Town of Highland v. Zerkel
| Decision Date | 29 December 1995 |
| Docket Number | No. 45A04-9411-CV-467,45A04-9411-CV-467 |
| Citation | 659 N.E.2d 1113 |
| Parties | TOWN OF HIGHLAND, Appellant-Defendant, v. Joyce ZERKEL, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Defendant-Appellant Town of Highland (Highland) appeals from the trial court's judgment in favor of Joyce Zerkel (Zerkel) in her suit for damages following her trip and fall on a defective public sidewalk.
We affirm.
Highland presents the following re-stated, consolidated issues:
1. Whether the trial court erred by excluding evidence of Zerkel's receipt of collateral source payments.
2. Whether the trial court erred by determining that Highland was not entitled to "discretionary function" tort immunity.
3. Whether the trial court erred by denying Highland's motion for judgment on the evidence.
4. Whether the trial court erred by failing to find Zerkel contributorily negligent as a matter of law.
5. Whether the trial court erred by failing to find that Zerkel incurred the risk of her injury as a matter of law.
6. Whether the trial court erred by instructing the jury that Highland's duty to exercise reasonable care does not depend upon budgetary considerations.
On March 4, 1992, while walking her dog, Zerkel tripped and fell over an elevated portion of cracked sidewalk at or near 9406-9410 Saric Drive in Highland, Indiana. 1 Zerkel lived at 9442 Saric Drive for 33 years and frequently walked the sidewalks in her neighborhood. As a result of her fall, Zerkel sustained serious, permanent injuries and incurred medical expenses in excess of $35,000.
Zerkel filed her complaint against Highland on August 11, 1992, alleging that Highland was negligent in failing to keep its sidewalk in a reasonably safe condition for pedestrian travel. In its answer, Highland denied any negligence and raised eight affirmative defenses. Highland additionally argued that it was entitled to immunity under the Indiana Tort Claims Act. 2 Highland filed its first motion for summary judgment in August of 1993, asserting that it was entitled to judgment as a matter of law because Zerkel was contributorily negligent and voluntarily assumed the risk of her injuries. The court denied Highland's motion. Highland filed a subsequent motion for summary judgment asserting that it was entitled to discretionary function immunity. Following a hearing on this motion, the court denied Highland's motion.
A jury trial was held August 2nd and 3rd, 1994. The jury returned a verdict for Zerkel and awarded her $250,000 in damages. The trial court entered judgment on the verdict on August 3, 1994. Highland now appeals. Additional facts and procedural history will be provided as necessary.
Highland contends that the trial court erred by excluding evidence of collateral source payments received by Zerkel. Zerkel's medical expenses were paid by her employer and her husband's employer. Zerkel also received disability payments from her employer. 3
Prior to trial, Zerkel filed a motion seeking to prohibit Highland from introducing any evidence regarding the collateral source payments. The court granted the motion. At trial, Highland made an offer to prove that, if permitted, it would have asked Zerkel whether her medical bills were paid by insurance and whether she received disability benefits from her employer.
Ruling on the admissibility of evidence is a matter left to the sound discretion of the trial court. We will not disturb the decision of the trial court absent an abuse of that discretion. S.A. v. State (1995), Ind.App., 654 N.E.2d 791, 794, trans. denied. Furthermore, in Indiana we have a statute which presumably guided the trial court to exclude the collateral source evidence.
Prior to 1986, Indiana followed the common law collateral source rule which prohibited a wrongdoer from benefitting from compensation for loss received by a plaintiff from a source independent of the wrongdoer. See Barnes v. Barnes (1992), Ind., 603 N.E.2d 1337, 1346. However, in 1986, our Legislature essentially abolished the collateral source rule with the enactment of I.C. 34-4-36-1 et. seq.
