City of Beech Grove v. Cathy J. Beloat , 2015 Ind. App. LEXIS 522 ( 2015 )

Jul 16 2015, 8:32 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ian L. Stewart David L. Byers
Stephenson Morow & Semler Andrew J. Noone
Indianapolis, Indiana Holwager, Byers, & Caughey
Beech Grove, Indiana
IN THE
COURT OF APPEALS OF INDIANA
City of Beech Grove, July 16, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1409-CT-605
v. Appeal from the Marion Superior
Court
Cathy J. Beloat,
The Honorable Patrick L. McCarty,
Appellee-Plaintiff Judge
Cause No. 49D03-1302-CT-5276
Mathias, Judge.
[1] The City of Beech Grove, Indiana (“the City”), appeals the order of the Marion
Superior Court denying the City’s motion for summary judgment in the
negligence claim brought against the City by Cathy J. Beloat (“Beloat”). The
City appeals and argues that no genuine issues of material fact exist with regard
to whether the City was entitled to immunity from suit for performance of a
“discretionary function” under Indiana Code section 34-13-3-3(7).
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[2] We reverse and remand.
Facts and Procedural History
[3] The facts in the light most favorable to Beloat, as the non-moving party, reveal
that on June 19, 2012, Beloat was walking across Main Street in Beech Grove,
Indiana at the intersection of Main Street and 10th Street. As she walked across
the street at the crosswalk, Beloat had to step outside of the crosswalk area to
walk around a white pickup truck that had blocked part of the crosswalk. As
Beloat did this, her foot went into a hole in the pavement and became stuck,
causing her to trip. Beloat heard her left leg “snap,” and she fell to the ground.
Two passersby saw Beloat fall and helped her up; one of these passersby took
her to the hospital, where she was treated for fractures in her left tibia and
fibula, the two bones in the lower leg.1
[4] Beloat filed a complaint against the City on February 11, 2013, alleging
negligence. The City responded on March 28, 2013, and almost a year later, on
March 10, 2014, the City filed a motion for summary judgment, claiming that
Beloat was unable to prove proximate cause because she did not know which
hole had caused her to fall, that the City was entitled to discretionary function
immunity under Indiana Code section 34-13-3-3(7), and that Beloat’s claim was
barred due to contributory negligence. Beloat filed a response to the City’s
motion, and the trial court held a summary judgment hearing on July 21, 2014.
The trial court issued an order denying the City’s motion for summary
1
See http://www.britannica.com/EBchecked/topic/595018/tibia.
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judgment on July 24, 2014. The City then requested that the trial court certify
its order for interlocutory appeal. The trial court did so, and we accepted
interlocutory jurisdiction on October 3, 2014.
Summary Judgment Standard of Review
[5] Our standard for reviewing a trial court’s order granting a motion for summary
judgment is well settled:
When reviewing a grant of summary judgment, our standard of
review is the same as that of the trial court. Considering only
those facts that the parties designated to the trial court, we must
determine whether there is a genuine issue as to any material fact
and whether the moving party is entitled to a judgment as a
matter of law. In answering these questions, the reviewing court
construes all factual inferences in the non-moving party's favor
and resolves all doubts as to the existence of a material issue
against the moving party. The moving party bears the burden of
making a prima facie showing that there are no genuine issues of
material fact and that the movant is entitled to judgment as a
matter of law; and once the movant satisfies the burden, the
burden then shifts to the non-moving party to designate and
produce evidence of facts showing the existence of a genuine issue
of material fact.
The party appealing a summary judgment decision has the burden
of persuading this court that the grant or denial of summary
judgment was erroneous. Where the facts are undisputed and the
issue presented is a pure question of law, we review the matter de
novo.
Importantly for this case, summary judgment is rarely appropriate
in negligence actions, since negligence cases are particularly fact
sensitive and are governed by a standard of the objective
reasonable person. This standard is best applied by a jury after
hearing all of the evidence.
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M.S.D. of Martinsville v. Jackson, 9 N.E.3d 230, 235 (Ind. Ct. App. 2014), trans.
denied (citations and internal quotations omitted).
Discretionary Function Immunity
[6] The City claims that it was entitled to summary judgment because it was
entitled to immunity from Beloat’s claim under Indiana Code section 34-13-3-
3(7). As we explained in Jackson:
The Indiana Tort Claims Act (“ITCA”), Indiana Code section
34-13-2-1 et seq., was enacted after our supreme court abrogated
the common law sovereign immunity of governmental units from
tort liability. The ITCA governs tort claims against governmental
entities and public employees. Pursuant to the ITCA,
governmental entities can be subjected to liability for tortious
conduct unless the conduct is within an immunity granted by
Section 3 of [the] ITCA. The party seeking immunity bears the
burden of establishing that its conduct comes within the ITCA.
