Gary Community School Corp. v. Roach-Walker

• Citation: 917 N.E.2d 1224
• Decision Date: 10 December 2009
• Docket Number: No. 45S05-0904-CV-145.,45S05-0904-CV-145.
• Parties: GARY COMMUNITY SCHOOL CORPORATION, Appellant (Defendant below), v. Lolita ROACH-WALKER and Victor Walker, Appellees (Plaintiffs below).
• Court: Supreme Court of Indiana

917 N.E.2d 1224

GARY COMMUNITY SCHOOL CORPORATION, Appellant (Defendant below), v. Lolita ROACH-WALKER and Victor Walker, Appellees (Plaintiffs below).

No. 45S05-0904-CV-145.

Supreme Court of Indiana.

December 10, 2009.

W. Anthony Walker, Lucas I. Cohen, Gary, IN, Attorneys for Appellant.

Beth L. Brown, Crown Point, IN, Attorney for Appellees.

On Petition to Transfer from the Indiana Court of Appeals, No. 45A05-0805-CV-275

BOEHM, Justice.

The Indiana Tort Claims Act confers immunity on units of government from liability for injuries caused by "[t]he temporary condition of a public thoroughfare ... that results from weather." We hold that this provision bars claims for injuries sustained during the time reasonably required for the governmental unit to respond to weather conditions. The governmental unit bears the burden of establishing its claim to immunity and in this case the Gary Schools did not carry its burden, so we affirm the judgment of the trial court in favor of the plaintiffs.

Facts and Procedural History

On Saturday, February 5, 2005, Lolita Roach-Walker took her children to Bailly Middle School to attend enrichment classes conducted with the school's permission by the Gary Historical Society, an independent nonprofit organization. As Lolita approached the entrance to the school, she slipped and fell on the walkway. Lolita did not see what contributed to her fall before she fell. A witness described the area where Lolita slipped as "slick" and "wet looking" after the fall. The record as to weather conditions is inconclusive. No evidence established the most recent rain, snow, or sleet, but there was testimony that there had been no precipitation that day or the night before the accident. Lolita testified that the sky was clear that day and that the temperature was "kind of" cold. There were no other reports of slip-and-fall incidents on the walkway that day.

Lolita and her husband, Victor Walker, sued the Gary Community School Corporation ("GCSC"), claiming negligence in maintaining the walkway, and seeking damages for Lolita's injuries and for Victor's loss of consortium. At the close of the Walkers' evidence, GCSC moved for a directed verdict, contending that the Indiana Tort Claims Act ("ITCA") conferred immunity from liability because Lolita's fall occurred as a result of temporary conditions caused by the weather. The trial court concluded that immunity raised disputed factual issues and denied that motion. After both parties rested, GCSC tendered a proposed jury instruction on immunity which the trial court refused. The jury found for Lolita on the negligence claim and awarded $90,000. GCSC appealed, arguing that the trial court erred in denying its motion for a directed verdict and in refusing its proposed jury instruction.

The Court of Appeals affirmed, reasoning that immunity is a question of law, so the issue was not to be submitted to the jury, and that GCSC had failed to demonstrate it was entitled to immunity as a matter of law. Gary Cmty. Sch. Corp. v. Roach-Walker, No. 45A05-0805-CV-00275, 2008 WL 5412896, at *6 (Ind.Ct. App. Dec. 31, 2008). We granted transfer.

I. Governmental Liability and Immunity

A traditional formulation of tort liability requires the plaintiff to establish a duty, breach of that duty, proximate cause, and damages. 1 Dan B. Dobbs, The Law of Torts § 114, at 269 (2001). Immunity trumps all of these and bars recovery even where ordinary tort principles would impose liability. Thus, for example, the government and its employees are immune from liability for the "initiation of a judicial or an administrative proceeding," even if the action was taken in breach of a duty to act competently and in the public interest. Ind.Code § 34-13-3-3(6) (2008). Whether an immunity applies is a matter of law for the courts to decide. Hochstetler v. Elkhart County Highway Dep't, 868 N.E.2d 425, 426 (Ind.2007); Mangold v. Indiana Dep't of Natural Res., 756 N.E.2d 970, 975 (Ind.2001). The party seeking immunity bears the burden of establishing the immunity. Hochstetler, 868 N.E.2d at 426. If the facts allow multiple reasonable conclusions as to an element triggering the immunity, then the governmental unit has failed to establish its immunity. See Peavler v. Bd. of Comm'rs of Monroe County, 528 N.E.2d 40, 46 & n. 1 (Ind.1988). Of course, the government may still escape liability if it can demonstrate it owed no duty to the plaintiffs, did not breach its duty, or did not cause any damages.

