ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
STEPHEN L. WILLIAMS H. LINWOOD SHANNON, III
Mann Law Firm Fine & Hatfield
Terre Haute, Indiana Evansville, Indiana
COURT OF APPEALS OF INDIANA
BRIAN E. CATT, )
vs. ) No. 42A01-9911-CV-396
BOARD OF COMMISSIONERS )
OF KNOX COUNTY, )
APPEAL FROM THE KNOX CIRCUIT COURT
The Honorable Sherry L. Biddinger Gregg, Judge
Cause No. 42C01-9611-CT-231
October 16, 2000
OPINION - FOR PUBLICATION
Brian Catt appeals the trial courts grant of summary judgment in favor of
the Board of Commissioners of Knox County (Knox County). We reverse.
Catt raises the following expanded and restated issues for our review:
Whether Knox County was entitled to summary judgment because the governmental entity was
immune from suit pursuant to Indiana Code section 34-13-3-3;
Whether Knox County was entitled to summary judgment because Catt was contributorily negligent;
Whether Knox County was entitled to summary judgment because the governmental entity did
not owe Catt a duty of care to maintain the public thoroughfare in
a safe condition for travel.
Facts and Procedural History
The facts most favorable to the non-movant reveal that during the early morning
of May 18, 1995, an abnormally heavy rainstorm occurred in Harrison Township, Knox
County, Indiana. As a result of the heavy rainfall, there was severe
flooding throughout Knox County and a number of culverts were washed away.
One of these culverts was located on County Road 200 East.
That morning, Catt, a high school student, left his house to take a
shower at his aunts house before going to school. To get to
his aunts house, Catt utilized County Road 200 East. On route to
his aunts house, Catt crossed a bridge and traveled up a hill.
As he drove down the hill, his car slid on mud into a
ditch where a culvert had existed before it had been washed away by
the heavy rainfall.
See footnote A twelve-foot gap existed in the road where the
culvert had previously existed. As a result of the accident, Catt was
On November 18, 1996, Catt filed a complaint against Knox County alleging that
he was injured due to Knox Countys negligence. On June 24, 1999,
Knox County filed a motion for summary judgment claiming that it was statutorily
immune under the Indiana Tort Claims Act from Catts claims of negligence.
Following a hearing, the trial court granted summary judgment in favor of Knox
County.See footnote This appeal ensued.
Discussion and Decision
Standard of Review of Summary Judgment
We employ the same standard used by the trial court when reviewing the
grant or denial of summary judgment.
Dague v. Fort Wayne Newspapers, Inc.,
647 N.E.2d 1138, 1139 (Ind. Ct. App. 1995), trans. denied. Summary judgment
is appropriate only when the evidentiary matter designated by the parties shows that
there are no genuine issues as to any material fact and that the
moving party is entitled to judgment as a matter of law. Id.
at 1139-40 (citing Ind. Trial Rule 56(C)). Although our analysis proceeds from
the premise that summary judgment is rarely appropriate in negligence actions, a defendant
is entitled to judgment as a matter of law when the undisputed material
facts negate at least one element of the plaintiffs claims. Colen v.
Pride Vending Serv., 654 N.E.2d 1159, 1162 (Ind. Ct. App. 1995), trans. denied.
A trial courts grant of summary judgment is clothed with a presumption
of validity on appeal, and the appellants bear the burden of demonstrating that
the trial court erred. Id. Nevertheless, we must carefully scrutinize the
trial courts decision to ensure that Catt was not improperly denied his day
in court. See id.
Therefore, on appeal, we must determine whether the record reveals a genuine issue
of material fact and whether the trial court correctly applied the law.
Shuamber v. Henderson, 579 N.E.2d 452, 454 (Ind. 1991). A fact is
material if it facilitates the resolution of any of the issues involved.
State Street Duffys, Inc. v. Loyd, 623 N.E.2d 1099, 1100 (Ind. Ct. App.
1993), trans. denied. Any doubt as to a fact, or an inference
to be drawn, is resolved in favor of the non-moving party. Malachowski
v. Bank One, Indianapolis, 590 N.E.2d 559, 562 (Ind. 1992).
