Shand Min., Inc. v. Clay County Bd. of Com'rs

• Decision Date: 07 October 1996
• Docket Number: No. 11A01-9604-CV-123,11A01-9604-CV-123
• Citation: 671 N.E.2d 477
• Parties: SHAND MINING, INC., Appellant-Defendant, v. CLAY COUNTY BOARD OF COMMISSIONERS and Clay County Highway Department, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 477

671 N.E.2d 477

SHAND MINING, INC., Appellant-Defendant, v. CLAY COUNTY BOARD OF COMMISSIONERS and Clay County Highway

Department, Appellees-Defendants.

No. 11A01-9604-CV-123.

Court of Appeals of Indiana.

Oct. 7, 1996.

Rehearing Denied Feb. 13, 1997.

John B. Drummy, Philip Linnemeier, Eric D. Johnson, Kightlinger & Gray, Indianapolis, for Appellant-Defendant.

Edward J. Liptack, Douglas A. Hoffman, Miller, Carson, Boxberger & Murphy, Bloomington, for Appellees-Defendants.

OPINION

BAKER, Judge.

Appellant-defendant Shand Mining, Inc. appeals the trial court's grant of summary judgment in favor of appellee-defendant Clay County Board of Commissioners and Clay County Highway Department (Clay County). Specifically, Shand Mining claims the trial court erred in finding that Clay County was immune from liability pursuant to IND. CODE §§ 34-4-16.5-3(6), (9) and (16), ¹ which grant immunity to governmental entities in their performance of governmental functions. In response, Clay County contends that Shand Mining does not have standing to pursue this appeal.

FACTS

On March 17, 1994, Teea Lunsford and her passenger, Maria Lunsford, were injured when their car left Harmony Road in Clay County, Indiana, dropped approximately two feet, collided with a phone junction box and utility pole, and overturned on an earthen embankment. On February 3, 1995, the Lunsfords filed a complaint against Clay County and Shand Mining, alleging that they breached their duty to maintain Harmony Road. In response, Clay County filed a cross-claim against Shand Mining which alleged that Shand Mining was contractually obligated to maintain the road pursuant to an Agreement for Road Usage (Maintenance Agreement) entered into between Clay County and B & LS Contracting, Inc., Shand Mining's predecessor-in-interest, on May 1, 1989. Further, Clay County alleged that pursuant to the Maintenance Agreement Shand Mining had agreed to indemnify Clay County against any claims which arose out of the use of the roadway.

Thereafter, on July 31, 1995, Clay County filed a motion for summary judgment contending that it was immune from liability pursuant to I.C. §§ 34-4-16.5-3(6), (9) and (16), which grant governmental entities immunity from liability in their performance of governmental functions. Specifically, Clay County alleged it was entitled to immunity on the following grounds: 1) it made a discretionary decision to delegate its responsibility for maintaining Harmony Road to Shand Mining, 2) the accident was caused by the act or omission of another, and 3) Harmony Road was designed more than twenty years prior to the Lunsfords' accident. On November 7, 1995, the trial court entered what it denominated as findings of fact and conclusions of law granting Clay County's motion. This entry became a final judgment on December 13, 1995. Shand Mining, a co-defendant, now appeals Clay County's dismissal from the lawsuit.

DISCUSSION AND DECISION

I. Standing

First, we address Clay County's contention that Shand Mining lacks standing to challenge the trial court's entry of summary judgment. Specifically, Clay County contends that Shand Mining is without standing because it had no direct claim against Clay County in the action and it is not substantially aggrieved by the entry of summary judgment.

The issue of standing focuses on whether the complaining party is the proper person to invoke the court's power. Shourek v. Stirling, 621 N.E.2d 1107, 1109 (Ind.1993). To have standing, a party must demonstrate a personal stake in the outcome of the lawsuit and must show, at a minimum, it was in immediate danger of sustaining some direct injury as a result of the conduct at issue. Id. One defendant does not have standing to appeal a judgment rendered in favor of a co-defendant unless the defendant suffers some prejudice as a result of the entry of judgment in favor of the co-defendant. State Highway Commission v. Clark, 175 Ind.App. 358, 361, 371 N.E.2d 1323, 1326 (1978).

Shand Mining argues that due to the advent of the Comparative Fault Act (CFA), ² it is substantially aggrieved by Clay County's summary dismissal. Under the CFA, a jury is charged with allocating 100 percent of the fault among all culpable parties and non-parties. I.C. § 34-4-33-5. A non-party is a person who caused or contributed to the cause of the alleged injury but who has not been joined in the action as a defendant. I.C. § 34-4-33-2(a)(2). A dismissed party may not be a non-party for purposes of fault allocation. Handrow v. Cox, 575 N.E.2d 611, 613 n. 1 (Ind.1991).

