ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ANDREW A. CROSMER BRUCE P. CLARK
RUBINO & CROSMER STACY J. VASILAK
Munster, Indiana BRUCE P. CLARK & ASSOCIATES
COURT OF APPEALS OF INDIANA
JOYCE HERTZ, )
vs. ) No. 45A04-0004-CV-162
SCHOOL CITY OF EAST CHICAGO, )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Jeffrey J. Dywan, Judge
Cause No. 45D01-9809-CT-709
February 6, 2001
OPINION - FOR PUBLICATION
Joyce Hertz appeals the trial court's grant of summary judgment in favor of
School City of East Chicago (the "school"). We reverse.
Hertz raises the following restated issues for our review:
Whether the school was entitled to summary judgment because as a
governmental entity, it was immune from suit pursuant to Indiana Code section 34-13-3-3.
Whether the school was entitled to summary judgment because as a governmental
entity, it was entitled to common law sovereign immunity.Facts and Procedural History
The facts most favorable to the non-movant reveal that Hertz is employed as
a teacher by the school. On February 1, 1997, Hertz arrived at
the school to attend a wrestling meet. As she crossed the parking
lot, she slipped and fell. She fell a second time on the
sidewalk leading to the school. There was an accumulation of ice and
snow on both the parking lot and the sidewalk of the school.
As a result of the two falls, Hertz was injured.
On September 10, 1998, Hertz filed a complaint against the school alleging that
she was injured as a result of the school's negligence. Thereafter, the
school filed a motion for summary judgment claiming that it was statutorily immune
under the Indiana Tort Claims Act from Hertz's claim of negligence. Following
a hearing, the trial court granted summary judgment in favor of the school.
This appeal ensued.
Discussion and Decision
I. Standard of Review for 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 Hertz 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
Hertz contends that the trial court erred in granting summary judgment in favor
of the school because the governmental entity was not entitled to immunity under
Indiana Code section 34-13-3-3. We agree.
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(3). We have previously held that Indiana Code section
is a codification of a governmental entity's common law duty to exercise
reasonable care and diligence to keep its streets and sidewalks in a reasonably
safe condition for travel. Walton v. Ramp, 407 N.E.2d 1189, 1191 (Ind.
Ct. App. 1980).
We believe that the determination of whether the school was entitled to summary
judgment hinges on whether the ice and snow accumulation on the school's parking
lot and sidewalk was a "temporary" condition within the meaning of Indiana Code
section 34-13-3-3. "Temporary" is the opposite of permanent.
State v. Curtis,
241 Ind. 507, 173 N.E.2d 652, 653 (1961). However, the definition of
temporary 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. Recently, this court examined the term "temporary" as contained
in Indiana Code section 34-13-3-3. Catt v. Board of Comm'rs of Knox
County, 736 N.E.2d 341 (Ind. Ct. App. 2000). In Catt, the plaintiff
was injured when he drove into a ditch where a culvert had existed
but had been washed away by heavy rainfall. Id. at 344.
The culvert had washed away several times prior to the date of the
plaintiff's accident. Id. at 346. Consequently, the plaintiff filed suit against
the governmental unit alleging negligence in the inspection, design, and maintenance of the
culvert. Id. at 344. Thereafter, the governmental unit moved for summary
judgment on the basis that it was statutorily immune under the Act pursuant
to Indiana Code section 34-13-3-3. Id. We stated 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.
345. 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.
Id. at 346. After examining the designated materials, we reversed the trial
court's grant of summary judgment in favor of the governmental unit. Id.
III. Common Law Sovereign Immunity
In opposition to the school's motion for summary judgment, Hertz designated her deposition
that established that on February 1, 1997, she suffered injuries when she fell
due to the icy condition of the school's parking lot and sidewalk.
R. 97, 78. In addition, Hertz designated the deposition of Victor Sanchez,
the maintenance supervisor of the school, which established that there was no precipitation
on February 1, 1997, and that the last day it had snowed was
on January 26, 1997. Thus, a significant time period existed between
the accumulation of snow and ice and Hertz's fall on the parking lot
and sidewalk of the school. Therefore, we believe that Hertz's designated materials
are sufficient to raise and issue of fact with respect to the school's
contention that the sole and proximate cause of Hertz's injuries was the "temporary"
condition of the parking lot and sidewalk caused by the snow and ice.
Because the school failed to satisfy its burden of proof that no
genuine issue of material fact exists, we believe that the trial court erred
in concluding that the school was entitled to statutory sovereign immunity.
Hertz also contends that the trial court erred in granting summary judgment in
favor of the school because the governmental unit was not entitled to common
law sovereign immunity. We agree.
