Hinshaw v. Board of Com'rs of Jay County

• Decision Date: 07 April 1993
• Docket Number: No. 90S02-9304-CV-415,90S02-9304-CV-415
• Citation: 611 N.E.2d 637
• Parties: Kenneth HINSHAW, Melissa Hinshaw, and Natasha Hinshaw, Plaintiffs/Appellants, v. BOARD OF COMMISSIONERS OF JAY COUNTY, Defendant/Appellee.
• Court: Indiana Supreme Court

Page 637

611 N.E.2d 637

Kenneth HINSHAW, Melissa Hinshaw, and Natasha Hinshaw Plaintiffs/Appellants, v. BOARD OF COMMISSIONERS OF JAY COUNTY, Defendant/Appellee.

No. 90S02-9304-CV-415.

Supreme Court of Indiana.

April 7, 1993.

Frederick R. Hovde, Townsend, Hovde & Montross, Indianapolis, for plaintiffs/appellants.

Robert T. Keen, Jr., Daniel G. McNamara, Miller Carson Boxberger & Murphy, Fort Wayne, for defendant/appellee.

ON PETITION TO TRANSFER

DICKSON, Justice.

Following a collision at the intersection of county roads on May 20, 1990, the plaintiffs/appellants Kenneth Hinshaw, Melissa Hinshaw, and Natasha Hinshaw initiated an action for damages. With respect to defendant/appellee Board of Commissioners of Jay County ("the County"), the plaintiffs alleged negligence in signing and maintaining the intersection. Following summary judgment in favor of the County, the Hinshaws initiated this interlocutory appeal.

The sole issue presented is the meaning to be given Subsection 9 of the immunity provision in the Indiana Tort Claims Act which applies "if a loss results from ... the act or omission of someone other than the governmental entity employee." Ind.Code Sec. 34-4-16.5-3(9). In an unpublished memorandum decision, the Court of Appeals reversed the summary judgment. We grant transfer to address the proper meaning to be given this enactment.

The plaintiffs contend that this immunity provision applies only when the conduct of a non-government employee is the sole proximate cause of the plaintiffs' injuries. The defendant argues that the provision grants immunity to a governmental entity whenever its negligence combines with the negligence of a third party.

Prior decisions of our Court of Appeals have construed Subsection 9 to provide governmental immunity only when an unforeseeable act or omission of a third party constitutes an intervening proximate cause of the injury. Spier v. City of Plymouth (1992), Ind.App., 593 N.E.2d 1255, 1262; Edwards v. Vermillion County Hosp. (1991), Ind.App., 576 N.E.2d 1285, 1288, vacated on other grounds (1991), Ind.App., 579 N.E.2d 1347; City of Bloomington v. Kuruzovich (1987), Ind.App., 517 N.E.2d 408, 415; State v. Magnuson (1986), Ind.App., 488 N.E.2d 743, 747; Maroon v. State Dep't of Mental Health (1980), Ind.App., 411 N.E.2d 404, 417. But cf. Klobuchar v. Purdue Univ. (1990), Ind.App., 553 N.E.2d 169, 172-73 (Subsection 9 immunity applied without discussion of unforeseeable intervening cause issue).

The County argues that these decisions render the subsection meaningless as providing an immunity only in circumstances in which the governmental entity is not a proximate cause and thus could not be held liable in any event. It correctly asserts that in construing a statute, we will presume that the legislature did not enact a useless provision. State ex rel. Hatcher v. Lake Superior Court (1986), Ind., 500 N.E.2d 737, 739. In part responding to this contention, the Spier court noted legislative acquiescence in the interpretations advanced in Kuruzovich and Maroon. Spier, 593 N.E.2d at 1262 n. 2. Notwithstanding such acquiescence, we agree with the County that Subsection 9 must be construed as purposeful, contrary to the rationale previously employed in its interpretation and application.

Courts are not at liberty to construe a statute that is unambiguous. Superior Constr. Co. v. Carr (1990), Ind., 564 N.E.2d 281, 284; Community Hosp. of Anderson and Madison County v. McKnight (1986), Ind., 493 N.E.2d 775, 777. However, where a statute is susceptible to more than one interpretation, it is ambiguous and open to construction to effect the intent of the legislature. P.B. v. T.D. (1990), Ind., 561 N.E.2d 749, 750. Citing Klobuchar, the County asserts that the language of Subsection 9 has a meaning wholly different from that ascribed to it in Spier, Kuruzovich, and Maroon. It is quite apparent that the language of the statutory immunity created by Subsection 9 is ambiguous. Spier, 593 N.E.2d at 1261.

Because the Indiana Tort Claims Act is a statute in derogation of the common law, it must be strictly construed against limitations on the claimant's right to bring suit. Tittle v. Mahan (1991), Ind., 582 N.E.2d 796, 800; Collier v. Prater (1989), Ind., 544 N.E.2d 497, 498. This rule of construction applies to Subsection 9. Spier, 593 N.E.2d at 1262; Maroon, 411 N.E.2d at 417. We will presume that the legislature is aware of the common law and intends to make no change therein beyond its declaration either by express terms or unmistakable implication. Tittle, 582 N.E.2d at 800. The County's argument that Subsection 9 should be interpreted to preclude governmental liability if any third party intervenes, whether foreseeable or not, has been rejected on grounds that such construction would modify a fundamental rule of the common law and that the statute contains no clear and concise expression of such intent. Maroon, 411 N.E.2d at 417.

In construing a statutory provision, we must consider the statute as an entirety, with each part being viewed not as an isolated fragment but with reference to all the other companion provisions. Walgreen Co. v. Gross Income Tax Div. (1947), 225 Ind. 418, 421, 75 N.E.2d 784, 785. To effect the legislature's intent, this Court will construe an ambiguous statute in a manner consistent with other sections of the enactment. Indiana Dep't of State Revenue v. Indianapolis Pub. Transp. Corp. (1990), Ind., 550 N.E.2d 1277, 1278. In its entirety, the immunity provision of the Indiana Tort Claims Act provides as follows:

Sec. 3. A governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from:

(1) the natural condition of unimproved property;

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

(3) the temporary condition of a public thoroughfare which results from weather;

(4) the condition of an unpaved road, trail, or footpath, the purpose of which is to provide access to a recreation or scenic area;

(5) the initiation of a judicial or an administrative proceeding;

(6) the performance of a discretionary function;

(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;

(8) an act or omission performed in good faith and without malice under the apparent authority of a statute which is invalid, if the employee would not have been liable had the statute been valid;

(9) the act or omission of someone other than the governmental entity employee;

(10) 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;

(11) failure to make an inspection, or making an inadequate or negligent inspection, of any property, other than the property of a governmental entity, to determine whether the property complied with or violates any law or contains a hazard to health or safety;

(12) entry upon any property where the entry is expressly or impliedly authorized by law;

(13) misrepresentation if unintentional;

(14) theft by another person of money in the employee's official custody, unless the loss was sustained because of the employee's own negligent or wrongful act or omission;

(15) injury to the person or property of a person under supervision of a governmental entity and who is:

(A) on probation; or (B) assigned to an alcohol and drug services program under IC 12-23, a minimum security release program under IC 11-10-8, or a community corrections program under IC 11-12;

(16) design of a highway (as defined in IC 9-13-2-73), if the claimed loss occurs at least twenty (20) years after the public highway was designed or substantially redesigned; except that this subdivision shall not be construed to relieve a responsible governmental entity from the continuing duty to provide and maintain public highways in a...