Jalen Lee, A Minor Child, by and through his Next Friend, Crystal Estes and Crystal Estes, Individually v. Bartholomew Consolidated School Corporation, City of Columbus

FILED
Apr 11 2017, 5:54 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES
David W. Stone IV James S. Stephenson
Anderson, Indiana Ian L. Stewart
Stephenson Morow & Semler
John H. Shean
Indianapolis, Indiana
Brandon E. Hall
Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jalen Lee, A Minor Child, by April 11, 2017
and through his Next Friend, Court of Appeals Case No.
Crystal Estes and Crystal Estes, 03A01-1608-CT-1900
Individually, Appeal from the Bartholomew
Appellants-Plaintiffs, Circuit Court
The Honorable Stephen R.
v. Heimann, Judge
Trial Court Cause No.
Bartholomew Consolidated 03C01-1501-CT-177
School Corporation, City of
Columbus, Columbus City
Planning Commission and
Columbus Police Department,
Appellees-Defendants.
Riley, Judge.
Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 1 of 37
STATEMENT OF THE CASE
[1] Appellants-Plaintiffs, Jalen Lee (Lee)—by his next friend, Crystal Estes—and
Crystal Estes individually, appeal the trial court’s summary judgment in favor
of Appellee-Defendant, City of Columbus (City). 1
[2] We reverse and remand.
ISSUE
[3] Lee raises four issues on appeal, which we consolidate and restate as the
following single issue: Whether the trial court erred in granting the City’s
motion for summary judgment.
FACTS AND PROCEDURAL HISTORY
[4] On March 11, 2013, thirteen-year-old Lee, an eighth-grade student at Central
Middle School in the Bartholomew Consolidated School Corporation, left his
house at approximately 7:00 a.m. to walk the short distance to Columbus East
High School, where he would get on a school bus to be taken to Central Middle
School. That particular morning, it was raining and still dark outside, but Lee
had walked the same route to the high school every day throughout his seventh
and eighth grade years, regardless of the weather or season. Lee was wearing a
black hooded sweatshirt and blue jeans. As always, Lee was joined on his walk
1
The Columbus City Planning Commission and Columbus Police Department were also originally named
as defendants but, by stipulation of the parties, have been dismissed from the action. In addition,
Bartholomew Consolidated School Corporation is also listed as a defendant; however, it did not join in the
motion for summary judgment and did not file an appellate brief.
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to school by his friend, Jacob Rhodes (Rhodes), who lived on the same street as
Lee. As Lee and Rhodes neared the high school, Rhodes observed a coin on
the ground and stopped to pick it up. Lee kept walking.
[5] The last leg of Lee’s trip to school required him to cross Marr Road. A mid-
block crosswalk on Marr Road provided a direct path from the school’s athletic
fields on the east side of Marr Road to the high school on the west side of Marr
Road. The crosswalk consisted of high visibility markings on the pavement,
and there were two reflective signs on each side of the crosswalk to alert
approaching drivers to the possibility of pedestrians (i.e., a “Crosswalk Ahead”
sign 209 feet away from the crosswalk, and a “Crosswalk” sign thirteen feet
away from the crosswalk). (Appellants’ App. Vol. III, p. 141). Also, drivers
approaching the crosswalk from either direction observed two speed limit signs.
In the northbound lane, the first sign drivers passed was 1,264 feet from the
crosswalk and indicated a school zone speed limit of twenty miles per hour; the
second sign was 427 feet away from the crosswalk and established a regular
speed limit of thirty miles per hour. In the southbound lane, the school zone
and regular speed limit signs were placed directly next to each other,
approximately one-half mile away from the crosswalk. 2
2
While a placard was added to the school zone speed limit signs on August 29, 2013, to indicate that the
twenty miles per hour speed limit is in effect only during certain school hours, on March 11, 2013, the signs
generically provided for a school zone speed limit of twenty miles per hour.
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[6] Lee used the Marr Road crosswalk to walk to Columbus East High School
every day. He knew to look both ways before crossing, and it was his habit to
wait for a vehicle to come to a full stop before crossing instead of assuming that
a slowing vehicle would fully stop. On this day, when Lee reached the Marr
Road crosswalk, he looked both ways and saw a vehicle approaching in the
northbound lane. That vehicle, a red 2006 Dodge Ram 3500 diesel pickup
truck, was driven by Kyle McLeod (McLeod), who was on his way to work.
McLeod had driven the same route along Marr Road at least 100 times, and he
was familiar with the crosswalk and had previously stopped to allow children to
cross. At the time, McLeod stated that he was traveling between twenty-five
and thirty miles per hour and had his headlights on. McLeod did not see
anyone near the crosswalk as he approached, and although Lee had observed
McLeod’s truck, Lee believed that he had sufficient time to cross Marr Road
without causing the oncoming vehicle to have to adjust its speed or stop.
Accordingly, Lee proceeded to cross, and McLeod never noticed him in the
crosswalk until he heard an impact and saw Lee “flying down the road.”
(Appellants’ App. Vol. II, p. 193). McLeod immediately slammed on his
brakes and exited his vehicle as he called 911; meanwhile, Rhodes ran to check
on Lee, who was lying on the ground approximately seventy-five feet away
from the crosswalk. Lee survived the accident, although he does not have any
memory of what occurred between the time he stepped into the crosswalk and
when he woke up at Riley Hospital for Children in Indianapolis. Lee sustained
a broken femur, multiple fractured ribs, a collapsed lung, a lacerated spleen, and
other abrasions.
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[7] On January 9, 2015, Lee filed a Complaint, alleging that the City was negligent
in the performance of its duties to those students who utilize the school buses
for transport to Central Middle School and that this negligence proximately
caused the accident and resulting injuries to Lee. The Complaint also alleged
that the City “negligently failed to take reasonable measures to warn
pedestrians utilizing the Crosswalk and drivers on Marr Road of the particular
dangers of the Crosswalk so as to reasonably mitigate the known dangers of the
Crosswalk.” (Appellants’ App. Vol. II, p. 26). Per Lee, this failure to warn
proximately caused his injuries. 3
[8] On March 22, 2016, the City filed a motion for summary judgment, claiming
that it was entitled to judgment as a matter of law on several grounds. First, the
City argued that it did not breach its duty of reasonable care because Marr
Road and the crosswalk were reasonably safe and there were adequate warnings
to alert drivers to the crosswalk. Second, the City contended that, as a matter of
law, it did not proximately cause the accident or Lee’s injuries because McLeod
was driving the vehicle and was aware of the crosswalk’s existence. Third, the
City claimed that it was entitled to statutory immunity as a governmental entity
pursuant to the Indiana Tort Claims Act. In particular, the City asserted that it
was not liable for any loss attributable to the roadway’s design because Marr
Road and the crosswalk had not been altered for over twenty years prior to the
3
The Chronological Case Summary indicates that Lee filed an amended complaint on January 26, 2015;
however, only the January 9, 2015 Complaint was included in the appellate record.
Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 5 of 37
accident per Indiana Code section 34-13-3-3(18); it was not liable per Indiana
Code section 34-13-3-3(7) (discretionary function immunity) because it was in
the planning stages of making improvements to the crosswalk—specifically, the
installation of flashing lights; and it was not liable for failing to impose a lower
speed limit on Marr Road, install a stop sign at the crosswalk, or station
crossing guards at the crosswalk per Indiana Code section 34-13-3-3(8)
(immunity for failure to adopt or enforce laws). Fourth, the City also posited
that it should be afforded common law immunity based on any alleged failure
to take additional police action to enhance safety on Marr Road and at the
crosswalk. Finally, the City argued that Lee’s claim was barred based on his
own contributory negligence and Lee’s violation of Indiana Code section 9-21-
17-5.
[9] On May 3, 2016, Lee designated evidence to support his opposition to the
City’s summary judgment motion. The trial court subsequently conducted a
hearing on the City’s summary judgment motion. On July 15, 2016, the trial
court granted summary judgment to the City. The trial court found that Lee’s
claim was barred because Lee, in light of his “age, his knowledge, his judgment,
and his experience,” was contributorily negligent as a matter of law.
(Appellants’ App. Vol. II, p. 21). On August 3, 2016, the trial court entered
final judgment in favor of the City.
[10] Lee now appeals. Additional facts will be provided as necessary.
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DISCUSSION AND DECISION
I. Standard of Review
[11] Lee appeals from the trial court’s entry of summary judgment in favor of the
City. We adhere to a well-settled standard of review in summary judgment
cases:
Summary judgment is appropriate only where there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. All facts and reasonable inferences
drawn from those facts are construed in favor of the nonmovant.
Our review of a summary judgment motion is limited to those
materials designated to the trial court. We must carefully review
a decision on summary judgment to ensure that a party was not
improperly denied its day in court. . . .
In reviewing a grant of summary judgment we face the same
issues as the trial court and follow the same process. Under Trial
Rule 56(C), the moving party bears the burden of making a prima
facie showing that there are no genuine issues of material fact and
that it is entitled to judgment as a matter of law. If it is
successful, the burden shifts to the nonmoving party to designate
evidence establishing the existence of a genuine issue of material
fact.
Wabash Cnty. Young Men’s Christian Ass’n v. Thompson, 975 N.E.2d 362, 364–65
(Ind. Ct. App. 2012) (internal citations omitted), trans. denied. “A genuine issue
of material fact exists where facts concerning an issue which would dispose of
the litigation are in dispute or where the undisputed material facts are capable
of supporting conflicting inferences on such an issue.” Hamilton v. Ashton, 846
N.E.2d 309, 314, clarified on reh’g, 850 N.E.2d 466 (Ind. Ct. App. 2006), trans.
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denied. The trial court’s grant of summary judgment “is clothed with a
presumption of validity,” and Lee bears the burden of establishing that the trial
court erred. Id. “If the trial court’s ruling can be sustained on any theory or
basis supported by the record, we must affirm.” Id.[12] For negligence cases, “[s]ummary judgment is rarely appropriate” because these
cases “are particularly fact-sensitive and are governed by a standard of the
objective reasonable person.” Miller v. Rosehill Hotels, LLC, 45 N.E.3d 15, 19
(Ind. Ct. App. 2015). Thus, negligence cases are generally better suited for a
jury determination after hearing all the evidence. Id. Nevertheless, in order for
the City to prevail on its summary judgment motion, it “must show that the
undisputed material facts negate at least one of the elements essential to the
negligence claim, or that the claim is barred by an affirmative defense.”
Coffman v. PSI Energy, Inc., 815 N.E.2d 522, 526 (Ind. Ct. App. 2004), trans.
denied.
II. Contributory Negligence
[13] In this case, the trial court found that the City’s affirmative defense of
contributory negligence was dispositive. When a tort claim is filed against a
governmental entity, such as the City, the Comparative Fault Act—which
provides that “any contributory fault chargeable to the claimant diminishes
proportionately the amount awarded as compensatory damages for an injury
attributable to the claimant’s contributory fault, but does not bar recovery”—
does not apply. Ind. Code §§§ 34-51-2-2; -5; -6; see Hill v. Gephart, 54 N.E.3d
402, 406 (Ind. Ct. App. 2016), clarified on reh’g, trans. denied. Rather, the
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common-law doctrine of contributory negligence applies. Hill, 54 N.E.3d at
406. Therefore, “if a plaintiff is negligent to even a small degree and that
negligence proximately contributes to his claimed damages, contributory
negligence will operate as a complete bar to his action.” Id. Here, the trial
court found that Lee’s claim against the City was barred based on his own
contributory negligence. Specifically, the trial court found that Lee “knew what
he was supposed to do for his own safety: wait for a vehicle to stop before you
cross a road. Instead of waiting, he chose to cross.” (Appellants’ App. Vol. II,
p. 20).
[14] It is well established that a plaintiff “is contributorily negligent when his
conduct falls below the standard to which he should conform for his own
protection and safety.” Hill, 54 N.E.3d at 406. Because “[n]egligence depends
upon the lack of reasonable care that an ordinary person would exercise in like
or similar circumstances,” “contributory negligence is the failure of a person to
exercise for his own safety that degree of care and caution which an ordinary,
reasonable, and prudent person in a similar situation would exercise.” Id.
Generally, contributory negligence is a question of fact for a jury. Id. However,
it may be a question of law appropriate for summary judgment “if the facts are
undisputed and only a single inference can be drawn therefrom.” Id. at 406-07.
[15] In this case, Lee was thirteen years old at the time of the accident. The
standard of care for a child is well established: “a child between seven and
[fourteen] is required to exercise due care for his or her own safety under the
circumstances and that the care is required to be measured by that ordinarily
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exercised under similar circumstances by children of the same age, knowledge,
judgment, and experience.” Clay City Consol. Sch. Corp. v. Timberman, 918
N.E.2d 292, 295 (Ind. 2009). That said, in Indiana, there is also a
“presumption that children between the ages of seven and [fourteen] are
incapable of contributory negligence.” Id. at 297. However, this presumption is
rebuttable, and a child may be found contributorily negligent if the defendant
presents evidence that the child is “accountable for his actions” based on his
age, mental capacity, intelligence, and experience. Id. at 298.
