Henshilwood v. Hendricks County

Decision Date31 July 1995
Docket NumberNo. 54A01-9502-CV-38,54A01-9502-CV-38
PartiesSteve HENSHILWOOD and Kelly Henshilwood, individually and for and on behalf of their minor daughter, Laura Henshilwood, Appellants-Plaintiffs, v. HENDRICKS COUNTY, Board of Commissioners of Hendricks County, Hendricks County Highway Department, Hendricks County Department of Health, Appellees-Defendants.
CourtIndiana Appellate Court

NAJAM, Judge.


Steve and Kelly Henshilwood, individually and on behalf of their minor daughter, Laura Henshilwood (hereinafter "the Henshilwoods") appeal from the trial court's grant of a motion for summary judgment in favor of Hendricks County, Board of Commissioners of Hendricks County, Hendricks County Highway Department and Hendricks County Department of Health (collectively "the County"). The Henshilwoods brought a negligence action against the County for injuries Laura sustained when she came into contact with contaminated water which had overflowed onto their property. The County denied liability on the basis of governmental immunity and the absence of a duty owed to the Henshilwoods. The trial court found that although the County was not immune from suit, the County owed no duty to the Henshilwoods and entered summary judgment on that ground. The County brings a cross-appeal from the trial court's determination that the County was not entitled to immunity under the Indiana Tort Claims Act. 1

We affirm in part, reverse in part, and remand.


The parties present two issues for our review which we restate as follows:

1. Whether the trial court erred when it determined the County was not immune from liability under the Tort Claims Act.

2. Whether the trial court erred when it found, as a matter of law, that the County owed no duty to the Henshilwoods.


The facts relevant to this appeal show that the Henshilwoods' home is located on the west side of County Road 0 in southern Hendricks County. On the east side of County Road 0 is a ditch which flows south through a culvert, crosses underneath County Road 0 and ends at the Henshilwoods' property. Sometime during late 1988 or early 1989, water from the ditch began to overflow onto the Henshilwoods' land. Ordinarily, a cement box with a grate over the top collected the water from the culvert and emptied it into an underground pipe which ran from the southeastern to the southwestern corner of the Henshilwoods' property. However, during heavy rains and on other occasions, water from the ditch would overflow onto the southeastern portion of the Henshilwoods' property where it would pool until it would eventually drain into the underground pipe.

Steve Henshilwood spoke with the County Engineer, Walter Reeder, regarding the flooding on his land. The County proposed running an open trench across the Henshilwoods' property to extend the flow of the ditch from the front to the back of their property. The Henshilwoods rejected the proposal as being too expensive and aesthetically objectionable. Thereafter, a neighbor of the Henshilwoods contacted the County regarding pooling that was also occurring in his yard. The County again suggested that the Henshilwoods run an open trench through their yard in order to alleviate the pooling in both yards, and the Henshilwoods again rejected the proposal.

David and Jo Williams (the "Williams") live north of the Henshilwoods on the east side of County Road 0. In 1987, prior to the Henshilwoods' flooding, the Williams experienced the backup of raw sewage in their yard and house due to problems with their septic system. The County directed the Williams to perform correctional work on their existing system and also instructed them to install a subsurface drain pipe across their yard to help move surface water away from the septic field and to the ditch.

In June of 1990, the County Engineer filed a complaint with the Health Department regarding suspected sewage contamination of the water in the ditch along County Road 0. Various tests of the water revealed unsatisfactory levels of E-Coli bacteria. Another complaint was later filed by a nearby property owner regarding contamination, and further tests of the water showed the continued presence of E-Coli bacteria in the ditch water. The Henshilwoods were not aware that the ditch water was contaminated. In October of 1990, Laura Henshilwood became ill after playing in leaves in the area of her yard where water from the ditch had pooled. Laura was subsequently diagnosed with Typhoid.

Standard of Review

In reviewing the trial court's ruling on a motion for summary judgment, this court applies the same standard applied by the trial court. Walling v. Appel Service Co. (1994), Ind.App., 641 N.E.2d 647, 648-49; Miller v. Monsanto (1993), Ind.App., 626 N.E.2d 538, 541. Summary judgment is appropriate only if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C). We resolve any doubt as to a fact, or an inference to be drawn therefrom, in favor of the party opposing summary judgment. Terre Haute First Nat. Bank v. Pacific Employers Ins. Co. (1994), Ind.App., 634 N.E.2d 1336, 1337. Even if the trial court does not believe that the non-moving party will be successful at trial, summary judgment should not be entered where material facts conflict or where conflicting inferences are possible. State Street Duffy's Inc. v. Loyd (1993), Ind.App., 623 N.E.2d 1099, 1101, trans. denied.

Issue One: Immunity

On cross-appeal, the County contends that the immunity provisions of the Indiana Tort Claims Act, Indiana Code § 34-4-16.5-3, preclude liability in this case. The absence of governmental immunity would require further inquiry into the duty element of negligence; however, because a finding of immunity would render moot the issue of duty, we begin our analysis with that threshold determination. See Peavler v. Monroe County Bd. of Comm'rs (1988), Ind., 528 N.E.2d 40, 47.

A governmental entity is subject to liability for torts committed by its agencies and its employees unless one of the immunity provisions of the Tort Claims Act applies. Id. at 42. The party seeking immunity bears the burden of proving that its conduct falls within one of the exceptions set out in the Act. Mullin v. Municipal City of South Bend (1994), Ind., 639 N.E.2d 278, 281.

The County first contends it was immune from liability pursuant to Indiana Code § 34-4-16.5-3(2). That subsection of the statute provides that a governmental entity or employee acting within the scope of his employment is not liable if a loss results from:

the condition of a reservoir, dam, canal, conduit, drain or similar structure when used by a person for a purpose which is not foreseeable.

We agree with the Henshilwoods that the ditch was not used for an unforeseeable purpose. Use of the ditch to collect water was its intended use, and clearly foreseeable and known to the County. The County cannot claim immunity under this clause.

Second, the County claims immunity under I.C. § 34-4-16.5-3(7), which provides immunity for a loss that results from:

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 County is not entitled to immunity under this provision because contrary to its assertion, the Henshilwoods do not allege in their complaint that the County failed to adopt or enforce any law within the meaning of this provision.

Next, the County asserts it is immune from suit pursuant to I.C. § 34-4-16.5-3(9) which states that a governmental entity or an employee acting within the scope of his employment is not liable if a loss results from:

the act or omission of someone other than the governmental entity or the governmental entity's employee.

The County argues that because the Henshilwoods claim is premised upon the fact that sewage was released from the Williams' property into the culvert and then into the ditch, the County cannot be liable.

While the County correctly asserts that it cannot be liable for an act or omission of a third party, the Henshilwoods' claim against the County is a separate and distinct claim not necessarily arising from any negligence by the Williams. In their complaint, the Henshilwoods allege several separate acts of negligence by the County, including that it was negligent in constructing the ditch, failing to maintain the ditch, instructing the Williams' to direct further water into the ditch, failing to warn of known contamination of the ditch, and failing to prevent the spread of communicable diseases. Thus, the County's liability, if any, is not derived solely from the acts or omissions of a third party. The County has not shown it is immune from liability under this theory.

The County maintains it is also entitled to immunity under I.C. § 34-4-16.5-3(10) which states that a governmental entity is not liable if the 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.

The County asserts that it originally issued permits with regard to septic system installations and, thus, any subsequent failure to revoke these permits cannot be the basis for liability. Again, the County's argument misses the mark. The Henshilwoods do not allege that the County negligently issued or failed to revoke any permit; rather, they contend it failed to adequately construct and maintain the ditch.


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