Indiana Department of Transportation, and Ricardo Bustos v. Paula Sadler, as the Personal Representative of the Estate of Roger D. Sadler , 2015 Ind. App. LEXIS 452 ( 2015 )

Jun 10 2015, 8:53 am
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
J. Thomas Vetne Stephen W. Thompson
Brian R. Gates Vaughn A. Wamsley
Jones Obenchain, LLP Vaughn A. Wamsley, P.C.
South Bend, Indiana Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Indiana Department of June 10, 2015
Transportation, Court of Appeals Case No.
64A04-1411-CT-544
Appellant-Defendant,
Interlocutory Appeal from the Porter
and Superior Court
The Honorable William E. Alexa,
Ricardo Bustos, Judge
Defendant, Case No. 64D02-1103-CT-2072
v.
Paula Sadler, as the Personal
Representative of the Estate of
Roger D. Sadler,
Appellee-Plaintiff
Crone, Judge.
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Case Summary
[1] Roger D. Sadler was struck by a car and killed as he performed road work on
an interstate. Paula Sadler, as personal representative of his estate (“the
Estate”) filed a wrongful death action against Indiana Department of
Transportation (“INDOT”), alleging that Roger’s death was caused by
INDOT’s negligence in failing to temporarily close or block a median crossover
as a safety measure during the road work.1 INDOT filed a summary judgment
motion, arguing that it was immune from liability pursuant to the Indiana Tort
Claims Act (“ITCA”). The trial court denied its summary judgment motion.
[2] INDOT now brings this interlocutory appeal challenging the denial of its
summary judgment motion. INDOT argues that it is entitled to summary
judgment because Indiana Code Section 34-13-3-3(7) of the ITCA provides
immunity to a government entity or its employee from losses resulting from the
performance of a discretionary function and INDOT’s decision not to close the
median crossover was a discretionary function.2 We conclude that INDOT has
failed to carry its burden to show that it is entitled to immunity. Therefore, we
affirm.
1
Ricardo Bustos was also named as a defendant, but he is not participating in this appeal.
2
INDOT dedicates five pages of its brief arguing that the ITCA immunized INDOT from vicarious liability
for an independent contractor’s negligence, an issue it acknowledges that the Estate conceded and the trial
court did not rule on.
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Facts and Procedural History
[3] The facts most favorable to the Estate, the nonmoving party, are as follows.3
INDOT hired Moonrock, Inc., to seal pavement cracks on I-94. The project
was a mobile operation, meaning that the workers moved along the road as
they worked. An INDOT engineer periodically visited the work site to ensure
that Moonrock was following contract specifications, including proper safety
precautions.
[4] Roger was a Moonrock employee. On April 30, 2010, Roger was working in
the scope of his employment as part of Moonrock’s sealing crew in the left-hand
(inside) lane of westbound I-94 just west of mile marker 23.1 in Porter County.
In this area, I-94 is a six-lane divided highway with three westbound and three
eastbound lanes. Due to the road construction, the left-hand and center lanes of
westbound I-94 were closed to traffic, while the right-hand (outside) lane was
open. The westbound lanes were closed both east and west of mile marker
23.1, with orange and white construction barrels between the closed lanes and
the right-hand westbound lane. On I-94, the westbound and eastbound lanes
3
Appellant’s counsel use footnotes rather than citation sentences as required under Indiana Appellate Rule
22. In City of Elkhart v. SFS, LLC, 968 N.E.2d 812 (Ind. Ct. App. 2012), we explained,
Citation sentences are required under our appellate rules. Ind. Appellate Rule 22 (requiring
adherence to Bluebook rules); see The Bluebook: A Uniform System of Citation R. B2, at 4
(Columbia Law Review Ass’n et al. eds., 19th ed. 2010) (“In non-academic legal
documents, citations appear within the text of the document as full sentences or as clauses
within sentences directly after the propositions they support.”).
Id. at 815 n.1. We have admonished counsel for noncompliance with Appellate Rule 22 before. Lane v.