Because the school is not entitled to immunity under the Act, we must
now examine whether common law sovereign immunity shields the school from tort liability.
Common law sovereign immunity has long been recognized in Indiana.
e.g., Perkins v. State, 252 Ind. 549, 251 N.E.2d 30, 32 (1969).
Recently, the Indiana Supreme Court clarified the doctrine of common law sovereign immunity
in Benton v. City of Oakland City, Indiana, 721 N.E.2d 224 (Ind. 1999).
The Court stated that "the duty owed to a private individual" was
nothing more than a "duty to use reasonable care" and that a governmental
unit is bound by the same duty of care as a private individual,
except in a few limited circumstances. Id. at 228, 230. The
Court in Benton listed three circumstances where a governmental unit could invoke common
law sovereign immunity, these being: (1) where a city or state fails to
provide adequate police protection to prevent crime; (2) where a state official makes
an appointment of an individual whose incompetent performance gives rise to a suit
alleging negligence on the part of state official for making such an appointment;
and (3) where judicial decision-making is challenged. Id. at 230. Thereafter,
this court held that the failure to provide fire protection should be treated
as an exception to governmental tort liability. Gates v. Town of Chandler,
Water Dep't., 725 N.E.2d 117, 120 (Ind. Ct. App. 2000). Therefore, "the
current presumption in Indiana is that governmental units are liable for any breach
of a duty owed to a private individual except for such claims as
a failure to prevent crime, inadequate fire protection, appointment of an incompetent official,
or an incorrect judicial decision." St. John Town Bd. v. Lambert, 725
N.E.2d 507, 514 (Ind. Ct. App. 2000).
We believe that the school was not entitled to summary judgment as a
matter of law after applying Indiana common law sovereign immunity to the facts
of the present case. As discussed earlier, all governmental units are bound,
both directly and under the theory of respondeat superior, by the common law
duty to use ordinary and reasonable care under the circumstances except for a
few exceptions not applicable here. Under the common law, a governmental entity
is not generally liable for injuries caused by defects in sidewalks and streets
due to natural accumulation of snow and ice.
City of South Bend
v. Fink, 139 Ind.App. 282, 219 N.E.2d 441, 443 (1966). However, a
city could be held liable under the common law for failure to remove
snow and ice if it could be shown that the snow and ice
were an obstruction to travel and that the city had an opportunity to
remove the snow and ice. Ewald v. City of South Bend, 104
Ind.App. 679, 12 N.E.2d 995, 997 (1938). Ordinance 12.24.040 of the Municipal
Code of East Chicago provides that:
Every owner, lessee, tenant, occupant or other person having charge of any building
or lot of ground in the city abutting upon any public way shall
remove the snow and ice on the sidewalk in front of the building
or lot of ground. If the sidewalk is of greater width than
six feet, it shall not be necessary for such person to remove snow
or ice for a space wider than six feet.
In case the snow and ice on the sidewalk shall be frozen so
hard that it cannot be removed without injury to the pavement, the person
having charge of any building or lot of ground as foresaid shall, within
the time specified, cause the sidewalk abutting on such premises to be strewn
with ashes, sand, sawdust, or some similar suitable material and shall, as soon
thereafter as the weather shall permit, thoroughly clean such sidewalk.
The snow which falls or accumulates during the day (excepting Sundays) before four
p.m. shall be removed within three hours after the same has fallen or
accumulated. The snow which falls or accumulates on Sunday or after four
p.m. and during the night on other days shall be removed before ten
a.m. in the following morning. (Prior code § 41-30).
Thus, we believe the school had a duty to the general public, including
Hertz, to use reasonable care in removing ice and snow from its public
thoroughfares within the time limits proscribed by the City of East Chicago's municipal
ordinance. Because the school had a duty to Hertz, because this duty
does not fit within one of the limited circumstances in which the governmental
unit may invoke common law sovereign immunity, and because the school is not
entitled to immunity under the Act, we believe that the trial court erred
in granting summary judgment in favor of the school.
Based on the foregoing, we hold that the trial court erred in granting
summary judgment in favor of the school because the governmental unit was not
entitled to either common law or statutory sovereign immunity.
MATTINGLY, J., concurs.
MATHIAS, J., dissents with opinion.
COURT OF APPEALS OF INDIANA
JOYCE HERTZ, )
vs. ) No. 45A04-0004-CV-162
SCHOOL CITY OF EAST CHICAGO, )
APPEAL FROM THE SUPERIOR COURT OF LAKE COUNTY
The Honorable Jeffery J. Dywan, Judge
Cause No. 45D01-9809-CT-709
MATHIAS, Judge, dissenting
I respectfully dissent for the majoritys determination that the school is not entitled
to immunity under the Indiana Tort Claims Act (ITCA), I.C. § 34-13-3-3 (3).