The ITCA provides that a governmental entity or governmental
employee who acts within the scope of that employee's duty will
not be liable if a loss results from “[t]he performance of a
discretionary function[.]” Ind. Code § 34-13-3-3(7). The party
who seeks immunity bears the burden of establishing that its
conduct falls within the discretionary function exception.
Id. at 235-36 (some citations and internal quotations omitted).
[7] Prior to our supreme court’s decision in Peavler v. Board of Commissioners of
Monroe County, 528 N.E.2d 40, 46 (Ind. 1988), this court distinguished between
“ministerial” and “discretionary” acts to determine if certain conduct was
included within the immunity exception. Discretionary acts were immune;
ministerial acts were not. See Jackson, 9 N.E.3d at 236 (citing Harvey v. Bd. of
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Comm'rs of Wabash County, 416 N.E.2d 1296 (Ind. Ct. App. 1981)). We defined
a “ministerial” act as “one which a person performs in a given state of facts in a
prescribed manner, in obedience to the mandate of legal authority without
regard to, or the exercise of, his own judgment upon the propriety of the act
being done.” Id. (citing Dep’t of Mental Health v. Allen, 427 N.E.2d 2, 4 (Ind. Ct.
App. 1981)). We classified conduct as discretionary if it involved discretion “on
the part of the officer to determine whether or not he should perform a certain
act, and, if so, in what particular way[.]” Id. (citing Adams v. Schneider, 71 Ind.
App. 249, 124 N.E. 718, 720 (1919)).
[8] However, in Peavler, our supreme court expressly rejected the ministerial-
discretionary distinction analysis and held that discretionary judgments are not
immune from legal challenge under the ITCA unless they can be properly
characterized as “policy” decisions that have resulted from a conscious
balancing of risks and benefits and/or weighing of priorities. Id. (citing Peavler,
528 N.E.2d at 45-46). In rejecting the old ministerial/discretionary distinction,
the Peavler court noted:
The ministerial/discretionary test does not advance the public
policy of government immunity because it does not consider the
type of decision protected by immunity. Rather, it considers only
the resulting conduct and attempts to label that conduct. The
ministerial/discretionary test defines “discretionary” in the
negative: anything which is non-ministerial is discretionary. The
test does not require an affirmative finding that the governmental
action arose from the type of policy-making decision protected by
governmental immunity.
Id.
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[9] In place of the ministerial/discretionary test, the Peavler court instead adopted a
“planning/operational” test, defining “planning activities” as those that
“include acts or omissions in the exercise of a legislative, judicial, executive or
planning function which involves formulation of basic policy decisions
characterized by official judgment or discretion in weighing alternatives and
choosing public policy” as well as “[g]overnment decisions about policy
formation which involve assessment of competing priorities and a weighing of
budgetary considerations or the allocation of scarce resources are also planning
activities.” Id. at 45.
[10] Thus, under Peavler, the discretionary function exception of the ITCA insulates
from liability only planning activity, characterized as “only those significant
policy and political decisions which cannot be assessed by customary tort
standards” and as “the exercise of political power which is held accountable
only to the Constitution or the political process.” Id. at 45. The supreme court
was unambiguous in its declaration that it did not intend all decisions that
involve “judgment or discernment” to be immune from liability, since “[i]t
would be difficult to conceive of any official act, no matter how directly
ministerial, that did not admit of some discretion in the manner of its
performance.” Id. at 43, 45; see also Veolia Water Indianapolis, LLC v. Nat'l Trust
Ins. Co., 3 N.E.3d 1 (Ind. 2014) (holding that the City’s failure to require for-
profit water company to follow terms of management agreement by properly
maintaining water supply to fire hydrants was not a discretionary function, and
thus, statutory immunity under the ITCA did not protect the city from liability
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for damages that resulted from a fire that destroyed a restaurant when
firefighters’ efforts were delayed due to a frozen fire hydrant and when the city
made no deliberate policy decision to fail to require company to follow the
terms of a management agreement by properly maintaining fire hydrants' water
supply, or make a conscious decision about policy formation which involved
assessment of competing priorities and a weighing of budgetary considerations
or the allocation of scarce resources); Jackson, 9 N.E.3d at 241-42 (holding that
school corporation was not entitled to discretionary function immunity in claim
against it in connection with the shooting of a student where school’s safety
plan was developed by the school’s principal with no involvement from the
school board or its committees and principal’s development of the safety plan
was not an exercise of political power).
