Kantz v. Elkhart County Highway Dept., 20A04-9708-CV-341

• Decision Date: 10 November 1998
• Docket Number: No. 20A04-9708-CV-341,20A04-9708-CV-341
• Parties: Annie KANTZ and James Kantz, Appellants-Plaintiffs, v. ELKHART COUNTY HIGHWAY DEPARTMENT, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 608

701 N.E.2d 608

Annie KANTZ and James Kantz, Appellants-Plaintiffs, v. ELKHART COUNTY HIGHWAY DEPARTMENT, Appellee-Defendant.

No. 20A04-9708-CV-341.

Court of Appeals of Indiana.

Nov. 10, 1998.

William T. Webb, Michael J. Anderson, South Bend, for Appellants-Plaintiffs.

Michael F. Deboni, David E. Swihart, Yoder, Ainlay, Ulmer & Buckingham, Goshen, for Appellee-Defendant.

OPINION

STATON, Judge.

Annie and James Kantz appeal the trial court's grant of summary judgment in favor of the Elkhart County Highway Department (the "County"). The Kantzes raise three issues on appeal which we restate as two:

I. Whether the County owed Mrs. Kantz a duty to remove a tree stump located on the right-of-way of a county road.

II. Whether Mr. Kantz's claim is barred by the Indiana Tort Claims Act because he did not file a tort claims notice within 180 days of the accident, instead filing his complaint within 180 days.

We affirm in part, reverse in part, and remand. ¹

The facts most favorable to the non-movant reveal that Mrs. Kantz and her son, Douglas Cook, were involved in an accident on July 7, 1994, when the vehicle in which they were traveling struck a tree stump. Cook, who was driving, lost control of the vehicle after it struck the stump. Mrs. Kantz was injured.

The stump was located adjacent to a county road and was within the County's right-of-way. County employees had cut the tree down on February 26, 1992 because the County had received a complaint about its proximity to the road and because the tree had marks on it indicating that it may have been hit by a vehicle. The County did not remove the stump, which was between three and four feet high.

On November 18, 1994, the Kantzes filed suit against the County, alleging that the County's negligence in failing to remove the stump caused Mrs. Kantz's injuries and that these injuries resulted in Mr. Kantz losing the care, comfort and companionship of his wife. Mrs. Kantz had given the County a tort claim notice within 180 days of the accident, on August 5, 1994. Mr. Kantz did not file a tort claim notice. The County sought summary judgment, arguing that it did not owe Mrs. Kantz a duty to remove the tree stump and that Mr. Kantz's claim was time barred because he did not file a tort claim notice within 180 days of the accident. The trial court granted the County's motion; this appeal ensued.

Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). The burden is on the moving party to prove there are no genuine issues of material fact and he is entitled to judgment as a matter of law. Once the movant has sustained this burden, the opponent must respond by setting forth specific facts showing a genuine issue for trial; he may not simply rest on the allegations of his pleadings. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind.1992). At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. T.R. 56(C).

When reviewing an entry of summary judgment, we stand in the shoes of the trial court. We do not weigh the evidence but will consider the facts in the light most favorable to the nonmoving party. Reed v. Luzny, 627 N.E.2d 1362, 1363 (Ind.Ct.App.1994), reh. denied, trans. denied. We may sustain a summary judgment upon any theory supported by the designated materials. T.R. 56(C).

I. Duty

The Kantzes argue that the County owed Mrs. Kantz a duty to remove the tree stump struck by the vehicle in which she was riding. The Kantzes' claim is based upon a theory of negligence. In order to prevail on a claim of negligence, a plaintiff must prove: (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty by the defendant; and (3) injury to the plaintiff proximately caused by that breach. Wickey v. Sparks, 642 N.E.2d 262, 265 (Ind.Ct.App.1994), trans. denied. Generally, the existence of a duty is a question of law for the court to determine. Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991), reh. denied. However, factual questions may be interwoven in this issue, thus rendering the existence of a duty a mixed question of law and fact, ultimately to be resolved by the fact-finder. State v. Cornelius, 637 N.E.2d 195, 198 (Ind.Ct.App.1994), trans. denied.