Neither party disputes that the school is a governmental entity or that both
the parking lot and the sidewalk are public thoroughfares. However, Hertz alleges,
and the majority holds, that even though her injuries were caused by the
snow and ice accumulated in the parking lot and on the sidewalk, the
school is not entitled to immunity because it was aware of the accumulation
and had time and opportunity to remove it. The main authority for
this position seems to be
Van Bree v. Harrison County, 584 N.E.2d 1114
(Ind. Ct. App. 1992), trans. denied.
In Van Bree, the plaintiff was injured when her car skidded on a
snowy, icy road and collided with a dump truck. Id. at 1116.
Van Bree argued that the county was negligent for failing to remove
snow and ice that had been on the road for four or five
days when the accident occurred. In our analysis of the case, we
acknowledged that a governmental entity has a common law duty to exercise reasonable
care and diligence to keep its streets and sidewalks in a reasonably safe
condition for travel and that, in fact, this duty has been codified at
Indiana Code section 34-4-16.5-3. Id. at 1117. However, a governmental entity
is not generally liable for injuries caused by the natural accumulation of snow
and ice on streets and sidewalks. Id.
Our attention is drawn to language in
Van Bree stating that a governmental
entity could be held liable under the common law for failure to remove
snow and ice if it could be shown snow and ice were an
obstruction to travel and that the [governmental entity] had an opportunity to remove
the snow and ice. Id. (citing Ewald v. City of South
Bend, 104 Ind. App. 679, 12 N.E.2d 995 (1938)). Approving of the
pre-Tort Claims Act reasoning of Ewald, this Court went on to state that
the burden 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. The plaintiff in Van
Bree did not meet her burden because she had not demonstrated that the
county had an opportunity to treat the road before the day of her
accident. Accordingly, we affirmed the trial courts finding of immunity.
In the case at bar, Hertz alleges that the school had time and
opportunity to remove the snow and ice from the parking lot and the
sidewalk. In support of this contention, she points to evidence that there
had been no precipitation for five days prior to her falls, that the
person in charge of maintaining the areas where she fell noticed the ice
on the morning of Hertzs falls, and that, in fact, someone from the
school had spread forty pounds of salt in those areas a little over
an hour before she fell. However, Hertz points to no evidence that
the parking lot or the sidewalk had become defective due to the accumulation
of snow and ice.
Id. at 1118. She does not allege
there were potholes or other irregularities in the surface or structure of the
parking lot or sidewalk that were the result of accumulated snow and ice.
Rather, she alleges only that the areas were slick.
In addition, Hertz has never alleged that her slip and fall incidents were
due to a temporary weather condition that demonstrably and repeatedly created a hazard
due to an underlying design defect. She simply slipped and fell on
pavement made slick by accumulated ice and snow and the salt which had
been recently applied in a reasonable attempt to remedy the situation. Therefore,
the majoritys reliance on
Catt v. Board of Commrs of Knox County is
As we noted in
Van Bree, a governmental entity is not liable for
the consequent thawing and freezing of [snow and ice] and so far as
we are advised is under no duty to remove all of the snow
and ice. Id., (quoting Ewald, 12 N.E.2d at 996-967). Any time
there is a natural accumulation of ice and snow, there are most assuredly
going to be slick spots, with or without remediation by salt, other chemicals
and/or sand. However, the mere fact that the areas in which Hertz
fell were slick does not make them defective. The immunity provisions of
ITCA do not abrogate the common law duty to maintain highways, that duty
simply does not apply when a road is temporarily icy because of inclement
weather. Leinbach v. State, 587 N.E.2d 733, 735 (Ind. Ct. App. 1992).
Accordingly, I would hold that the school is entitled to immunity from
liability for Hertzs alleged injuries, which were caused by a temporary condition of
a public thoroughfare that results from weather.
Because I would hold that the school is entitled to immunity under ITCA,
I would not reach the issue of common law sovereign immunity.
For all of these reasons, I would affirm the trial courts grant of
summary judgment in favor of the school.
Formerly Indiana Code section 34-4-16.5-3.
Footnote: We agree with the dissent that Hertz has not alleged that
the parking lot and sidewalk were defectively designed. However, unlike the dissent,
we believe it is a question for the fact finder whether the school's
parking lot and sidewalk remained a "temporary condition" in light of the allegations
that the school had failed to act in a timely manner as provided
in the statute and local ordinance in not removing the ice and snow
which had accumulated and caused the thoroughfares to become slick, and thus defective.