) ("[T]he proper application of the "private duty" test proclaimed inCampbell was ambiguous."). This notion of a "private duty" occasionally metamorphosed into a "special duty" concept as a result of the use of the phrase "special duty" in Simpson's Food Fair, 149 Ind. App. at 392, 272 N.E.2d at 874 ("A special duty, however, does not arise merely because an individual requests police assistance.").

646 P.2d at 9. A similar sentiment was expressed by the Indiana Supreme Court in its decision in Seymour Nat. Bank v. State, ___ Ind. ___, 422 N.E.2d 1223, aff'd on rehearing 428 N.E.2d 203 (1981). That case concerned the interpretation of the "enforcement of a law" exception in the Indiana tort claims act, where an Indiana state trooper involved in a high speed car chase with a criminal suspect collided with a third vehicle, resulting in the deaths of two passengers.

The case is before us upon the petition of the Plaintiffs (Appellants) for rehearing and Defendant's (Appellee's) response thereto. We now grant the petition for rehearing for the purpose of clarifying our opinion of July 10, 1981 (reported at 422 N.E.2d 1223) and to address three issues presented by Plaintiffs' initial brief, and which were inadvertently omitted from our prior opinion, to-wit: "2. Whether the existence of liability insurance which provides coverage for the losses claimed by the plaintiffs, constitutes a waiver, to the extent of the limits of insurance coverage, of any immunity granted by IC 34-4-16.5-3(7).

He argues, however, that Carver's conduct may have been so outrageous that it was incompatible with the performance of the duty undertaken, and that Carver may therefore not be immune from liability. To support this proposition, Crawford cites the opinion on rehearing in Seymour Nat'l Bank v. State (1981), Ind., 422 N.E.2d 1223, reh'g granted, 428 N.E.2d 203, appeal dismissed, Seymour Nat'l Bank v. Indiana (1982), 457 U.S. 1127, 102 S.Ct. 2951, 73 L.Ed.2d 1344. In Seymour Nat'l Bank, our supreme court stated the general rule regarding immunity for losses resulting from the enforcement of a law: the State of Indiana and its employees are not liable for losses resulting from the enforcement of or failure to enforce a law unless such enforcement constitutes a false arrest or false imprisonment.