[16] Lee contends that the trial court erred in granting summary judgment because
the facts of the case are subject to more than one inference, thereby precluding a
determination that he was contributorily negligent as a matter of law. Lee relies
on Maldonado by Maldonado v. Gill, 502 N.E.2d 1371, 1371-72 (Ind. Ct. App.
1987), trans. denied, in which an eight-year-old plaintiff looked both ways,
stepped out into the street from in-between two parked cars, and was struck by
a vehicle. There was evidence that the driver of the vehicle had failed to stop at
a stop sign and was speeding at the time of the impact. Id. at 1373. Our court
found that the trial court erred in determining that the plaintiff was
contributorily negligent as a matter of law because “the uncontroverted
evidence that [the plaintiff] stopped and looked before attempting to cross the
street [was] sufficient to create an inference that he acted reasonably”; thus,
whether the child’s “behavior constituted contributory negligence [was] a
question of fact.” Id.Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 10 of 37
[17] In turn, the City argues that summary judgment was proper. The City cites
Smith v. Diamond, 421 N.E.2d 1172, 1179 (Ind. Ct. App. 1981), where our court
found that the trial court was justified in concluding, as a matter of law, that a
twelve-year-old boy was contributorily negligent when he sustained injuries
after crossing into the street, admittedly without checking to see whether traffic
was approaching in the northbound lane. The City points out that Lee was a
year older than the plaintiff in Smith and, as in Smith, had been instructed on
proper traffic safety. The City emphasizes that Lee had crossed the Marr Road
crosswalk twice a day throughout his seventh and eighth grade years without
incident and knew that he should never cross the street until a slowing vehicle
fully stopped. Yet, “despite seeing the approaching truck and the headlights of
the truck that would eventually strike him, Lee chose to enter the road” and is
therefore, according to the City, contributorily negligent. (Appellee’s Br. p. 16).
[18] We find that the record contains genuine issues of material fact to preclude
summary judgment on the basis of contributory negligence. Unlike in Smith,
where the plaintiff failed to check whether any traffic was coming from the
northbound lane, Lee did check in both directions for traffic and observed
McLeod’s vehicle. However, he believed that the vehicle “was [at] a distance to
where I thought I could cross without him having to slow down or stop or
anything like that.” (Appellants’ App. Vol. II, p. 42). Similarly, in his
deposition, Lee’s friend, Rhodes, claimed that he also saw McCleod’s truck as
they approached the crosswalk and, like Lee, believed that there was sufficient
time to traverse the crosswalk. According to Rhodes, McLeod’s “truck was just
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so far down the street. It wasn’t even in our minds that it would even be going
that fast to even hit us.” (Appellants’ App. Vol. III, p. 115). In fact, Rhodes
stated that, had he not stopped to pick up the coin, he would have felt safe in
entering the crosswalk at the same time as Lee. Furthermore, although
McLeod averred that he was travelling between twenty-five and thirty miles per
hour at the time of the accident, Rhodes estimated that McLeod’s speed must
have been closer to thirty-five or forty miles per hour. As in Maldonado, we find
that these facts give rise to an inference that Lee may have acted reasonably in
entering the crosswalk after looking both ways and assessing that he had
sufficient time to cross.
[19] Nonetheless, the City also maintains that Lee was contributorily
negligent/negligent per se because he violated Indiana Code section 9-21-17-5,
which provides that “[a] pedestrian may not suddenly leave a curb or other
place of safety and walk or run into the path of a vehicle that is so close as to
constitute an immediate hazard.” Our court has noted that “the violation of a
statute by a child must not be considered in the light of any presumption of
negligence.” Maldonado, 502 N.E.2d at 1373. Rather, the “violation of a
statute of this nature by a child is in itself only some evidence of negligence, at
least where the child’s activity is one which does not require adult
qualifications.” Smith, 421 N.E.2d at 1180 n.7. For the same reasons already
discussed, we cannot say that Lee’s conduct constitutes a violation of the statute
rendering him contributorily negligent as a matter of law. There is a genuine
evidentiary dispute as to whether Lee “suddenly [left]” the curb in the face of
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“an immediate hazard” given his genuine belief that McLeod’s vehicle was
sufficiently far away that he could safely cross. I.C. § 9-21-17-5. Because the
evidence leads to multiple inferences as to whether a thirteen-year-old boy acted
reasonably in crossing the street despite the presence of an oncoming vehicle,
we find that the issue of contributory negligence was not a proper basis for
summary judgment and should have been reserved for determination by a jury.
III. Statutory Immunity
[20] Despite our finding that the trial court erred in granting summary judgment on
the basis that Lee was contributorily negligent, we may nevertheless affirm the
trial court’s summary judgment if it can be sustained on any other basis
supported by the record. Hamilton, 846 N.E.2d at 314. In its motion for
summary judgment, the City claimed that it was entitled to judgment as a
matter of law based on certain statutory immunities. The Indiana Tort Claims
Act (ITCA) provides that governmental entities may be liable for torts
committed by their agencies or employees. See I.C. Ch. 34-13-3. However,
under certain circumstances, the governmental entity is entitled to immunity for
those acts. Joseph v. LaPorte Cnty., 651 N.E.2d 1180, 1183 (Ind. Ct. App. 1995),
trans. denied. Whether the ITCA imparts immunity to a governmental entity is
a question of law for the court to decide. Savieo v. City of New Haven, 824
N.E.2d 1272, 1275 (Ind. Ct. App. 2005) (quoting Mangold ex rel. Mangold v. Dep’t
of Nat. Res., 756 N.E.2d 970, 975 (Ind. 2001)), trans. denied. “Because the ITCA
is in derogation of the common law, we construe it narrowly against the grant
of immunity.” Id. (quoting Mangold, 756 N.E.2d at 975). The party seeking
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immunity bears the burden of proving that its conduct falls within the
provisions of the ITCA. Id. (quoting Mangold, 756 N.E.2d at 975).
[21] In his Complaint, Lee generically alleged that the City was negligent based on
its failure to adequately warn drivers and pedestrians about the dangers of the
Marr Road crosswalk. In response, the City argued that it cannot be held liable
under its discretionary function immunity because it was in the process of
planning improvements (i.e., flashing lights) to the crosswalk at the time of the
accident; it cannot be held liable for failing to implement a lower speed limit or
to assign crossing guards at the Marr Road crosswalk under its
adoption/enforcement immunity; and it is immune from any liability resulting
from the design of Marr Road and the crosswalk based on the fact that there
had been no substantial changes in the twenty years preceding the accident.
We will address each claim of immunity in turn.
