FOR PUBLICATION
ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
DANIEL J. HARRIGAN LYNN E. ARNOLD
Bayliff, Harrigan, Cord & Maugans PETER J. AGOSTINO
Kokomo, Indiana Hunt Suedhoff
South Bend, Indiana
FREDERICK N. HADLEY
Indianapolis, Indiana
JAY T. SEEGER
Gambs, Mucker, Bauman & Seeger
Lafayette, Indiana
JACQUELINE BOOKOUT WADE, )
AMANDA BOOKOUT, KRYSTLE BOOKOUT, )
PENNY STINE, BRITTNEY STINE, and )
JESSICA STINE, )
)
Appellants-Plaintiffs, )
)
vs. ) No. 79A02-9708-CV-504
)
NORFOLK AND WESTERN RAILWAY )
COMPANY, and THE BOARD OF )
COMMISSIONERS OF TIPPECANOE )
COUNTY, INDIANA, )
)
Appellees-Defendants. )
BAILEY, Judge
$50,000.00 each year for railroad crossing improvement projects. The County periodically
inspects the railroad crossings for signage, condition, sight distance, and other safety-related
problems. The County keeps records of its inspections. Also, the Indiana Department of
Transportation, ("INDOT"), provides the County with reports regarding its assessment of
needed improvements to all the railroad crossings in the County. The County reviews the
records provided by INDOT. Although all contemplated projects must be initiated locally,
certain projects are eligible for federal funding which must be coordinated through INDOT.
The County will pursue only those projects which are eligible for federal funding and
coordinated through INDOT. Finally, the County Board of Commissioners must authorize
all individual projects on a line item basis in the budget.
to judgment as a matter of law. Stevenson v. Hamilton Mutual Insurance Company, 672
N.E.2d 467, 471 (Ind. Ct. App. 1996), trans. denied. Neither the trial court, nor the
reviewing court, may look beyond the evidence specifically designated to the trial court. Id.
We review the designated materials in the light most favorable to the non-movant without
determining weight or credibility. Richter v. Klink Trucking, Inc., 599 N.E.2d 223, 225 (Ind.
Ct. App. 1992), trans. denied. Once the movant for summary judgment has established that
no genuine issue of material fact exists by submission of materials contemplated by T.R. 56,
the nonmovant may not rest on his pleadings but must set forth specific facts, using
supporting materials contemplated under the rule, which show the existence of a genuine
issue for trial. Stevenson, 672 N.E.2d at 471.
The appellate court is not limited to reviewing
the trial court's reasons for granting summary judgment, but will affirm a grant of summary
judgment if it is sustainable on any theory or basis found in the record. Stephenson, 596
N.E.2d at 1371.
Ordinarily, a trial court's decision on a motion for summary judgment enters the
process of appellate review clothed with a presumption of validity, and the party appealing
from the grant of summary judgment must persuade the appellate tribunal that the judgment
was erroneous. Id. However, in the present case, Wade points out that the trial court erred
in its finding number 35 which reads as follows:
Plaintiffs have failed to prove that Tippecanoe did not engage in a
policy-oriented, decision making process in maintaining railroad crossings
within the county.
As will be discussed below, a county seeking immunity has the burden of proving that its
conduct falls within an exception set forth in the ITCA. Lake County Juvenile Court v.
Swanson, 671 N.E.2d 429, 438 (Ind. Ct. App. 1996), trans. denied. However, while the trial
court's entry of specific findings in summary judgment proceedings may aid our review by
providing us with a statement of reasons for the decision, such findings serve no other
purpose and we must nevertheless base our decision upon the Ind.Trial Rule 56(C) materials
properly designated to the trial court. Dauge v. Fort Wayne Newspapers, Inc., 647 N.E.2d
1138, 1140 (Ind. Ct. App. 1995), trans. denied.
Based on the error in the finding entered in the present case, we will review the
County's motion for summary judgment de novo, stripped of any presumption in favor of its
correctness. See Nelson v. Jimison, 634 N.E.2d 509, 511 n.1 (Ind. Ct. App. 1994) (review
of summary judgment proceedings would be performed de novo without any presumption
in favor of the correctness of the trial court's determination due to the change in the law since
the trial court's entry of summary judgment). As we have conducted a de novo review of the
designated summary judgment materials, the error in the trial court's finding is harmless.
. . . .