However, the CFA does not apply to tort claims against governmental entities, such as Clay County. I.C. § 34-4-33-8. As a result, the Lunsfords' claim against Clay County is based upon the common-law principle of contributory negligence, in which any contributory negligence by the Lunsfords acts as a complete bar to their recovery. Town of Highland v. Zerkel, 659 N.E.2d 1113, 1120 (Ind.Ct.App.1995). Nevertheless, Shand Mining is still subject to the fault allocation principles of the CFA. Thus, to determine whether Shand Mining is substantially aggrieved Clay County's dismissal from the lawsuit, we must determine whether the jury could have considered Clay County's negligence in allocating fault under the CFA.

While it is clear that the CFA is inapplicable to governmental entities, the effect of this inapplicability is not clear in cases involving multiple tortfeasors, some of whom fall under the CFA. Our review of the statute, however, reveals no legislative intent to preclude the joinder of a governmental entity in the fault allocation process. See Edgar W. Bayliff, Drafting and Legislative History of the Comparative Fault Act, 17 IND. L. REV. 863, 869-70 (1984). Instead, a jury is permitted to consider the governmental entity's negligence in allocating fault between the plaintiff and the other joint tortfeasor, but it is not permitted to consider the joint tortfeasor's negligence in determining the governmental entity's liability. See James S. Stephenson, Avoiding the effect of joint liability in claims against governmental entities, 35 RES GESTAE 362 (Feb.1992). Thus, the dismissal of a governmental entity would harm a non-governmental joint tortfeasor because the jury would not be permitted to allocate any fault to the governmental entity. As a result, Clay County's summary dismissal precludes the jury from assessing any fault against it and potentially leaves Shand Mining to bear the portion of fault which the jury may have allocated to Clay County. Therefore, we find that Shand Mining is sufficiently prejudiced by the summary dismissal of Clay County to have standing to pursue its appeal.

II. Summary Judgment

Shand Mining contends the trial court erred in granting Clay County's motion for summary judgment. Clay County moved for summary judgment on the basis of Indiana's governmental immunity statute, I.C. § 34-4-16.5-3(6), (9) and (16). These sections provide immunity to a governmental entity if loss results from the following: 1) the performance of a discretionary function, 2) the act or omission of one other than a governmental entity, or 3) the design of a highway, if the highway was designed more than twenty years before the loss occurred. Id.

Summary judgment is appropriate only when no genuine controversy exists. O'Neal v. Throop, 596 N.E.2d 984, 986 (Ind.Ct.App.1992), trans. denied. In reviewing the propriety of the grant of summary judgment, this court applies the same standard as the trial court. Id. We will affirm the trial court's decision if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show no dispute of material facts or inferences drawn therefrom and the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56; Gorski v. Deering, 465 N.E.2d 759, 761 (Ind.Ct.App.1984). We also affirm where the trial court's grant of summary judgment is sustainable on any theory or basis found in the record. Id. ³

A. Section (16)

Shand Mining contends Clay County was not entitled to summary judgment on the basis of I.C. § 34-4-16.5-3(16), which provides that a governmental entity is immune for loss caused by the design of a highway if the loss occurs at least twenty (20) years after the highway was designed. According to Shand Mining, because the complaint is not clear regarding the alleged cause of the accident, there is a reasonable inference that something other than the design of the road caused the Lunsfords' injuries. As a result, Shand Mining argues that a genuine issue of material fact exists regarding whether the design of the highway caused the Lunsfords' injuries. Thus, Shand Mining claims Clay County was not entitled to summary judgment.

In support of its motion for summary judgment, Clay County presented the affidavit of Michael McCullough, a member of the Board of Commissioners of Clay County, who stated that Harmony Road was designed more than twenty years before the Lunsfords' accident and had not been altered or re-designed since that time. R. at 55-56. Other than the allegations of the Lunsfords' complaint, no party, including Shand Mining, presents any evidence contradicting the affidavit or demonstrating that the Lunsfords' claim could relate to a defect caused by a more recent re-design of the road. A complaint is insufficient to establish a genuine issue of material fact to withstand a motion for summary judgment. T.R. 56. As a result, we cannot say that the trial court was incorrect in its grant of summary judgment in favor of Clay County pursuant to I.C. § 34-4-16.5-3(16), to the extent that the Lunsfords' claim alleges design defects...