Ladra v. State

• Decision Date: 27 January 2021
• Docket Number: Court of Appeals Case No. 20A-CT-1418
• Citation: 162 N.E.3d 1161
• Parties: Tracy LADRA, Appellant-Plaintiff, v. STATE of Indiana and State of Indiana Department of Transportation, Appellees-Defendants
• Court: Indiana Appellate Court

162 N.E.3d 1161

Tracy LADRA, Appellant-Plaintiff,

v.STATE of Indiana and State of Indiana Department of Transportation, Appellees-Defendants,

Court of Appeals Case No. 20A-CT-1418

Court of Appeals of Indiana.

FILED January 27, 2021

Case Summary and Issues

[1] On March 19, 2018, Tracy Ladra filed a complaint against the State of Indiana and the State of Indiana Department of Transportation (collectively "INDOT"), seeking damages for injuries she sustained in an automobile accident.

[2] INDOT filed a motion for summary judgment and supporting memorandum asserting immunity under Indiana Code section 34-13-3-3(3). Following a hearing, the trial court granted INDOT's motion for summary judgment. Ladra now appeals raising multiple issues which we restate as: (1) whether immunity under Indiana Code section 34-13-3-3(3) was applicable under the facts of this case; and (2) whether Ladra presented a genuine issue of material fact regarding INDOT's immunity under Indiana Code section 34-13-3-3(3). Concluding that Indiana Code section 34-13-3-3(3) is applicable to this case and that Ladra failed to designate evidence to establish a genuine issue of material fact, we affirm.

Facts and Procedural History

[3] On January 11, 2017, Ladra was driving her car home, eastbound on Interstate 94 in Portage. It was raining at the time. As Ladra neared mile marker 20.3 she came upon a flooded section of the interstate. Both the inner shoulder and one travel lane were covered with water. Ladra drove through the water causing her vehicle to hydroplane. Ladra lost control of her vehicle and struck the concrete barrier wall head on and continued to spin out of control across traffic, eventually coming to rest in a ditch.

[4] Indiana State Police Officer Rogelio Escutia was the first on the scene and stated that when he arrived, the "water [was] up above my ankle." Appellant's Appendix, Volume II at 57. Officer John Holmen was the assisting officer. Officer Holmen testified that in his opinion the crash "occurred due to flooding on the roadway which was caused by a clogged drainage system in the areas of the crash." Id. at 134. It took approximately three hours for the water to subside after Officer Escutia contacted the highway maintenance crew to unclog the drain.¹ See id. at 61. Officer Escutia stated that the area consistently floods "when there are times of heavy downpour ... because the way [the interstate is] set up ... [a]ll debris collects in [the] area[ ] ... and it floods." Id. at 111. However, Officer Escutia and Officer Holmen both testified that on the day of Ladra's crash they had no indication that the area was flooded prior to Ladra's accident. See id. at 64, 70. Similarly, Jim Scheffer, district operations manager for INDOT maintenance department, stated that prior to Ladra's crash INDOT did not have knowledge that the area between mile marker 19 and 20.3 was an area prone to flooding. See id. at 53.

[5] On March 19, 2018, Ladra filed a complaint against INDOT alleging that she suffered injury due to INDOT's "failure to post warnings of flooded roadway, failure to maintain proper drainage, [and] maintenance of existing drains[.]" Id. at 10. INDOT answered the complaint and asserted, among other affirmative defenses, that it was entitled to immunity pursuant to Indiana Code section 34-13-3-3(3). On December 19, 2019, INDOT filed a motion for summary judgment claiming that it was immune under the weather-immunity provision of the Indiana Tort Claim Act ("ITCA"). Ladra filed a motion in opposition to INDOT's motion. On July 1, 2020, the trial court held a hearing on INDOT's motion. The next day, the trial court granted summary judgment to INDOT. Ladra now appeals. Additional facts will be provided as necessary.

Discussion and Decision

I. Standard of Review

[6] Summary judgment is appropriate only 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). We review a summary judgment order de novo. Bules v. Marshall Cnty. , 920 N.E.2d 247, 250 (Ind. 2010). We resolve any doubt as to any fact, or inference to be drawn therefrom, in favor of the party opposing summary judgment. Yerkes v. Heartland Career Ctr. , 661 N.E.2d 558, 560 (Ind. Ct. App. 1995), trans. denied. We must determine whether there is a genuine issue of material fact and whether the law has been correctly applied by the trial court.

Cloverleaf Apartments, Inc. v. Town of Eaton , 641 N.E.2d 665, 667 (Ind. Ct. App. 1994).

[7] Our review of a summary judgment motion is limited to those materials designated to the trial court. Sheehan Constr. Co., v. Continental Cas. Co. , 938 N.E.2d 685, 688 (Ind. 2010). We may affirm the grant of summary judgment on any grounds supported by the designated materials. Catt v. Bd. of Comm'rs of Knox Cnty., 779 N.E.2d 1, 3 (Ind. 2002).