Rosenquist, No. 43A03-1111-CT-534, slip op. at 3 n.1 (Ind. Ct. App. 2012). A third violation of Appellate
Rule 22 may be treated more seriously than merely identifying it in a footnote.
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are separated by permanent concrete median barriers. However, at mile marker
23.1 there was an opening in the median barrier, commonly referred to as a
median crossover. Median crossovers were created for police, emergency, and
maintenance vehicles and are not intended for use by the general public. At
mile marker 23.1, there was a “No U-turn” sign posted. Although the inside
and center lanes running past the median crossover were blocked to traffic, the
crossover itself was not blocked with any temporary traffic control devices.
[5] At approximately 3:00 a.m., Ricardo Bustos was traveling eastbound on I-94
and used the median crossover at mile marker 23.1 to do a U-turn onto
westbound I-94. He travelled a short distance in the closed lanes and struck
Roger with his vehicle. After several days of intensive medical care, Roger died
as a result of the injuries he incurred when Bustos ran into him.
[6] The Estate filed a wrongful death complaint against INDOT and Bustos.
Relevant to this appeal, the Estate alleged that INDOT was negligent for failing
to temporarily close or block the median crossover at mile marker 23.1 when
Moonrock’s road crew was in the vicinity, which resulted in Roger’s death.
INDOT moved for summary judgment arguing that the ITCA shielded it from
any claims that it negligently allowed Bustos to enter the I-94 work zone
through a median crossover placed in accord with INDOT’s departmental
policy. The trial court denied INDOT’s summary judgment motion. This
interlocutory appeal ensued.
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Discussion and Decision
[7] INDOT appeals the trial court’s denial of its summary judgment motion.
When reviewing a grant or denial of a motion for summary
judgment our well-settled standard of review is the same as it is for the
trial court: whether there is a genuine issue of material fact, and
whether the moving party is entitled to judgment as a matter of law.
Summary judgment should be granted only if the evidence sanctioned
by Indiana Trial Rule 56(C) shows that there is no genuine issue of
material fact and the moving party deserves judgment as a matter of
law. All factual inferences must be construed in favor of the non-
moving party, and all doubts as to the existence of a material issue
must be resolved against the moving party.
Kroger Co. v. Plonski, 930 N.E.2d 1, 4-5 (Ind. 2010) (citations omitted).
[8] “A genuine issue of material fact exists where the facts concerning an issue that
would dispose of the litigation are in dispute or where the undisputed material
facts are capable of supporting conflicting inferences on such an issue.”
Vanderhoek v. Willy, 728 N.E.2d 213, 215 (Ind. Ct. App. 2000). “Where the
evidence is in conflict, or undisputed facts lead to conflicting inferences,
summary judgment should not be granted, even if it appears that the
nonmovant will not succeed at trial.” Dickerson v. Strand, 904 N.E.2d 711, 715
(Ind. Ct. App. 2009).
[9] INDOT asserts that it is entitled to summary judgment because it has
“discretionary function” immunity pursuant to the ITCA. Government entities
and their employees are subject to liability for torts committed by them, unless
one of the ITCA exceptions provides immunity. Peavler v. Bd. of Comm’rs of
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Monroe Cnty., 528 N.E.2d 40, 42 (Ind. 1988). Indiana Code Section 34-13-3-
3(7) of the ITCA provides that a “governmental entity or an employee acting
within the scope of the employee’s employment is not liable if a loss results
from ... [t]he performance of a discretionary function.”
The policy underlying governmental immunity is the fundamental idea
that certain kinds of executive branch decisions should not be subject
to judicial review. The separation of powers doctrine forecloses the
courts from reviewing political, social, and economic actions within
the province of coordinate branches of government. In this way, the
discretionary function exception articulates “a policy of preventing tort
actions from becoming a vehicle for judicial interference with decision-
making that is properly exercised by other branches of the
government.” Blessing v. United States, 447 F. Supp. 1160, 1170 (E.D.
Penn. 1978) (interpreting FTCA discretionary function exception).
….
