Boyland v. Hedge
| Decision Date | 15 July 2016 |
| Docket Number | No. 06A05–1509–CT–1383.,06A05–1509–CT–1383. |
| Citation | 58 N.E.3d 928 |
| Parties | Brian L. BOYLAND; Jennifer K. Boyland; Anthony S. Climer; Lisa J. Climer; Sydney A. Climer; Anthony S. Climer and Lisa J. Climer, as parents and next friends of Lydia J. Climer, Appellants–Plaintiffs, v. Kenneth HEDGE, in his capacity as Boone County Surveyor; Boone County Drainage Board; Boone County Board of Commissioners; JPMorgan Chase Bank, N.A.; Specialized Loan Servicing, L.L.C.; and PNC Bank, Appellees–Defendants. |
| Court | Indiana Appellate Court |
William O. Harrington, Harrington Law, P.C., Danville, IN, Attorney for Appellant.
Daniel M. Witte, Aimee Rivera Cole, Travelers Staff Counsel Office, Indianapolis, IN, Attorneys for Appellee.
, Judge.
[1] Brian and Jennifer Boyland (“the Boylands”) and Anthony, Lisa, Sydney, and Lydia Climer (“the Climers”) (collectively, “Homeowners”) brought negligence and inverse condemnation claims against Kenneth Hedge (“Hedge”), in his capacity as Boone County Surveyor, the Boone County Drainage Board, and the Boone County Board of Commissioners (collectively, “the Boone County defendants”).1 In answering the negligence claims, the Boone County defendants raised a defense of discretionary function immunity. Homeowners sought, and were denied, partial summary judgment on this defense. After a bench trial regarding the applicability of the defense, judgment was entered for the Boone County defendants on the negligence claims. Summary judgment was subsequently granted to the Boone County defendants on the inverse condemnation claims. Homeowners challenge the denial of their motion for partial summary judgment on the immunity defense and also challenge the grant of summary judgment on the inverse condemnation claims. We affirm.
[2] Homeowners present two issues for review:
[3] Homeowners own two parcels of residential property located on West County Road 300 South in Boone County, Indiana. County Road 300 is at a higher elevation than the residences, which appear to “sit in a bowl.” (Tr. at 666.) The residential properties are beside Dickey Ditch, a tributary to Big Raccoon Creek.2 The water flows east to west adjacent to the south property line of the Climer property; it flows east to west adjacent to the south property line of the Boyland property and then turns to flow south to north adjacent to the west property line of the Boyland property.
[4] Several times since 2002, the Climers and Boylands have experienced residential flooding that occurred after periods of unusually heavy rain. In 2005, the Boylands filed a lawsuit against the Boone County defendants. The lawsuit was dismissed.
[5] After dismissal of the first lawsuit, Hedge was notified of a subsequent flooding event and persuaded the Boone County Drainage Board to obtain an engineering study with respect to Dickey Ditch. The firm of Christopher B. Burke Engineering, Ltd. performed a hydrologic and hydraulic analysis of Dickey Ditch near the Homeowners' properties and compiled a report (“the Burke Report”). “Potential Measures” were identified in the Burke Report. The potential measures identified included the following: replace existing culverts; eliminate a 15 inch diameter culvert pipe; increase the ditch size; remove sediment related to beaver dams; acquire the Homeowners' properties; and lower an area that effectively functioned as a levee because the elevation at the south was higher than the elevation at the north.
[6] At a 2008 presentation before the Boone County Drainage Board (which included three members who were also Boone County Commissioners), a representative of the Burke engineering firm explained that replacement of existing culverts could cost more than $870,000.00 and flooding risk would be lessened but not eliminated. Also, he explained that reconstruction extensive enough to result in a large bridge classification would require, by federal regulation, an inspection every two years. There ensued some discussion clarifying that “a million bucks” could be spent without a “cure,” and that the Board of Commissioners would be tasked with making a final decision because road crossings were involved. (App. at 324.) No vote was taken and no “potential measure” was specifically adopted. In the ensuing years, none of the “potential measures” were implemented, other than tile repair, brush removal, and destruction of beaver dams (with some related sediment removal).