The statutory section governing the admissibility of collateral source benefits in Indiana provides as follows:
In a personal injury or wrongful death action the court shall allow the admission into evidence of:
(1) proof of collateral source payments, other than:
(A) payments of life insurance or other death benefits;
(B) insurance benefits for which the plaintiff or members of the plaintiff's family have paid for directly; or
(C) payments made by the state or the United States, or any agency, instrumentality, or subdivision thereof, that have been made before trial to a plaintiff as compensation for the loss or injury for which the action is brought;
(2) proof of the amount of money that the plaintiff is required to repay, including worker's compensation benefits, as a result of the collateral benefits received; and
(3) proof of the cost to the plaintiff or to members of the plaintiff's family of collateral benefits received by the plaintiff or the plaintiff's family.
I.C. 34-4-36-2 (1993). I.C. 34-4-36-1 (1993) provides that the purpose of the chapter is
(1) to enable the trier of fact in a personal injury or wrongful death action to determine the actual amount of the prevailing party's pecuniary loss; and
(2) to provide that a prevailing party not recover more than once from all applicable sources for each item of loss sustained.
Clearly, pursuant to I.C. 34-4-36-2(1)(C), the trial court properly excluded evidence of Zerkel's receipt of social security disability benefits. Furthermore, the statute provides that insurance collateral source benefits are inadmissible if the benefits were paid for directly by the plaintiff or a member of the plaintiff's family. I.C. 34-4-36-2(1)(B). Besides making the unsupported assertion that Zerkel's benefits were fringe benefits of her employment, Highland presented no evidence regarding the particulars of her coverage. Absent a showing that neither Zerkel nor her husband paid for her benefits directly, we cannot say that the trial court abused its discretion in excluding the evidence. The collateral source benefits evidence was properly excluded pursuant to I.C. 34-4-36-2.
Following the evidentiary hearing on Highland's subsequent motion for summary judgment, wherein the court heard testimony from Highland's Director of Public Works, the court found as follows:
In this case I understand what the town has done, but there is no evidence that they have done any surveys, or conducted any surveys to determine whether or not this sidewalk, or any particular sidewalk in the town is in need of repair. A type of policy-making decision that might be necessary if, for example, there are far more sidewalks in need of repair ... [than] the town has funds to replace.
Therefore, by not taking any action, essentially, in regard to sidewalks until the homeowner complains the county or the town has not entered into a policy-making decision, and their conduct in that regard is not immune. And therefore, I will hold that the conduct complained of in this case and the immunity defense raised for the Town of Highland does not prevail, and that the plaintiffs are entitled to go forward on their complaint against the Town of Highland.
(R. 216). In the written order denying Highland's motion for summary judgment on the immunity issue, the court found in pertinent part as follows:
... [T]he court now finds that the Town of Highland is not immune for the conduct complained of insofar as it has not established that a policy oriented decision-making process as required by Peavler was utilized in this case.
The Town of Highland has presented no evidence that it ever considered the need to repair the sidewalk in question, had not conducted any surveys in order to identify the sidewalks in need of repair, and instead adopted a policy of responding to homeowners' complaints or requests for repairs of sidewalks.
IT IS NOW, THEREFORE, ORDERED, ADJUDGED AND DECREED that the conduct of the Town of Highland complained of in the plaintiff's complaint is not immune from liability under I.C. 34-4-16.5-3(6).
(R. 219).
Highland seeks refuge under the Indiana Tort Claims Act (hereinafter referred to as "the Act"). The Act's non-liability section upon which Highland relies 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 ...
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 v. Allen County (1994), Ind.App., 634 N.E.2d 767, 769, reh'g denied, trans. denied. 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.
In construing the discretionary function immunity section of the Act, our supreme court adopted the "planning-operational" test in Peavler v. Board of Com'rs of Monroe County (1988), Ind., 528 N.E.2d 40, appeal after remand, (1990), Ind.App., 557 N.E.2d 1077. 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 operational level. Id. We recently explained the test as follows:
Under the [planning-op...
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