Hochstetler v. Elkhart County Highway Department

855 N.E.2d 731, 2006 Ind. App. LEXIS 2150, 2006 WL 3019568

• Court: Indiana Court of Appeals
• Decided: October 25, 2006
• Docket: 20A05-0602-CV-98
• Status: Published

Opinions

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Marvin J. Hochstetler appeals from the trial court's order granting the motion of Elkhart County Highway Department ("Highway Department"), Elkhart County Sheriff's Department, and Elkhart County Commissioners (collectively "Elkhart") for summary judgment on Hochstetler's complaint alleging that he sustained injuries as a result of Elkhart County's negligence. Hochstetler presents a single issue for review, namely, whether the trial court erred when it granted summary judgment in favor of Elkhart County.

We reverse.

FACTS AND PROCEDURAL HISTORY

At 1:00 a.m. on June 12, 2001, a storm passed through Elkhart County. After the storm, a Highway Department employee prepared a report indicating that there were fifty-six reports of fallen trees and limbs on county roads. Because of the fallen trees, Robert Ganger, a Highway Department employee, fielded telephone calls reporting fallen trees that night, and he began dispatching clean-up crews at 1:30 a.m.

Ganger received a call at 2:00 a.m., in which a woman reported a tree across the road on County Road 4 north of State Road 120 and south of the Indiana Toll Road. After the caller hung up, Ganger realized that County Road Four runs the width of Elkhart County and that County Road 4 and State Road 120 do not intersect. Because Ganger could not identify the location of the fallen tree from the caller's report, he did not dispatch a crew at that time to County Road 4 to remove the tree. Shortly thereafter, Ganger received a report of a tree in the roadway on County Road 4 between County Roads 13 and 15. The reference to County Roads 13 and 15 provided east/west coordinates that helped Ganger pinpoint the location of the fallen tree. When that call came in, "and no more calls [came in] for a while, [Ganger] assume{[d] that [the fallen tree on County Road 4] would have been taken care of." Appellant's App. at 49.

At 5:00 am. the same morning, Ho-chstetler was injured driving on County Road 4 when his vehicle struck a tree that had fallen across County Road 4 during the storm, and he sustained bodily injuries. The accident occurred between County Roads 385 and 39. As a result of the accident, the Highway Department received a report of that particular tree obstruction at 5:00 a.m. Barricades were placed around the downed tree between 6:30 and 7:00 a.m., and road crews arrived to remove the tree from the roadway at 8:15 a.m.

Hochstetler filed a complaint against Elkhart County, alleging that his injuries were the result of the "negligence and carelessness of [Elkhart County]." Appellant's App. at 11. Elkhart County filed a motion for summary judgment, claiming it was immune from liability under Indiana Code Section 34-18-8-8(8). After a hearing, the trial court granted Elkhart County's motion. Hochstetler filed a motion to correct error, which the trial court denied after a hearing. This appeal ensued.

DISCUSSION AND DECISION

When reviewing summary judgment, this court views the same matters and issues that were before the trial court and follows the same process. Estate of Taylor ex rel. Taylor v. Muncie Med. Investors, L.P., 727 N.E.2d 466, 469 (Ind.Ct.App.2000), trans. denied. We construe all facts and reasonable inferences to be drawn from those facts in favor of the non-moving party. Jesse v. Am. Cmty. Mul. Ins. Co., 725 N.E.2d 420, 423 (Ind.Ct.App.2000), trans. denied. Summary judgment is appropriate when the designated evidence demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). The purpose of summary judgment is to terminate litigation about which there can be no material factual dispute and which can be resolved as a matter of law. Zawistoski v. Gene B. Glick Co., 727 N.E.2d 790, 792 (Ind.Ct.App.2000). If the trial court's entry of summary judgment can be sustained on any theory or basis in the record, we must affirm. Ledbetter v. Ball Mem'l Hosp., 724 N.E.2d 1113, 1116 (Ind.Ct.App.2000), trans. denied. Even if the trial court believes that the non-moving party will not prevail at trial, where material facts conflict or conflicting inferences arise from the undisputed facts, summary judgment should not be entered. Schrum v. Moskaluk, 655 N.E.2d 561, 564 (Ind.Ct.App.1995), trans. denied.

