ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEE MONTGOMERY COUNTY:
JAMES E. AYERS
Wernle, Ristine & Ayers JAMES S. STEPHENSON
Crawfordsville, Indiana Stephenson, Daly, Morrow & Kurnik
ATTORNEYS FOR APPELLEE /CROSS
APPELLANT INDIANA DEPARTMENT
JEFFREY A. MODISETT
Attorney General of Indiana
TIMOTHY W. BEAM
Deputy Attorney General
COURT OF APPEALS OF INDIANA
CHARLES RICHARDSON and JUDITH )
HIGHTOWER RICHARDSON, and )
GRETA A. HARRIS, )
vs. ) No. 54A05-9903-CV-120
NASIR RAGHIB SALAAM and HOWARD )
TRANSPORT, INC., COMMISSIONERS OF )
MONTGOMERY COUNTY and )
INDIANA DEPARTMENT OF HIGHWAYS, )
April 19, 2000
APPEAL FROM THE MONTGOMERY CIRCUIT COURT
The Honorable Thomas Milligan, Judge
Cause No. 54C01-9212-CP-0381
OPINION FOR PUBLICATION
Greta Harris and Charles and Judith Richardson appeal the trial courts summary judgment
denying their negligence claims against the Indiana Department of Transportation and Montgomery County.
The Department of Transportation cross-appeals the portion of the trial courts judgment
rejecting its immunity defense. The parties present the following issues,
See footnote which we
I. Whether the superceding cause doctrine relieves the defendants of liability as a matter
II. Whether the State is immune from suit according to section 10 of the
Indiana Tort Claims Act, IC 34-13-3-3(10).
FACTS AND PROCEDURAL HISTORY
This case stems from a highway collision between a semi tractor-trailer and a
car driven by Jason Richardson, a high school student. The case first
came before this court in 1995, on plaintiffs appeal from the trial courts
summary judgment in favor of Montgomery County. We reversed the summary judgment
because of factual issues about whether the County breached its duty of care
in the design, construction, and maintenance of the county road intersecting the highway.
Richardson v. Salaam, 653 N.E.2d 136 (Ind. Ct. App. 1995), trans.
denied. Judge Hoffman dissented, maintaining that summary judgment should be granted for
the County due to the intervening negligence of the semi driver.
The underlying facts are: In April 1991, Nasir Salaam was driving a
semi loaded with steel on a county road toward a stop sign at
a highway intersection. Richardson was approaching the same intersection on the highway.
Salaam did not stop at the sign, and Richardson collided with the
semis rear axle. The semi crushed Richardsons car, dragged it across the
intersection, and pulled it fifty feet up Shiloh Hill, killing Richardson and
injuring his passenger, Greta Harris. An eyewitness stated that when the semi ran
through the stop sign, it was traveling about fifty miles per hour.
The plaintiffs contend that the State and County are liable for the accident
because of the unworkable design of the intersection. According to the plaintiffs,
the intersection design forced the semi driver to run the stop sign in
order to have sufficient speed to climb Shiloh Hill. The plaintiffs further
contend that the State was negligent in issuing a construction permit to the
County without obtaining information regarding Shiloh Hills steep grade.
The State and the County filed summary judgment motions regarding the plaintiffs claims,
contending that: (1) they are immune from the plaintiffs suit, and (2)
the intervening negligence of the semi driver broke any chain of causation linking
the plaintiffs injuries to the design of the intersection. The trial court granted
summary judgment to both defendants on the ground that the semi drivers failure
to stop was a superseding cause of the accident. The summary judgment order
also stated, however, that neither the State nor the County were immune from
DISCUSSION AND DECISION
I. SUPERCEDING CAUSE
A. Standard of Review
In a summary judgment appeal, this court applies the same standard as
the trial court. Wickey v. Sparks, 642 N.E.2d 262, 265 (Ind. Ct.
App. 1994), trans. denied. Accordingly, this court examines the designated evidence, determines
whether there are any genuine issues of material fact, and decides whether the
moving party is entitled to summary judgment as a matter of law.
Ind. Trial Rule 56(C).
B. Parties Arguments
The plaintiffs contend the trial court erred when it found that the semi
drivers conduct was a superceding cause of the accident. First, the plaintiffs
argue that the superceding cause doctrine which has been subsumed by the Indiana
Comparative Fault Act, IC 34-51-2-1 to-19, as to non-governmental defendants should be subsumed
regarding governmental defendants, as well. Next, the plaintiffs argue that even if
the superceding cause doctrine is viable with regard to governmental entities, application of
the doctrine is a jury question that cannot be decided on summary judgment.