II. Statutory Immunity
Catt first contends that the trial court erred in granting summary judgment in
favor of Knox County because the governmental entity was not entitled to immunity
under Indiana Code section 34-13-3-3. We agree.
Knox County argued in part before the trial court that it was entitled
to summary judgment because Catts allegations of negligence are irrelevant, since Knox County
is statutorily immune from [Catts] claims of negligent acts. R. 181.
Governmental immunity from suit is regulated by Indiana Code sections 34-13-1-1 through 34-13-6-7,
(the Act). Pursuant to the Act, governmental entities are subject to liability
for torts committed by their agencies or employees unless one of the immunity
provisions of the Act applies. Scott v. City of Seymour, 659 N.E.2d
585, 588 (Ind. Ct. App. 1995). The entity seeking immunity bears the
burden of proving that its conduct falls within one of the exceptions set
out in the Act. Id. Because the Act is in derogation
of the common law, it is narrowly construed against the grant of immunity.
Jacobs v. Board of Commrs of Morgan County, 652 N.E.2d 94, 98
(Ind. Ct. App. 1995), trans. denied. Whether a governmental entity is immune
from liability is a question of law for the courts, although it may
include an extended factual development. Peavler v. Board of Commrs of Monroe
County, 528 N.E.2d 40, 46 (Ind. 1988). The relevant immunity provision in
the Act provides in pertinent part that:
A government entity or an employee acting within the scope of the employees
employment is not liable if a loss results from: . . . the
temporary condition of a public thoroughfare that results from weather.
Ind. Code § 34-13-3-3.
It is well-settled law in Indiana that governmental entities are immune for losses
resulting from roads rendered temporarily hazardous by inclement weather. Leinbach v. State,
587 N.E.2d 733, 736 (Ind. Ct. App. 1992). However, a governmental entity
is not entitled to immunity every time an accident occurs during bad weather.
Board of Commrs of Steuben County v. Angulo, 655 N.E.2d 512, 513
(Ind. Ct. App. 1995). Rather, in determining whether a governmental entity is
immune under Indiana Code section 34-13-3-3, the relevant inquiry is whether the loss
suffered by the plaintiffs was actually a result of the weather or some
other factor. Angulo, 655 N.E.2d at 513.
We believe that a determination of whether Knox County is entitled to statutory
sovereign immunity requires an examination of the term temporary as contained in the
text of Indiana Code section 34-13-3-3. We must construe the statute according
to its plain meaning, and words and phrases shall be taken in their
plain, ordinary and usual sense unless a different purpose is manifested by the
statute itself. Department of Pub. Welfare, State of Indiana v. Couch, 605
N.E.2d 165, 167 (Ind. 1992). The Indiana Supreme Court has defined temporary
as the opposite of permanent. State v. Curtis, 241 Ind. 507, 173
N.E.2d 652 (1961). This court later clarified the definition of temporary, stating
that the term is not so broad as to include everything that is
not permanent. Van Bree v. Harrison County, 584 N.E.2d 1114, 1117 (Ind.
Ct. App. 1992), trans. denied. We believe that a determination of whether
a condition is temporary as set forth in Indiana Code section 34-13-3-3 hinges
on the unique factual circumstances of a case; a bright line test is
inapplicable for purposes of this analysis.
For example, inclement weather, such as heavy rainfall, may temporarily cause a roadway
or bridge to be dangerous or impassable for motorists because of flooding. However,
if this condition is due to poor inspection, design, or maintenance of the
thoroughfare then the condition of the thoroughfare could be considered permanent under
Indiana Code section 34-13-3-3. Therefore, in considering whether the condition is temporary
See footnote the fact finder should look to prior occurrences of a similar
nature along with the frequency of these occurrences and the resulting damage to
the roadway from these occurrences.
Here, in support of its motion for summary judgment, Knox County designated the
affidavit of Harry Manning, Superintendent of the Knox County Highway Department, which established
in part that a five-foot culvert existed where the accident occurred, but was
replaced with a six-foot culvert in 1993 when the smaller culvert washed out
because of flooding as a result of heavy rainfall. R. 202.
