City of Terre Haute v. Pairsh, 84A05-0707-CV-402.

• Decision Date: 10 April 2008
• Docket Number: No. 84A05-0707-CV-402.,84A05-0707-CV-402.
• Parties: CITY OF TERRE HAUTE, Engineer's Office of the City of Terre Haute, and City of Terre Haute Street Commissioners, Appellants-Defendants, v. Annette PAIRSH, Appellee-Plaintiff.
• Court: Indiana Appellate Court

883 N.E.2d 1203

CITY OF TERRE HAUTE, Engineer's Office of the City of Terre Haute, and City of Terre Haute Street Commissioners, Appellants-Defendants, v. Annette PAIRSH, Appellee-Plaintiff.

No. 84A05-0707-CV-402.

Court of Appeals of Indiana.

April 10, 2008.

William W. Drummy, William S. Frankel, Wilkinson, Goeller, Modesitt, Wilkinson & Drummy LLP, Terre Haute, IN, Attorneys for Appellants.

John P. Nichols, Anderson & Nichols, Terre Haute, IN, Attorney for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellants-Defendants, City of Terre Haute, Engineer's Office of the City of Terre Haute, and City of Terre Haute Street Commissioners (collectively, the City), appeal the trial court's denial of their motion for summary judgment in Appellee-Plaintiff's, Annette Pairsh (Pairsh), personal injury action.

We reverse and remand.

ISSUE

The City raises one issue on appeal, which we restate as: Whether the City is immune from liability for Pairsh's injuries pursuant to the Indiana Tort Claims Act (ITCA), Indiana Code § 34-13-3-1 et seq.

FACTS AND PROCEDURAL HISTORY

Pairsh alleges that on May 1, 2005, she tripped and fell while walking on a sidewalk in Collett Park in Terre Haute, Indiana, resulting in "skinned" hands and knees and a broken and dislocated right wrist. (Appellants' App. p. 36). On May 31, 2006, Pairsh filed a Complaint for Damages against the City, claiming that she was injured as a result of the City's negligence. Pairsh alleged that "the sidewalk was dilapidated and had an uneven walking surface which caused her to trip and fall to the ground." (Appellants' App. p. 20). Later, in response to an interrogatory, Pairsh claimed that "[t]he right side of the sidewalk was pushed up about two inches above the left side." (Appellants' App. p. 47).

On November 17, 2006, the City filed a Motion for Summary Judgment, arguing that even if it was negligent in maintaining the sidewalk, it was entitled to governmental immunity under the ITCA. In support of its motion, the City designated the affidavit of George Decker (Decker), the Transportation Infrastructure Manager for the City. Decker's affidavit provided, in pertinent part:

2. That [the City] has limited funds to make repairs to sidewalks. Therefore, [the city council] along with the Mayor has determined that given our City['s] limited budget and manpower, it is impossible to fix all sidewalks; therefore, the decision was made to prioritize the sidewalk repair and renovation.

3. I hold the title of Transportation Infrastructure Manager for [the City]. Part of my job beginning in 2001 and including into the year 2002 was to inspect and rate sidewalks to determine whether they are a priority for reconstruction or repair.

4. That during the course and scope of my employment with [the City], I inspected sidewalks at Collett[] Park in [the City].

5. That I was given the job by the City government to rank the sidewalks in such a fashion as to determine which ones need to have immediate repair and to prioritize the repairs accordingly.

6. The decision to empower me with the discretion to prioritize the sidewalk repair was based on the City's conscious policy decision. In prioritizing the sidewalk, I determined on the basis of a cost benefit analysis as to the benefits of the specific sidewalk repair weigh[ed] against the cost of repair. The cost of repair included not only the actual money and manpower that would need to be expended to repair this particular stretch of sidewalk but also the fact that it would take away assets for the repair of other sidewalks [that] are in more need of repair and, thus, have higher priority.

7. That I determined that the sidewalks at Collett[] Park did not constitute an immediate hazard to pedestrians warranting immediate reconstruction and repair. The City has limited funds for the repair and renovation of sidewalks and based on my inspection of the sidewalks [they] were not in a sufficient state of disrepair as to justify the expenditure of limited City money and manpower to repair said sidewalks. In other words, there were more sidewalks that were of greater priority that needed to be repaired first at that time.

8. That it was my decision and my rating based upon my inspection and judgment that the sidewalks at Collett[] Park did not constitute an immediate hazard and that there were other sidewalks that should be repaired prior to the ones at Collett[] Park. I made this decision by weighing the potential benefit of the sidewalk repair against the costs involved with the repair.

