337 N.E.2d 852 (Ind.App. 1 Dist. 1975), 1--1074A164, Board of Com'rs of Delaware County v. Briggs

Docket Nº:1--1074A164.
Citation:337 N.E.2d 852, 167 Ind.App. 96
Party Name:BOARD OF COMMISSIONERS OF DELAWARE COUNTY, Appellant (Defendant below), v. Bruce BRIGGS, Appellee (Plaintiff below).
Case Date:December 03, 1975
Court:Court of Appeals of Indiana

Page 852

337 N.E.2d 852 (Ind.App. 1 Dist. 1975)

167 Ind.App. 96

BOARD OF COMMISSIONERS OF DELAWARE COUNTY, Appellant (Defendant below),

v.

Bruce BRIGGS, Appellee (Plaintiff below).

No. 1--1074A164.

Court of Appeals of Indiana, First District.

December 3, 1975

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[167 Ind.App. 102] Albert C. Harker, Thomas R. Hunt, Kiley, Osborn, Kiley, Harker & Rogers, Marion, for appellant.

W. Scott Montross, Townsend, Hovde & Townsend, Indianapolis, for appellee.

LOWDERMILK, Judge.

Plaintiff-appellee Bruce Briggs (Briggs) obtained a judgment in the trial court below against defendant-appellant Board of Commissioners of Delaware County (County) for the County's alleged negligence in failing to adequately warn Briggs of the dangerous condition of a 'Y' intersection on the county roads of Delaware County.

The County raises the following seven issues on this appeal:

  1. Whether the County is immune from tort liability in this case.

  2. Whether certain instructions given to the jury were proper.

  3. Whether an instruction on 'sudden emergency' was properly tendered to the jury.

    [167 Ind.App. 103] IV. Whether the trial court erred when it admitted certain photographs as rebuttal evidence.

  4. Whether the trial court erroneously denied the County's motions for judgment on the evidence.

  5. Whether the jury's verdict is contrary to law, contrary to the evidence, or not supported by sufficient evidence upon all the necessary elements.

  6. Whether the damages awarded by the jury are excessive.

    Page 859

    FACTS:

    An examination of the facts most favorable to Briggs reveals the following:

    Bruce Briggs was involved in an accident on a dark, cloudy night at the intersection of Delaware County Roads 500E and 430N. He was en route to a friend's house on his Triumph 650 cc motorcycle. He had never been on this particular stretch of road before, and had slowed the motorcycle down to 40--45 miles per hour while looking ahead and to the right for the turnoff he had been directed to by his friend (the speed limit was 65 miles per hour). The headlight was on low beam because the road had dips, ruts, holes and bumps, and Briggs estimated it illuminated down the road approximately 85--100 feet.

    As Briggs came over a slight rise he saw that the road suddently ended 90 feet ahead. He applied his brakes, steered straight through a large patch of loose gravel in the middle of the intersection, and overturned the bike in a ditch at the end of the road, which acts resulted in severe injuries. A passing motorist saw the light in the ditch, and notified police. Briggs testified that he saw no signs at the intersection, nor did he have any kind of warning that the road did not continue straight ahead.

    The road at this point splits into two parts, with one arm of the 'Y' gently curving off to the left, and the other arm [167 Ind.App. 104] turning more sharply to the right. A 25 foot triangular patch of heavy gravel covered a center portion of the intersection where traffic would not normally be expected to travel because of the split in the road to each side.

    The investigating officer found a double-arrow sign laying in the ditch at the end of the intersection where Briggs ran off the road. The officer's investigation of the approach to the intersection found that there were no posted warnings of any kind in the area.

    One witness who lived 75 yards from the intersection testified at trial that he traveled the road at least twice a day. He said that the sign on the approach to the intersection had been gone at least a month before the accident, although the post itself was still there. He testified as to no other signs.

    Another witness at trial testified that she had gone through the intersection two or three times a week for a period of six weeks before the accident, and at no time did she see any signs at the intersection. The defendant's witnesses testified, in apparent contradiction, to several different types of signs at the intersection on the day before the crash.

    I.

    The County first contends that the court below committed an uncorrected error of law when it instructed the jury that the County was not entitled to governmental immunity. It claims that the verdict of the jury is contrary to the law and to the evidence and is not supported by sufficient evidence in that the County should be entitled to governmental immunity inasmuch as its negligent acts, if any, were done solely in the discretionary exercise of its police powers as an inherent governmental function and it breached no private duty to Briggs.