In addition, Knox County designated the affidavit of Angie Thompson, a research technician
with Southwest Purdue Ag Center, which established in part that heavy rainfall occurred
in the area where the subject culvert was located on or around the
date of the accident.See footnote R. 198-99. Knox County also designated the
deposition of John Schwartze, which provided that the culvert had previously washed out
approximately one or two years before Catts accident on May 18, 1995.
R. 150. Knox County designated all of this evidence to support its
argument that the washed-out culvert was a temporary condition because there is no
evidence that the culvert would not have been fixed and repaired by Knox
County. R. 186.
We believe that Knox Countys designations of evidence actually support Catts contention that
the trial court erred in granting summary judgment in favor of Knox County.
The evidence creates an inference that the accident was a result of
a permanent condition instead of a temporary one. Materials designated by Catt
establish that the culvert had washed out at least twice prior to May
18, 1995, the date of Catts accident. In addition, Knox County installed
the larger culvert just two years prior to Catts accident because the previous
one was of an inadequate design to accommodate flooding from a heavy rainfall.
Looking to the evidence most favorable to Catt, the non-moving party, an
inference arises that the culvert is still inadequate and that the problem of
heavy rainfall washing out the culvert will continue until a culvert of sufficient
size to handle a high volume of water is installed by Knox County.See footnote
In opposition to Knox Countys motion for summary judgment, Catt designated the affidavit
of Diane Schwartze, who lives in close proximity to the subject culvert,
which provided that the bridge washed out in November of 1993, and that
I know the bridge has washed out 2 times. R. 263.
In addition, Catt designated the affidavit of his aunt, Marilyn K. Lane, who
resided near the subject culvert, which established that she and her husband had
lived in the area since 1972 and that the bridge and culvert had
washed out many times during the time period since 1972. R. 266.
In Indiana, the party moving for summary judgment has the burden of establishing
that no genuine issue of material fact exists.
Schmidt v. American Trailer
Court, Inc., 721 N.E.2d 1251, 1253 (Ind. Ct. App. 1999), trans. denied.
Once the moving party has met this burden with a prima facie showing,
the burden shifts to the nonmoving party to establish that a genuine issue
does in fact exist. Id. The designated materials suggest that a
physical structure, the culvert, was irretrievably washed away by rainfall that was neither
infrequent nor a supernatural act of God. Moreover, the materials raise the
inference that the condition was a result of Knox Countys failure to adequately
inspect, maintain, or design the culvert because the culvert continued to wash away.
Although the designated materials concerning the physical condition of the culvert/bridge are
not overwhelming, we believe that it is sufficient to withstand Knox Countys contention
that the sole proximate cause of Catts injuries was the temporary condition of
the culvert caused by the heavy rainfall and resultant flooding. Because Knox
County has failed to satisfy its burden of proof that no genuine issue
of material fact exists, we believe the trial court erred in granting summary
judgment in favor of Knox County.
III. Contributory Negligence
Catt contends that the trial court erred in granting summary judgment in favor
of Knox County because disputed issues of material fact exist as to whether
or not he was contributorily negligent. We agree.
Tort claims against governmental entities such as Knox County are subject to common
law principle of negligence because Indianas Comparative Fault Act does not apply to
such entities. Ind. Code § 34-51-2-2; Hapner v. State, 699 N.E.2d
1200, 1205 (Ind. Ct. App. 1998). Under such common law principles, any
contributory negligence on Catts part, however slight, will bar his claim against Knox
County provided that his negligence proximately contributed to his injuries. See Sauders
v. County of Steuben, 693 N.E.2d 16, 18 (Ind. 1998). The plaintiffs
contributory negligence will bar all recovery regardless of any negligence on the defendants
part. Id. Contributory negligence is an affirmative defense, and as such,
the burden of proving it fell on Knox County. See Board of
Comnrs of Adams County v. Price, 587 N.E.2d 1326, 1333 (Ind. Ct. App.
1992), trans. denied. Moreover, the existence of contributory negligence is usually a
question of fact for the jury unless the facts are undisputed and only
a single inference can be drawn therefrom. Nessvig v. Town of Porter,
668 N.E.2d 1276, 1281 (Ind. Ct. App. 1996). We have previously enunciated
the legal principles comprising the doctrine of contributory negligence in Indiana:
Contributory negligence is conduct on the part of the plaintiff, contributing as a
legal cause to the harm he has suffered, which falls below the standard
to which he is required to conform for his own protection. A
plaintiff must exercise the degree of care which an ordinary reasonable person would
exercise in like or similar circumstances. In addition, the plaintiffs negligence must
either be the proximate cause of the injury or proximately contribute thereto.
