Scott v. City of Seymour
| Decision Date | 11 December 1995 |
| Docket Number | No. 36A01-9506-CV-202,36A01-9506-CV-202 |
| Citation | 659 N.E.2d 585 |
| Parties | Wanda S. SCOTT, Appellant-Plaintiff, v. CITY OF SEYMOUR, Indiana, Appellee-Defendant. |
| Court | Indiana Appellate Court |
W. Brent Gill, Pardieck, Gill & Vargo, Seymour, for appellant.
Edward J. Liptak, Douglas A. Hoffman, Miller Carson Boxberger & Murphy, Bloomington, for appellee.
Wanda S. Scott appeals from the trial court's entry of summary judgment in favor of the City of Seymour (the "City"). Scott filed a negligence action against the City for personal injury she sustained when she fell after her shoe became lodged in a hole in a city street. The trial court entered findings of fact, conclusions of law and summary judgment and determined that the City was immune from liability for Scott's injuries.
We reverse and remand.
The sole issue for review is whether the City was entitled to governmental immunity under the Indiana Tort Claims Act.
On August 21, 1991, Scott parked her vehicle and walked along North Chestnut Street in Seymour toward the Post Office. As she was walking, Scott's shoe became caught in a hole in the street and she fell and fractured her foot. At the time of Scott's fall, the necessary maintenance and resurfacing of Chestnut Street had been delayed until the end of a downtown redevelopment project. Scott filed her complaint for negligence against the City and alleged that her fall was caused by the City's failure to maintain the area of Chestnut Street in front of the Post Office. The City answered and moved for summary judgment alleging that Scott was contributorily negligent and also raised the defense of governmental immunity. The trial court denied the City's motion. The City then filed a renewed motion for summary judgment based solely on governmental immunity. Following a hearing, the trial court entered summary judgment in favor of the City. The court concluded that any alleged negligence on the part of the City in maintaining its streets was not the proximate cause of Scott's injury and that the City was entitled to governmental immunity as a matter of law. Scott appeals.
Summary judgement is appropriate only if the designated evidentiary matter shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C). When reviewing a motion for summary judgment, we apply the same standard as the trial court, and we resolve any doubt as to any fact, or inference to be drawn therefrom, in favor of the party opposing summary judgment. Gilliam v. Contractors United Inc. (1995), Ind.App., 648 N.E.2d 1236, 1238, 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 (1994), Ind.App., 641 N.E.2d 665, 667. The party seeking summary judgment bears the burden of establishing the propriety of the motion. Gilliam, 648 N.E.2d at 1238.
Governmental immunity from suit is regulated by the Indiana Tort Claims Act, Indiana Code §§ 34-4-16.5-1 through 34-4-16.5-22. Pursuant to the Act, governmental entities are subject to liability for torts committed by their agencies or employees unless one of the immunity provisions of the Act applies. Willis v. Warren Township Fire Dep't (1995), Ind. App., 650 N.E.2d 321, 323. The entity seeking immunity bears the burden of proving that its conduct falls within one of the exceptions set out in the Act. Id.
The City relies on Indiana Code § 34-4-16.5-3(6) which provides that a governmental entity or an employee acting within the scope of his employment is not liable if a loss results from "the performance of a discretionary function." In Peavler v. Monroe County Bd. of Comm'rs (1988), Ind., 528 N.E.2d 40, our supreme court adopted the "planning/operation" test for determining whether a particular governmental act is discretionary and entitled to immunity. Essentially, the test provides that a governmental entity is immune from liability when the alleged negligence arises from decisions which The planning/operation test is not a bright-line test but instead focuses upon the particular circumstances of each case. Mullin v. Municipal City of South Bend (1994), Ind., 639 N.E.2d 278, 281. In distinguishing between planning and operational functions, proper analysis requires "an inquiry into the nature of the governmental act and the decision-making process involved." Peavler, 528 N.E.2d at 45. The essential inquiry in determining whether a challenged act is discretionary is whether the act "is the type of function which the legislature intended to shield with immunity." Id. at 46.