A. Common Law

In Indiana as in other states, governmental entities traditionally enjoyed a broad immunity from tort liability for their actions. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 131, at 1051-52 (5th ed.1984). One important exception to the general rule of governmental immunity was the recognition of a common law duty of municipalities to maintain public roads and sidewalks in reasonably safe conditions. E.g., Glantz v. City of South Bend, 106 Ind. 305, 309, 6 N.E. 632, 634 (1886) ("It was the duty of [the city] to keep all its streets, sidewalks, and crossings in a reasonably safe condition, and free from unnecessary and dangerous obstructions, so as not to endanger the persons of those lawfully using the same, and it was liable under the law for negligently suffering them to become and remain unsafe to anyone injured thereby."). Some jurisdictions described street maintenance as a "proprietary" activity similar to, for example, operating a municipal electric utility, and explained the government's exposure to liability as arising from the doctrine that the government's proprietary acts are not within its "governmental" immunity. E.g., Taylor v. City of Newport News, 214 Va. 9, 197 S.E.2d 209, 210 (1973). Others found the maintenance of thoroughfares to be "mandatory" rather than "discretionary" and therefore outside the government's immunity. E.g., Bunch v. Town of Edenton, 90 N.C. 431, 433-34 (1884). The drawing of these lines has been described as "inexplicable." Keeton et al., supra § 131, at 1054.

Whatever its theoretical underpinning, the duty to maintain roads did not render the government strictly liable for all defective conditions. Michigan City v. Boeckling, 122 Ind. 39, 40-41, 23 N.E. 518, 518 (1890). Rather, the courts recognized a "legal obligation" of a governmental entity to "exercise ordinary care and skill in making and keeping its streets in a reasonably safe condition for travel by persons who exercise ordinary care." Id. at 41, 23 N.E. at 518. Specifically, at common law a governmental entity was not liable for injuries caused by "accumulation of snow or ice through natural causes" in public streets and sidewalks that result in a "general slippery condition." City of Linton v. Jones, 75 Ind.App. 320, 322, 130 N.E. 541, 542 (1921); accord Waterman L. Williams, The Liability of Municipal Corporations for Tort § 99, at 161-63 (1901) (citing cases where negligent maintenance created liability). In sum, whether viewed as an exception from immunity or as a freestanding source of liability, unlike most governmental activities, liability for maintenance of thoroughfares was largely governed by ordinary negligence principles.

B. The Indiana Tort Claims Act

Like many other jurisdictions, Indiana abolished common law sovereign immunity for all government activities in a series of judicial decisions in the 1960s and early 1970s. Campbell v. State, 259 Ind. 55, 63, 284 N.E.2d 733, 737-38 (1972) (abrogating immunity for the state); Klepinger v. Bd. of Comm'rs of Miami County, 143 Ind. App. 155, 166, 143 Ind.App. 178, 239 N.E.2d 160, 172-73 (1968), trans. denied, (abrogating immunity for counties); Brinkman v. City of Indianapolis, 141 Ind.App. 662, 666, 231 N.E.2d 169, 172-73 (1967), trans. denied, (abrogating immunity for municipalities); Keeton et al., supra, § 131, at 1052. As a result of these decisions, most activities of government entities were exposed to liability under traditional tort theories. Campbell, 259 Ind. at 63, 284 N.E.2d at 737-38. In response, the Indiana General Assembly passed the ITCA. Acts 1974, Pub.L. No. 142, § 1 (1974) (current version at I.C. § 34-13-3). This statute granted absolute immunity to governmental entities in a number of specific circumstances, and codified rules of liability for other areas of governmental activity. Compare I.C. § 34-13-3-3(4) (conferring immunity for the condition of some unpaved roads, trails and foot paths) and I.C. § 34-13-3-3(6) (immunity for judicial acts) with I.C. § 34-13-3-3(5) (immunity for the design of an extreme sports facility, but expressly recognizing a duty to maintain the area in an overall safe condition).

The portion of the ITCA relevant to this case has remained unchanged since its inception. It states:

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

. . .

(3) The temporary condition of a public thoroughfare ... that results from weather.

I.C. § 34-13-3-3(3). In the first case addressing a municipality's liability under this provision, the Court of Appeals described the ITCA as "little more than a codification of the common law" as it pertained to natural accumulation of snow and ice. Walton v. Ramp, 407 N.E.2d 1189, 1191 (Ind.Ct.App.1980). Since Walton, the Court of Appeals and this Court have continued to rely on common law precedents in interpreting subsection (3)'s immunity for conditions caused by weather. E.g., Catt v. Bd. of Comm'rs of Knox County, 779 N.E.2d 1, 4 (Ind.2002) (citing City of Muncie v. Hey, 164 Ind. 570, 574, 74 N.E. 250, 251 (1905)); Van Bree v. Harrison County, 584 N.E.2d 1114, 1117-18 (Ind.Ct. App.1992), trans. denied, (citing Ewald v. City of South Bend, 104 Ind.App. 679, 683-84, 12 N.E.2d 995, 996-97 (1938)).

These cases demonstrate that the immunity afforded by subsection (3) is narrower than the immunity established by some other provisions of the ITCA. In ...