Since the question of contributory negligence does not arise except in a case
where it has been shown that the defendant was guilty of negligence which
was the proximate cause of injury, a plaintiffs negligence need not be the
sole proximate cause of the injury.
Peavler v. Board of Commrs of Monroe County, 557 N.E.2d 1077, 1080 (Ind.
Ct. App. 1990).
In the present case, Catt designated the affidavit of Lane, the deposition of
Schwartze, and his response to Knox Countys interrogatory number 27 in opposition to
Knox Countys motion for summary judgment, evidence which indicates that Catt operated his
vehicle in a reasonably safe manner prior to the accident. Because we
believe that Catts designations of evidence raise genuine issues of material fact regarding
whether Catt was contributorily negligent, we hold that Knox County was not entitled
to summary judgment on the basis of contributory negligence.
IV. Duty of Care
Catt also contends that the trial court erred in granting summary judgment in
favor of Knox County because the governmental entity owed him a duty of
care to maintain the public thoroughfare in a safe condition for travel.
To sustain an action for negligence, Catt must establish: (1) a duty owed
by the defendant to conform its conduct to a standard of care arising
from its relationship with the plaintiff; (2) a breach of that duty; and
(3) an injury proximately caused by the breach of that duty. Webb
v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991). The first of these
three elements, the existence of a duty, is a question of law for
the court to determine. Gariup Constr. Co. v. Foster, 519 N.E.2d 1224,
1227 (Ind. 1988). Recently the Indiana Supreme Court rejected the
private duty/public dichotomy, which looked to whether the duty alleged to have been
breached was a private one or a public one, stating that a governmental
entity is bound by the same duty of care as a private individual,
except in a few limited circumstances not applicable here. Benton v. City
of Oakland City, Indiana, 721 N.E.2d 224, 230 (Ind. 1999). Thus, governmental
entities are currently bound by this duty to use reasonable care under the
circumstances, directly and derivatively, under a theory of respondeat superior. St. John
Town Bd. v. Lambert, 725 N.E.2d 507, 513 (Ind. Ct. App. 2000).
We believe that Knox County owed a duty of reasonable care under the
circumstances to Catt to keep the public thoroughfare in a safe condition.
Indiana appellate 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 roads and highways within their control. Miller
v. Indiana State Highway Dept, 507 N.E.2d 1009, 1012 (Ind. Ct. App. 1987).
The governmental unit will be held to that standard of care which
would be exercised by an ordinary prudent person under the circumstances. State
v. Magnuson, 488 N.E.2d 743, 747 (Ind. Ct. App. 1986), trans. denied.
This general duty of care arises when the governmental unit has either actual
or constructive knowledge of an unsafe condition. Miller, 507 N.E.2d at 1012.
In the present case, the accident occurred on County Road 200 East in
Harrison Township, Knox County, Indiana.
See footnote Designated materials raise an inference that Knox
County had at least constructive knowledge that the culvert had washed away.See footnote
Thus, we believe that Knox County was not entitled to summary judgment on
the basis that the governmental unit did not owe Catt a duty of
reasonable care to maintain the public thoroughfare in a safe condition for travel.
Genuine issues of material fact remain with respect to whether Knox County
was negligent in its inspection, design, or maintenance of the public thoroughfare.
Based on the foregoing, we hold that the trial court erred in granting
summary judgment in favor of Knox County.
BAILEY, J., concurs.
SHARPNACK, C.J., dissents with opinion.
COURT OF APPEALS OF INDIANA
BRIAN E. CATT, )
vs. ) No. 42A01-9911-CV-396
BOARD OF COMMISSIONERS OF )
KNOX COUNTY, )
* * * * *
SHARPNACK, C.J., dissenting
I respectfully dissent. The statute providing immunity, Ind. Code § 31-13-3-3, is
A governmental entity or an employee acting within the scope of the employees
employment is not liable if a loss results from:
(3) the temporary condition of a public thoroughfare that results from weather.