[7] Flooding again occurred in 2011. On March 30, 2011, Homeowners served tort claims notices on the Boone County defendants. Their first complaint was filed on October 20, 2011. As later amended, after a flooding event in 2013, the complaint sought injunctive relief and also asserted negligence, trespass, and inverse condemnation claims. The Boone County defendants answered the complaint and asserted that the affirmative defense of discretionary function immunity precluded recovery on the negligence claims. Homeowners requested that partial summary judgment be entered against the Boone County defendants on the immunity defense while the Boone County defendants sought summary judgment on the negligence claims on both immunity and proximate cause grounds.
[8] On February 14, 2014, the trial court entered an order denying the cross-motions. The trial court stated that the defendants had not shown their entitlement to summary judgment because:
there is a genuine issue of material fact whether anything Boone County did or did not do with regard to Dickey Ditch proximately caused flooding to the Climer and Boyland properties. A trial is necessary on that subject matter.
(App. at 976.) As for the immunity defense, the trial court concluded:
Neither side, at this time, has demonstrated conclusively either that there is or is not immunity. Accordingly, Plaintiff's Motion for Partial Summary Judgment on the question of immunity also should be and now is DENIED.
(App. at 976.)
[9] On September 9, 2014, the trial court entered an order approving an “Agreed Motion for Case Management and Separate Trials.” (App. at 1016.) It was determined that two sets of claims would go forward—negligence and inverse condemnation—and would proceed on separate “tracks.” (App. at 1017.) First, the trial court was to conduct a bench trial “limited to the issue of whether the defense of discretionary function immunity is available to Defendants as a complete defense with respect to the negligence claims.” (App. at 1018.) A jury trial on the negligence claims was tentatively scheduled. The inverse condemnation claims were set for a subsequent jury trial date.
[10] On December 18, 2014, with the Homeowners' objection having been made, the trial court conducted a bench trial on the issue of availability of the discretionary function immunity defense. On February 24, 2015, the trial court entered judgment in favor of the Boone County defendants, concluding that they were entitled to immunity.
[11] On April 28, 2015, the Boone County defendants filed a motion for summary judgment with respect to the inverse condemnation claims. Homeowners filed a cross-motion for summary judgment. On August 19, 2015, the trial court entered an order granting summary judgment to the Boone County defendants on the remaining counts against them. This appeal ensued.
Discretionary Function Immunity
[12] Our review of the grant or denial of a summary judgment motion is the same as it is for the trial court: whether there is a genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Kroger Co. v. Plonski, 930 N.E.2d 1, 4–5 (Ind.2010)
. In conducting our review of the evidence sanctioned by Indiana Trial Rule 56(C), we construe all factual inferences in favor of the non-moving party, and all doubts as to the existence of a material issue must be resolved against the moving party. Id. at 5.
[13] A genuine issue of material fact exists when the facts concerning an issue that would dispose of the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting inferences on the issue. Indiana Dep't of Transp. v. Sadler, 33 N.E.3d 1187, 1190 (Ind.Ct.App.2015)
. Where the evidence is in conflict, or undisputed facts lead to conflicting inferences, a grant of summary judgment is inappropriate, even if it appears that the nonmovant will not succeed at trial. Id.
[14] Our standard of review is not altered by the fact that the parties made cross-motions for summary judgment. Indiana Farmers Mut. Ins. Grp. v. Blaskie, 727 N.E.2d 13, 15 (Ind.Ct.App.2000)
. Instead, we consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Alva Elec., Inc. v. Evansville–Vanderburgh Sch. Corp., 7 N.E.3d 263, 267 (Ind.2014).
[15] The Boone County defendants raised an affirmative defense described in Indiana Code Section 34–13–3–3(7)
:
A governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from the following: (7) The performance of a discretionary function[.]
[16] The Indiana Tort Claims Act (“the ITCA”) provides that governmental entities may be liable for torts committed by its agencies and its employees, but protects governments from liability in certain circumstances. Peavler v. Monroe Cnty. Bd. of Comm'rs, 528 N.E.2d 40, 42 (Ind.1988)
. The policy underlying governmental immunity is the idea that certain kinds of executive branch decisions should not be subject to judicial review. Id. at 44. The separation of powers doctrine forecloses the courts from reviewing political, social, and...
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