Catt v. BOARD OF COM'RS OF KNOX COUNTY

• Decision Date: 16 October 2000
• Docket Number: No. 42A01-9911-CV-396.,42A01-9911-CV-396.
• Parties: Brian E. CATT, Appellant-Plaintiff, v. BOARD OF COMMISSIONERS OF KNOX COUNTY, Appellee-Defendant.
• Court: Indiana Appellate Court

736 N.E.2d 341

Brian E. CATT, Appellant-Plaintiff, v. BOARD OF COMMISSIONERS OF KNOX COUNTY, Appellee-Defendant.

No. 42A01-9911-CV-396.

Court of Appeals of Indiana.

October 16, 2000.

Stephen L. Williams, Mann Law Firm ,Terre Haute, Indiana, Attorney for Appellant.

H. Linwood Shannon, III, Fine & Hatfield, Evansville, Indiana, Attorney for Appellee.

OPINION

ROBB, Judge

Brian Catt appeals the trial court's grant of summary judgment in favor of the Board of Commissioners of Knox County ("Knox County"). We reverse.

Issues

Catt raises the following expanded and restated issues for our review:

1. Whether Knox County was entitled to summary judgment because the governmental entity was immune from suit pursuant to Indiana Code section 34-13-3-3;

2. Whether Knox County was entitled to summary judgment because Catt was contributorily negligent; and

3. Whether Knox County was entitled to summary judgment because the governmental entity did not owe Catt a duty of care to maintain the public thoroughfare in a safe condition for travel.

Facts and Procedural History

The facts most favorable to the non-movant reveal that during the early morning of May 18, 1995, an abnormally heavy rainstorm occurred in Harrison Township, Knox County, Indiana. As a result of the heavy rainfall, there was severe flooding throughout Knox County and a number of culverts were washed away. One of these culverts was located on County Road 200 East.

That morning, Catt, a high school student, left his house to take a shower at his aunt's house before going to school. To get to his aunt's house, Catt utilized County Road 200 East. On route to his aunt's house, Catt crossed a bridge and traveled up a hill. As he drove down the hill, his car slid on mud into a ditch where a culvert had existed before it had been washed away by the heavy rainfall.¹ A twelve-foot gap existed in the road where the culvert had previously existed. As a result of the accident, Catt was injured.

On November 18, 1996, Catt filed a complaint against Knox County alleging that he was injured due to Knox County's negligence. On June 24, 1999, Knox County filed a motion for summary judgment claiming that it was statutorily immune under the Indiana Tort Claims Act from Catt's claims of negligence. Following a hearing, the trial court granted summary judgment in favor of Knox County.² This appeal ensued.

Discussion and Decision

I. Standard of Review of Summary Judgment

We employ the same standard used by the trial court when reviewing the grant or denial of summary judgment. Dague v. Fort Wayne Newspapers, Inc., 647 N.E.2d 1138, 1139 (Ind.Ct.App.1995), trans. denied. "Summary judgment is appropriate only when the evidentiary matter designated by the parties shows that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law." Id. at 1139-40 (citing Ind. Trial Rule 56(C)). Although our analysis proceeds from the premise that summary judgment is rarely appropriate in negligence actions, "a defendant is entitled to judgment as a matter of law when the undisputed material facts negate at least one element of the plaintiff's claims." Colen v. Pride Vending Serv., 654 N.E.2d 1159, 1162 (Ind.Ct.App. 1995), trans. denied. A trial court's grant of summary judgment is "clothed with a presumption of validity" on appeal, and the appellants bear the burden of demonstrating that the trial court erred. Id. Nevertheless, we must carefully scrutinize the trial court's decision to ensure that Catt was not improperly denied his day in court. See id.

Therefore, on appeal, 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, 579 N.E.2d 452, 454 (Ind.1991). A fact is material if it facilitates the resolution of any of the issues involved. State Street Duffy's, Inc. v. Loyd, 623 N.E.2d 1099, 1100 (Ind.Ct.App. 1993), 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, 590 N.E.2d 559, 562 (Ind.1992).

II. Statutory Immunity

Catt first contends that the trial court erred in granting summary judgment in favor of Knox County because the governmental entity was not entitled to immunity under Indiana Code section 34-13-3-3. We agree.

