Cromer v. City of Indianapolis, 29A02-8712-CV-492

• Decision Date: 10 July 1989
• Docket Number: No. 29A02-8712-CV-492,29A02-8712-CV-492
• Parties: Vicki CROMER, Administratrix of the estate of Delmas Cromer; Devon S. Cromer, a Minor; and Darren S. Cromer, a Minor, by their next friend and natural parent, Vicki Cromer, Appellant (Plaintiff Below), v. CITY OF INDIANAPOLIS, Indiana, County of Marion, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 663

540 N.E.2d 663

Vicki CROMER, Administratrix of the estate of Delmas Cromer;

Devon S. Cromer, a Minor; and Darren S. Cromer, a Minor, by their next friend and natural parent, Vicki Cromer, Appellant (Plaintiff Below), v. CITY OF INDIANAPOLIS, Indiana, County of Marion, Appellee

(Defendant Below).

No. 29A02-8712-CV-492.

Court of Appeals of Indiana,

Third District.

July 10, 1989.

J. David Hollingsworth, Hollingsworth, Meek & Miller, P.C., Indianapolis, for appellant.

Mary Ann G. Oldham, City-County Legal Div., Indianapolis, for appellee.

HOFFMAN, Judge.

Plaintiff-appellant Vicki Cromer, as administratrix of the estate of Delmas Cromer and as next friend and natural parent of the minor children, Devon and Darren Cromer, appeals the entry of summary judgment in Cromer's wrongful death action against the defendant-appellee City of Indianapolis (City).

The facts giving rise to Cromer's claim for wrongful death may be summarized as follows. On March 31, 1983, Delmas Cromer was involved in an automobile collision at the intersection of State Road 67 and East County Line Road 700 West (County Line Road). Delmas Cromer was travelling in a northeasterly direction on State Road 67. The other driver involved in the accident, Donald Saylor, Jr., was southbound on County Line Road. Saylor failed to stop at a stop sign located at the intersection of County Line Road and State Road 67, and the resulting collision caused the death of Delmas Cromer.

County Line Road is a two-lane road which forms the boundary between Marion County and Hancock County. A railroad crossing with two tracks bisects County Line Road a short distance north of State Road 67. County Line Road is relatively flat and straight until after it intersects with the railroad tracks. From the railroad crossing to State Road 67, the elevation of County Line Road drops 30 degrees.

The intersection of County Line Road and State Road 67 is controlled by the State of Indiana. At the time of the accident, there was no traffic control device on State Road 67. Southbound traffic on County Line Road entering or crossing State Road 67 was required to stop at a stop sign. In addition to the stop sign, the other signs and traffic control devices which were in place at the time of the accident included crossbucks at the railroad crossing and an advance warning sign of the railroad crossing.

In her wrongful death action against the City, Cromer alleged that the City had a duty to cure certain defects in County Line Road which caused the intersection of County Line Road and State Road 67 to be dangerous. In the alternative, Cromer contended that the City had a duty to warn of the dangerous nature of the intersection. The City argued that it was immune under Indiana's Tort Claims Act, IND. CODE Sec. 34-4-16.5-1 et seq. (1988 Ed.), and on that basis, the City moved for summary judgment. The lower court granted summary judgment in favor of the City.

On appeal, Cromer raises four issues:

(1) whether the trial court erroneously granted summary judgment on the grounds that establishment of a speed limit on County Line Road was a legislative function for which the City was immune under the Indiana Tort Claims Act (2) whether the trial court erred in granting summary judgment, because the City had a duty to cure the hazardous condition at the intersection of County Line Road and State Road 67 by causing County Line Road to end in a cul-de-sac;

(3) whether the trial court erred in granting summary judgment, because there was a genuine issue as to the authority of the City to place warning signs on County Line Road; and

(4) whether the trial court erroneously granted summary judgment on the grounds that the placement of warning signs was a discretionary function for which the City was immune under the Indiana Tort Claims Act.

When presented with a challenge to the entry of summary judgment, the reviewing court must determine whether there is any genuine issue of material fact and whether the trial court correctly applied the law. McFarlin v. State (1988), Ind.App., 524 N.E.2d 807, 808. Cromer maintains that the trial court incorrectly applied the law when it determined that the City was immune from liability for the establishment of an allegedly unsafe and dangerous speed limit on County Line Road. The finding of immunity was based upon IND.CODE Sec. 34-4-16.5-3(7) (1988 Ed.):

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

* * * * * *

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

The speed limit on County Line Road was established by the legislative branch of the City, namely the City-County Council. The Council's decision to post a 40 mile per hour speed limit on County Line Road fell under the umbrella of governmental immunity created by the Tort Claims Act. Id. The lower court properly held that the City was immune from liability for injuries allegedly arising as a result of the 40 mile per hour speed limit.

According to Cromer, a second example of incorrect application of the law may be found in the lower court's failure to recognize a duty on the part of the City to implement a recommendation that County Line Road end in a cul-de-sac north...