Crossno v. State

• Decision Date: 11 April 2000
• Docket Number: No. 49A04-9907-CV-334.,49A04-9907-CV-334.
• Citation: 726 N.E.2d 375
• Parties: Ronald CROSSNO and Betty Crossno, Appellants-Plaintiffs, v. STATE of Indiana, Appellee-Defendant.
• Court: Indiana Appellate Court

726 N.E.2d 375

Ronald CROSSNO and Betty Crossno, Appellants-Plaintiffs, v. STATE of Indiana, Appellee-Defendant.

No. 49A04-9907-CV-334.

Court of Appeals of Indiana.

April 11, 2000.

John F. Townsend III, Townsend & Montross, Indianapolis, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Chris Worden, Deputy Attorney General, Attorneys for Appellee.

OPINION

ROBB, Judge

Ronald Crossno and Betty Crossno (collectively referred to as "the Crossnos") appeal the trial court's grant of summary judgment in favor of the State of Indiana. We affirm in part and reverse in part.

Issues

The Crossnos raise the following consolidated and restated issues for our review:

1. Whether the trial court properly granted summary judgment in favor of the State with regard to the Crossnos' permit-related claims;

2. Whether the trial court properly granted summary judgment in favor of the State with regard to the Crossnos' claim that the State was negligent in the design, construction, and maintenance of the bridge overpass; and

3. Whether the trial court properly granted summary judgment in favor of the State with regard to the Crossnos' claim that the Stated failed to warn of the height restrictions of the bridge overpass.

Facts and Procedural History

The facts most favorable to the non-movant reveal that on June 22, 1994, Peter Morris, a truck driver for Landstar Ranger Inc. ("Ranger"), was hauling a steel truss from West Virginia to Burns Harbor, Indiana. The permit to transport this oversized load through Indiana was dated June 20, 1994, and had been obtained by Ranger from a third-party permit service. The permit listed the combined height of the steel truss and semi-trailer as 14 feet. However, prior to commencing the journey, Morris measured the actual combined height as 14 feet 2¼ inches.

On June 22, 1994, Morris called the Indiana Department of Transportation ("INDOT") for assistance after discovering that he could not follow the route listed on the permit because a specified exit ramp in Indiana did not exist. Morris informed INDOT employee Rose Mroczka of the routing problem and that he was hauling a load 14 feet 5 inches high. After obtaining her supervisor's approval, Mroczka changed Morris' route through northern Indiana. Moreover, she instructed Morris to change his permit to reflect the altered route, and informed him that INDOT would notify the permit service of the change.

Although Mroczka changed Morris' route to Burns Harbor, Indiana, she forgot to consult a reference map to confirm the highway overpass height restrictions. Consequently, Morris attempted to drive under a bridge overpass with a marked clearance of 14 feet, resulting in the steel truss striking the overpass and hitting the Crossnos' vehicle.¹ On June 22, 1995, the Crossnos' filed a complaint against Morris, Ranger, and the State in the Marion Superior Court. Thereafter, the State filed a motion for summary judgment and supporting memorandum on August 17, 1998, which the court granted in favor of the State with regard to all of the Crossnos' claims on June 1, 1999. 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 the Crossnos were not improperly denied their day in court. See id.

As the moving party, the State bears the burden of demonstrating the absence of a factual issue and its entitlement to judgment as a matter of law. Id. When the defendant makes a motion for summary judgment supported by materials contemplated by T.R. 56, the plaintiff may not rest on the pleadings, but must set forth specific facts controverting the claim for summary judgment, using supporting materials contemplated by the rule. Id. at 1162-63. Should the non-moving party fail to meet this burden, summary judgment may be granted. Id. at 1163. However, "[w]here material facts conflict or undisputed facts lead to conflicting inferences, summary judgment is inappropriate, even if the court believes the non-moving party will not succeed at trial." Dague, 647 N.E.2d at 1140.

II. The Crossnos' Permit-Related Claims

The Crossnos contend that the trial court erred in granting summary judgment in favor of the State with regard to their claim for the negligent issuance of a permit. The Crossnos further contend that "[e]ven if negligent issuance of a permit could be found as a cause of loss," the State's negligent training and supervision of Mroczka and failure to maintain accurate reference maps or disclaim responsibility for their inaccuracy did not entitle it to immunity under the Act. We disagree.

We note initially that governmental immunity from suit is regulated by the Indiana Tort Claims Act ("the Act"), Indiana Code sections 34-13-1-1 through XX-XX-X-X. 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 relevant immunity provision in the Act provides in pertinent part that:

A governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from ... the issuance, denial, suspension, or revocation of, or failure or refusal to issue, deny, suspend, or revoke, any permit, license, certificate, approval, order, or similar authorization, where the authority is discretionary under the law.

Ind.Code § 34-13-3-3(10).

The entity seeking immunity bears the burden of proving that its conduct falls within one of the exceptions set out in the Act. Scott, 659 N.E.2d at 588. 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).

Rather than relying on principles of immunity, the State argues that the Crossnos are collaterally estopped from litigating their claims by the unpublished memorandum decision in DTF Trucking, Inc. v. Indiana Dep't of Transp., et al.,² 709 N.E.2d 762 (Ind. Ct.App. April 29, 1999), trans. denied, in which another panel of this court granted summary judgment in favor of the State and against DTF Trucking³ regarding its claim that the State failed to "1) provide a route that could be safely traveled upon; 2) properly train and supervise [Mroczka]; 3) maintain accurate bridge height maps; and 4) warn [Morris] of any map inaccuracies."⁴ Id., slip op. at 5, 709 N.E.2d 762. In DTF Trucking, another panel of this court held that the State was entitled to immunity pursuant to Indiana Code Section 9-20-6-6, which provides in pertinent part that:

a) The Indiana department of transportation or local unit authorized to issue permits under this chapter may issue permits for transporting semitrailers or trailers designed to be used with semitrailers that exceed the weight and length limitations imposed under this article from the manufacturing facility to the person taking title to the vehicle, including any other destination in the marketing cycle b) A permit issued under this section may designate the route to be traversed and may contain any other restrictions or conditions required for the safe movement of the vehicle.

Id. Because "[t]he term `may' in a statute ordinarily indicates a permissive condition or discretion," we concluded that "the designation of a route for an oversize load permit is a discretionary function of [the State]." Id. (citing Haltom v. Bruner, 680 N.E.2d 6, 9 (Ind.Ct.App.1997)).

At the point when [Morris] could no longer follow his route as mandated in his original permit, [he] contacted [the State]. [The State] provided [Morris] with an alternative route to travel. This alternative route amounted to nothing more than an authorization similar to that which was granted in the original routing permit. Furthermore, it was within [the State's] discretion to authorize this subsequent modification of [Morris's] route. See Ind.Code § 9-20-6-6(b). Consequently, [the State] is immune from liability for any damages arising from its modification of the original permit.

Id. at 5-6, 709 N.E.2d 762.

We agree with the Crossnos that the principle of collateral estoppel is inapplicable in the case at bar because they have never had a "full and fair opportunity to litigate the issue" of the State's immunity under the Act. See Slutsky v. Crews, 713 N.E.2d 288, 291 (Ind.Ct.App.1999) ("in determining whether the defense use of collateral estoppel is appropriate, the court must consider whether the party against whom the judgment is pled has had a full and fair opportunity to litigate the...