A. Indiana Code Section 34-13-3-3(7): Discretionary Function Immunity
[22] First, we consider whether the City is entitled to discretionary function
immunity. “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.” I.C. § 34-13-3-3(7). This type of
immunity shields certain policy decisions “which cannot be assessed by tort
standards.” Joseph, 651 N.E.2d at 1183. In determining whether discretionary
function immunity is applicable, “we apply the planning/operational test.” Id.We have held that planning functions are discretionary and thus shielded by
immunity, whereas operational functions are not. Id. “Planning functions
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involve the formulation of basic policy characterized by official judgment,
discretion, weighing of alternatives, and public policy choices.” Id. (internal
quotation marks omitted). On the other hand, operational functions “involve
the execution or implementation of already formulated policy.” Id. (internal
quotation marks omitted).
[23] Whether an act is discretionary is a question of law. City of Beech Grove v. Beloat,
50 N.E.3d 135, 138 (Ind. 2016) (quoting Peavler v. Board of Comm’rs of Monroe
Cnty., 528 N.E.2d 40, 46 (Ind. 1988)). Essentially, we must consider “whether
the legislature intended acts such as those challenged to enjoy immunity.”
Joseph, 651 N.E.2d at 1183. In doing so, we “should look to the purposes of
immunity to determine whether those purposes would be furthered by
extending immunity to the act in question.” Beloat, 50 N.E.3d at 138. The City
must demonstrate that “the challenged act or omission was a policy decision
made by consciously balancing risks and benefits.” Id. (quoting Peavler, 528
N.E.2d at 46).
[24] According to the City, Lee cannot establish a viable negligence claim based on
a lack of adequate warnings in light of the fact that “there were already two
crosswalk warning signs in place in addition to the crosswalk markings itself at
the Marr Road Crosswalk, and the driver of the truck was already fully aware
of the presence of the crosswalk and saw the crosswalk and its warning signs on
the day of the incident.” (Appellee’s Br. pp. 29-30). Nevertheless, assuming
that Lee has a viable negligence claim, the City maintains that “[t]o the extent
that [Lee] argue[s] that there should have been a different type of warning sign
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at the Marr Road crosswalk, such a claim is barred by discretionary function
immunity” because the City “was in the process of planning improvements to
the Marr Road crosswalk.” (Appellee’s Br. pp. 29-30). See City of Terre Haute v.
Pairsh, 883 N.E.2d 1203, 1208 (Ind. Ct. App. 2008) (“Immunity assumes
negligence but denies liability.”), trans. denied. In turn, Lee simply argues that
the City is not entitled to summary judgment based on discretionary function
immunity because “[d]ifficult policy decisions were not being resolved by the
City with respect to crosswalks and signage. There appears to be nothing more
than ad hoc decisions being made.” (Appellants’ Br. p. 23).
[25] The designated evidence establishes that in 2009, the City “identified the need
for an engineering solution for pedestrian crossings that fell between a
signalized intersection and a standard marked crosswalk” at multiple
crosswalks around Columbus. (Appellants’ App. Vol. II, p. 72). By May of
2011, the Indiana Manual on Uniform Traffic Control Devices had approved
the use of rectangular rapid flashing beacons (RRFBs) at pedestrian crossings. 4
Thus, to test the efficacy of RRFBs, the City installed one at an “important
school crossing that had been having major compliance issues with regards to
motorists yielding to pedestrians in the crosswalk.” (Appellants’ App. Vol. II,
p. 72). Thereafter, the City recorded a 95% compliance rate at the crosswalk
with the RRFB. In addition, the City found the “solution to be particularly
4
“Each traffic control signal on a street or highway within Indiana must conform with the standards,
specifications, and warrants set forth in the Indiana Manual on Uniform Traffic Control Devices for Streets
and Highways.” I.C. § 9-21-3-1.
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effective because the [RRFB] must be actively activated by a pedestrian, thus
when it is not in use it does not degrade road capacity.” (Appellants’ App. Vol.
II, p. 72). Accordingly, in May of 2011—almost two years prior to the accident
that led to this appeal, the City applied for federal Highway Safety
Improvement Program (HSIP) funding to install RRFBs at six other pedestrian
crossings in Columbus, including the Marr Road crosswalk.
[26] The cost of installing an RRFB at the Marr Road crosswalk was estimated at
$75,000 (with the total cost for all six crosswalks estimated at $487,500). A
project that is eligible for HSIP funding receives 90% of the project costs from
the federal grant, and the City is responsible for paying the remaining 10%. In
addition, transportation projects that involve federal funding must be first
approved by the Indiana Department of Transportation (INDOT), and upon
the federal agency’s approval of an HSIP project, the money flows through
INDOT. On October 30, 2012, the Columbus Board of Works and Safety
discussed the project, noting that the City’s share of the costs would be paid for
through the City’s Thoroughfare Fund. During that meeting, the Board voted
to approve a contract for INDOT to serve as the project coordinator for the
improvement of the six pedestrian crosswalks. Then, on December 4, 2012, the
Board of Public Works and Safety approved a contract between the City and a
consulting firm, under which the consulting firm would develop the
construction documents necessary for the project. On January 5, 2013, a
contract between the City and INDOT was fully executed for the completion of
the RRFB project with HSIP funds. Pursuant to the contract, INDOT was
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responsible for letting the project and reviewing bids. Thereafter, INDOT
would contract with an appropriate contractor for the construction of the
project and would establish the work schedule. Once INDOT received the
City’s payment for 10% of the project costs, the contractor would be permitted
to proceed with construction. The City was responsible for “manag[ing] the
project and keep[ing] it moving.” (Appellants’ App. Vol. II, p. 67). Upon
completion of the project, INDOT would “hand it back to the City and say it’s
yours to maintain.” (Appellants’ App. Vol. II, p. 65).
[27] On March 11, 2013—the date of Lee’s accident, the Columbus Area
Metropolitan Planning Organization met and inquired about accelerating the
RRFB installation process in light of the fact that a student had been struck by a
vehicle. The City’s engineer explained that a field check was scheduled for that
week, but the delays were the result of having to go through the federal and
state aid processes to fund the project. On August 20, 2013, the Board of Public
Works approved a request to amend the contract with the consulting firm.
Under the amended terms, the consulting firm would also complete necessary
studies for environmental documentation and design the curb bump outs as part
of the RRFB installation. Finally, at some point in 2015, INDOT opened the
project for bidding. Initially, the bids were too high, so INDOT tabled the
project for a few months before re-letting it. The second time, INDOT accepted
a bid and awarded the contract. However, as of December of 2015,
construction had not yet begun.
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[28] The City directs our attention to Lee v. State, 682 N.E.2d 576, 577 (Ind. Ct. App.