According to the plaintiffs, there is a factual dispute in this case
about whether the intersection design caused the semi driver to run the stop
sign. That dispute, the plaintiffs argue, must be decided by a jury.
In response, the defendants point out that the Comparative Fault Act does not
apply to governmental entities, citing IC 34-51-2-2. As such, the defendants continue,
the plaintiffs claims are governed by common law principles, including the superceding cause
doctrine. The defendants acknowledge that superceding cause is ordinarily a jury question,
but argue that in this case the uncontested facts indicate that the semi
drivers failure to stop was a superceding cause.
C. Comparative Fault vs. Common Law Principles
The plaintiffs recognize that the Comparative Fault Act does not apply to the
governmental defendants. See Sauders v. Steuben County, 693 N.E.2d 16, 18 (Ind.
1998). The plaintiffs argue, however, that this court should apply comparative fault
principles in this case so as to render the superceding cause doctrine inoperable.
The plaintiffs rely upon dicta in Sauders in which our supreme court stated
that appellate courts are free to adopt comparative fault doctrines as a matter
of the common law of this state even in areas where the legislature
did not apply the Comparative Fault Act. Id. at 20.
In Sauders, the court did not state the comparative fault doctrines to which
it referred, and we are unable to discern any such doctrines short of
the wholesale inclusion of governmental entities into our comparative fault system of loss
allocation. While we acknowledge that there may be strong policy reasons in
favor of such inclusion,
See footnote we also acknowledge that there may be equally strong
policy considerations against such inclusion.See footnote
Here, however, the plaintiffs fail to make a sufficient case for the inclusion
of governmental entities in our comparative fault system. The Record is void
of any constitutional challenge,
or legal or evidentiary basis upon which to predicate the extension of comparative
fault to governmental entities. While we may have the freedom to adopt
comparative fault, we do not have the license to do so in the
absence of a sufficient basis other than our own conceptions of what would
be good policy. We therefore decline to apply comparative fault principles in
D. Validity of Summary Judgment on Superceding Cause
To prevail on a negligence claim, a plaintiff must prove that the defendants
conduct was the proximate cause of the injuries. Best Homes, Inc. v.
Rainwater, 714 N.E.2d 702, 706 (Ind. Ct. App. 1999). When the causation
evidence demonstrates that something has intervened between the defendants alleged negligence and the
plaintiffs injuries, the case presents a superceding cause issue. We have described
the superceding cause doctrine as follows:
Under common law, independent intervening conduct precludes the original wrongdoers liability when the
later conduct constitutes a cause interrupting the natural sequence of events, turning aside
their course, preventing the natural and probable result of the original act or
omission, and producing a result that could not have been reasonably anticipated.
L.K.I Holdings, Inc. v. Tyner, 658 N.E.2d 111, 119 (Ind. Ct. App. 1995)
(citing Crull v. Platt, 471 N.E.2d 1211 (Ind. Ct. App. 1984) trans. denied).
Thus, to constitute an intervening cause sufficient to preclude the original wrongdoers
liability the intervening conduct must be an independent act which interrupts the natural
consequence of the events.
Here, the conduct of the semi driver is neither independent of the governmental
defendants allegedly negligent design, nor does it interrupt the consequences of the alleged
design defect. Rather, the conduct of the semi driver in proceeding through
the stop sign is the very act which plaintiffs allege is the natural
consequence of defendants negligence. Thus, this case does not present an issue
of intervening cause at all. Rather, the issue presented is whether the
plaintiffs losses were proximately caused by the defendants negligence.
The plaintiffs expert testified that semi drivers run the stop sign at the
intersection in order to maintain the speed required to traverse Shiloh Hill:
[Expert]: I believe that there are two proximate cause of this accident.
One, obviously, is the action of the truck driver in failing to
stop for the stop sign as he was northbound on County Road 400
Related to that is the geometric design of the roadway, which is what
encourages or forces truck drivers to take that action because of the extremely
steep grade on the north side of the intersection.
Its not unusual at all for truck drivers to run that stop sign
and take their chances crossing 136. In the 45 minutes I was
there, I saw it happen twice.
[Counsel]: By run, you mean at speed?
[Expert]: At speed or maybe some reduced speed, but certainly not stopping
and yielding to the right of way.
Record at 259. Another of the plaintiffs experts stated in his affidavit: I I. Immunity
5. The design of the grade of Nucor Road on the north
side of U.S. 136 is unreasonably and unnecessarily steep for semi-tractor trailer traffic
hauling steel northbound from the Nucor manufacturing facility toward Indiana State Road 32
. . .