Hochstetler contends that the trial court erred when it granted summary judgment. In particular, Hochstetler argues that the trial court erred when it found that his claim was barred by Indiana Code Section 34-13-3-8(8), one part of the immunity provision of the Indiana Tort Claims Act ("the Act"). We must agree.

Indiana Code Section 34-13-3-3(8) provides in relevant part: "A governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from ... (8) the temporary condition of a public thoroughfare which results from weather." Our supreme court addressed governmental immunity under that section in Catt v. Board of Commissioners, 779 N.E.2d 1 (Ind.2002):

The sole issue presented on transfer is whether the County is immune from liability pursuant to the Indiana Tort Claims Act. The Act "allows suits against governmental entities for torts committed by their employees but grants immunity under the specific circumstances enumerated in Indiana Code [Slection 34-18-3-3." Immunity under the Act is a question of law to be decided by the court. The party seeking immunity bears the burden of establishing it.

Id. at 3 (internal citations omitted). Governmental immunity "assumes negligence but denies liability." Id. at 5. Whether a governmental entity is immune from liability under the Act is a question of law for the courts, although it may include an extended factual development. City of Hammond v. Reffitt, 789 N.E.2d 998, 1001 (Ind.Ct.App.2008), trans. denied.

Hochstetler argues that a material question of fact exists as to whether the condition was temporary as contemplated in Indiana Code Section 34-13-3-8@8). This court addressed the meaning of "temporary" in that provision in Dzierba v. City of Michigan City, 798 N.E.2d 463 (Ind.Ct. App.2003). There a large wave rolled in off the waters of Lake Michigan due to high winds and heavy weather in the area and washed a child off a pier attached to a city park.¹ The child drowned, and the child's parents filed suit against the city and others.

In determining whether the city was immune from liability under Indiana Code Section 34-138-8-3(8), the court observed that " 'permanency' in [the context of Indiana Code Section 34-13-8-8@B8)] is a function of the governmental defendant's awareness of that particular hazard and the opportunity, based on that awareness, to neutralize the hazard." Id. at 470 (emphasis in original). The parents failed to designate materials that tended to show both "(1) that the City was aware that large, dangerous waves were in fact washing over the East Pier around the time Kyle was swept off of the pier, and (2) that, armed with such knowledge, the City had time to remedy the situation." Id. (emphasis added). As a result, the court affirmed the grant of summary judgment in favor of the city on the issue of immunity under Indiana Code Section 34-183-3-83(8).

Likewise, in Caff it was uncontested that the governmental entity had no notice of the hazardous condition before the accident. There, a driver on a county road crashed into a ditch because early morning heavy rains had washed out a culvert under the road. The driver filed suit against the county board of commissioners. On appeal from summary judgment in favor of the board, our supreme court observed that "the focus of whether the condition is permanent is whether the governmental body has had the time and opportunity to remove the obstruction but failed to do so." Catt, TT9 N.E.2d at 5 (citation orait-ted). The driver apparently designated no material aside from the history of prior wash-outs to show the board's notice of the hazardous road condition, but the court held that prior wash-outs of the same culvert did not render the condition permanent. Id. Thus, the court affirmed summary judgment in favor of the board under Indiana Code Section 34-18-8-8(8).

Here, Hochstetler bears the burden of showing that the county had time and an opportunity to remove the fallen tree. To that end, Hochstetler has shown that a citizen telephoned the Highway Department at 2:00 a.m. to report that a tree was lying across County Road 4 north of State Road 120 and south of the Indiana Toll Road in Elkhart County. Hochstetler's accident occurred about three hours later, at 5:00 am. When the Highway Department received that report, the caller gave Elkhart County enough information that put Elkhart County on notice to investigate and locate the fallen tree. A subsequent caller reported what turned out to be another fallen tree on County Road 4, and whether that information relieved Elk-hart County of its duty to investigate the location of the first report of a fallen tree on County Road 4 is a question of fact. Even if it were determined that Elkhart County had notice of the fallen tree, whether .it had enough time to "remedy the situation" is a question of material fact. See id. Again, although immunity is a question of law, answering that question may require the development of factual issues. See Reffitt, 789 N.E.2d at 1001. Thus, the trial court erred when it granted summary judgment in favor of Elkhart County.

