ATTORNEY FOR APPELLANT
: ATTORNEY FOR APPELLEE:
STEPHEN L. WILLIAMS H. LINWOOD SHANNON, III
Mann Law Firm Fine & Hatfield
Terre Haute, Indiana Evansville, Indiana
ATTORNEYS FOR AMICUS CURIAE
BRIEF OF INDIANA ASSOCIATION
OF CITIES AND TOWNS AND INDIANA
MUNICIPAL LAWYERS ASSOCIATION
IN SUPPORT OF PETITION TO TRANSFER:
ANDREW P. WIRICK
Hume Smith Geddes Green &
JO ANGELA WOODS
Indiana Association of Cities and Towns
SUPREME COURT OF INDIANA
BRIAN E. CATT, )
Appellant (Plaintiff), ) Supreme Court Cause Number
BOARD OF COMMISSIONERS OF ) Court of Appeals Cause Number
KNOX COUNTY, ) 42A01-9911-CV-396
Appellee (Defendant). )
APPEAL FROM THE KNOX CIRCUIT COURT
The Honorable Sherry L. Biddinger Gregg, Judge
Cause No. 42C01-9611-CT-231
November 22, 2002
Brian Catt was injured in a single-car accident occurring in the early morning
hours of May 18, 1995, when his car slid into a ditch created
by a washed-out culvert. He filed a complaint against the Board of
Commissioners of Knox County (the County). The County responded with a motion
for summary judgment alleging immunity under the Indiana Tort Claims Act (the Act).
The trial court granted the motion and the Court of Appeals reversed.
Having previously granted transfer, we now affirm the trial court.
Facts and Procedural History
In the early morning of May 18, 1995, eighteen-year-old Brian Catt was traveling
southbound on County Road 200 East in Harrison Township, Knox County, Indiana.
At that time there was only a slight mist or sprinkle. However,
the night before, Knox County had experienced a torrential rainstorm. Proceeding down
a small hill Catt saw mud in the road. As he advanced,
Catt noticed that the road was out and attempted to stop the car.
Sliding on the slick mud, Catt crashed his car into a water-filled
ditch in the middle of the road. As a result, he sustained
A subsequent examination of the accident site revealed that due to the immense
amount of rain Knox County had received, a culvert had been washed out
sometime during the night of May 17, 1995, or early morning of May
18, 1995. The washed-out culvert, which came to rest approximately fifty feet
downstream from the accident site, left a ditch in the middle of the
roadway approximately ten to twelve feet wide.
Catt filed a complaint against the County alleging negligent inspection and maintenance of
the roadway. The County filed its answer, which included the affirmative defenses
of statutory immunity, contributory negligence, and assumption of risk. After the parties
conducted discovery, the County filed a motion for summary judgment contending: (i)
it owed no duty to Catt and therefore his negligence claim failed; (ii)
it was immune from liability under the Act; and (iii) Catt was contributorily
negligent which operated as a complete bar to his claim. After entertaining
arguments of counsel, but entering no findings of facts or conclusions thereon, the
trial court granted the Countys motion.
Catt appealed and a divided panel of the Court of Appeals reversed the
trial court. Catt v. Bd. of Commrs of Knox County, 736 N.E.2d 341,
343 (Ind. Ct. App. 2000). Adhering to the rule that the Court
may affirm a grant of summary judgment on any grounds supported by the
Indiana Trial Rule 56 materials, the Court of Appeals addressed each ground upon
which the trial court may have based its decision. The Court determined:
(1) the County was not entitled to immunity under the Act; (2) there
were disputed issues of material fact as to whether Catt was contributorily negligent;
and (3) genuine issues of material fact existed as to whether the County
breached its duty of care to maintain public thoroughfares in a safe condition
for travel. The County sought transfer, which we previously granted. We now
affirm the trial court.
Standard of Review
When reviewing a grant or denial of a motion for summary judgment our
standard of review is the same as it is for the trial court:
whether there is a genuine issue of material fact and whether the moving
party is entitled to judgment as a matter of law. Ind. Univ.
Med. Ctr. v. Logan, 728 N.E.2d 855, 858 (Ind. 2000). Summary judgment
is appropriate only where the designated evidence shows that there is no genuine
issue of material fact and that the moving party is entitled to judgment
as a matter of law. Corr v. Am. Family Ins., 767 N.E.2d
535, 537 (Ind. 2002). All facts and reasonable inferences drawn from those
facts are construed in favor of the nonmoving party. Id. at 537-38.
The sole issue presented on transfer is whether the County is immune from
liability pursuant to the Act. The Act allows suits against governmental entities
for torts committed by their employees but grants immunity under the specific circumstances
enumerated in Indiana Code section 34-13-3-3. Mangold v. Ind. Dept of Natural
Res., 756 N.E.2d 970, 975 (Ind. 2001). Immunity under the Act is
a question of law to be decided by the court. Id.