6. Reasonable engineering principles and design standards require that the circumstances anticipated at
each particular location should be taken into account in the design process.
The extremely steep grade to the north is not a reasonable design to
safely accommodate the truck traffic for which Nucor Road was built and, therefore,
poses a hazard to such traffic and to all interjecting traffic.
7. The excessively steep grade could have been substantially reduced by utilizing reasonable
design principles while still utilizing the same routing.
. . . .
9. Because of the defective design, it was reasonably foreseeable that southbound truck
traffic would be unable to stop safely, and that northbound truck traffic might
fail to fully stop for the U.S. 136 priority highway.
10. It is my opinion that because of such negligent design, it is
and was foreseeable that truck traffic would fail to stop for signs and
would cross U.S. 136 northbound at speed in order to pull the hill.
Plaintiffs Supplemental Record at 5.
A trier of fact could determine from this evidence that the defendants knew
or should have known of the difficulties a steep grade would present to
commercial traffic. The trier of fact would then be required to determine whether
negligent design, construction or maintenance prevented fully loaded semis from using the intersection
Given these potential inferences from the Record, it is incorrect to state as
a matter of law that the semi drivers conduct was unforeseeable. In
this case the plaintiffs have presented sufficient evidence to raise a question of
fact as to whether the design, construction or maintenance of the intersection was
the proximate cause of the plaintiffs injuries. The proximate causation determination is
for the trier of fact and is not appropriate for summary judgment.See footnote
A. Parties Arguments
The trial court determined that neither the County nor the State is immune
from liability. The County does not appeal that determination. The State,
however, appeals the immunity decision, contending that the trial court misapplied section 10
of the Indiana Tort Claims Act.
The plaintiffs respond that the section does not shield the State from liability,
because the State failed to adhere to existing regulations governing reconstruction permit applications.
In addition, the plaintiffs contend that the States liability extends past the
permit process, to include liability for failure to construct, maintain, and repair a
B. Application of the Tort Claims Act
Governmental entities can be liable for tortious conduct unless the conduct is within
an immunity granted in the Tort Claims Act, IC 34-13-3-3. See Flynn
v. Indiana Bureau of Motor Vehicles, 716 N.E.2d 988, 990 (Ind. Ct. App.
1999), trans. denied. Here, the parties dispute turns on whether section 10
of the Act provides immunity to the State for issuing the permit that
authorized reconstruction of the Shiloh Hill intersection.
Section 10 reads:
A governmental entity . . . is not liable if a loss
. . . .
(10) the issuance, denial, suspension, or revocation of, or failure or refusal to
issue, deny, suspend, or revoke, any permit, license, certificate, approval, order, or similar
authorization, where the authority is discretionary under the law.
IC 34-13-3-3(10). This court analyzed section 10 in Flynn, 716 N.E.2d 988
(Ind. Ct. App. 1999). In Flynn, the plaintiff purchased a car not
knowing that the car had been stolen. The BMV issued a certificate
of title to the plaintiff. The State police confiscated the car from
the plaintiff, and the plaintiff in turn sued the BMV for negligently issuing
a certificate of title on a stolen car. The BMV sought section
10 immunity. The plaintiff argued that section 10 was inapplicable because the
BMVs issuance of a title was not a discretionary act.
To resolve the immunity issue, we examined the BMVs enabling statute, which read,
If the bureau is satisfied that the person applying for a certificate of
title is the owner of the vehicle . . . the bureau may
issue an appropriate certificate of title. IC 9-17-2-10 (emphasis added). See
Flynn, 716 N.E.2d at 991. We held that the legislatures use of
the term may in the enabling statute indicated that the BMVs authority to
issue titles is discretionary. The plaintiff argued that other statutory sections imposed
restrictions on the BMVs discretion, and that as such section 10 did not
provide immunity. We rejected that argument on the ground that none of
the referenced restrictions removed the BMVs discretion to issue or deny certificates of
title. Flynn, 716 N.E.2d at 992.
As the Flynn opinion demonstrates, a section 10 analysis requires an examination of
the statutes and regulations governing the permit or license in question. This
examination is the distinguishing factor between the general section 6 discretionary function immunity
and the more specific section 10 immunity. Section 10 immunity applies when
the issuance of a permit is discretionary under the law. IC 34-13-3-3
(emphasis added). To determine whether the State has discretion under the law
in this case, we must determine whether the enabling statutes or applicable regulations
authorize state officials to make choices as to whether to grant or deny
construction permits. If the state officials have authority to place restrictions on
construction or to require modifications before granting permits, their authority is discretionary and
is protected from suit by section 10 of the Tort Claims Act.
