Hertz v. School City of East Chicago
| Decision Date | 06 February 2001 |
| Docket Number | No. 45A04-0004-CV-162.,45A04-0004-CV-162. |
| Citation | 744 N.E.2d 484 |
| Parties | Joyce HERTZ, Appellant-Plaintiff, v. SCHOOL CITY OF EAST CHICAGO, Appellee-Defendant. |
| Court | Indiana Appellate Court |
Andrew A. Crosmer, Rubino & Crosmer, Munster, IN, Attorney for Appellant.
Bruce P. Clark, Stacy J. Vasilak, Bruce P. Clark & Associates, Munster, IN, Attorneys for Appellee.
Joyce Hertz appeals the trial court's grant of summary judgment in favor of School City of East Chicago (the "school"). We reverse.
Hertz raises the following restated issues for our review:
The facts most favorable to the non-movant reveal that Hertz is employed as a teacher by the school. On February 1, 1997, Hertz arrived at the school to attend a wrestling meet. As she crossed the parking lot, she slipped and fell. She fell a second time on the sidewalk leading to the school. There was an accumulation of ice and snow on both the parking lot and the sidewalk of the school. As a result of the two falls, Hertz was injured.
On September 10, 1998, Hertz filed a complaint against the school alleging that she was injured as a result of the school's negligence. Thereafter, the school filed a motion for summary judgment claiming that it was statutorily immune under the Indiana Tort Claims Act from Hertz's claim of negligence. Following a hearing, the trial court granted summary judgment in favor of the school. This appeal ensued.
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 Hertz was not improperly denied his day in court. See id.
Therefore, on appeal, we must determine whether the record reveals a genuine issue of material fact and whether the trial court correctly applied the law. Shuamber v. Henderson, 579 N.E.2d 452, 454 (Ind.1991). A fact is material if it facilitates the resolution of any of the issues involved. State Street Duffy's, Inc. v. Loyd, 623 N.E.2d 1099, 1100 (Ind.Ct.App. 1993), trans. denied. Any doubt as to a fact, or an inference to be drawn, is resolved in favor of the non-moving party. Malachowski v. Bank One, Indianapolis, 590 N.E.2d 559, 562 (Ind.1992).
Hertz contends that the trial court erred in granting summary judgment in favor of the school because the governmental entity was not entitled to immunity under Indiana Code section 34-13-3-3. We agree.
Governmental immunity from suit is regulated by Indiana Code sections 34-13-1-1 through XX-XX-X-X, (the "Act"). 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 entity seeking immunity bears the burden of proving that its conduct falls within one of the exceptions set out in the Act. Id. 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). The relevant immunity provision in the Act provides in pertinent part that:
A government entity or an employee acting within the scope of the employee's employment is not liable if a loss results from: . . . the temporary condition of a public thoroughfare that results from weather.
Ind.Code § 34-13-3-3(3). We have previously held that Indiana Code section 34-13-3-31 is a codification of a governmental entity's common law duty to exercise reasonable care and diligence to keep its streets and sidewalks in a reasonably safe condition for travel. Walton v. Ramp, 407 N.E.2d 1189, 1191 (Ind.Ct.App.1980).
We believe that the determination of whether the school was entitled to summary judgment hinges on whether the ice and snow accumulation on the school's parking lot and sidewalk was a "temporary" condition within the meaning of Indiana Code section 34-13-3-3. "Temporary" is the opposite of permanent. State v. Curtis, 241 Ind. 507, 173 N.E.2d 652, 653 (1961). However, the definition of temporary is not so broad as to include everything that is not permanent. Van Bree v. Harrison County, 584 N.E.2d 1114, 1117 (Ind.Ct.App.1992), trans. denied. Recently, this court examined the term "temporary" as contained in Indiana Code section 34-13-3-3. Catt v. Board of Comm'rs of Knox County, 736 N.E.2d 341 (Ind.Ct.App.2000). In Catt, the plaintiff was injured when he drove into a ditch where a culvert had existed but had been washed away by heavy rainfall. Id. at 344. The culvert had washed away several times prior to the date of the plaintiff's accident. Id. at 346. Consequently, the plaintiff filed suit against the governmental unit alleging negligence in the inspection, design, and maintenance of the culvert. Id. at 344. Thereafter, the governmental unit moved for summary judgment on the basis that it was statutorily immune under the Act pursuant to Indiana Code section 34-13-3-3. Id. We stated that:
[A] determination of whether a condition is `temporary' as set forth in Indiana Code section 34-13-3-3 hinges on the unique factual circumstances of a case; a `bright line test' is inapplicable for purposes of this analysis. Id. at 345. For example, inclement weather, such as heavy rainfall, may temporarily cause a roadway or bridge to be dangerous or impassable for motorists because of flooding. However, if this condition is due to poor inspection, design, or maintenance of the thoroughfare then the condition of the thoroughfare could be considered `permanent' under Indiana Code section 34-13-3-3.
Id. at 346. After examining the designated materials, we reversed the trial court's grant of summary judgment in favor of the governmental unit. Id. at 347.
In opposition to the school's motion for summary judgment, Hertz designated her deposition that established that on February 1, 1997, she suffered injuries when she fell due to the icy condition of the school's parking lot and sidewalk. R. 97, 78. In addition, Hertz designated the deposition of Victor Sanchez, the maintenance supervisor of the school, which established that there was no precipitation on February 1, 1997, and that the last day it had snowed was on January 26, 1997. Thus, a significant time period existed between the accumulation of snow and ice and Hertz's fall on the parking lot and sidewalk of the school. Therefore, we believe that Hertz's designated materials are sufficient to raise an issue of fact with respect to the school's contention that the sole and proximate cause of Hertz's injuries was the "temporary" condition of the parking lot and sidewalk caused by the snow and ice. Because the school failed to satisfy its burden of proof that no genuine issue of material fact exists, we believe that the trial court erred in concluding that the school was entitled to statutory sovereign immunity.2
Hertz also contends that the trial court erred in granting summary judgment in favor of the school because the governmental unit was not entitled to common law sovereign immunity. We agree.
Because the school is not entitled to immunity under the Act, we must now examine whether common law sovereign immunity shields the school from tort liability. Common law sovereign immunity has long been recognized in Indiana. See e.g., Perkins v. State, 252 Ind. 549, 251 N.E.2d 30, 32 (1969)
. Recently, the Indiana Supreme Court clarified the doctrine of common law sovereign immunity in Benton v. City of Oakland City, Indiana, 721 N.E.2d 224 (Ind.1999). The Court stated that "the duty owed to a private individual" was nothing more than a "duty to use reasonable care" and that a governmental unit is bound by the same duty of care as a private individual, except in a few limited circumstances. Id. at 228, 230. The Court in Benton listed three circumstances where a governmental unit could invoke common law sovereign immunity, these being: (1) where a city or state fails to provide adequate police protection to prevent crime; (2) where a state official makes an appointment of an individual whose incompetent performance gives rise to a suit alleging negligence on the part of state official for making such an appointment; and (3) where judicial decision-making is challenged. Id. at 230. Thereafter, this court held that the failure to provide fire protection should...
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City of South Bend v. Dollahan
...bears the burden of proving that its conduct falls within one of the exceptions set out in the Act. Hertz v. School City of East Chicago, 744 N.E.2d 484, 486 (Ind.Ct.App.2001). We narrowly construe immunity because it provides an exception to the general rule of liability. Lake County Juven......