[11] Here, the City designated evidence indicating that it was in the process of
making a decision on improving Main Street. Specifically, the City was
planning to totally reconstruct that portion of Main Street at the intersection of
10th Street, where Beloat’s fall occurred, as opposed to performing piecemeal
repairs. The City Council was in the process of approving the financing
necessary to begin the complete reconstruction of Main Street at the time of
Beloat’s fall. In fact, the day before Beloat’s fall, the City Council held the
second of the three votes necessary to issue the bonds to fund the reconstruction
project. This, the City argues, means that its decision not to improve the defects
in Main Street prior to Beloat’s fall is subject to discretionary function
immunity.
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In support of its position, the City cites Lee v. State, 682 N.E.2d 576, 577 (Ind.
Ct. App. 1997). In Lee, the decedent was killed in an automobile accident that
occurred on a series of curves on State Road 7 (“S.R. 7”). The decedent’s
mother filed suit against the State and the Indiana Department of
Transportation (“INDOT”), claiming that INDOT negligently designed and
constructed S.R. 7, failed to properly warn motorists of the unreasonably
dangerous nature of S.R. 7, failed to maintain S.R. 7 so as to prevent injury to
motorists, and failed to eliminate the known dangerous condition of S.R. 7. The
trial court granted summary judgment in favor of the State on grounds that the
State was immune to suit under the ITCA.
[12] On appeal, we affirmed the trial court, noting that the designated evidence
indicated that INDOT had engaged in decision making regarding the specific
improvement alleged in Lee's complaint, and improvement of the curves was in
the planning phase at the time of the decedent’s accident. Id. at 578. This, the
Lee court held, was the exact sort of policy-based decision that the ITCA
intended to shield from judicial review. Id. at 579.
[13] The City also cites City of Indianapolis v. Duffitt, 929 N.E.2d 231 (Ind. Ct. App.
2010), in which the plaintiff sued the city after tripping and falling on a city
sidewalk. There, as here, at issue was whether the city was entitled to
discretionary function immunity under the ITCA. After discussing the relevant
case law, the Duffitt court held that the city was entitled to immunity, noting
that the designated evidence revealed that the city had limited funds for
sidewalk repair, that many projects competed for these funds, and therefore the
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city had a policy regarding sidewalk repair prioritization in which sidewalks
with the same level of priority were repaired in the order in which they were
entered into the system. However, the Department of Public Works could have
further prioritized or de-prioritized sidewalk repairs by conducting a cost-benefit
analysis with due consideration for budgetary concerns and competing projects.
Accordingly, the Duffitt court held that, “[g]iven the budgetary considerations
and cost-benefit analyses which produced the City’s prioritization scheme, the
City’s designated evidence demonstrates that its decisions are discretionary
under the “planning-operational” test[.]” Id. at 238.
[14] The same is true in the present case. Here, the designated evidence reveals that
the City Council was in the planning phase of an improvement project that
would reconstruct Main Street at the location where Beloat’s fall occurred. In
making this decision, the City had to balance budgetary concerns with the need
to repair the street. Instead of performing piecemeal repairs, the City decided to
wholly reconstruct the street and was in the process of approving the bonding
required to fund the repairs at the time of Beloat’s accident. This sort of policy
decision is the sort of planning decision that is afforded immunity under the
ITCA’s discretionary function immunity.
[15] We find Beloat’s reliance on Jackson and Scott v. City of Seymour, 659 N.E.2d 585(Ind. Ct. App. 1995), to be unavailing. In Jackson, we held that the school
district was not entitled to discretionary function immunity because the school
safety plan was developed by the school principal, who was not a public official
or a public-policy maker. Id. at 240-41. Only the elected school board could
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create a policy that would be subject to such immunity. Id. Because the school
principal was not a public official and was not granted any statutory authority
to develop a safety plan, we held that the principal’s development of the safety
plan was not an exercise of political power that would be immune from suit. Id.
at 242. Similarly, in Scott, we held that the city was not entitled to discretionary
function immunity because the decision to repair city streets was not made by
the city board of public works but was instead the decision of one man—the
city engineer and director of public works. 659 N.E.2d at 590. We held:
[T]he fundamental concept underlying governmental immunity is
the notion that certain kinds of executive or legislative branch
policy decisions should not be subject to judicial review. Peavler,
528 N.E.2d at 44. Discretionary immunity, however, was not
intended to protect a policy decision made by one Board
member. Public policy decisions committed to a board or commission
and entitled to discretionary immunity must be made in public in the
manner provided by law, not on an informal basis outside of the public
record. Without any minutes of a duly constituted Board meeting,
we cannot conclude that the City, acting through its Board of
Public Works, exercised official judgment or engaged in the
necessary policy oriented decision-making process.
Id. at 591 (emphasis added).
[16] In contrast here, the decision regarding repaving and reconstructing Main Street
was not made by one individual acting outside the normal policy-making
procedures. Instead, it was made by the City’s Board of Works and Safety and
the City Counsel, as shown in the designated meetings of these bodies.
