Board of Com'rs of Adams County v. Price

• Decision Date: 06 February 1992
• Docket Number: No. 90A05-9103-CV-82,90A05-9103-CV-82
• Citation: 587 N.E.2d 1326
• Parties: BOARD OF COMMISSIONERS OF ADAMS COUNTY, Appellant-Defendant, v. Ronald E. PRICE, Appellee-Plaintiff, and United Farm Bureau Mutual Insurance Company, Appellee-Interpleaded Defendant.
• Court: Indiana Appellate Court

Page 1326

587 N.E.2d 1326

BOARD OF COMMISSIONERS OF ADAMS COUNTY, Appellant-Defendant, v. Ronald E. PRICE, Appellee-Plaintiff and United Farm Bureau Mutual Insurance Company Appellee-Interpleaded Defendant.

No. 90A05-9103-CV-82.

Court of Appeals of Indiana Fifth District.

Feb. 6, 1992.

Transfer Denied May 28, 1992.

Ralph R. Blume, Blume, Wyneken, Connelly, Jordan & Stucky, Fort Wayne, appellant-defendant.

Cynthia Rockwell, John O. Feighner, Haller & Colvin, Fort Wayne, for appellee-plaintiff.

BARTEAU, Judge.

This appeal follows a jury's verdict of $100,000 for appellee-plaintiff Ronald Price in his personal injury lawsuit against appellant-defendant Board of Commissioners of Adams County ("the County"). The lawsuit ensued from the collision of two vehicles at an unmarked intersection in rural Adams County. Price, driving his personal vehicle, collided with a truck owned by Adams County Farm Bureau Co-op ("Farm Bureau," not an entity of the County) and driven by its employee Robinette. Price settled with Farm Bureau and Robinette, and proceeded to trial against the County only.

On July 7, 1986, in the early afternoon, under a clear sky, Price was eastbound on Adams County Road 200 North ("200 N"), just west of Adams County Road 100 West ("100 W"). Simultaneously, Robinette was northbound on 100 W, just south of 200 N. The two roads were stone-surfaced, over level terrain, and crossed each other at right angles. The intersection of 200 N and 100 W was unmarked by traffic control signs and surrounded by farm fields. Three of the fields were in soybeans, while the fourth, the southwest quadrant, was in corn, to a height of about six feet and to within about eight feet of the roadway. Thus, the cornfield was to Price's right as he drove east, and to Robinette's left as he drove north. They collided in the intersection, with the front of Robinette's truck striking the passenger side of Price's vehicle. Price suffered a broken neck.

His theory of the case imposed liability on the County for failing to mark the intersection. The County defended on the grounds of governmental immunity, no breach of duty, that the lack of traffic sign was not the proximate cause, and the contributory negligence of Price. Those issues have been argued by the County in this appeal, as well as an issue involving jury instruction # 28 and one of error in offsetting the Farm Bureau-Robinette settlement against the jury's verdict. Further facts are supplied where necessary. We affirm.

I. IMMUNITY

"A governmental entity ... is not liable if a loss results from: ... the performance of a discretionary function...." Ind.Code 34-4-16.5-3(6). The Board of Commissioners of Adams County is a governmental entity. I.C. 34-4-16.5-2(c), (f)(10). Thus, the County is immune from damages in tort for losses resulting from the performance of its discretionary functions. The statute fails to define "discretionary function," so categorization of a particular act or omission devolves to the judiciary.

The County's immunity argument relies to a great extent on City of Tell City v. Noble (1986), Ind.App., 489 N.E.2d 958, trans. denied, which exemplifies the former practice of classifying governmental actions as either discretionary or ministerial. Although City of Tell City does offer strong support for the County, that decision has been superseded by the opinion of our supreme court in Peavler v. Board of Comm'rs of Monroe County (1988), Ind., 528 N.E.2d 40, appeal after remand (1990), Ind.App., 557 N.E.2d 1077, trans. denied. Because the jury trial in Price's case was held in July, 1990, nearly two years after the decision in Peavler, the principles therein apply to this appeal.

