Van Keppel v. County of Jasper

• Decision Date: 09 July 1990
• Docket Number: No. 37A03-8911-CV-508,37A03-8911-CV-508
• Citation: 556 N.E.2d 333
• Court: Indiana Appellate Court
• Parties: Gerrit VAN KEPPEL, Appellant (Plaintiff Below), v. COUNTY OF JASPER; Jasper County Drainage Board; Eugene Lewis; Harold Evers; Fred Boissey, Jr.; Michael Kingman; and Elwyn W. Mattocks & Sons, Inc., Appellees (Defendants Below).

Page 333

556 N.E.2d 333

Gerrit VAN KEPPEL, Appellant (Plaintiff Below), v. COUNTY OF JASPER; Jasper County Drainage Board; Eugene Lewis; Harold Evers; Fred Boissey, Jr.; Michael Kingman; and Elwyn W. Mattocks & Sons Inc., Appellees (Defendants Below).

No. 37A03-8911-CV-508.

Court of Appeals of Indiana Third District.

July 9, 1990.

Theodore A. Fitzgerald and John P. Shanahan, Petry, Fitzgerald & Shanahan, Hebron, for appellant.

William J. Moriarty, Jr., Dumas & Moriarty, Rensselaer, for appellees.

HOFFMAN, Presiding Judge.

Plaintiff-appellant Gerrit Van Keppel appeals the trial court's granting of appellees' motion to dismiss.

The facts relevant to this appeal disclose that Van Keppel owns real estate in Jasper County, Indiana upon which he has a farming operation. The Hodge and Krucek public drainage ditches are located on his property and prior to 1985, Van Keppel began making certain improvements to this water control system without the prior approval and authorization of the Jasper County Drainage Board.

The Board later determined that Van Keppel's reconstructed ditches were not functioning properly and ordered Van Keppel to replace the banks of the ditches back to their original condition. When Van Keppel failed to do so within a time acceptable to the Board, it contracted with the defendant Elwyn W. Mattocks & Sons, Inc. to work on the drainage system.

After Mattocks & Sons had completed its work on the drainage system, Van Keppel filed a complaint in Jasper Circuit Court naming the Jasper County Drainage Board and Surveyor and Mattocks & Sons as defendants. Van Keppel alleged that during construction, which was done at the direction and under the control of the Board and Surveyor, Mattocks & Sons negligently removed and destroyed Van Keppel's property. For his second count, Van Keppel asserted that he suffered a substantial interference and taking of his property without just compensation. The defendants filed motions to dismiss. A hearing was held on these motions at which time the affidavit of Van Keppel was submitted, testimony was presented and arguments heard. The trial court entered its judgment on June 26, 1989 dismissing all governmental entities out of the litigation based upon governmental immunity. This appeal ensued.

Appellant raises two issues for review:

(1) whether the Jasper County Drainage Board and Surveyor are provided immunity from tort liability under the Indiana Tort Claims Act; and

(2) Is there a genuine issue of material fact as to whether the actions of the governmental defendants constituted a substantial interference with a compensable property interest of Van Keppel?

A motion to dismiss shall be treated as a motion for summary judgment if matters outside the pleading are presented to and not excluded by the court at the pre-trial hearing. Middelkamp v. Hanewich (1977), 173 Ind.App. 571, 573, 364 N.E.2d 1024, 1028. Since the trial court considered matters outside the pleadings and held an evidentiary hearing, the motions must be treated as motions for summary judgment. Farm Bureau Ins. v. Fultz et al. (1978), 176 Ind.App. 217, 375 N.E.2d 601. Thus, if there is a genuine issue of material fact, the trial court's judgment must be reversed so that a trial can be conducted.

Before discussing the issues, a preliminary question is raised as to whether the appellees may be found responsible for any of the construction work. Appellees contend throughout their brief that they may not be found accountable for any of the damages alleged by appellant in either issue since an independent contractor was hired to do the reconstruction work.

While it is true that an employer is ordinarily not responsible for an independent contractor's acts, an employer may not reserve control over the acts of the independent contractor.

See: Rooker v. Lake Erie, etc., R. Co. (1917), 66 Ind.App. 521, 114 N.E. 998;

Zimmerman v. Baur et al. (1894), 11 Ind.App. 607, 39 N.E. 299.

The evidence adduced at the hearing raises a question as to whether the Surveyor was supervising the work done by the independent contractor. However, appellant has not shown that the Board was in any way directing or supervising the construction project to support a finding of an existing issue of material fact. Whether the Surveyor reserved control over the acts of the independent contractor is an issue that must be resolved at trial.

Appellant does not dispute that the Board was empowered to order that the ditches be reconstructed at Van Keppel's expense pursuant to the Indiana Drainage Code, IND. CODE Sec. 36-9-27-1, et seq. (1988). However, appellant believes that governmental immunity from tort liability should not be granted since the order and contract were carried out under the control and supervision of the Surveyor. The statute covering tort claims against governmental entities and public employees provides "A governmental entity or an employee acting within the scope of his employment is not liable if a loss results from:

* * * * * *

(7) the adoption and enforcement of or failure to adopt or enforce a law (including rules and regulations) ...;

* * * * * *

(12) entry upon any property where the entry is expressly or impliedly authorized by law[.]"

IND.CODE Sec. 34-4-16.5-3(7) and (12) (1988 Ed.).

First, it is clear that appellant's claim results from enforcement of the Indiana Drainage Code by reconstructing the ditches that appellant changed. Appellant claims that although the Surveyor is immune from the decision to enforce the Drainage Code, he is not immune from losses resulting from the actual implementation of the decision. This is not true. There is no distinction between the decision to enforce a law and the actual implementation of that decision. Cain v. Bd. of Com'rs of Cass County (1986), Ind.App., 491 N.E.2d 544, 548. The losses claimed by appellant occurred during implementation of the decision to enforce the Drainage Code. Immunity is granted to both the governmental entity and to the employee notwithstanding that the enforcement resulted in a loss that would not have occurred but for the negligent manner in which the duty was performed. Seymour Nat. Bank v. State (1981), Ind., 428 N.E.2d 203.

The Indiana Drainage Code authorizes the Board to enter upon appellant's land to enforce the provisions of the code. The applicable statute reads in part:

"(a) The county surveyor, the board, or an authorized representative of the surveyor or the board acting under this chapter has the right of entry over and upon...