Here, as in Flynn, the controlling regulations give state officials authority to grant
or deny permits. The discretionary aspect of the permitting process is unambiguous:
[t]he Indiana department of highways is authorized to determine and establish such requirements
and restrictions for driveway approaches as may be necessary for . . .
the safety and convenience of traffic on the highway. A written permit application
shall be considered by the department, and, if in accordance with properly established
regulations and requirements, a permit shall be granted subject to appropriate conditions and
105 IAC 7-1-1 (1992) (emphasis added). The regulation grants the State
the authority to deny a permit application if it does not comply with
established regulations, and to place conditions on permit approval. This regulation places the
permitting process within the States discretionary authority, and as such entitles the State
to immunity for claims arising out of the permitting process.
The plaintiffs argue that the State has no immunity because it failed to
comply with a regulation mandating review of the proposed slope of Shiloh Hill.
Further, at oral argument, the plaintiffs counsel argued that our supreme courts
recent decisions have limited the scope of immunity. Both of these arguments
fail, because they are directed at common law or discretionary function immunity, rather
than section 10 immunity. In Benton v. City of Oakland, 721 N.E.2d
224 (Ind. 1999) and Serviss v. State, 721 N.E.2d 234 (Ind. 1999) our
supreme court explained that the State has broad liability in tort and that
the common law exceptions to liability are extremely narrow. The court expressly
stated, however, that the common law does not relax any of the extensive
protections from liability afforded Indiana governmental units by statute. Benton, 721 N.E.2d
at 227-28. Similarly, the protections afforded in the section 6 discretionary function
immunity neither relax nor control the protection of the permitting process addressed in
section 10 immunity. We find that section 10 provides immunity for the
States issuance of the permit at issue in this case.
MATTINGLY, J., concurs.
BAKER, J., concurs in part and dissents in part with separate opinion.
COURT OF APPEALS OF INDIANA
CHARLES RICHARDSON and JUDITH )
HIGHTOWER RICHARDSON, and GRETA )
A. HARRIS, )
vs. ) No. 54A05-9903-CV-120
NASIR RAGHIB SALAAM and HOWARD )
TRANSPORT, INC., COMMISIONERS OF )
MONTGOMERY COUNTY and INDIANA )
DEPARTMENT OF HIGHWAYS, )
BAKER, Judge, concurring in part and dissenting in part
While I fully concur with the majoritys holding that section 10 of the
Tort Claims Act provides immunity for the States issuance of the permit, I
cannot agree with its finding that there is a genuine question of fact
as to whether the design, construction or maintenance of the intersection was the
proximate cause of the plaintiffs injuries. In my view, the proximate cause
of the plaintiffs injuries was the semi drivers intentional act of blowing through
the stop sign and crossing the highway at a rate of approximately fifty
miles per hour. As a matter of law, I believe that such
recklessness was not a natural and probable consequence of the intersections design.
See City of Portage v. Lindbloom, 655 N.E.2d 84, 86 (Ind. Ct. App.
1995) (A negligent act or omission is the proximate cause of an injury
if the injury is a natural and probable consequence which, in light of
the circumstances, should reasonably have been foreseen or anticipated.), trans. denied. Specifically,
I note that the plaintiffs conceded at oral argument that coming to a
complete stop, as required by any stop sign, would not prevent a semi
driver from traversing Shiloh Hill but would only cause an exceedingly slow ascent.
Despite the tediousness of the climb, the defendants could not have reasonably
foreseen that a semi driver would choose to risk lives in order to
reach the top faster. To find a question of fact in the
instant case would only lend support to the oft-quoted passage from Charles Dickens
Oliver Twist: If the law supposes that . . . the law is
a ass, a idiot. I do not believe the law to be
such and, thus, would find as a matter of law that the drivers
act proximately caused this tragedy.
Because we find the superceding cause issue to be dispositive, we do
not reach the plaintiffs alternate theory of premises liability.
Footnote: For example, it may be argued that the apportionment of liability commensurate
with fault is fairer, simpler, and avoids the harsh consequences of a winner-take-all
system based on contributory negligence.
Footnote: For example, there may be concern over the fiscal consequences of such
Footnote: This case has two supplemental records, one filed by the plaintiffs and
one filed by the defendant County. For clarity, we identify the supplemental
records according to the filing party.
Footnote: The dissent cites Charles Dickens
Oliver Twist. We believe that Dickens
makes better literature than jurisprudence and that his relevance to the question of
whether the opinions of two expert witnesses present a material question of fact
regarding the issue of proximate cause is on the same level as the
currency of his grammar.