City of Tell City v. Noble

• Decision Date: 10 March 1986
• Docket Number: No. 4-1184,4-1184
• Citation: 489 N.E.2d 958
• Parties: CITY OF TELL CITY, Indiana, Appellant, v. John Brian NOBLE, Appellee, United States Fidelity & Guaranty Insurance Underwriters, Inc., (Third Party Defendant in the Court below and a Non-Participating Party on Appeal). A 322. 1
• Court: Indiana Appellate Court

Page 958

489 N.E.2d 958

CITY OF TELL CITY, Indiana, Appellant, v. John Brian NOBLE, Appellee United States Fidelity & Guaranty Insurance Underwriters Inc., (Third Party Defendant in the Court below and a Non-Participating Party on Appeal).

No. 4-1184 A 322. ¹

Court of Appeals of Indiana First District.

March 10, 1986.

Donald R. Wright, W. Scott Shrode, Lynn, Wright, Evans & Daly, Evansville, for appellant.

Gary E. Becker, Zoercher, Becker & Huber, Tell City, for appellee.

NEAL, Judge.

STATEMENT OF THE CASE

Defendant-appellant, City of Tell City, Indiana (Tell City), suffered an adverse judgment in the amount of $300,000.00 entered pursuant to a jury verdict in the We reverse.

Spencer Circuit Court in favor of John Brian Noble (Noble). From that judgment Tell City appeals.

STATEMENT OF THE FACTS

On July 8, 1982, at the intersection of Jefferson Street and Thirtieth Street in Tell City, Indiana, a collision occurred between a motorcycle, being ridden east on Jefferson Street by Noble, and a light truck, being driven south on Thirtieth Street by Jack M. Joyce (Joyce), as a result of which Noble was seriously injured.

Noble served Tell City his tort claim notice, pursuant to IND. CODE 34-4-16.5-7 and 9, stating that he was injured "when a 1979 Ford Bronco, owned by the Tell City Electric Department and driven by Jack M. Joyce, an employee of said department, failed to yield the right of way at this unmarked intersection with poor visibility and collided with the motorcycle driven by John Brian Noble." Thereafter, on March 22, 1983, Noble filed his complaint against Joyce and Tell City in which he asserted that Tell City was vicariously liable on account of the negligence of Joyce, who he claimed was acting within the scope of his employment with Tell City at the time of the collision. Noble alleged that Joyce's negligence consisted of his failure to yield the right-of-way, pursuant to IND. CODE 9-4-1-81 which requires the driver of a vehicle on the left side of an unmarked intersection to yield the right-of-way to the driver on the right hand side of the intersection, his failure to keep a lookout, his failure to control his vehicle, and his failure to apply his brakes. On February 14, 1984, the trial court granted Tell City's Motion for Summary Judgment under the theory of respondeat superior. Tell City was not liable because the accident occurred after Joyce's working hours and on his way home from a shopping trip, and though he was driving the City's vehicle, it was provided for him as part of his compensation. This judgment was not appealed. Pursuant to the court's permission, Noble thereafter filed an amended complaint in which he alleged against Joyce the same acts of negligence but omitted the allegation of agency. However, he additionally alleged that Tell City was liable for "negligently and carelessly failing to provide adequate signs, markings, and traffic controls at the intersection of Jefferson Street and 30th Street in the City of Tell City, Indiana." Thus, Noble's theory became one of liability of joint tort-feasors rather than respondeat superior. Tell City filed its Motion to Dismiss claiming immunity under IND. CODE 34-4-16.5-3(6) of the Tort Claims Act, arguing that the placement of signs was a discretionary act. It also claimed inadequate notice under IND. CODE 34-4-16.5-9 of the Act. The motion was overruled.

Prior to trial, Noble settled his case against Joyce for $97,000.00 upon the execution of a covenant not to sue, and dismissed his complaint as to Joyce. The case proceeded to trial against Tell City upon the theory stated against Tell City in the amended complaint. The trial court instructed the jury, over Tell City's objection, that Tell City had a duty to exercise reasonable care in constructing, designing and maintaining its streets, which included the duty to erect STOP signs or warning signs at intersections where they were warranted, and that for a breach of that duty Tell City would be liable for damages. Noble presented evidence that a STOP sign should have been placed at the northwest corner of the intersection. There was also evidence that a comprehensive ordinance existed which delineated intersections in Tell City which should be marked. However, the intersection of Jefferson Street and Thirtieth Street was not included therein.