1997), trans. denied, in which a mother sued INDOT for negligence after her
seventeen-year-old daughter died in a car accident due to the driver’s failure “to
successfully negotiate a series of curves.” The plaintiff contended that INDOT
had improperly designed, constructed, and maintained the road and had failed
to warn motorists of the unreasonably dangerous nature of the s-shaped curves
or eliminate said dangerousness. Id. We held that INDOT was entitled to
discretionary function immunity because it was in the planning stages of
making improvements to the road curves at the time of the accident. Id. at 579.
The plaintiff attempted to argue that INDOT was not entitled to discretionary
function immunity because it had moved beyond the planning phase and into
the operational phase as the design and engineering aspects of the project were
completed at the time of her daughter’s accident. Id. We disagreed, noting that
“INDOT was required to purchase several parcels of land adjacent to [the road]
in order to straighten the road thereby eliminating the [curves].” Id. Thus,
“[t]he operational phase of the project did not begin until after the contract was
let for bidding on October 16, 1992. Decedent’s accident occurred in July of
1992, and hence the project was still in the planning phase.” Id. We found that
INDOT’s decision to correct the dangerous curves “was the type of
discretionary decision intended to be shielded from liability.” Id.[29] Lee, however, argues that there is nothing in the designated evidence “which
show[s] consideration or weighing of policy issues” as required for discretionary
function immunity to apply. (Appellants’ Reply Br. p. 17). In support of this,
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Lee cites Beloat, 50 N.E.3d at 137, where the plaintiff sued the City of Beech
Grove after she stepped into a hole on a city street and broke her leg. Beech
Grove claimed that it was immune from liability pursuant to the ITCA’s
discretionary function immunity because it was in the planning stages of
performing a complete reconstruction of the entire street, as opposed to
piecemeal repairs. Id. at 140. As evidence, Beech Grove designated an affidavit
from its mayor, along with minutes from City Council and Board of Works and
Safety meetings. Id. Our supreme court determined that the mayor’s affidavit
was insufficient to demonstrate that an official policy decision had been made
as to why certain repairs should be made over others because the mayor’s
“comments and actions alone are not actions of the [governing] board itself”
and there is no indication that the mayor had been delegated individual
authority to make an independent policy decision about road repairs. Id. at
140-41. Furthermore, the supreme court noted that the meeting minutes of the
governing boards only discussed the financial aspects of the reconstruction
project. Id.at 141. “The minutes presented within the record [did] not reflect
any discussion about how the area encompassed within the [p]roject was
decided upon, why specific repairs were selected over others, what would be
done about road damage in the meantime, why total reconstruction was
necessary, or the costs of total reconstruction compared to conducting other
individual repairs.” Id. at 142. Rather, the minutes designated as evidence
“reflect[ed] the steps taken to fund a project that had already been discussed,
planned, and approved.” Id. Thus, Beech Grove was not entitled to summary
judgment based on discretionary function immunity. Id. at 143. Ultimately,
Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 20 of 37
our supreme court determined that “a governmental entity must demonstrate
that ‘conscious balancing’ took place which can be shown by evidence that ‘the
governmental entity considered improvements of the general type alleged in
[the plaintiff’s] complaint.’” Id. (alteration in original). In addition, Lee relies
on Birge v. Town of Linden, 57 N.E.3d 839, 845 (Ind. Ct. App. 2016), which
emphasized that an application for funding of a project, by itself, does not
“demonstrate a conscious weighing of options” to grant discretionary function
immunity as a matter of law.
[30] We find that the present case is more akin to Lee than Beloat because the
designated evidence demonstrates the City’s involvement in various phases of
analysis, planning, approval, and contracting in order to complete the
installation of RRFBs at the Marr Road crosswalk. See Beloat, 50 N.E.3d at 139
(distinguishing Lee v. State on the basis that “[t]he evidence designated by
INDOT clearly demonstrated the multiple phases of investigation, planning,
modification, and approval necessary to complete the reconstruction of [the
road]”). Unlike in Beloat, here, the record is replete with details regarding the
policy considerations undertaken by the City in planning for the crosswalk
improvements. Specifically, in its application for HSIP funding, the City
explained that, after testing the efficacy of the RRFBs at a sample crosswalk
and noting a 95% compliance rate, it selected the Marr Road crosswalk as one
of six other pedestrian crossings throughout Columbus that would benefit from
the use of RRFBs. The City noted that it had received “very positive” feedback
“from parents, non-school related pedestrians, school crossing guards, and
Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 21 of 37
motorists” with respect to the use of RRFBs. (Appellants’ App. Vol. III, p. 46).
The City also considered that the installation of RRFBs would be beneficial to
pedestrians without unnecessarily hindering traffic because the RRFBs “must
be actively activated by a pedestrian” and do not flash unless in use.
(Appellants’ App. Vol. III, p. 46). The Marr Road crosswalk was chosen for
improvement because
Marr Road is a minor arterial that runs adjacent to East High
School. Traffic volumes are 7,281 [average annual daily traffic].
Each school day, students from [Columbus] East High School
must cross Marr Road in order to reach the sports facilities
located on the other side of the road. The need for improved
pedestrian crossing at this location was identified during the High
School campus master planning process which was conducted
cooperatively between the School Corporation, the City and
other stakeholders as well as during the Bicycle and Pedestrian
Planning process.
(Appellants’ App. Vol. III, p. 47). In addition to studying the traffic patterns at
the crosswalk, the City calculated that 1,286 pedestrians utilize the Marr Road
crosswalk each day, not including additional evening pedestrian traffic for
sports and auditorium events. The City also considered that, despite the posted
speed limit of thirty miles per hour (with a school zone speed limit of twenty
miles per hour), the average observed speed in the northbound lane of Marr
Road was forty-two miles per hour and was thirty-eight miles per hour in the
southbound lane.
[31] The record also establishes that, in early 2011, the City sought approval for the
project from INDOT and applied for HSIP funding. Then, in December of
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2012, the City entered into a contract with a consulting firm to handle the
development of necessary documents for the project, and this contract was
subsequently modified in August of 2013 to include additional work for
environmental studies and curb bump outs. In January of 2013, the City
contracted with INDOT to manage the project. As a result, the bidding
process, selection of a contractor, and schedule of work were all under
INDOT’s control. At the time of Lee’s accident in March of 2013, the City was
preparing for a field check, and INDOT had not let out the project for bidding
yet. Thus, despite the prolonged process, we find that the City was still in the
planning stages at the time of the accident. See Lee, 682 N.E.2d at 579.