Immunity for discretionary functions, however, does not protect all
mistakes of judgment. The discretionary function exception insulates
only those significant policy and political decisions which cannot be
assessed by customary tort standards. In this sense, the word
discretionary does not mean mere judgment or discernment. Rather, it
refers to the exercise of political power which is held accountable only
to the Constitution or the political process.
….
Immunity assumes negligence but denies liability. Thus, the issues of
duty, breach and causation are not before the court in deciding
whether the government entity is immune. If the court finds the
government is not immune, the case may yet be decided on the basis of
failure of any element of negligence. This should not be confused with
the threshold determination of immunity.
Peavler, 528 N.E.2d at 44-47 (citations omitted).
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[10] Whether a government entity is immune from liability is a question of law,
which we review de novo. E. Chicago Police Dep’t v. Bynum, 826 N.E.2d 22, 26
(Ind. Ct. App. 2005), trans. denied (2006). Because the ITCA is in derogation of
the common law, we construe it narrowly against the grant of immunity. Lee v.
State, 682 N.E.2d 576, 578 (Ind. Ct. App. 1997), trans. denied (1998). The party
seeking immunity has the burden of establishing that its conduct falls within
one of the exceptions provided by the ITCA. Id.
[11] To determine whether a government entity has engaged in a discretionary
function and is thereby shielded from tort liability, we use the “planning-
operational test.” Peavler, 528 N.E.2d at 46. Under that test, “a governmental
entity will not be held liable for negligence arising from decisions which are
made at a planning level, as opposed to an operational level.” Lee, 682 N.E.2d
at 578. A decision is considered a “planning” action where it involves “the
formulation of basic policy characterized by official judgment, discretion,
weighing of alternatives, and public policy choices.” Voit v. Allen Cnty., 634
N.E.2d 767, 770 (Ind. Ct. App. 1994). “Government decisions about policy
formation which involve assessment of competing priorities, a weighing of
budgetary considerations, or the allocation of scarce resources are also planning
activities.” Id. In contrast, a decision is an “operational” action where it
involves only the execution or implementation of already formulated policy.
Id. “‘The governmental entity seeking to establish immunity bears the burden
of proving that the challenged act or omission was a policy decision made by
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the conscious balancing of risks and benefits.’” Id. (quoting Greathouse v.
Armstrong, 616 N.E.2d 364, 367 (Ind. 1993)).
[12] Here, the basis of the Estate’s claim is that INDOT caused Roger’s death by
negligently failing to temporarily close or block the median crossover while
workers were in the vicinity. INDOT contends that it performed a
discretionary function when it installed the median crossovers. Specifically,
INDOT asserts,
INDOT formed a committee decades ago to consider whether
crossovers are appropriate in light of roadway function, public safety,
and the safety of workers who periodically perform roadway
maintenance. In particular, the committee had to balance the need to
accommodate emergency, maintenance, and traffic-service vehicles
against the danger created when authorized or unauthorized vehicles
use crossovers.
The result of that committee’s deliberations is Departmental Policy 7-
6. That policy created specific crossovers along I-94.
….
INDOT should not face liability for how it weighed competing public
policy concerns when it formulated Policy 7-6.
Appellant’s Br. at 14-15.
[13] Our review of Policy 7-6 shows that its purpose was to establish median
crossovers and guide INDOT in deciding where median crossovers should be
placed. For example, Policy 7-6 provides that median crossovers should be
kept to a minimum and should not be located in urban areas and specifies the
appropriate distance between them. Appellant’s App. at 171. Policy 7-6 also
lists the location of permitted median crossovers, including the one at mile
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marker 23.1. Id. at 195. We agree with INDOT’s statement that “[e]stablishing
a median crossover at the 23.1 mile-marker on I-94 involved the very type of
policy-driven judgment that I.C. § 34-13-3-3(7) protects.” Id. at 14 (emphasis
added). See City of Crown Point v. Rutherford, 640 N.E.2d 750, 754-55 (Ind. Ct.
App. 1994) (concluding that city’s decision to repair certain areas of sidewalk
and not others was based on formulation of basic policy and balancing of risks
and benefits and thus was shielded with discretionary function immunity), trans.
denied (1995); Voit, 634 N.E.2d at 770-71 (concluding that highway department
engaged in systematic process for determining what improvements would be
made to highways, a policy-making decision that would receive discretionary
function immunity).