Governmental entities, including counties, are subject to liability for torts unless one of the
exceptions in the ITCA applies. Lake County, 671 N.E.2d at 439. As noted above, a county
which seeks immunity has the burden of proving that its conduct falls within one of the
exceptions set forth in the ITCA. Id. at 438. We narrowly construe governmental immunity
against a claimant's right to bring suit. Id. at 439.
The case of Voit v. Allen County, 634 N.E.2d 767 (Ind. Ct. App. 1994), trans. denied,
is similar to the case at bar in that the allegedly dangerous county road had been originally
designed and built more than twenty years before the accident. Id. at 769. Thus, the County
was immune with respect to any alleged defects in the design of the road under subsection
16 (now subsection 17 as set out above) of the ITCA. Id. However, we held that plaintiff's
claim that the County was negligent in failing to update, improve, or modernize the roadway
was not barred by that subsection. Id. Nevertheless, we held that these allegations of
negligence directly implicated governmental discretionary function immunity under Ind.
Code § 34-4-16.5-3(6). Accordingly, we analyze the present case in terms of subsection 6
immunity.
The policy underlying discretionary immunity is the fundamental idea that certain
kinds of executive branch decisions should not be subject to judicial review. Peavler v.
Monroe City Board of Commissioners, 528 N.E.2d 40, 44 (Ind. 1988). The separation of
powers doctrine forecloses the judiciary from reviewing political, social, and economic
actions within the province of the coordinate branches of government. Id. Thus,
discretionary function immunity promotes a policy of preventing tort actions from becoming
a vehicle for judicial interference with the decision-making authority properly exercised by
the other branches of government. Id. Also, governmental immunity for discretionary
functions avoids inhibiting the effective and efficient performance of governmental
functions. Id. Tort immunity for basic planning and policy-making functions is necessary
to avoid the chilling effect on the ability of government to deal effectively with difficult
policy issues confronted on a daily basis. Id.
Whether a particular governmental act is immune as a discretionary function is a
question of law for the court to decide, although the question may require extended factual
development. Lake County, 671 N.E.2d at 439. In determining whether governmental acts
are discretionary under the ITCA, Indiana applies the "planning-operational" test. Peavler,
528 N.E.2d at 46. Planning functions are discretionary and are therefore shielded by
immunity, while operational functions are not. Id. at 45. Planning functions involve the
formulation of basic policy characterized by official judgment, discretion, weighing of
alternatives, and public policy choices. Id. Governmental decisions about policy formation
which involve assessment of competing priorities, a weighing of budgetary considerations,
or the allocation of scarce resources are also planning activities. Id. On the other hand,
"operational" functions involve decisions regarding the execution or implementation of
policy which has previously been formulated. Greathouse v. Armstrong, 616 N.E.2d 364,
366-67 (Ind. 1993).
In order to establish immunity for a discretionary act, a County must prove that the
challenged act or omission was a policy decision made by consciously balancing risks and
benefits. Id. at 367. This proof may ordinarily take the form of meeting minutes, testimony
of County Council members regarding the decision-making process involved, or studies
which show the allocation of resources were evaluated and the Council had made an
affirmative policy decision. Peavler, 528 N.E.2d at 48. In the case of omissions, as in the
case at bar, a conscious balancing may be demonstrated by evidence showing that the County
considered improvements of the general type alleged in plaintiffs' complaint. Voit, 634
N.E.2d at 770. However, there is no need for the County to demonstrate that it considered
and rejected the specific improvements alleged to have been neglected. Id.
As noted earlier, the Voit case is similar to the case at bar. The Voit plaintiffs asserted
that the county road was not reasonably safe because the county had failed to update the
design to accommodate modern safety technology and to accommodate the increase in traffic
over the years. Id. at 769. Plaintiff's expert presented evidence on what type of
improvements should have been made to abate the current road hazards. Id. (footnote 2).
We held that summary judgment was appropriately entered in favor of the county. There,
the record read as follows:
[D]efendants engage in a systematic process for determining what
improvements will be made to highways in Allen County. First, the Director
of Transportation Planning for Local Governments makes recommendations
for highway improvements to the Urban Transportation Advisory Board
(UTAB). The UTAB does traffic counts within its survey area, keeps track of
all accidents, citizen complaints, and other safety problems, and then makes
recommendations in the form of a list of projects to the Board of
Commissioners of Allen County (Board). The UTAB does not make negative
recommendations. In addition to the UTAB, the Director of the Allen County
Highway Department is also empowered to make recommendations on
improvement projects to the Board. The Board then makes the ultimate
decision on whether to accept or reject proposed improvements. When making
these decisions, the Board considers written recommendations, the changed
conditions of county roads, and the allocation of available resources. The
Board prioritizes recommended projects.