II. Immunity

[8] A traditional formulation of tort liability requires the plaintiff to establish a duty, breach of that duty, proximate cause, and damages. Gary Cmty. Sch. Corp. v. Roach-Walker, 917 N.E.2d 1224, 1225 (Ind. 2009). In Indiana, it is well settled that a governmental entity has a common law duty to exercise reasonable care and diligence to keep its streets and sidewalks in a reasonably safe condition for travel. See Catt, 779 N.E.2d at 3. However, ITCA provides the following immunity to liability for breach of this duty:

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

* * *

(3) The temporary condition of a public thoroughfare ... that results from weather.

Ind. Code § 34-13-3-3(3).

[9] Immunity, whether under Indiana common law or ITCA, assumes negligence but denies liability. Putnam Cnty. Sheriff v. Price , 954 N.E.2d 451, 453 (Ind. 2011). Whether immunity applies is a matter of law for the courts to decide. Bules , 920 N.E.2d at 250. The party seeking immunity bears the burden of establishing the immunity. Id. If the evidence permits conflicting reasonable inferences as to material facts, the governmental unit has failed to establish its immunity. Id.

[10] Ladra argues that Indiana Code section 34-13-3-3(3) is inapplicable because (1) the relevant "condition" at issue is a clogged drain and (2) the flooded roadway is not the sole cause of the alleged injury. We disagree.

[11] First, Ladra contends that the relevant condition is not the flooded highway but the clogged drain. Ladra argues for the first time on appeal that Indiana Code section 34-13-3-3(3) is inapplicable because "[t]he clogged drain at issue is not a public thoroughfare[.]"² Appellant's Brief at 8 (quotations omitted). "It is the general rule that an argument or issue raised for the first time on appeal is waived[.]" First Chicago Ins. Co. v. Collins , 141 N.E.3d 54, 61 (Ind. Ct. App. 2020) ; see also Plank v. Cmty. Hosp. of Ind., Inc. , 981 N.E.2d 49, 53 (Ind. 2013) ("[A]ppellate review presupposes that a litigant's arguments have been raised and considered in the trial court.").³ Therefore, we find this argument waived.

[12] Next, Ladra argues that Indiana Code section 34-13-3-3(3) is inapplicable because the flooded roadway was not the sole cause of her injury. Ladra contends that the primary cause of her loss is the clogged drain and "[u]nder the Supreme Court's decision in Hinshaw , to the extent that the clogged drains secondarily caused flooding on the roadway contributing to the accident, [ Indiana Code section] 34-13-3-3(3) ’s immunity provision doesn't apply." Appellant's Br. at 15. We disagree.

[13] In Hinshaw , our supreme court held that "immunity is not conferred when the circumstances designated in the subsections do not encompass or directly relate to the specific governmental conduct for which liability is sought to be imposed." Hinshaw v. Bd. of Comm'rs of Jay Cnty. , 611 N.E.2d 637, 640 (Ind. 1993). Ladra states that the "alleged conduct is [INDOT's] failure to maintain proper drainage and their maintenance of existing drains" and calls the accumulation of water on the interstate an "additional factor[.]" Appellant's Br. at 18 (internal quotation marks omitted).

[14] However, Ladra mischaracterizes the flooding in this case and we find that Hinshaw is distinguishable for the following reasons. After a collision at the intersection of country roads, the Hinshaw plaintiffs claimed Jay County was negligent in the signage and maintenance of the intersection. Jay County argued that it was immune under Indiana Code section 34-4-16.5-3(9)⁴ which applied "if a loss results from ... the act or omission of someone other than the governmental entity employee." Hinshaw, 611 N.E.2d at 638. Whereas the plaintiffs alleged this provision applied only when the conduct of the non-governmental employee was the sole proximate cause, Jay County argued that the provision granted it immunity whenever its negligence combined with the negligence of others. The proximate causes of the accident included the negligence of the driver of the automobile that collided with the plaintiffs’ vehicle and that of the owners of vehicles parked at the intersection. Our supreme court found that the conduct of another driver at the intersection had no bearing on the alleged negligent signage and maintenance by Jay County, therefore immunity was inapplicable. See id. at 641.

[15] Here, Ladra was driving on Interstate 94 when she encountered a flooded portion of the interstate and lost control of her car. Unlike Hinshaw , where the negligent conduct of third-party motorists had no bearing on the alleged negligent signage and maintenance, here, it is undisputed that the flooded interstate was a direct result of the drain being clogged, a drain for which INDOT had responsibility. Thus, the flooded interstate is "directly relate[d] to the specific government conduct for which liability is sought to be imposed." Id. at 640. Therefore, ...