Board of Com'rs of Steuben County v. Angulo

• Decision Date: 24 April 1995
• Docket Number: No. 76A05-9402-CV-55,76A05-9402-CV-55
• Citation: 655 N.E.2d 512
• Parties: BOARD OF COMMISSIONERS OF STEUBEN COUNTY, Appellant-Defendant, v. Jose F. ANGULO and Carrie L. Angulo, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

Page 512

655 N.E.2d 512

BOARD OF COMMISSIONERS OF STEUBEN COUNTY, Appellant-Defendant, v. Jose F. ANGULO and Carrie L. Angulo, Appellees-Plaintiffs.

No. 76A05-9402-CV-55.

Court of Appeals of Indiana.

April 24, 1995.

Publication Ordered Sept. 25, 1995.

Robert T. Keen, Jr., Douglas A. Hoffman, Miller Carson Boxberger & Murphy, Fort Wayne, for Appellant.

Edward E. Beck, Shambaugh, Kast, Beck & Williams, Fort Wayne, for Appellee.

OPINION

RUCKER, Judge.

On a dark and foggy night Jose Angulo drove his car off a highway in Steuben County and crashed into a tree. He sued the Board of Commissioners of Steuben County (the County) claiming negligence in the maintenance of the highway. His wife joined as a plaintiff asserting loss of consortium. The County responded by filing a motion for summary judgment which the trial court denied. The County perfected this interlocutory appeal contending the trial court erred because the injuries sustained by the Angulos were the result of the natural conditions of a roadway. Thus, according to the County, it is immune from suit.

We affirm.

On November 21, 1991, at approximately 11:35 p.m., Jose Angulo was injured in a one-car collision in Steuben County when he failed to navigate a curve and drove his car off of the roadway and into a tree. A dense fog that evening reduced Angulo's visibility. As a result of the collision, Angulo was injured and filed suit against the County alleging negligence. After conducting discovery, the County filed a motion for summary judgment claiming that because the accident was caused by the fog, the County was immune from liability for the Angulos' losses pursuant to Ind.Code § 34-4-16.5-3(3). The statute provides in pertinent part: "A governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from ... (3) the temporary condition of a public thoroughfare which results from weather[.]" The trial court denied the County's motion for summary judgment and also denied its motion to certify the order for purposes of an interlocutory appeal. Thereafter, the County filed another motion for summary judgment raising the same arguments as in its first motion. Summary judgment was again denied. This time, however, the trial court agreed to certify its order and this interlocutory appeal ensued in due course.

On an appeal from the denial of a motion for summary judgment, we apply the same standard applicable in the trial court. NIPSCO v. Sell (1992), Ind.App., 597 N.E.2d 329, trans. denied. We must determine whether the record reveals a genuine issue of material fact and whether the trial court correctly applied the law. Shuamber v. Henderson (1991), Ind., 579 N.E.2d 452, 454. A fact is material if it facilitates the resolution of any of the issues involved. State Street Duffy's, Inc. v. Loyd (1993), Ind.App., 623 N.E.2d 1099, trans. denied. Any doubt as to a fact, or an inference to be drawn, is resolved in favor of the non-moving party. Malachowski v. Bank One, Indianapolis (1992), Ind., 590 N.E.2d 559, 562. Even if the trial court believes that the non-moving party will be unsuccessful at trial, summary judgment should not be entered where material facts conflict or where conflicting inferences are possible. Loyd, 623 N.E.2d at 1101.

The law is settled that governmental entities are immune for losses resulting from roads rendered temporarily hazardous by inclement weather. See I.C. § 34-4-16.5-3(3); Leinbach v. State (1992), Ind.App., 587 N.E.2d 733. However, this immunity does not automatically arise every time an accident occurs during bad weather. See e.g. Dahms v. Henry (1994), Ind.App., 629 N.E.2d 249 (reversing summary judgment where genuine issue of material fact existed regarding whether accident was caused by weather conditions or by government official's failure to maintain appropriate speed); Walton v. Ramp (1980), Ind.App., 407 N.E.2d 1189 (reversing summary judgment in favor of county where genuine issue of material fact existed regarding whether landowner's disposal of water on road which caused an icy spot was a temporary condition resulting from the weather). Rather, in determining whether a governmental entity is immune under I.C. § 34-4-16.5-3(3), the relevant inquiry is whether the loss suffered by the plaintiffs was actually a result of the weather or some other factor. Leinbach, 587 N.E.2d at 736.

In support of its contention that the Angulos' injuries were the result of the temporary condition of the...