[14] However, INDOT’s decision to locate a median crossover at mile marker 23.1
is not the action that the Estate alleges caused Roger’s death. Rather, the Estate
alleges that INDOT’s failure to decide to temporarily close or block the median
crossover when workers were near it caused Roger’s death. Although INDOT
asserts that it has a policy to keep median crossovers open at all times that is
based on Policy 7-6, Policy 7-6 does not provide any guidance as to whether
median crossovers should be kept open at all times. INDOT itself concedes
that “Policy 7-6 [does not] explicitly say that crossovers must remain open at all
times.” Appellant’s Br. at 20. Therefore, INDOT’s argument that it performed
a discretionary function in adopting Policy 7-6 does not adequately address the
threshold question of whether INDOT had a policy of never closing median
crossovers, which INDOT adopted by weighing alternative solutions and
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competing priorities, considering budgetary constraints and the allocation of
scarce resources, or performing a risk-benefit analysis.
[15] INDOT claims that the testimony of two of its employees establishes that “it
conducted a risk-benefit analysis as to keeping the crossovers open in the
vicinity of road-improvement projects.” Id. at 17. First, INDOT directs us to
the affidavit of Mark Miller, INDOT’s chief engineer, director of construction
management, and chair of its Highway Construction Specification Committee.
Miller testified that “Policy 7-6 was guided in its deliberations by three primary
concerns: ‘roadway function, safety of travelers, and workers who would
periodically perform maintenance on the roads.’” Id. at 18 (quoting Appellant’s
App. at 32). However, as we concluded earlier, Policy 7-6 addresses the
existence and location of median crossovers but does not show that INDOT
adopted a policy that median crossovers remain open when construction
workers are present. As such, Miller’s testimony fails to answer the threshold
question of whether INDOT had a policy that median crossovers remain open
during road construction, so we do not find it persuasive. Keeping the crossover
open did not preclude blocking a U-turn directly into the closed lanes where the
workers were present. The crossover could have stayed open with crossover
traffic utilizing the open lanes of westbound I-94.
[16] Second, INDOT refers us to the testimony of Nathan Butts, an INDOT office-
area engineer. Butts did not have statewide responsibilities. INDOT asserts,
“According to Butts, INDOT ‘weighed safety for the public for emergency
responses with the safety for the workers on the job-site in deciding whether to
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keep those (crossovers) open or closed.’” Id. at 19 (quoting Appellant’s App. at
226). Our review of Butts’s testimony reveals that he answered affirmatively
when asked whether he weighed public safety and worker’s safety in deciding
whether to keep “those medians open or closed.” Appellant’s App. at 226
(emphasis added). He also answered affirmatively when asked whether it was
“current policy of INDOT that those median cuts should not be closed by
barrels or any type of device.” Id.
[17] However, Butts also testified that there is nothing in writing from INDOT that
requires or specifies that median crossovers always be kept open, but that “it’s
just general practice.” Id. More importantly, he testified that INDOT would
have been open to either placing a barrel or parking a truck in the median
crossover as two viable alternatives that would both protect the public by
permitting police and emergency vehicles access through the median crossover
while better protecting the workers. Appellee’s App. at 138. Viewed in the
light most favorable to the Estate, the inference arising from Butts’s testimony is
that INDOT had not consciously adopted a policy that median crossovers
remain open during all road construction; rather, INDOT might have been
willing to temporarily close or block a median crossover if circumstances arising
from road construction warranted it.
[18] Further, INDOT Standard Specifications, which were incorporated into
INDOT’s contract with Moonrock, suggest that INDOT did not have a blanket
policy of keeping median crossovers open during road construction. Section
105.03 provides, “Any deviation from the plans or specifications that may be
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required by the exigencies of construction will be determined by the Engineer
and authorized in writing.” Id. at 9. Section 107.12 provides, “All necessary
precautions shall be taken for the protection of the work and safety of the
public. … Sufficient barricades, supplemented by watchers or flaggers when
necessary, shall be provided continuously to protect any and all parts of the
work.” Id. at 13-14. Such provisions support the position that the engineer
assigned to the road construction project had the authority to make decisions
regarding safety, including temporarily closing or blocking a median crossover
or taking other safety measures that would allow emergency vehicles access
through the crossover but blocking access to the closed lanes. Therefore, we
conclude that INDOT has failed to carry its burden to show that it had a policy
that median crossovers always remain open regardless of the particular safety
considerations arising from a given road construction project.