Knox County argued in part before the trial court that it was entitled to summary judgment because Catt's "allegations of negligence are irrelevant, since Knox County is statutorily immune from [Catt's] claims of negligent acts." R. 181. Governmental immunity from suit is regulated by Indiana Code sections 34-13-1-1 through XX-XX-X-X (the "Act"). Pursuant to the Act, governmental entities are subject to liability for torts committed by their agencies or employees unless one of the immunity provisions of the Act applies. Scott v. City of Seymour, 659 N.E.2d 585, 588 (Ind.Ct.App.1995). The entity seeking immunity bears the burden of proving that its conduct falls within one of the exceptions set out in the Act. Id. Because the Act is in derogation of the common law, it is narrowly construed against the grant of immunity. Jacobs v. Board of Comm'rs of Morgan County, 652 N.E.2d 94, 98 (Ind. Ct.App.1995),trans. denied. Whether a governmental entity is immune from liability is a question of law for the courts, although it may include an extended factual development. Peavler v. Board of Comm'rs of Monroe County, 528 N.E.2d 40, 46 (Ind.1988). The relevant immunity provision in the Act provides in pertinent part that:

A government entity or an employee acting within the scope of the employee's employment is not liable if a loss results from: ... the temporary condition of a public thoroughfare that results from weather.

Ind.Code § 34-13-3-3.

It is well-settled law in Indiana that governmental entities are immune for losses resulting from roads rendered temporarily hazardous by inclement weather. Leinbach v. State, 587 N.E.2d 733, 736 (Ind.Ct.App.1992). However, a governmental entity is not entitled to immunity every time an accident occurs during bad weather. Board of Comm'rs of Steuben County v. Angulo, 655 N.E.2d 512, 513 (Ind.Ct.App.1995). Rather, in determining whether a governmental entity is immune under Indiana Code section 34-13-3-3, the relevant inquiry is whether the loss suffered by the plaintiffs was actually a result of the weather or some other factor. Angulo, 655 N.E.2d at 513.

We believe that a determination of whether Knox County is entitled to statutory sovereign immunity requires an examination of the term "temporary" as contained in the text of Indiana Code section 34-13-3-3. We must construe the statute according to its plain meaning, and words and phrases shall be taken in their plain, ordinary and usual sense unless a different purpose is manifested by the statute itself. Department of Pub. Welfare, State of Indiana v. Couch, 605 N.E.2d 165, 167 (Ind.1992). The Indiana Supreme Court has defined "temporary" as "the opposite of permanent." State v. Curtis, 241 Ind. 507, 173 N.E.2d 652 (1961). This court later clarified the definition of "temporary," stating that the term is not so broad as to include everything that is "not permanent." Van Bree v. Harrison County, 584 N.E.2d 1114, 1117 (Ind.Ct.App.1992), trans. denied. We believe that a determination of whether a condition is "temporary" as set forth in Indiana Code section 34-13-3-3 hinges on the unique factual circumstances of a case; a "bright line test" is inapplicable for purposes of this analysis.

For example, inclement weather, such as heavy rainfall, may temporarily cause a roadway or bridge to be dangerous or impassable for motorists because of flooding. However, if this condition is due to poor inspection, design, or maintenance of the thoroughfare then the condition of the thoroughfare could be considered "permanent" under Indiana Code section 34-13-3-3. Therefore, in considering whether the condition is "temporary" or "permanent,"³ the fact finder should look to prior occurrences of a similar nature along with the frequency of these occurrences and the resulting damage to the roadway from these occurrences.

Here, in support of its motion for summary judgment, Knox County designated the affidavit of Harry Manning, Superintendent of the Knox County Highway Department, which established in part that a five-foot culvert existed where the accident occurred, but was replaced with a six-foot culvert in 1993 when the smaller culvert washed out because of flooding as a result of heavy rainfall. R. 202. In addition, Knox County designated the affidavit of Angie Thompson, a research technician with Southwest Purdue Ag Center, which established in part that heavy rainfall occurred in the area where the subject culvert was located on or around the date of the accident.⁴ R. 198-99. Knox County also designated the deposition of John Schwartze, which provided that the culvert had previously washed out approximately one or two years before Catt's accident on May 18, 1995. R. 150. Knox County designated all of this evidence to support its argument that "the washed-out culvert was a temporary condition" because "there is no evidence that the culvert would not have been fixed and repaired by Knox County." R. 186.

We believe that Knox County's designations of evidence actually support Catt's contention that the trial court erred in granting summary judgment in favor of Knox County. The evidence creates an inference that the accident was a result of a "permanent" condition instead of a "temporary" one. Materials designated by Catt establish that the culvert had washed out at least twice prior to May 18, 1995, the date of Catt's accident. In addition, Knox County installed the larger culvert just two years prior to Catt's accident because the previous one was of an inadequate design to accommodate flooding from a heavy rainfall....