Peavler v. BD. OF COM'RS MONROE CTY.

528 N.E.2d 40, 1988 Ind. LEXIS 256, 1988 WL 94802
CourtIndiana Supreme Court
DecidedSeptember 9, 1988
Docket36S01-8809-CV-817, 43S03-8809-CV-818
StatusPublished
Cited by178 cases

This text of 528 N.E.2d 40 (Peavler v. BD. OF COM'RS MONROE CTY.) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Peavler v. BD. OF COM'RS MONROE CTY., 528 N.E.2d 40, 1988 Ind. LEXIS 256, 1988 WL 94802 (Ind. 1988).

Opinions

SHEPARD, Chief Justice.

Two cases before us on petitions for transfer require that we construe the provision in the Indiana Tort Claims Act which provides governmental immunity for discretionary acts.

Richey Wayne Peavler filed suit against the Monroe County Board of Commissioners, alleging “negligence in the failure to place or maintain a curve warning sign, and/or reduced speed limit sign or advisory speed limit sign on a portion of a county road.” Peavler v. Board of Commissioners of Monroe County (1986), Ind.App., 492 N.E.2d 1086, 1087. The jury returned a verdict for the county. The Court of Appeals found that the trial court erred in instructing the jury that any duty on the part of the county to post warning signs was discretionary. The Court of Appeals concluded that the county was not immune as a matter of law and held the jury should decide the question of immunity. The court remanded the cause for a new trial. Id. at 1090.

In a separate action, Ronald and Pamela Hout sued the Board of Commissioners of Steuben County, alleging that it negligently failed to place a warning sign for motorists approaching a “T” intersection. The county moved for summary judgment on the basis of governmental immunity for discretionary functions. The trial court denied the motion. In an interlocutory appeal, the Court of Appeals determined that such a decision was discretionary and directed entry of summary judgment for the county. Board of Commissioners of County of Steuben v. Hout (1986), Ind.App., 497 N.E.2d 597.

We grant transfer to resolve the conflict between districts.

I. History of Governmental Immunity

Governmental immunity developed as a common law doctrine of deference to the English monarchy. The doctrine had a dual basis in procedure and substance. Procedurally, allowing the king to be sued in his own courts was a contradiction of the king’s sovereignty. Substantively, the divine right of kings proclaimed that “the king can do no wrong.” Together, these formed the basis for the doctrine of sovereign immunity. Prosser and Keeton on Torts, § 131 at 1033 (5th Ed.1984).

The explanation for the initial acceptance of sovereign immunity in the United States is obscure. Early in the country’s history, the U.S. Supreme Court noted that no suit may be commenced against the United States without its consent. Osborn v. Bank of the United States, 22 U.S. (9 Wheat) 738, 842-43, 6 L.Ed. 204, 229 (1824). This principle was also recognized by American states, resulting in the rule that a suit may not be maintained against a state without its consent.

Several reasons for governmental immunity have been advanced: the absurdity of a wrong committed by an entire people, the idea that whatever the government did must be lawful, the theory that any government agent committing a wrongful act must have acted outside his authority, a reluctance to divert public funds to compensate for private injuries, and the inconvenience and embarrassment to the government if subjected to suit. W. Prosser, The Law of Torts, § 131 at 975 (4th Ed.1971).

Immunity for local governments such as cities, towns and counties, derived from a slightly different source. The municipal corporation had a dual character as both a subdivision of the state with governmental powers and a corporate body functioning as a private corporation. Prosser and Kee-ton on Torts, supra, at 1051. In its gov[42]*42ernmental capacity, the municipal corporation was traditionally immune from liability.

At common law, courts drew distinctions based on the dual character of the municipal corporation as both a government and a corporation. A municipal corporation acted as a government when its exercised traditional governmental functions. Those acts performed by the municipality which were analogous to acts exercised by a private corporation were proprietary functions. E. McQuillan, Municipal Corporations, § 53.02 (3rd Ed.1984). A municipality was immune when exercising its governmental functions but was not immune when acting in its proprietary capacity. See City of Kokomo v. Loy (1916), 185 Ind. 18, 112 N.E. 994.

Though arising from municipal law, this distinction was applied to state immunity as well. To determine whether the act was a corporate or governmental undertaking, the manner in which the power was conferred, the obligations which naturally flowed from proprietorship and the purpose for which the power was granted and exercised were considered. Aiken v. City of Columbus (1906), 167 Ind. 139, 78 N.E. 657 Duties administered solely for public benefit, such as public health, charities, schools, protection of property against fire and maintenance of the peace were governmental undertakings.

The classification of functions as governmental or proprietary was elusive and uncertain and often led to inconsistent results. This Court abandoned the governmental/proprietary distinction in Campbell v. State (1972), 259 Ind. 55, 284 N.E.2d 733. In addressing the vitality of the doctrine of sovereign immunity in Indiana, this Court determined that the purpose for which the doctrine existed had long since vanished. Id. at 57-58, 284 N.E.2d at 736. The Court held the defense of sovereign immunity was no longer available to the state for either governmental or proprietary functions. Id. at 63, 284 N.E.2d at 737. The Court noted that while certain common law immunities, such as those for judicial and legislative decisions must remain, other instances giving rise to state liability should be considered by the legislature. Id. at 61-62, 284 N.E.2d at 737. Two years later, the General Assembly enacted the Indiana Tort Claims Act. 1974 Ind.Acts, P.L. 142 § 1.

II. Indiana Tort Claims Act

The Indiana Torts Claims Act (ITCA) provides that governmental entities may be liable for torts committed by its agencies and its employees. Ind.Code §§ 34-4-16.-5-1 to 20 (Burns 1986 Repl.). The ITCA protects governments from liability in certain circumstances. Among other more specific exceptions, “[a] government entity or an employee acting within the scope of his employment is not liable if a loss results from: (6) The performance of a discretionary function.” Ind.Code § 34-4-16.5-3(6). Each of the cases at bar turns on the meaning of discretionary function.

III. Approaches to Discretionary Function

Governmental immunity has generated a great deal of discussion in state and federal jurisdictions. Out of this debate, several approaches have emerged to determine whether an act is discretionary and thus entitled to immunity. While these approaches are instructive, the purpose and policy underlying governmental immunity must be the cornerstone for evaluating any claim of governmental immunity.

A. The Ministerial/Discretionary Distinction. Courts have attempted to distinguish immune governmental functions from those which expose the government to liability by describing activities as ministerial or discretionary.

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Bluebook (online)
528 N.E.2d 40, 1988 Ind. LEXIS 256, 1988 WL 94802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peavler-v-bd-of-comrs-monroe-cty-ind-1988.