[19] Even if we were to accept INDOT’s assertion that Policy 7-6 included a policy
that median crossovers always remain open, INDOT concedes that Policy 7-6
permits a deviation from such a policy if authorized in writing by the
appropriate INDOT engineer. INDOT asserts that it is nevertheless entitled to
immunity because its engineers simply followed the policy of keeping median
crossovers open and “nothing about Moonrock’s project raised any red flags
that would have required INDOT to conclude that an open crossover posed a
threat to workers that outweighed the crossover’s proven benefits.” Appellant’s
Reply Br. at 8; see also Appellant’s Br. at 21 (“There was no need for INDOT to
reconsider its median crossover policy in the specific context of Moonrock’s
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work along I-94.”). But INDOT’s assertion that it was not necessary under the
circumstances to temporarily close the median crossover does not answer the
question of immunity. Rather, the decision whether to close the median
crossover under the particular circumstances goes to the heart of the alleged
negligence.
[20] Finally, INDOT contends that any decision by one of its engineers as to
whether a specific median crossover should be temporarily blocked due to road
construction is itself a discretionary function immune from liability because by
“its very nature, any decision to open or close a crossover requires a policy-
oriented judgment call and a balancing of public interests and safety concerns.”
Appellant’s Reply Br. at 10. But in determining whether a governmental entity
or its employee engaged in a discretionary function, the critical inquiry is “not
merely whether judgment was exercised but whether the nature of the judgment
called for policy considerations.” Peavler, 528 N.E.2d at 45. We agree that the
decision whether to temporarily close or block a median crossover due to road
construction would require the appropriate INDOT engineer to exercise his or
her professional judgment. But what is the nature of that judgment?
[21] “Exercising professional judgment, without more, is not equivalent to the
formulation of basic policy. Countless government employees make
professional judgments every day that do not constitute discretionary
functions.” Greathouse, 616 N.E.2d at 368. Here, when exercising his or her
professional judgment to decide whether to temporarily close a specific median
crossover while road workers were near it, the engineer would have to follow
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the specific contract provisions governing the road construction project,
INDOT’s Standard Specifications, and other relevant documents.4 As such, the
engineer’s determination of the proper safety precautions for a specific road
project at a specific site is more of an implementation of INDOT policies rather
than a policy decision in itself; it is performed at an operational level rather than
a planning level. Although a government employee may be permitted to
exercise some discretion in how he or she implements policy, such discretion
does not equate to the level of executive judgments that should be afforded
protection under the governmental immunity doctrine. Id. at 367. Finally, we
observe that the designated evidence shows that no engineer exercised any
judgment in deciding whether to temporarily close the median crossover or
keep it open while workers were nearby. Butts testified that whether to use
barrels or vehicles to temporarily close the median crossover was never
considered. Appellee’s App. at 138. Given the procedural posture of this case,
the designated evidence does not reveal what other safety measures could have
been considered and implemented. Leaving a median crossover completely
open and unguarded or completely closing it are not the only two options.
Some combination of safety devices could be used to allow access through the
median crossover to an emergency vehicle while still preventing vehicles from
doing a U-turn directly into the closed lanes where workers are present.
4
For example, INDOT Standard Specifications include reference to the Manual of Uniform Traffic Control
Devices.
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[22] We must construe all factual inferences in favor of the Estate. In addition, we
must construe the ITCA against the grant of immunity. We conclude that
INDOT has failed to carry its burden to show that it is entitled to discretionary
function immunity, and therefore the trial court properly denied its summary
judgment motion.
[23] Affirmed.
Brown, J., and Pyle, J., concur.
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