In this case, the UTAB concluded that traffic projections did not show
a need to widen or improve Adams Center Road. There were also no citizen
complaints. The UTAB therefore made no recommendations for
improvements concerning Adams Center Road. Because no recommendation
was made, the Board did not specifically consider possible improvements. As
we have noted above, however, there is no need for the Board to have
specifically considered and rejected improvements to Adams Center Road. It
was sufficient to demonstrate that they consciously engaged in decision
making regarding the general type of improvements alleged in plaintiff's
complaint. That has been more than adequately demonstrated here. We
therefore affirm the trial court's grant of partial summary judgment on this
basis.
Id. at 770-71.
Wade points out that the County is under the erroneous impression that it is powerless
to implement improvements without the authorization of INDOT, (R. 54), by correctly citing
Ind. Code § 8-6-7.7-4(c) for the proposition that the County does indeed have authority to
close dangerous railroad crossings without the approval of INDOT.See footnote
2
Accordingly, Wade
reasons, the County is not entitled to immunity because it has abdicated its responsibility to
ensure that roads and railway crossings are maintained in a reasonably safe manner by
delegating this decision making process to the Railroad and INDOT. See Shand Mining, Inc.
v. Clay County Board of Commissioners, 671 N.E.2d 477, 481 (Ind. Ct. App. 1996) (county
is not relieved of its duty to properly maintain highway by delegating the responsibility to
an independent contractor), trans. denied; Carroll v. Jobe, 638 N.E.2d 467, 469 (Ind. Ct. App.
1994) (city cannot immunize itself from liability by delegating responsibility to repair
sidewalks to its residents), trans. denied.
Additionally, Wade reasons, the County is not entitled to immunity because it only
pursues the improvements that INDOT will approve, and therefore does not engage in a
policy oriented decision-making process, but merely responds in a reactive manner. See
Town of Highland v. Zerkel, 659 N.E.2d 1113 (Ind. Ct. App. 1995), trans. denied. In Zerkel,
the municipality would only attend to defective sidewalks upon receiving a complaint from
a concerned citizen. Id. at 1119. We held that this purely reactive policy required no
deliberation, and thus, did not amount to a policy oriented decision-making process immune
from tort liability. Id.
In the present case, the County has not delegated its responsibility to maintain its
highways and railroad crossings simply because it declines to independently exercise its
authority to implement improvements and pursue only those improvements which are
approved by INDOT. Nor is the County's approach a purely reactive policy. As discussed
above, the County allocates money in its budget for the improvement of railroad crossings.
The County Highway Department periodically inspects, and makes records, regarding its
railroad crossings for signage, condition, sight distance, and other safety-related problems.
The County reviews the records provided by INDOT regarding its assessment of needed
improvements to the railroad crossings in the County. Then, in coordination with INDOT,
the County pursues those improvements which are eligible for federal funding. These
projects coordinated through INDOT must be initiated at the local level. Once approval by
INDOT is obtained, the proposed improvements are submitted to the Board of
Commissioners to determine whether County funds are to be allocated for the proposed
improvements on a line item basis.
We hold that the County's policy of pursuing the improvements approved and
coordinated through INDOT is the type of policy-oriented decision making process entitled
to tort immunity under subsection 6 of the ITCA. It is not our role to judge the wisdom of
the County's policy, as that judgment is left to the political process. Highland, 659 N.E.2d
at 1119. Therefore, we conclude that County has carried its burden of establishing its
entitlement to summary judgment.
Affirmed.
GARRARD, J., and DARDEN, J., concur.
The authority vested in [INDOT] to order the installation, replacement, relocation, modernization, or improvement of automatic warning signals and the closing of grade crossings does not preclude the signal work or closing being performed by contract between a railroad and the governmental agency controlling the public way. If a mutually agreed upon contract for action has been made, no petition to [INDOT] is required, and if a contract is agreed upon after [INDOT] has assumed jurisdiction, [INDOT] may dismiss the proceeding upon the motion of a party.
Converted from WP6.1 by the Access Indiana Information Network