ISSUES

Tell City presents nine issues for review. Since we reverse on Issue I, which is dispositive of this litigation, we shall address only that issue. Issue I is as follows:

Whether the decision by defendant-appellant to allow the intersection where the accident occurred to remain unmarked

was a performance of a discretionary function by a government entity, and as a result thereof, whether the defendant is immune from liability pursuant to IND. CODE 34-4-16.5-3.

DISCUSSION AND DECISION

An examination of the authorities reveals that the question of whether the failure to erect a STOP sign or other traffic markers is a discretionary act, thus affording the governmental entity immunity under IND. CODE 34-4-16.5-3(1), has never been squarely faced and decided. Therefore, a complete analysis of the subject is necessary.

The immunity section of the Tort Claims Act, IND. CODE 34-4-16.5-3, reads in pertinent part as follows:

"A governmental entity or an employee acting within the scope of his employment is not liable if a loss results from:

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(6) the performance of a discretionary function;

(7) the adoption and enforcement of or a failure to adopt or enforce a law (including rules and regulations), unless the act of enforcement constitutes false arrest or false inprisonment."

Thus, the real question is whether the decision to place or not to place a sign on a street or highway is within either of the above immunities.

A statutory scheme exists in Indiana governing the placement of traffic markers on streets, roads, and highways; the legal effect of such placement; and the enforcement of adherence to those traffic markers. That scheme is contained in IND. CODE 9-4, The Uniform Act Regulating Traffic on Highways. It applies to all highways, roads and streets, including those in residential subdivisions, regardless of who maintains them. IND. CODE 9-4-1-22. The Act requires the adoption, by the Indiana State Highway Commission, of a manual specifying a uniform system for traffic control devices for use on all roads in the state. IND. CODE 9-4-1-30. The Manual, entitled The Indiana Manual on Uniform Traffic Control Devices for Streets and Highways, must be adhered to by all governmental agencies responsible for the signing, marking and erection of any traffic control device on any street or highway in the state. IND. CODE 9-4-2-1. All such devices shall conform to the standards and specifications set forth in the Manual. IND. CODE 9-4-3.1-1. Control devices and signals are defined as "[a]ll signs, markings or devices, including railroad advance warning signs, ... placed or erected by authority of a public body or official having jurisdiction, for the purpose of regulating, warning and guiding traffic." IND. CODE 9-4-1-19. Any unauthorized sign on a street or highway is forbidden. IND. CODE 9-4-1-38.

Although the provisions of IND. CODE 9-4 are applicable throughout the state, local authorities may adopt by ordinance additional traffic regulations with respect to streets and highways under their jurisdiction. However, any additional traffic regulation must not conflict with or duplicate the provisions of the statute. IND. CODE 9-4-1-27. "Local authorities" is defined as "[e]very county, municipal, and other local board or body having authority to adopt local police regulations under the constitution and laws of this state." IND. CODE 9-4-1-13. Such powers shall be exercised by ordinance. IND. CODE 36-1-3-6. Local authorities have the power, with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power, to regulate traffic by means of traffic control signals, to designate one-way streets, to designate any highway as a through highway, to require that all vehicles stop before entering or crossing any highway, to designate any intersection as a STOP intersection and to require that all vehicles stop at one or more entrances to a STOP intersection. IND. CODE 9-4-1-28. Thus, not only does IND. CODE 9-4-1-28 grant local authorities the power to regulate traffic when not pre-empted by the state, but it clearly contemplates, along with IND CODE 9-4-1-81, the continued existence of some unmarked intersections. IND. CODE 9-4-1-81 provides as follows:

"(a) When two vehicles approach or enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.

(b) The right-of-way rule in subsection (a) is modified at through highways and otherwise as stated in this chapter."

In regard to erecting STOP or YIELD signs, IND. CODE 9-4-1-110 provides:

"(a) The department of highways with reference to state highways, and highway routes through cities, and local authorities with reference to other highways under their jurisdiction, may, upon an engineering and traffic investigation, designate through highways and erect stop or yield signs at specified entrances thereto or may designate any intersection as a stop or yield intersection and erect like signs at one or more entrances to such intersection.

(b) Every stop sign and yield sign shall be manufactured and installed in conformance with the Indiana manual on uniform traffic control devices for roads and streets as provided under section 30[9-4-1-30] of this chapter and under IC 9-4-2-1.

(c) Every driver of a vehicle shall stop or yield in obedience to any such sign as the case may be, before entering such intersection except when directed to proceed by a police officer or traffic control signal."

Throughout the Act it is...