Jacobs v. Board of Com'rs of Morgan County
| Decision Date | 22 June 1995 |
| Docket Number | No. 49A04-9411-CV-468,49A04-9411-CV-468 |
| Citation | 652 N.E.2d 94 |
| Parties | Karen L. JACOBS, Appellant-Defendant, v. The BOARD OF COMMISSIONERS OF MORGAN COUNTY, The Morgan County Council and The Morgan County Highway Department, Appellees-Plaintiffs. |
| Court | Indiana Appellate Court |
Plaintiff Appellant Karen L. Jacobs appeals from the entry of summary judgment in favor of Defendants Appellees the Board of Commissioners of Morgan County, the Morgan County Council and the Morgan County Highway Department (hereinafter collectively referred to as "Morgan County") in her action for personal injury sustained on a Morgan County road.
We reverse and remand.
One issue is raised for our review, which we restate as: Whether the trial court correctly entered summary judgment in favor of Morgan County pursuant to the immunity provisions of the Indiana Tort Claims Act. 1
This action arose from an automobile accident involving Karen Jacobs and her husband, Timothy Jacobs. The material facts are not in dispute and reveal that on or about August 26, 1990, Timothy and Karen Jacobs were guests at a house party on Teeters Road in Morgan County. Timothy Jacobs drove the couple's 1988 Buick from Indianapolis on State Road 37 to Timothy's co-worker's home on Teeters Road. 2 Karen was a passenger on the trip down to Morgan County and was also a passenger at the time of the accident.
The accident occurred on the Jacobses' return trip to Indianapolis. They left the party at approximately 12:30 a.m. and headed south on Teeters Road. Timothy drove the car while Karen rested in the back seat. It was a dark and foggy night and Timothy did not see an unmarked ninety degree curve in Teeters Road. When Timothy was unable to negotiate the turn, the car left the road and hit a tree.
As a result of the collision, Karen Jacobs sustained injuries consisting of a disfiguring lip injury, a broken nose and tooth, and other facial damage including a partially deviated septum. The Jacobses alleged in their complaint that the vicinity of the turn where the accident occurred was negligently maintained and/or designed by Morgan County, and that the County's negligence proximately caused the accident. Karen alleges in the complaint that due to her injuries, she has incurred medical expenses, loss of income, pain and suffering, loss of personal time, loss of enjoyment of life, and impairment of earning capacity. Morgan County denied all material allegations in its answer and raised several affirmative defenses alleging that the Jacobses were contributorily negligent, incurred the risk, and that the County was immune from liability pursuant to various sections of I.C. 34-4-16.5-3 (1994).
The County moved for summary judgment alleging that there was no genuine issue of material fact and that the County was immune from civil liability pursuant to I.C. 34-4-16.5-3 for the performance of a discretionary function and for the design of a public thoroughfare. Thus, the County alleged that it was entitled to judgment as a matter of law. The County specifically designated the following materials in support of its motion for summary judgment: the complaint and answer, the affidavits of Steven S. Wegman Robert W. Garner, Charles W. Thacker and Gary B. Carrell.
The Jacobses filed their opposition to the County's motion for summary judgment and specifically designated the following materials in support of their motion: the deposition of Steven Wegman, Wegman's responses to interrogatories 2, 7, 8, 9, 10, 11, 12 and 15, Morgan County Ordinance 6-1-5 and 6-1-5.1 or the renumbered 6-1-5-1 and 6-1-5-2 and the Indiana Manual of Uniform Traffic Control Devices.
After hearing argument on Morgan County's motion for summary judgment, the trial court denied the motion on July 1, 1994. Morgan County filed a motion to reconsider and the trial court granted the motion and issued an order granting the County's motion, citing Voit v. Allen County (1994), Ind.App., 634 N.E.2d 767, reh'g dismissed, trans. denied. The trial court did not issue specific findings of fact and conclusions of law. Karen Jacobs appeals.
Before reaching the merits of this appeal, we recite the familiar standard of review by which we review the granting of motions for summary judgment. When reviewing the trial court's ruling on a motion for summary judgment, this court applies the same standard as the trial court. American Family Mut. Ins. Co. v. Dye (1994), Ind.App., 634 N.E.2d 844, 846, reh'g denied, trans. denied. Thus, no deference is given to the trial court's judgment. Foreman v. Jongkind Bros., Inc. (1994), Ind.App., 625 N.E.2d 463, 467, reh'g denied.
Summary judgment is appropriate 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). When the parties do not dispute the facts material to the claim, our task is to determine whether the trial court correctly applied the law to the undisputed facts. O'Neal v. Throop (1992), Ind.App., 596 N.E.2d 984, 986, trans. denied.
On appeal, we will carefully scrutinize the trial court's determination to ensure that the non-prevailing party is not improperly denied his day in court. Perryman v. Huber, Hunt & Nichols, Inc. (1994), Ind.App., 628 N.E.2d 1240, 1243, trans. denied. We consider only the materials designated to the trial court to determine whether there is a genuine issue as to any material fact and whether the moving party is entitled to a judgment as a matter of law. T.R. 56(C). We liberally construe all inferences and resolve all doubts in the non-movant's favor. Id.
Jacobs argues that Morgan County is not immune from liability under the Act. Specifically, she contends that the vicinity of the turn where her accident occurred was negligently maintained and/or designed by the County in the following respects: lack of turn signs, lack of advisory speed plates, lack of a center line, lack of edge lines and lack of reflectors or other warning indicators. Morgan County contends that, as a governmental entity, it is immune from liability. Specifically, the County argues that it is entitled to discretionary and design immunity pursuant to the Indiana Tort Claims Act (). 3
The Act's non-liability subsection provides in pertinent part as follows:
[a] governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from:
* * * * * *
(6) the performance of a discretionary function;
* * * * * *
(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 reasonably safe condition;
* * * * * *
Whether a governmental entity is immune from liability under section 16.5-3 of the Act is a question of law for the courts. Voit, 634 N.E.2d at 769. Because the Act is in derogation of the common law, it is narrowly construed against the grant of immunity. Mullin v. Municipal City of South Bend (1994), Ind., 639 N.E.2d 278, 281. The party seeking immunity bears the burden of proving that its conduct falls within the Act, and thus is shielded from liability. Id. As we alluded to previously, we do not know whether the trial court found immunity based on section (6) or section (16) of the Act. Therefore, we will address both theories.
According to I.C. 34-4-16.5-3(16), when the claimed loss results from the design of a public highway, the County is immune from civil liability if the loss occurs at least 20 years after the highway was designed or substantially redesigned. The designated evidentiary material reveals that the design of Teeters Road predates the late-1800's. Jacobs's accident occurred in 1990, and thus clearly falls within the design immunity section.
Although any allegations of negligence regarding the original design of Teeters Road are insulated from liability due to design immunity, we are not persuaded as a matter of law that Jacobs alleges defects in the original design of the road. Rather, she argues that the County should have added signage in the interest of public safety on this treacherous turn. Therefore, this is not a matter susceptible to treatment under subsection (16), but rather is more appropriately analyzed under subsection (6).
Furthermore, I.C. 9-13-2-73 (1988) defines highway or street as Because "signage" is not included in this definition, we cannot say as a matter of law that signage is design within the meaning of I.C. 34-4-16.5-3(16). See Voit, 634 N.E.2d at 769 ().
In construing the discretionary immunity section of the Act, our supreme court adopted the "planning-operational" test in Peavler v. Board of Comm'rs of Monroe County (1988), Ind., 528 N.E.2d 40. This standard essentially provides that a governmental entity will not be held liable for negligence arising from decisions made at the planning level, as opposed to the...
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