Van Bree v. Harrison County

• Decision Date: 30 January 1992
• Docket Number: No. 88A04-9007-CV-352,88A04-9007-CV-352
• Citation: 584 N.E.2d 1114
• Parties: Barbara J. VAN BREE, Frank E. Van Bree, and Jeanne Van Bree, Appellants (Plaintiffs Below), v. HARRISON COUNTY, Indiana, Harrison County Board of Commissioners, Harrison County Highway Department, and Donald W. Lincoln, Appellees (Defendants Below).
• Court: Indiana Appellate Court

Page 1114

584 N.E.2d 1114

Barbara J. VAN BREE, Frank E. Van Bree, and Jeanne Van Bree Appellants (Plaintiffs Below), v. HARRISON COUNTY, Indiana, Harrison County Board of Commissioners, Harrison County Highway Department and Donald W. Lincoln, Appellees (Defendants Below).

No. 88A04-9007-CV-352.

Court of Appeals of Indiana,

Fourth District.

Jan. 30, 1992.

Transfer Denied June 11, 1992.

H. Lloyd Whitis, Corydon, for appellants.

Ernest W. Smith, Smith, Bartlett, Heeke & Carpenter, Jeffersonville, Richard T. Mullineaux, Kightlinger & Gray, New Albany, for appellees.

MILLER, Judge.

On a wintry, icy afternoon, seventeen year-old Barbara Van Bree's car was rounding a curve on a county road when it slammed almost head-on into a Harrison County dump truck. Barbara claimed that Donald Lincoln, the driver of the truck, was driving in the middle of the road and, when she attempted to avoid a collision, the car slid on some ice and she lost control. Along with her parents, Barbara sued Harrison County, the County Board of Commissioners, the County Highway Department, and Lincoln, a County employee (collectively referred to as "County") ¹ At the jury trial, after Van Bree's presentation of evidence, the judge eliminated Van Bree's claims that the County negligently maintained the road by not removing snow, ice and over-grown vegetation and that Lincoln's conduct was willful, wanton and reckless. The jury rejected Van Bree's remaining claim that Lincoln was negligent in his operation of the truck. On appeal, she claims the trial court erred by 1) removing her claims that the County negligently maintained the road and that Lincoln's conduct was willful, wanton, and reckless from the jury; 2) correcting an instruction on sudden emergency before the jury retired; and 3) permitting the County to cross-examine a witness about Van Bree's driving ability after the accident.

We affirm.

DISCUSSION AND DECISION

I. Judgment on the Evidence

The trial court granted County's motion for judgment on the evidence on several claims raised by Van Bree. Judgment on the evidence is proper only when there is neither evidence nor reasonable inferences to be drawn therefrom in favor of the nonmovant--in this case, Van Bree. Sipes v. Osmose Wood Preserving Co. (1989), Ind., 546 N.E.2d 1223. In reviewing the trial court's ruling on the County's motion, we consider only the evidence and reasonable inferences most favorable to Van Bree. Id. We will affirm the trial court's grant of the motion only if the evidence is without conflict and supports only one inference in favor of the County. Id. If there is any probative evidence or reasonable inference to be drawn from the evidence or if there is evidence allowing reasonable people to differ as to the result, judgment on the evidence is improper. Id.

A. County's Negligence:

The trial court determined that the County was immune from liability for failing to remove snow and ice from the road pursuant to Ind.Code 34-4-16.5-3, which provides in part "A governmental entity or an employee acting within the scope of his employment is not liable if a loss results from:

* * * * * *

(3) the temporary condition of a public thoroughfare which results from weather"

Van Bree argues she presented evidence that ice had been on the road for four or five days; therefore, the condition of the road could not be considered temporary as a matter of law. The County argues that the accumulation of ice and snow was temporary.

Van Bree's argument forces us to examine the meaning of the word temporary as used in I.C. 34-4-16.5-3. We must construe the statute according to its plain meaning, and words and phrases shall be taken in their plain, ordinary and usual sense unless a different purpose is manifested by the statute itself. Wayne Township of Allen County v. Hunnicutt (1990), Ind.App., 549 N.E.2d 1051.

"Temporary" has been defined by our supreme court in another context as "the opposite of permanent." State v. Curtis (1961), 241 Ind. 507, 173 N.E.2d 652. It has also been defined as "lasting for a time only: existing or continuing for a limited time", Webster's International Dictionary, 2353 (3rd ed. 1976), and "[t]hat which is to last for a limited time only, as distinguished from that which is perpetual, or indefinite, in its duration." Black's Law Dictionary, 1312 (5th ed. 1979). Thus, anything not "permanent" would, by definition, be temporary.