    The doctrine of sovereign immunity has been in an unsettled state in Indiana despite the Supreme Court's decision in Campbell v. State (1972), Ind., 284 N.E.2d 733. [167 Ind.App. 105] There, the Court finally abolished the governmental-proprietary distinction for state tort immunity after a long series of cases had gradually abrogated the general sovereign immunity doctrine. See Note, Sovereign Immunity in Indiana--Requiem?, 6 Ind.L.Rev. 92 (1972).

    In Campbell case, however, raised a new problem for the courts faced with a sovereign immunity claim, inasmuch as the

    Page 860

    Court specifically held that there were still some acts that may be protected by the sovereign immunity doctrine. The specific passage follows in full:

    'We do not mean to say by this opinion that all governmental units can be held liable for any and all acts or omissions which might cause damage to persons. For example, one may not claim a recovery because a city or state failed to provide adequate police protection to prevent crime. Simpson's Food Fair, Inc. v. City of Evansville (1971) (149), Ind.App. (387), 272 N.E.2d 871, Transfer denied. Nor may one recover damages because a state official made an appointment of an individual whose incompetent performance gives rise to a suit alleging negligence on the part of the state official for making such an appointment. Likewise the United States Supreme Court has recognized a judicial immunity. Pierson v. Ray (1967) 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288. On this subject matter Professor Prosser, in his treatise, stated the following:

    "At the very outset it was more or less obvious that some vestige of the governmental immunity must be retained. It was, for example unthinkable that either state (or) a municipality should be held liable for a wrong odecision of its courts, for an erroneous evaluation of property by a tax assessor. In several of the decisions abrogating the immunities, there was language used which reserved the possibility that there might still be immunity as to 'legislative' or 'judicial' functions, or as to acts or omissions of government employees which were 'discretionary." Prosser, Law of

    Torts § 131, at 986 (4th ed. 1971).

    'Therefore, it appears that in order for one to have standing to recover in a suit against the state there must have been a breach of duty owed to a private individual.' 284 N.E.2d at 737.

    [167 Ind.App. 106] In the case at bar, the County claims that it falls within this exception in that it owed no private duty to Briggs, since its placement and maintenance of sings at the intersection in question was an exercise of a purely discretionary function. It appears the problem has not been directly dealt with in any subsequent interpretation of Campbell, and thus we are left with the task of interpreting that Supreme Court opinion in order to delineate the bounds of protection presently afforded to the state and its subdivisions by the doctrine of sovereign immunity.

    In Campbell, the Supreme Court held:

    'Finding no basis for the continuation of the doctrine of sovereign immunity as applicable to the state any more than it is applicable to municipal corporations and counties, we hold that such a defense by the state is not available to any greater extent than it is now available to municipal corporations and counties of this state.' 284 N.E.2d at 737..

    Since it is by no means clear to what extent sovereign immunity was available to counties before this decision, we are left with several alternatives. The County argues that the court has here held that a certain degree of sovereign immunity that had been taken away in previous court decisions is now to be given back to municipal corporations and counties as a result of the holding in Campbell. Briggs has countered in his brief that such is not the case, that sovereign immunity has been completely abolished as to the county, and that although the Campbell court recognized certain vestiges of the rule as applied to state tort immunity, there is no immunity remaining for the counties under previous case law interpretations.

    Neither position is totally correct. It is apparent that the court is recognizing that certain personal immunities, e.g., judicial immunity, legislative immunity, etc., have not been abrogated by either the holding in Campbell or by previous cases.

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    This personal immunity will [167 Ind.App. 107] still be available in the appropriate situations. However, we believe the real basis for the liability of the state or the counties is actually the theory of respondeat superior, see Note, Sovereign Immunity in Indiana--Requiem?, 6 Ind.L.Rev. 92 (1972); Driscol v. Delphi Community School Corp. (1972), Ind.App., 290 N.E.2d 769, 770 at n. 1, and it must follow that, if the servant is personally immune from liability, the state must also be immune from liability. Creelman v. Svenning (1966), 67 Wash.2d 882, 410 P.2d 606.

    Thus, liability should be determined by the standards previously utilized in ascertaining the personal liability or...

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