Ind. Dep't of Transp. v. Sadler

• Decision Date: 10 June 2015
• Docket Number: No. 64A04–1411–CT–544.,64A04–1411–CT–544.
• Citation: 33 N.E.3d 1187
• Parties: INDIANA DEPARTMENT OF TRANSPORTATION, Appellant–Defendant, and Ricardo Bustos, Defendant, v. Paula SADLER, as the Personal Representative of the Estate of Roger D. Sadler, Appellee–Plaintiff.
• Court: Indiana Appellate Court

33 N.E.3d 1187

INDIANA DEPARTMENT OF TRANSPORTATION, Appellant–DefendantandRicardo Bustos, Defendant

v.Paula SADLER, as the Personal Representative of the Estate of Roger D. Sadler, Appellee–Plaintiff.

No. 64A04–1411–CT–544.

Court of Appeals of Indiana.

June 10, 2015.

J. Thomas Vetne, Brian R. Gates, Jones Obenchain, LLP, South Bend, IN, Attorneys for Appellant.

Stephen W. Thompson, Vaughn A. Wamsley, Vaughn A. Wamsley, P.C., Carmel, IN, Attorneys for Appellee.

CRONE, Judge.

Case Summary

[1] Roger D. Sadler was struck by a car and killed as he performed road work on an interstate. Paula Sadler, as personal representative of his estate (“the Estate”) filed a wrongful death action against Indiana Department of Transportation (“INDOT”), alleging that Roger's death was caused by INDOT's negligence in failing to temporarily close or block a median crossover as a safety measure during the road work.¹ INDOT filed a summary judgment motion, arguing that it was immune from liability pursuant to the Indiana Tort Claims Act (“ITCA”). The trial court denied its summary judgment motion.

[2] INDOT now brings this interlocutory appeal challenging the denial of its summary judgment motion. INDOT argues that it is entitled to summary judgment because Indiana Code Section 34–13–3–3(7) of the ITCA provides immunity to a government entity or its employee from losses resulting from the performance of a discretionary function and INDOT's decision not to close the median crossover was a discretionary function.² We conclude that INDOT has failed to carry its burden to show that it is entitled to immunity. Therefore, we affirm.

Facts and Procedural History

[3] The facts most favorable to the Estate, the nonmoving party, are as follows.³ INDOT hired Moonrock, Inc., to seal pavement cracks on I–94. The project was a mobile operation, meaning that the workers moved along the road as they worked. An INDOT engineer periodically visited the work site to ensure that Moonrock was following contract specifications, including proper safety precautions.

[4] Roger was a Moonrock employee. On April 30, 2010, Roger was working in the scope of his employment as part of Moonrock's sealing crew in the left-hand (inside) lane of westbound I–94 just west of mile marker 23.1 in Porter County. In this area, I–94 is a six-lane divided highway with three westbound and three eastbound lanes. Due to the road construction, the left-hand and center lanes of westbound I–94 were closed to traffic, while the right-hand (outside) lane was open. The westbound lanes were closed both east and west of mile marker 23.1, with orange and white construction barrels between the closed lanes and the right-hand westbound lane. On I–94, the westbound and eastbound lanes are separated by permanent concrete median barriers. However, at mile marker 23.1 there was an opening in the median barrier, commonly referred to as a median crossover. Median crossovers were created for police, emergency, and maintenance vehicles and are not intended for use by the general public. At mile marker 23.1, there was a “No U-turn” sign posted. Although the inside and center lanes running past the median crossover were blocked to traffic, the crossover itself was not blocked with any temporary traffic control devices.

[5] At approximately 3:00 a.m., Ricardo Bustos was traveling eastbound on I–94 and used the median crossover at mile marker 23.1 to do a U-turn onto westbound I–94. He travelled a short distance in the closed lanes and struck Roger with his vehicle. After several days of intensive medical care, Roger died as a result of the injuries he incurred when Bustos ran into him.

[6] The Estate filed a wrongful death complaint against INDOT and Bustos. Relevant to this appeal, the Estate alleged that INDOT was negligent for failing to temporarily close or block the median crossover at mile marker 23.1 when Moonrock's road crew was in the vicinity, which resulted in Roger's death. INDOT moved for summary judgment arguing that the ITCA shielded it from any claims that it negligently allowed Bustos to enter the I–94 work zone through a median crossover placed in accord with INDOT's departmental policy. The trial court denied INDOT's summary judgment motion. This interlocutory appeal ensued.

Discussion and Decision

[7] INDOT appeals the trial court's denial of its summary judgment motion.