[32] Furthermore, the evidence reveals that Lee was the second student within a
two-year period to be struck by a vehicle at the Marr Road crosswalk. Thus, it
is clear that the City recognized that, despite being in compliance with the
Indiana Manual on Uniform Traffic Control Devices with respect to the
warning signs and high visibility markings already in place, it could do more to
improve the safety of pedestrians in that area. The fact that it was a slow
process was not the fault of the City, but rather was due to the nature of
coordinating a federally-funded project with a state agency. We find that the
City’s effort to remedy the dangers associated with the Marr Road crosswalk
falls within the realm of activity that the legislature intended to protect with
discretionary function immunity. See id. Thus, to the extent that Lee maintains
that the City was negligent in failing to include additional warnings at the Marr
Road crosswalk, we find that the City has discretionary function immunity.
Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 23 of 37
B. Indiana Code Section 34-13-3-3(8): Immunity for Failure to Adopt or Enforce Laws
[33] Next, we consider whether the City is entitled to immunity based on a failure to
adopt or enforce a law, rule, or regulation. “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 adoption and enforcement of or failure to adopt or
enforce . . . a law (including rules and regulations).” I.C. § 34-13-3-3(8). It is
well established that “the legislature intended that a government entity be
immune only for failing to adopt or enforce a law that falls within the scope of
its purpose or operational power.” Gary Cmty. Sch. Corp. v. Boyd, 890 N.E.2d
794, 800 (Ind. Ct. App. 2008) (quoting King v. Ne. Security, Inc., 790 N.E.2d 474,
483 (Ind. 2003)), trans. denied. In seeking summary judgment, the City claimed
that it is immune from liability to the extent that Lee contends that the City
should have enacted a lower speed limit at the crosswalk, that the City should
have installed a stop sign at the crosswalk, or that the City should have utilized
crossing guards at the crosswalk.
[34] As a “local authorit[y]” under Indiana Code section 9-13-2-94(b), the City
“may adopt by ordinance additional traffic regulations with respect to highways
under the authority’s jurisdiction” so long as it does not “conflict with or
duplicate a statute.” I.C. § 9-21-1-2. In part, “with respect to private roads and
highways under the authority’s jurisdiction,” the City may “[r]egulate traffic by
means of police officers or traffic control signals”; “[d]esignate an intersection
as a stop intersection and require all vehicles to stop at one (1) or more
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entrances to the intersection”; or “[a]lter the prima facie speed limits authorized
under [Indiana Code chapter] 9-21-5.” I.C. § 9-21-1-3(a)(2),(7),(11).
[35] Specifically with respect to altering prima facie speed limits, we note that Indiana
Code section 9-21-5-2(a)(1) establishes a “maximum lawful speed” limit of
“[t]hirty (30) miles per hour in an urban district.” However,
[a] city, town, or county may establish speed limits on a street or
highway upon which a school is located if the street or highway
is under the jurisdiction of the city, town, or county, respectively.
However, a speed limit established under this subsection is valid
only if the following conditions exist:
(1) The limit is not less than twenty (20) miles per hour.
(2) The limit is imposed only in the immediate vicinity of the
school.
(3) Children are present.
(4) The speed zone is properly signed. There must be:
(A) a sign located where the reduced speed zone begins or as
near as practical to the point where the reduced speed
zone begins indicating the reduced speed limit and a sign
located at the end of the reduced speed zone indicating
the end of the reduced speed zone; and
(B) if the school operates on a twelve (12) month schedule, a
sign indicating that the school is an all year school.
I.C. § 9-21-5-6(f).
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[36] The City thus had authority to adopt and enforce regulations regarding the use
of traffic control signals and police officers to regulate traffic. The City also had
power to designate intersections as stop intersections. Finally, the City could
alter the prima facie speed limit of thirty miles per hour for an urban area by
decreasing it to twenty miles per hour in the vicinity of a school. The wording
of Indiana Code section 34-13-3-3(8) makes it clear that the City is immune for
any failure to adopt or enforce a law, rule or regulation; as such, the City
cannot be liable because it did not erect a stop sign at the Marr Road crosswalk
or enact a lower speed limit. See Carter v. Indianapolis Power & Light Co., 837
N.E.2d 509, 522 n.20 (Ind. Ct. App. 2005) (finding immunity based on a
county’s failure to pass an ordinance for a reduced speed limit), trans. denied; Bd.
of Comm’rs of Cnty. of Harrison v. Lowe, 753 N.E.2d 708, 714 (Ind. Ct. App. 2001)
(noting that failing to erect a traffic control device is, in part, “a legislative act”
that is entitled to immunity under (what is now) Indiana Code section 34-13-3-
3(8)), trans. denied.
[37] Concerning whether the City should have utilized crossing guards at the Marr
Road crosswalk, the City insists that it is “immune under the ‘enforcement’
provision” of Indiana Code section 34-13-3-3(8). (Appellee’s Br. p. 27). The
City argues that this case is similar to State v. Flanigan, 489 N.E.2d 1216 (Ind.
Ct. App. 1986), trans. denied, and we agree. In Flanigan, the plaintiffs parked
their car at the side of a highway and then proceeded to walk along the highway
in order to attend a flea market where there had been inadequate parking. Id. at
1217. While walking, the plaintiffs were struck by a vehicle, and they sued the
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State of Indiana for negligence, asserting that the Indiana State Police “failed to
provide any traffic control to assure that pedestrians could travel on the
highways safely.” Id. Our court held that “[a]ny decision by the [S]tate
[P]olice whether or not to patrol the area of [the] flea market or to provide
traffic control would be a decision on whether or not to enforce the law. Such
an act clearly is within and protected by the immunity granted by the [ITCA].”
Id. at 1220.