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[17] Beloat also cites Scott for the proposition that the City is not shielded from her
claim because her claim can be addressed under traditional tort standards. We
think this reads too much into that case. In Scott, the court wrote:
[T]he discretionary function exception is not absolute but
insulates only those significant policy and political decisions
which cannot be assessed by customary tort standards. 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. at 589. Here, the decision not to make piecemeal repairs to Main Street and
instead reconstruct the street is the very sort of policy-oriented decision which
we are unwilling to second guess. The fact that Beloat frames her claim as
simple negligence does not alter the fact that her claim ultimately calls into
question the decision of the City to reconstruct the street instead of make
smaller repairs.
Conclusion
[18] The designated evidence establishes that the policy decision to reconstruct Main
Street was made by the elected policy makers, and the reconstruction of Main
Street was in the planning stages when Beloat fell. Accordingly, we hold that
the City is entitled to discretionary function immunity under section 34-13-3-
3(7) of the ITCA. The trial court therefore erred in denying the City’s motion
for summary judgment, and we accordingly reverse the order of the trial court
and remand with instructions to enter summary judgment in favor of the City.
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[19] Reversed and remanded.
May, J., concurs.
Robb, J., dissents with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
City of Beech Grove, Court of Appeals Case No.
49A02-1409-CT-605
Appellant-Defendant,
v.
Cathy J. Beloat,
Appellee-Plaintiff.
Robb, Judge, dissenting.
[1] I respectfully dissent from my colleagues’ determination that summary
judgment was improperly denied because the City is entitled to “discretionary
function” immunity from Beloat’s suit. See Ind. Code § 34-13-3-3(7), slip op. at
¶ 18. I believe that the decision takes too broad a view of the discretionary
function exception.
[2] As the majority notes, Peavler adopted the “planning/operation” test for
determining whether a particular governmental act is discretionary and
therefore entitled to immunity. See slip op. at ¶ 9. “Essentially, the test provides
that a governmental entity is immune from liability when the alleged negligence
arises from decisions which are made at the planning level, as opposed to the
operational level.” Scott, 659 N.E.2d at 588-89.
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Planning activities include acts or omissions in the exercise of a
legislative, executive or planning function which involves formulation
of basic policy decisions characterized by official judgment or
discretion in weighing alternatives and choosing public policy.
Government decisions about policy formation which involve
assessment of competing priorities and a weighing of budgetary
considerations or the allocation of scarce resources are also planning
activities.
Peavler, 528 N.E.2d at 45 (internal citations omitted). Discretionary function
immunity “must be narrowly construed because it is an exception to the general
rule of liability.” Id. at 46. The City must therefore show “that the challenged
act or omission was a policy decision made by consciously balancing risks and
benefits.” Id.
[3] Here, the City’s mayor stated the following in an affidavit designated on
summary judgment:
For a number of years, [the City] was in the planning and then
execution process of a road reconstruction project of Main Street from
its intersection with Emerson Avenue to its intersection with 13th Street
. . . . Rather than doing piecemeal repairs on Main Street, [the City]
chose to perform a complete road reconstruction of the street. The
Main Street Project consisted of pavement replacement, enclosed
storm drainage system, parking lanes, bike lane, curb and gutter,
sidewalks and other improvements to the Main Street pedestrian and
vehicular corridor.
Appendix of Appellant at 32. Attached to the affidavit are minutes from Board
of Works and Safety meetings at which the project design and funding was
discussed, beginning in March of 2012. The “physical road reconstruction of
the Main Street Project began in March 2013 with the entire reconstruction
project concluding in November 2013.” Id. I find no support in the designated
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evidence for the proposition that the City made a conscious policy decision to
perform no repairs—no matter how obvious the defect or serious the danger—to
several blocks of Main Street beginning in March 2012 because a reconstruction
project was being discussed. Nor do I find support for the proposition that the
City engaged in an assessment of repairs that might need to be made pending
the start of the reconstruction project and established a policy based upon that
assessment. See Duffitt, 929 N.E.2d at 242 (“In the case of omissions, a
conscious balancing may be demonstrated by evidence showing that the
governmental entity considered improvements of the general type alleged in the
plaintiff’s complaint. Where this is shown, there is no need for the entity to
demonstrate that it considered and rejected the specific improvements
alleged.”).
[4] In short, simply filling a pothole does not strike me as the kind of “piecemeal
repair” that was set aside in favor of the overall improvement project, assuming
that the City in fact made the policy decision to eschew repairs of any kind. It is
not a matter of repaving several feet of a lane of traffic or realigning an
intersection, for example. Although there are certainly claims surrounding this
time and place for which the City would have discretionary function immunity
due to the reconstruction project, I do not believe this is one of them.
[5] I would affirm the trial court’s denial of summary judgment.
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