When reviewing a grant or denial of a motion for summary judgment our well-settled standard of review is the same as it is for the trial court: whether there is a genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Summary judgment should be granted only if the evidence sanctioned by Indiana Trial Rule 56(C) shows that there is no genuine issue of material fact and the moving party deserves judgment as a matter of law. All factual inferences must be construed in favor of the nonmoving party, and all doubts as to the existence of a material issue must be resolved against the moving party.

Kroger Co. v. Plonski, 930 N.E.2d 1, 4–5 (Ind.2010) (citations omitted).

[8] “A genuine issue of material fact exists where the facts concerning an issue that would dispose of the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting inferences on such an issue.” Vanderhoek v. Willy, 728 N.E.2d 213, 215 (Ind.Ct.App.2000). “Where the evidence is in conflict, or undisputed facts lead to conflicting inferences, summary judgment should not be granted, even if it appears that the nonmovant will not succeed at trial.” Dickerson v. Strand, 904 N.E.2d 711, 715 (Ind.Ct.App.2009).

[9] INDOT asserts that it is entitled to summary judgment because it has “discretionary function” immunity pursuant to the ITCA. Government entities and their employees are subject to liability for torts committed by them, unless one of the ITCA exceptions provides immunity. Peavler v. Bd. of Comm'rs of Monroe Cnty., 528 N.E.2d 40, 42 (Ind.1988). Indiana Code Section 34–13–3–3(7) of the ITCA provides that a “governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from ... [t]he performance of a discretionary function.”

The policy underlying governmental immunity is the fundamental idea that certain kinds of executive branch decisions should not be subject to judicial review. The separation of powers doctrine forecloses the courts from reviewing political, social, and economic actions within the province of coordinate branches of government. In this way, the discretionary function exception articulates “a policy of preventing tort actions from becoming a vehicle for judicial interference with decision-making that is properly exercised by other branches of the government.” Blessing v. United States, 447 F.Supp. 1160, 1170 (E.D.Penn.1978) (interpreting FTCA discretionary function exception).

....

Immunity for discretionary functions, however, does not protect all mistakes of judgment. The discretionary function exception insulates only those significant policy and political decisions which cannot be assessed by customary tort standards. In this sense, the word discretionary does not mean mere judgment or discernment. Rather, it refers to the exercise of political power which is held accountable only to the Constitution or the political process.

....

Immunity assumes negligence but denies liability. Thus, the issues of duty, breach and causation are not before the court in deciding whether the government entity is immune. If the court finds the government is not immune, the case may yet be decided on the basis of failure of any element of negligence. This should not be confused with the threshold determination of immunity.

Peavler, 528 N.E.2d at 44–47 (citations omitted).

[10] Whether a government entity is immune from liability is a question of law, which we review de novo. E. Chicago Police Dep't v. Bynum, 826 N.E.2d 22, 26 (Ind.Ct.App.2005), trans. denied (2006). Because the ITCA is in derogation of the common law, we construe it narrowly against the grant of immunity. Lee v. State, 682 N.E.2d 576, 578 (Ind.Ct.App.1997), trans. denied (1998). The party seeking immunity has the burden of establishing that its conduct falls within one of the exceptions provided by the ITCA. Id.

[11] To determine whether a government entity has engaged in a discretionary function and is thereby shielded from tort liability, we use the “planning-operational test.” Peavler, 528 N.E.2d at 46. Under that test, “a governmental entity will not be held liable for negligence arising from decisions which are made at a planning level, as opposed to an operational level.” Lee, 682 N.E.2d at 578. A decision is considered a “planning” action where it involves “the formulation of basic policy characterized by official judgment, discretion, weighing of alternatives, and public policy choices.” Voit v. Allen Cnty., 634 N.E.2d 767, 770 (Ind.Ct.App.1994). “Government decisions about policy formation which involve assessment of competing priorities, a weighing of budgetary considerations, or the allocation of scarce resources are also planning activities.” Id. In contrast, a decision is an “operational” action where it involves only the execution or implementation of already formulated policy. Id. “ ‘The governmental entity seeking to establish immunity bears the burden of proving that the challenged act or omission was a policy decision made by the conscious balancing of risks and benefits.’ ” Id. (quoting Greathouse v. Armstrong, 616 N.E.2d 364, 367 (Ind.1993) ).

[12] Here, the basis of the Estate's claim is that INDOT caused Roger's death by negligently failing to temporarily close or block the median crossover while workers were in the vicinity. INDOT contends that it performed a discretionary function when it installed the median crossovers. Specifically, INDOT asserts,

INDOT formed a committee decades ago to consider whether crossovers are

...