Elkhart County contends that its knowledge of the fallen tree on County Road 4 is not required to determine immunity because the dispositive issue is whether the condition is temporary or permanent. Elk-hart County also relies on Catt to support its contention that actual or constructive knowledge is not required to determine whether a condition is temporary or permanent. We agree with Elkhart County that the overall issue is whether the fallen tree was temporary or permanent. But Elkhart County misunderstands Catt. The court in that case specifically noted that the board did not have knowledge of the washed out culvert; thus, it had no opportunity to remedy the situation. See Catt, 779 N.E.2d at 5. Elkhart County also cites to Leinbach v. State, 587 N.E.2d 783 (Ind.Ct.App.1992), to support its argument that the fallen tree in the case before us was a temporary condition. In Leinbach, winter rain fell and then froze because of low temperatures, causing an overpass to become ice-covered. A motorist died as the result of an accident on the overpass a few hours after the winter storm began. In a resulting suit by Leinbackh's estate against governmental entities, this court affirmed summary judgment for the governmental entities on the immunity issue. We held that "there can be no doubt that the icy condition of the overpass when Leinbach's accident occurred was a 'temporary condition of a public thoroughfare which results from weather ...." Id. at 735 (no citation in original). But Leinbach was decided ten years before our supreme court's decision in Catt, where the court specifically considered whether the governmental entity had knowledge and an opportunity to remedy a condition in order to determine whether the condition was temporary. We must follow that precedent.

Elkhart County also cites to Van Bree v. Harrison County, 584 N.E.2d 1114 (Ind.Ct.App.1992), trams. denied, in support of its contention that the fallen tree in this case was a temporary condition. In that case, a young driver and her parents sued governmental entities to recover for injuries the driver sustained when she struck a county dump truck on an icy county road. The highway department had received complaints about the condition of the road, which had been icy since early in the week of the accident. In granting judgment on the evidence in favor of the governmental entities, the trial court determined, in part, that the governmental entities were immune from liability under a predecessor to Indiana Code Section.² On appeal, this court affirmed, holding that "the duty was on Van Bree to present evidence that the road had become defective because of the snow and ice and that the county had time and opportunity to remove it." Id. at 1118. But Van Bree, like Leinbach, was decided ten years before the supreme court decided Catt. And, further, in order to determine whether the county had an opportunity to remedy the road condition, it first had to be aware of that condition.

We conclude that, in the context of Indiana Code Section 34-13-3-8(8), whether a condition is temporary must be determined by first deciding (1) whether the governmental entity had knowledge of the condition and (2) if so, whether the governmental entity had an opportunity to remedy the situation. Here, there is an issue of material fact as to whether the caller's 2:00 am. report put Elkhart County on inquiry notice of the location of a fallen tree on County Road 4, even though a subsequent caller adequately identified the location of what turned out to be another fallen tree on the same road. Even if we were to conclude that the first report gave notice of the location of the fallen tree, whether Elkhart County had an opportunity to remedy the situation, given that fifty-five other trees and limbs had to be cleared from Elkhart County roads from the same storm, is a question of material fact to be determined in deciding whether the condition of the fallen tree was temporary. Following Catt and in light of these questions of material fact, we hold that the trial court erred when it granted summary judgment in favor of Elkhart County on the issue of immunity under Indiana Code Section 34-13-3-8(8).

Reversed.

DARDEN, J., concurs. FRIEDLANDER, J., dissents with separate opinion.

1 . The pier is owned by the United States Army Corps of Engineers.

2 . The predecessor to Indiana Code Section 34-13-3-3(3) is Indiana Code Section 34-4-16.5-3(3), which in relevant part is identical to the current immunity provision.