Peavler discarded the discretionary/ministerial approach to immunity in favor of the practice in federal courts of "determin[ing] which acts are entitled to immunity by distinguishing acts performed at the planning level from acts performed at the operational level." Id. at 43. Under the planning/operational analysis of immunity, "the essential inquiry is whether the challenged act is the type of function which the legislature intended to protect with immunity." Id. at 46. In regard to the placement of warning signs on the highways, our supreme court wrote:

The counties argue that, while failure to maintain a previously posted traffic sign is non-discretionary, the original decision to install one is discretionary. Clearly, there are cases on either end of the spectrum which will fall automatically into the category of discretionary or non-discretionary functions. Such is the case of the failure to properly maintain a warning sign. It does not follow, however, that the decision to post such a sign is automatically discretionary ....

While potential liability may have some effect on this government function, the government is still shielded by immunity for actual policy-making decisions regarding warning signs. Thus, the government is exposed to liability only when no policy oriented decision-making process has been undertaken.

....

Considering the nature of the conduct, the effect on government operations, and the capacity of the courts to evaluate the propriety of the government's actions, we cannot say that governmental policy is so clearly implicated by decisions regarding placement of warning signs that all such decisions are discretionary ... as a matter of law. Had the legislature intended for such an act to be immune outside the parameters of the discretionary function exception, it could have provided specific immunity.

The discretionary nature of a decision to place a warning sign must be determined case by case. Immunity may be established by governmental defendants who can show that the challenged decision was discretionary because it resulted from a policy oriented decision-making process. If the counties engaged in this decision-making process, the courts may not judge the wisdom of their decisions. That judgment is left to the political process.

Peavler, 528 N.E.2d at 47 (emphasis added) (citation omitted).

Thus, governmental decisions regarding placement of warning signs on the public highways are not per se discretionary and immune from tort liability. Rather, it is the absence of a "policy oriented decision-making process" that exposes a governmental entity to tort liability.

We find the case before us an example of liability due to the absence of a policy oriented decision-making process in regard to the placement of traffic signs at unmarked, rural intersections in Adams County. Before explaining why, we note that the parties dispute the propriety of jury instruction # 28, in which the trial judge delegated to the jury the immunity question. Delegation was error, because immunity is a question of law to be decided by the court. Peavler, 528 N.E.2d at 46. That error, and any error in the substance of the instruction were harmless, however, because if a trial judge erroneously submits a question of law to the jury, the error is harmless if the jury renders a correct decision. See Automobile Underwriters, Inc. v. White (1934), 207 Ind. 228, 191 N.E. 335, reh'g denied. By returning a plaintiff's verdict, the jury rejected the County's immunity defense. We agree with that. Therefore, it was harmless error to make immunity a jury question, and whether instruction #28 correctly stated the law of immunity is a moot question.

The governmental defendant "bears the burden to show that a policy decision, consciously balancing risks and benefits, took place." Peavler, 528 N.E.2d at 47. And, because discretionary immunity is an exception to the general rule of liability, it must be narrowly construed. Id. at 46. The County did not carry its burden.

The County based its immunity defense on the testimony of Adams County Commissioner Maynard Rich, who had lived all of his sixty-one years in Adams County and had been elected Commissioner in 1984 and re-elected in 1988. Rich described Adams County as rural, with a population of 35,000, including 4,000 Amish. The County has some 700 miles of roadway, half paved, half stone. Rich testified that on the day of the collision between Price and Robinette, there were 140 unmarked intersections within the County, and that signs would be placed at such intersections upon a citizen's request or if the Commissioners discerned a hazard. According to Rich, the presence of growing corn was considered not a hazard, but rather "seasonal."

The County in 1985 had applied for federal funds to mark the 140 intersections, but was turned down. The County did receive approximately $180,000 in federal revenue-sharing money in 1985 and again in 1986, but spent the money on landfill programs. The cost to install signs at all 140 unmarked intersections would have been five or six thousand dollars. The annual budget for the County highway department was in excess of $500,000.

Other evidence relevant to this discussion entered through the testimony of Price's witnesses. Rodney Fennig, who had fourteen years of service with the Adams County Highway Department and had become its supervisor the month after the Price collision, knew of no log book or other system for recording complaints about unmarked intersections. Fennig stated the County had no written policy or guidelines regarding the placement of signs at the intersection of stone roads, but that signs would be placed where a stone road intersected a paved road, and that the County did not require farmers to trim back corn crops near intersections.

The testimony of Commissioner Rich showed that the County was not completely unconcerned with its unmarked intersections. The question before us is whether the County's practice of responding to citizen complaints or observations of the Commissioners establishes the policy oriented decision-making process required by Peavler.

Turning to relevant post-Peavler cases for guidance, we see this is not a case in which the governmental...