I.C. § 31-13-3-3(3). This statute protects the governmental entity where it would
otherwise be liable by reason of its negligence. Leinbach v. State, 587
N.E.2d 733, 736 (Ind. Ct. App. 1992).
There is no real question here that the absence of the culvert was
due to the heavy rain, which is a temporary condition that results from
the weather. I.C. § 31-13-3-3(3). Negligence of the county in designing
the culvert, if any, would not be relevant because the absence of the
culvert was clearly temporary at the time of the accident. See Leinbach
v. State, 587 N.E.2d at 736. Something temporary that occurs more than
once, or often for that matter, is still temporary and not permanent.
I respectfully dissent and would affirm the grant of summary judgment in favor
of Knox County.
A culvert is a sewer or drain crossing under a road
or embankment. THE AMERICAN HERITAGE DICTIONARY, 322 (1981).
Footnote: We note that the trial court did not enter specific findings
of fact and conclusions of law to support its order granting summary judgment
in favor of Knox County. Specific findings and conclusions are neither required
nor prohibited in the summary judgment context.
Althaus v. Evansville Courier Co.,
615 N.E.2d 441, 444 (Ind. Ct. App. 1993). Moreover, neither Knox County
nor Catt requested specific findings of fact and conclusions of law pursuant to
Trial Rule 52(A). Thus, the trial court was not required to enter
specific findings of fact and conclusions of law.
In the present case, we have framed the issue as whether
the condition is permanent and not temporary, and thereby leave for another day
the question of whether a condition is caused by weather or the failure
to adequately inspect, design, or maintain the public thoroughfare. However, any such
future issue may be guided by the following analysis: If a particular condition
or state of the public thoroughfare is present but only unveiled during inclement
weather, it could be said that the weather is temporary but the state
or condition of the thoroughfare is permanent. If this is the situation
and the type of weather manifesting the condition is foreseeable then the immunity
provision would have no application and the focus would be on whether the
condition was due to the poor design, construction, or maintenance of the public
thoroughfare. An example of this, albeit in another context but which is
illustrative, is the proverbial roof which leaks only when it rains.
The records from the Southwest Purdue Ag Center located in Vincennes,
Indiana indicate that 2.28 inches of rain/precipitation fell in the Vincennes, Indiana area
on May 17, 1995, and that 3.68 inches of rain/precipitation fell in Vincennes,
Indiana on May 18, 1995. R. 200.
Footnote: Although other culverts besides that at the site of Catts accident
were washed out because of flooding due to the heavy rainfall, we do
not believe this supports Knox Countys contention that the condition was temporary because
of the inclement weather. It is entirely possible that other culverts were
washed out because they, too, were inadequately inspected, designed, or maintained by the
Footnote: We note that the record lacks any evidence that Knox County
formally dedicated County Road 200 East as a public street. However, we
have previously held that a street was owned by the city due to
its implied acceptance of the road by years of public use.
of Hammond v. Maher, 30 Ind. App. 286, 65 N.E. 1055 (1903).
The record reveals that the thoroughfare had been utilized by the general public
for many years. Thus, we will assume that County Road 200 East
was a dedicated public street.
Knox Countys designated materials establish that the culvert had washed away
previously because of flooding. R. 202, 150. In addition, Catts designated
materials also establish that the culvert has washed away because of flooding.
R. 263, 266. Harry Manning, the Superintendent of the Knox County Highway
Department, stated in his affidavit that:
Early on the morning of May 18, 1995, the Knox County Area received
an abnormally large amount of precipitation in the form of rain. Resulting
from this rain, the culvert in question washed away and left a ten
to twelve foot gap in the road. Also, during this time period,
there was severe flooding throughout Knox County. The Knox County highway workers
were busy that morning attempting to save a bridge near Vincennes, Indiana.
A number of other culverts throughout Knox County had washed-out due to the
severe rain and resulting flooding.
R. 202. Thus, it is apparent that Knox County was aware that
flooding had damaged other public thoroughfares, and with the knowledge that the subject
culvert had washed away previously, we believe that Knox County had constructive knowledge
of the washed out culvert that resulted in Catts accident.