9. Prior to May 1, 2005, when [Pairsh] claimed she fell, I had no notice that the sidewalk was in a dangerous or unsafe condition. In fact, as of my inspection, the sidewalk was in good condition and did not constitute an immediate hazard or danger to those using the sidewalk.

(Appellants' App. p. 25-26).

On June 7, 2007, the trial court issued its Order denying the City's motion. The trial court then certified its Order for interlocutory appeal, and we accepted jurisdiction.

The City now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

On appeal, the City argues that the trial court erred in denying its motion for summary judgment. In reviewing a decision on a motion for summary judgment, we apply the same standard as the trial court. Boston v. GYN, Ltd., 785 N.E.2d 1187, 1190 (Ind.Ct.App.2003), reh'g denied, trans. denied. That is, summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). The moving party bears the burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Boston, 785 N.E.2d at 1190. Once this burden has been met, the nonmoving party must respond by setting forth specific facts demonstrating a genuine need for trial, and cannot rest upon the allegations or denials in the pleadings. Id. We review only the designated evidentiary material in the record, construing that evidence liberally in favor of the nonmoving party so as not to deny that party its day in court. Id.

The City contends that it is entitled to governmental immunity under the ITCA, I.C. § 34-13-3-1 et seq. Specifically, it directs us to Indiana Code § 34-13-3-3(7), which provides that a governmental entity is not liable if a loss results from the performance of a discretionary function. The City asserts that it is immune from liability arising from Pairsh's fall because the repair of the sidewalk in question is a discretionary function. "The issue of whether an act is discretionary and therefore immune is a question of law for the court's determination." Peavler v. Board of Comm'rs of Monroe County, 528 N.E.2d 40, 46 (Ind.1988).

Our supreme court has adopted the "planning-operational test" for determining whether a function is discretionary for purposes of the ITCA. Id. The planning-operational standard "dictates that a governmental entity will not be held liable for negligence arising from decisions which are made at a planning level, as opposed to an operational level." City of Crown Point v. Rutherford, 640 N.E.2d 750, 752 (Ind.Ct. App.1994), reh'g denied, trans. denied. We have discussed the test as follows:

[I]f the decision of the governmental entity was a "planning" activity, that is a function involving the formulation of basic policy characterized by official judgment, discretion, weighing of alternatives, and public policy choices, then the decision is discretionary and immune under [I.C. § 34-13-3-3(7)]. Government decisions about policy formation which involve assessment of competing priorities, a weighing of budgetary considerations or the allocation of scarce resources are also planning activities. On the other hand, if the function is "operational," for example decisions regarding only the execution or implementation of already formulated policy, the function is not discretionary under the statute and no immunity attaches.

Voit v. Allen County, 634 N.E.2d 767, 769-70 (Ind.Ct.App.1994) (citations omitted), reh'g dismissed, trans. denied.

In Rutherford, we addressed a claim of discretionary function immunity in the context of sidewalk repairs. Rutherford fell on a sidewalk and sued the City of Crown Point. We stated the issue as "whether Crown Point's management of its sidewalk rehabilitation program resulted from decisions involving the formulation of basic policy and from a balancing of risks and benefits." Rutherford, 640 N.E.2d at 754. In ruling in favor of Crown Point, we noted:

Crown Point had instituted a comprehensive scheme to renovate its sidewalks. The key decision-makers contemplated and balanced public policy factors and weighed budgetary considerations in the allocation of resources. . . . [T]he resources to achieve the goal of complete sidewalk renovation were not available. The City attempted to utilize the funds that were available to it in the most effective way and in a way that would serve the largest number of its citizenry. There were competing interests, and the City did consider these competing interests.

Id. Citing Peavler, we concluded that "the City made discretionary decisions about policy formation which involved assessment of competing priorities and a weighing of budgetary considerations and the allocation of scarce resources." Id. at 755.

In Town of Highland v. Zerkel, 659 N.E.2d 1113, 1119 (Ind.Ct.App.1995), trans. denied, on the other hand, we denied a municipality's claim of immunity arising from its policy for dealing with defective sidewalks, "whereby concerned residents, if they are so inclined, contact Highland with their concerns. If, upon inspection, Highland finds the sidewalk in need of repair, it removes the defective sidewalk. It is then the homeowner's responsibility to pay for the replacement of the sidewalk." We held that "the program implemented by Highland does not...