are made at the planning level, as opposed to the operational level. See id. at 43. A decision of a governmental entity is a "planning activity" if it is a function involving the formulation of basic policy characterized by official judgment, discretion, weighing of alternatives, and public policy choices. Id. at 45
In Mullin, our supreme court explained the rationale for discretionary function immunity and stated:
Immunity for discretionary functions encompasses the notion that certain types of decisions made by the executive and legislative branches of government should not be subject to judicial review because of the separation of powers doctrine, because litigation might have a "chilling effect" on the government's resolution of difficult policy issues, or because certain governmental decisions cannot be adequately reviewed using a traditional tort standard of negligence.
Mullin, 639 N.E.2d at 281. Accordingly, the discretionary function exception is not absolute but insulates only those significant policy and political decisions which cannot be assessed by customary tort standards. Peavler, 528 N.E.2d at 45. It is not the province of the court to second-guess the wisdom of those executive or legislative decisions which were the result of a policy oriented decision-making process. Rather, that exercise of power is held accountable only to the Constitution or the political process. Id.
The question of whether a particular government activity is a discretionary function is a question of law for the court. Mullin, 639 N.E.2d at 281. Because immunity pursuant to the Tort Claims Act is in derogation of the common law, it must be strictly construed against limitations on a claimant's right to bring suit. Hinshaw v. Board of Comm'rs of Jay County (1993), Ind., 611 N.E.2d 637, 639. We address the City's claim of immunity in light of this standard.
We first consider whether the trial court erred when it concluded that the City exercised governmental discretion in its decision to delay the resurfacing of Chestnut and other city streets. Scott asserts that the decision was not the result of a policy-oriented decision-making process as contemplated in Peavler. We agree.
The record shows that at the time of Scott's fall, the City was in the midst of a downtown redevelopment project. Ongoing since the late 1980's, the redevelopment project included the installation of trees, tree grates, benches, concrete curbs and gutters, banners, concrete sidewalks, new street lights and underground wiring. The project required the cutting of several downtown streets for the underground wiring and for curb installations. The City's contribution to the redevelopment project was the necessary resurfacing of the affected downtown streets through the application of asphalt overlay. However, the application of overlay was delayed on the affected streets, including Chestnut Street where Scott was injured, until other work on the project had been completed. The City asserts the decision to delay the resurfacing of the downtown area is entitled to discretionary immunity.
The issue before us is whether the City's decision to delay the application of asphalt overlay to the affected downtown streets resulted from the formulation of basic policy characterized by official judgment, the weighing of alternatives, discretion and public policy. See Peavler, 528 N.E.2d at 45. We are concerned specifically with the actual decision-making process which occurred in this instance.
The Seymour Board of Public Works (the "Board") is the governmental entity charged with legal authority and responsibility for the maintenance and resurfacing of city streets. In support of its claim of immunity, the City designated the deposition of Jerry Hartsell, the City Engineer and Director of Public Works. Hartsell testified that he decided that the application of asphalt overlay on the affected downtown streets, including Chestnut Street, should be delayed until the end of the redevelopment project so that the overlay would be applied only one time, thereby conserving the City's resources. Hartsell stated that his decision was based on the availability of funds and also a concern for efficiency to insure that the streets would not be "dug or cut up" after the overlay was applied.
Seymour Mayor John Burkhart testified that as a member of the Board and as the chief executive officer of the City, he believed that the Board had authorized the delay of asphalt overlay to the downtown area. Record at 162-63. He explained that the overlay was postponed until the end of the redevelopment and until CSX Railroad had completed a new crossing on Chestnut Street. Mayor Burkhart defended the soundness of the decision and testified that "you wouldn't want to do the asphalt and then cut it back up and put the railroad in, it's like painting a wall then tearing the wall out." Record at 164.
Finally, the City designated the deposition of another Board member, councilman Art Killion. Killion testified that while he was not a member of the Board at the time the decision to delay resurfacing of the downtown streets was...
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