[38] Lee contends that the crossing guards cannot enforce laws because, as civilian
employees, they do not possess any police powers. Nevertheless, the
designated evidence establishes that “the crossing guards are part of the police
function, and the police decide where those will go.” (Appellants’ App. Vol. II,
p. 66). The Columbus Police Department (which is a department of—rather
than a separate entity from—the City) employs twenty-one crossing guards on a
seasonal, part-time basis. The crossing guards are paid from the police
department’s budget. Crossing guards who notice a compliance problem (i.e.,
an excessive number of speeding drivers) at their intersection/crosswalk are
instructed to notify the Columbus Police Department’s administrative special
secretary, who then raises the issue(s) with the appropriate officers for
enforcement. In determining where to place crossing guards, the police
department communicates with the school system; however, as a matter of
policy, the police department only assigns crossing guards to crosswalks and
intersections where elementary school students (i.e., up to sixth grade) would be
expected to cross. Thus, while the crossing guards themselves do not have any
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enforcement authority, they are directly controlled by the Columbus Police
Department and serve as a mechanism of traffic control for safe pedestrian
crossing. Accordingly, we conclude that the decision not to place a crossing
guard at the Marr Road crosswalk is subject to immunity under Indiana Code
section 34-13-3-3(8). 5
IV. Negligence
[39] Because a finding of immunity precludes liability, we generally do not reach the
elements of negligence. See Pairsh, 883 N.E.2d at 1208. Here, although we
have concluded that summary judgment was not appropriate on the basis of
Lee’s contributory negligence, we have determined that the City is entitled to
immunity based on any perceived failure to include additional warnings, such
as RRFBs, at the Marr Road crosswalk or based on its failure to erect a stop
sign at the crosswalk, enact a reduced speed limit along Marr Road, or station
crossing guards at the crosswalk. Although there is immunity for a City’s
decision to enact an ordinance regarding the speed limit in a certain area, we
must nevertheless address the fact that there were multiple speed limit signs
5
The City also claimed that it was immune under Indiana Code section 34-13-3-3(18), which 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 . . . [the] [d]esign of a highway . . . , toll road project . . . , tollway . . . , or project . . . if
the claimed loss occurs at least twenty (20) years after the public highway, toll road project, tollway, or
project was designed or substantially redesigned.” There is no dispute that the design of Marr Road and the
crosswalk had not been altered in the twenty years preceding the accident. Although Lee did not challenge
that the design of the road or crosswalk resulted in the accident, he nevertheless argued that the City could
not claim immunity under this provision because the placement of the speed limit signs, which were changed
in 2011, proximately caused the accident. Because we address the matter of the speed limit signs elsewhere
in this opinion, we need not address the City’s claim of immunity under Indiana Code section 34-13-3-3(18).
Likewise, we need not address the parties’ arguments as to whether the City was entitled to common law
immunity regarding the placement of crossing guards at the Marr Road crosswalk.
Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 28 of 37
posted, creating a discrepancy as to whether, at the time of the accident, the
enacted speed limit was twenty miles per hour or thirty miles per hour
approaching the Marr Road crosswalk. The City offers no basis under the
ITCA that would grant it immunity if it posted an incorrect speed limit sign.
See, e.g., Joseph, 651 N.E.2d at 1185 (noting that posting an incorrect speed limit
sign “cannot be discretionary” and is, therefore, not shielded from liability
under Indiana Code section 34-13-3-3(7) because “[p]osting speed limits
involves nothing more than implementing established policy”).
[40] Lee maintains that the City is negligent because an improper speed limit sign
was the cause of the accident. In order to sustain an action for negligence, Lee
must establish: “(1) a duty owed by [the City] to conform its conduct to a
standard of care arising from its relationship with [Lee]; (2) a breach of that
duty; and (3) an injury proximately caused by the breach of that duty.” St. John
Town Bd. v. Lambert, 725 N.E.2d 507, 514 (Ind. Ct. App. 2000). Whether the
City has a duty is a question of law subject to the court’s determination, and our
courts have “long recognized a general duty on the part of the state, counties,
and municipalities to exercise reasonable care in the design, construction,
maintenance, and repair of the road and highways within their control.” Id. at
514-15. Moreover, we have previously identified a duty for such entities to
“regulate the use of the public ways,” such as by posting street signs, erecting
lights, or installing warning devices for the safety of the general public. Id. at
516. If a duty is breached, we must determine whether the breach is the
proximate cause of another’s injury by considering “whether the injury was a
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natural and probable consequence of the negligent act which, in the light of the
attending circumstances, could have been reasonably foreseen or anticipated.”
Id. at 520. In other words, for a breach to proximately cause an injury, it “must
have set in motion a chain of circumstances which, in natural and continuous
sequence, le[d] to the resulting injury.” Id.[41] Drivers approaching the Marr Road crosswalk in the northbound lane observed
two speed limit signs. The first sign drivers passed was 1,264 feet from the
crosswalk and indicated a school zone speed limit of twenty miles per hour.
This sign did not indicate that the school zone speed limit was only to be in
effect at specific times. Thereafter, 427 feet away from the crosswalk, a second
sign indicated that the speed limit was thirty miles per hour. Conversely, for
drivers approaching the crosswalk from the southbound lane, the school zone
speed limit sign of twenty miles per hour and the regular speed limit sign of
thirty miles per hour were placed directly next to each other, approximately
one-half mile away from the crosswalk.
[42] The City contends that it did not breach its duty because Marr Road was in a
reasonably safe condition at the time of the accident. The City designated the
affidavit of William Taylor (Taylor), a professor emeritus in the department of
civil engineering at Michigan State University, with a Ph.D in engineering.
Taylor concluded that the installation of the speed limit signs and crosswalk
warning signs “was in accordance with the [Indiana Manual on Uniform
Traffic Control Devices] and provided adequate and sufficient warning of the
approach of the crosswalk, of the potential presence of students crossing Marr
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Road, and of the necessity to drive at modest speed and to be attentive on
school days.” (Appellants’ App. Vol. II, p. 103). Thus, notwithstanding any
confusion with respect to the placement of the speed limit signs, the City argues
that, even assuming the higher thirty-miles-per-hour speed limit was in effect for
the school zone, there is no evidence that the road was rendered unsafe.
[43] In response, Lee designated the affidavit of a civil engineer, Richard Hicks
(Hicks). Hicks noted that the Indiana Manual on Uniform Traffic Control
Devices “requires that [s]peed [l]imit signs shall be located at the points of
change from one speed limit to another, and that at the downstream end of the
section to which a speed limit applies, a [s]peed [l]imit sign showing the next
speed limit shall be installed.” (Appellants’ App. Vol. III, p. 142). See also I.C.
§ 9-21-5-6(f)(4)(A) (requiring a school zone reduced speed limit sign to be
“located where the reduced speed zone begins or as near as practical to the
point where the reduced speed zone begins indicating the reduced speed limit
and a sign located at the end of the reduced speed zone indicating the end of the
reduced speed zone”). Thus, Hicks concluded that
[t]he 20 miles per hour School Speed Limit zone for northbound
traffic on Marr Road was not properly signed on the day of . . .
Lee’s accident. The Speed Limit 30 sign, located 837 feet north of
the School Speed Limit 20 sign and 427 feet south of the
crosswalk, signaled that the speed limit of 20 was no longer in
effect and that the legal speed limit from that point forward was
30 miles per hour. The Speed Limit 30 sign told northbound
drivers like Mr. McLeod that it was acceptable to drive at speeds
more than 20 miles per hour and up to 30 miles per hour from
that point forward. The Speed Limit 30 sign should not have
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been there. It should have been removed when the School Speed
Limit Assembly was installed.
(Appellants’ App. Vol. III, p. 143).