It is well-established that a "governmental entity is bound to exercise reasonable care and diligence to keep its highways in a reasonably safe condition for travel." Harkness v. Hall, 684 N.E.2d 1156, 1160 (Ind.Ct.App.1997), trans. pending (citing Walton v. Ramp, 407 N.E.2d 1189, 1191 (Ind.Ct.App.1980)); see also Bodnar v. City of Gary, 629 N.E.2d 278, 279-80 (Ind.Ct.App.1994), reh. denied ("Indiana courts have recognized a general duty on the part of the state, counties, and municipalities to exercise reasonable care in the design, construction, maintenance, and repair of the roads and highways within their control."). Furthermore, governmental entities have not been immunized from liability for breaching this duty. The Indiana Tort Claims Act provides, in part:

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

(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....

IND.CODE § 34-4-16.5-3(16) (1993) (emphasis added). ² We first address whether the County, based upon its duty to exercise reasonable care and diligence to maintain safe highways, had a duty to remove the tree stump.

Resolution of this issue depends in part upon the underlying facts. The Kantzes argue that they raised a genuine issue of material fact regarding whether the vehicle in which Mrs. Kantz was riding left the road prior to striking the tree stump. The designated material reveals that both Mrs. Kantz and her son testified during their depositions that their vehicle did not leave the road prior to striking the stump. The County designated a great deal of convincing evidence which suggests otherwise. However, on summary judgment the evidence must be viewed in a light most favorable to the non-movant. Reed, 627 N.E.2d at 1363. Too, for summary judgment purposes "this court is concerned only with the existence of factual questions, and not with a litigant's ability to sustain the burden of proof upon those issues." Bandido's Inc. v. Journal Gazette Co., 575 N.E.2d 324, 327 (Ind.Ct.App.1991), trans. denied (emphasis in original). Therefore, we must assume that the vehicle did not leave the road prior to striking the stump.

Based upon this assumption, it is clear that the County owed Mrs. Kantz a duty to remove the stump. It is undisputed that the County had notice of the existence of this stump and its proximity to the road because county employees cut the tree down two years before the accident in question. The County also had knowledge that the stump was potentially dangerous because its decision to remove the tree was based, in part, upon the presence of marks indicating that it may have been struck by a vehicle. See Harkness, 684 N.E.2d at 1161 (the duty to repair and maintain roads attaches only when the municipality has actual or constructive notice of the dangerous condition). Moreover, a county cannot be said to have kept a county road in a reasonably safe condition for travel where vehicles may strike a tree stump without leaving the surface of the road. We find the Bodnar case instructive in this regard. In Bodnar, the plaintiff collided with another vehicle when she ran a red light. She alleged that she was unable to see the traffic signal because her view was obstructed by trees. Observing that a municipality has a duty to maintain and repair roads and traffic signals, we held that the city had a duty to assure the visibility of the traffic signal, and thus, a duty to remove or trim trees obscuring the signal. 629 N.E.2d at 280. Likewise, we hold that the County is required to remove trees and portions of trees which prevent a motorist from safely traveling on the surface of a county-maintained road.

The County argues that even if it owed a duty to remove the tree stump, the duty was a public duty, and not one owed privately to Mrs. Kantz. "[W]here a plaintiff seeks recovery against a governmental entity, the relationship between the parties must be one that gives rise to a private duty owed to a particular individual." Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 283 (Ind.1994). The Indiana Supreme Court adopted a three-part test in Mullin for determining whether a governmental entity owes an individual a private duty: "(1) an explicit assurance by the municipality, through promises or actions, that it would act on behalf of an injured party; (2) knowledge on the part of the municipality that inaction could lead to harm; and (3) justifiable and detrimental reliance by the injured party on the municipality's affirmative undertaking." Id., 639 N.E.2d at 284. The County contends that under this test, it did not owe Mrs. Kantz a private duty.

The County's reliance on the Mullin test is misplaced. This court held in Henshilwood v. Hendricks County, 653 N.E.2d 1062 (Ind.Ct.App.1995), trans. denied, that the Mullin analysis does not apply in cases where the plaintiff alleges that the government's affirmative act of negligence created the situation in which the plaintiff suffered harm. Id. at 1068. In that case we held that a County's negligence in failing to maintain a ditch and in failing to warn property...