However, we agree with Van Bree's assertion that the definition of "temporary" is not so broad so as to include everything that is "not permanent". In Walton v. Ramp (1980), Ind.App., 407 N.E.2d 1189, we held that I.C. 34-4-16.5-3 is a codification of a governmental entity's common law duty to exercise reasonable care and diligence to keep its streets and sidewalks in a reasonably safe condition for travel. Under the common law, a governmental entity is not generally liable for injuries caused by defects in sidewalks and streets due to natural accumulation of snow and ice. Id.; City of South Bend v. Fink (1966), 139 Ind.App. 282, 219 N.E.2d 441. However, a city could be held liable under the common law for failure to remove snow and ice if it could be shown that the snow and ice were an obstruction to travel and that the city had an opportunity to remove the snow and ice. Ewald v. City of South Bend (1938), 104 Ind.App. 679, 12 N.E.2d 995. Reflecting these common law principles, I.C. 34-4-16.5-3(3) provides immunity for temporary conditions caused by the weather, but does not provide for immunity when the condition is permanent or not caused by the weather.

In Ewald, a case decided under common law principles, we examined the municipality's duties with regard to accumulations of snow and ice. Ewald was injured when a bus in which she was riding was hit by a car driven by Donald Jarvis. She sued the city, claiming that Jarvis lost control of his car when it slid on ice the city had negligently allowed to accumulate and remain on the street. The trial court dismissed the complaint and this court affirmed. We stated:

"It has been established by a long line of authorities that a municipal corporation is bound to exercise reasonable care and diligence to keep its streets in a reasonably safe condition. The municipality is liable if, in view of all the circumstances including, among others, climatic conditions, there has been a failure to exercise reasonable care and diligence. (citations omitted).

"The city is not liable for the fall of snow, rain, or sleet or the consequent thawing and freezing and so far as we are advised is under no duty to remove all of the snow and ice. A city may become liable if it be shown that the streets have become defective and unsafe by reason of the fact that snow and ice have become an obstruction to travel and the city has had time and opportunity to remove it. City of Linton v. Jones (1921), 75 Ind.App. 320, 130 N.E. 541."

Id. at 996-97 (emphasis supplied). Although Ewald was decided before I.C. 34-4-16.5-3, we find the same reasoning to be applicable here. Thus, the duty was on Van Bree to present evidence that the road had become defective because of the snow and ice and that the county had time and opportunity to remove it.

The evidence most favorable to Van Bree is that her accident occurred on Friday, January 13, 1984. The road had been icy "since earlier in the week", and Friday was the first day a County truck had been out to treat it. The highway department had received complaints about the condition of the road; therefore, the jury could have reasonably inferred the County knew there was ice on Whiskey Run Road. Further, the jury could reasonably have inferred that the road had become defective or unsafe from the testimony of those living on Whiskey Run Road who stated that the road was too slick to travel. There is no evidence, however, from which a jury could infer that the County had an opportunity to treat the road before Friday. In fact, Edward Deatrick, the supervisor at the Highway Department testified that the Department was responsible for over a thousand miles of county roads and that the crews had been out all week spreading salt and gravel on the roads.

Van Bree also argues that the County could not be immune from liability under I.C. 34-4-16.5-3 because accumulation of ice on the road was caused not solely by the weather, but was caused in part by the overhead vegetation which shaded this part of the road. She argues the overhead vegetation was a recurring danger resulting from more than just weather. She cites Walton, supra, in support of her argument. Walton was injured when his car slid on some ice on a county road. The trial court granted summary judgment for the county, finding it was immune under I.C. 34-4-16.5-3, even though there was evidence that adjacent landowners allowed water to spill off their property onto the road and the water would freeze when the temperature dropped. We reversed, holding that, at minimum, whether the disposing of water by an adjacent landowner is a recurring danger resulting from more than just the weather was a question for the factfinder to resolve.

Van Bree argues the circumstances here are similar to those presented in Walton. In Walton, the evidence showed that the ice resulted from water spilling on to the road and not by natural accumulations of rain or snow. Here, however, there is no evidence that the ice was caused by anything other than natural accumulation of snow.

B. Lincoln's Conduct

Van Bree argues the jury should have been permitted to determine whether Lincoln's conduct was willful or wanton and the trial court erred in removing this issue from the jury. The cases cited by Van Bree in support of her argument all involve the motor vehicle guest statute, Ind.Code 9-3-3-1, which requires a guest in a motor vehicle to prove that the operator's behavior was willful or wanton before the guest may recover for injuries caused by the operator. Here, Van...