[44] The evidence establishes that McLeod did not see Lee until after the impact;
thus, this is not a situation where the speed limit affected McLeod’s ability to
apply his brakes fast enough. However, the speed limit may present a timing
issue. McLeod believed that the set speed limit was thirty miles per hour, and
he claimed to be travelling between twenty-five and thirty miles per hour at the
time of the accident. Additionally, there is evidence indicating that the speed
limit was twenty miles per hour through the school zone. In his deposition,
McLeod conceded that “had I been traveling [twenty] miles an hour instead of
[thirty], if that is, in fact, the case, I may not have been to the crosswalk at the
time that [Lee] was crossing.” (Appellants’ App. Vol. III, p. 135). Similarly,
Hicks determined that “[a] time and distance analysis shows that if . . . McLeod
had been driving [twenty] miles per hour instead of ‘someplace between
[twenty-five] and [thirty]’ miles per hour from the location of the Speed Limit
30 sign 427 feet south of the crosswalk, . . . Lee walking at a normal rate would
have been beyond . . . McLeod’s path of travel by the time . . . McLeod reached
the crosswalk.” (Appellants’ App. Vol. III, p. 144).
[45] We find that whether the City’s dual placement of speed limit signs
approaching the Marr Road crosswalk constituted a breach of its duty to
exercise reasonable care in the maintenance and regulation of public roadways
is a question of fact that should be determined by a jury. See Mangold, 756
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N.E.2d at 975 (noting that, unless “the facts are undisputed and lead to but a
single inference or conclusion,” “a breach of duty, which requires a reasonable
relationship between the duty imposed and the act alleged to have constituted
the breach, is usually a matter left to the trier of fact”). Furthermore, if it is
determined that such conduct constitutes a breach, we find that a question of
fact exists as to whether the City’s placement of varying speed limit signs
proximately caused the accident resulting in Lee’s injuries. See Correll v. Ind.
Dep’t of Transp., 783 N.E.2d 706, 707 (Ind. Ct. App. 2002) (“The injurious act
must be both the proximate cause and the cause in fact of an injury. Generally,
causation, and proximate cause in particular, is a question of fact for the jury’s
determination.”) (internal quotation marks and citation omitted), trans. denied.
Accordingly, we reverse the trial court’s entry of summary judgment and
remand for further proceedings.
CONCLUSION
[46] Based on the foregoing, we conclude that the trial court erred in granting
summary judgment on the basis of contributory negligence. We further
conclude that the City is entitled to statutory immunity with respect to its plans
for improvements to the crosswalk and its decision to enact a certain speed limit
and to not erect a stop sign or station crossing guards at the crosswalk.
Nevertheless, we conclude that summary judgment is improper because there
are genuine issues of material fact as to whether the City breached its duty of
reasonable care by installing conflicting speed limit signs and whether such a
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breach, if any, proximately caused the accident. Therefore, we remand this
case for further proceedings.
[47] Reversed and remanded.
[48] Altice, J. concurs
[49] Crone, J. dissents with separate opinion
Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 34 of 37
IN THE
COURT OF APPEALS OF INDIANA
Jalen Lee, A Minor Child, by Court of Appeals Case No.
and through his Next Friend, 03A01-1608-CT-1900
Crystal Estes, and Crystal Estes,
Individually,
Appellants-Plaintiffs,
v.
Bartholomew Consolidated
School Corporation, City of
Columbus, Columbus City
Planning Commission, and
Columbus Police Department,
Appellees-Defendants
Crone, Judge, dissenting.
[50] I respectfully dissent. If a plaintiff who files a tort claim against a governmental
entity, such as the City, “is negligent to even a small degree and that negligence
proximately contributes to his claimed damages, contributory negligence will
operate as a complete bar to his action.” Hill, 54 N.E.3d at 406. Although
generally a question of fact, contributory negligence may be “a question of law
appropriate for summary judgment if the facts are undisputed and only a single
Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 35 of 37
inference can be drawn therefrom.” Id. at 406-07. The relevant facts here are
undisputed, and I believe that the only inference that can be drawn from them
is that Lee was contributorily negligent and therefore the City is entitled to
summary judgment as a matter of law.
[51] “[C]ontributory negligence is the failure of a person to exercise for his own
safety that degree of care and caution which an ordinary, reasonable, and
prudent person in a similar situation would exercise.” Id. at 406. Under
Indiana law, children between the ages of seven and fourteen are presumed to
be incapable of contributory negligence. Timberman, 918 N.E.2d at 297. But
“the existence of the presumption will not preclude summary judgment for the
alleged tortfeasor on grounds of contributory negligence in the appropriate
case.” Id. at n.4. Indeed, the presumption is rebuttable with evidence showing
the child’s capacity, i.e., by offering proof that the child, “based on his age,
mental capacity, intelligence and experience, was accountable for his actions.”
Id. at 298.
[52] In my view, the City rebutted the presumption in this case. Lee was a thirteen-
year-old eighth-grader with no cognitive infirmities. He had used the same
crosswalk twice each school day and in every kind of weather for the past two
years. “He knew to look both ways before crossing, and it was his habit to wait
for a vehicle to come to a full stop before crossing instead of assuming that a
slowing vehicle would fully stop.” Slip op. at 4. On the day of the accident,
Lee looked both ways when he approached the crosswalk from the east and saw
McLeod’s truck approaching in the northbound lane (i.e., the lane that was
Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 36 of 37
closer to him), but he walked into the crosswalk anyway. Although Lee
believed that he had sufficient time to cross the road without causing the truck
to have to adjust its speed or stop, he apparently failed to watch the truck when
he entered the crosswalk or he would have noticed it did not slow down.
McLeod testified that he did not see Lee and did not brake until after he heard
the impact.
[53] The undisputed evidence shows that Lee should be held accountable for his
actions. He knew and appreciated the dangers of using the crosswalk and had
exercised reasonable care in the past by waiting for vehicles to come to a full
stop before crossing the road. He failed to exercise reasonable care on the day
he was struck and therefore was contributorily negligent as a matter of law.
Consequently, I would affirm the trial court’s entry of summary judgment for
the City on this ground.
I would also affirm on the basis that any negligence on the City’s part with
respect to the speed limit signs did not proximately cause Lee’s injuries as a
matter of law. The majority acknowledges that “McLeod did not see Lee until
after the impact; thus, this is not a situation where the speed limit affected
McLeod’s ability to apply his brakes fast enough.” Id. at 32. McLeod did not
know precisely how fast he was going when he hit Lee, and the notion that he
would have driven more slowly and not hit Lee if the posted speed limit had
been twenty miles per hour is mere speculation, which cannot create a question
of fact on summary judgment. Beatty v. LaFountaine, 896 N.E.2d 16, 20 (Ind.
Ct. App. 2008), trans. denied (2009).
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