The party seeking immunity bears the burden of establishing it. Id.
Indiana Code section 34-13-3-3(3) provides in relevant part: 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 which results from weather.
See footnote Ind. Code § 34-4-16.5-3(3).
The law in this jurisdiction is settled 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.
Galbreath v. City
of Indianapolis, 255 N.E.2d 225, 227 (Ind. 1970); see also I.C. § 34-13-3-3(18)
(declaring [T]his subdivision shall not be construed to relieve a responsible governmental entity
from the continuing duty to provide and maintain public highways in a reasonably
safe condition.). Our courts have not addressed this duty in the context
of washed-out culverts but have done so in the context of a citys
duty to remove snow and ice. For example in Van Bree v.
Harrison County, 584 N.E.2d 1114 (Ind. Ct. App. 1992), trans. denied, the Court
noted that under the common law a governmental entity is not generally liable
for injuries caused by defects in sidewalks and roadways due to the natural
accumulation of snow and ice. Id. at 1117 (citing Walton v. Ramp,
407 N.E.2d 1189, 1191 (Ind. Ct. App. 1980); City of South Bend v.
Fink, 139 Ind. App. 282, 219 N.E.2d 441, 443 (1966)); see also Adams
v. Pa. R. Co., 117 F.2d 649, 650 (7th Cir. 1941) (indicating that
in Indiana the duty to keep streets reasonably free from defects therein, does
not extend to defects in the streets due to natural accumulation of ice);
19 Eugene McQuillin, The Law of Municipal Corporations § 54.79, at 305 (3rd
ed. 1994). 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 represented an obstruction to travel and the city
had an opportunity to remove the snow and ice, but failed to do
so. Van Bree, 584 N.E.2d at 1117 (citing Ewald v. City of
South Bend, 104 Ind. App. 679, 12 N.E.2d 995, 997 (1938)); see also
City of Muncie v. Hey, 164 Ind. 570, 74 N.E. 250, 251 (1905)
(holding The accumulation of water and ice . . . so as to
obstruct the free and safe use of the sidewalk, constitute[s] a nuisance which
it [is] the duty of the city to prevent or abate, and if
it negligently fail[s] to perform this duty . . . it . .
. will be held liable.); McQuillin, supra, § 54.79, at 306. As
the Van Bree court points out, the Act reflects these common law principles,
and provides immunity for temporary conditions caused by weather, but does not provide
for immunity when the condition is permanent or not caused by the weather.
Van Bree, 584 N.E.2d at 1117. We agree and find these
observations equally applicable here.
Analyzing the immunity provision of the Act, the Court of Appeals examined the
meaning of temporary. Contrasting temporary with permanent the Court said that while
inclement weather may temporarily cause a roadway or bridge to become dangerous or
impassable for a motorist, if this condition is due to poor inspection, design,
or maintenance of the thoroughfare then the condition of the thoroughfare could be
considered permanent. Catt, 743 N.E.2d at 345.
We agree that if the hazardous condition of a roadway is due to
poor inspection, design or maintenance, then the governmental entity may be held liable
for injuries caused thereby. Indeed a governmental entity is not entitled to
immunity every time an accident occurs during bad weather. Bd. of Commrs
of Steuben County v. Angulo, 655 N.E.2d 512, 513 (Ind. Ct. App. 1995),
trans. not sought. Rather, in determining whether a governmental entity is immune
under the Act, the relevant inquiry is whether the loss suffered by the
plaintiff was actually the result of weather or some other factor. Id.
However we disagree with our colleagues on the Court of Appeals that
poor inspection, design, or maintenance are factors to be considered in determining whether
the condition of a roadway is permanent. In our view such factors
may demonstrate negligence. And if a party can show that his or
her injury is due to negligence - as opposed to the temporary condition
of a thoroughfare that results from weather - then the governmental entity may
be held liable for the partys loss. See id. at 513, 514
(rejecting Countys claim that the accident would not have occurred but for temporary
foggy weather conditions, where plaintiff designated materials showing that the accident also was
the result of County failing to place appropriate markings on the roadway, failing
to post appropriate warning signs, and the presence of ruts in the roadway).
As we see it, a determination of whether a condition is temporary or
permanent is separate from a determination of whether the condition is due to
some other cause. The focus of whether the condition is permanent is
whether the governmental body has had the time and opportunity to remove the
obstruction but failed to do so. Van Bree, 584 N.E.2d at 1117.
As applied to the facts in this case, the question is whether
the washed-out culvert was due to weather and whether the County had the
opportunity to repair the culvert and did not.
The record shows that in support of its motion for summary judgment, the
County presented the affidavit of Harry Manning, Superintendent of the Knox County Highway
Department. He testified that a number of culverts throughout Knox County had
been washed-out due to the severe rain and resulting flood that occurred in
the early morning hours of May 18, 1995. R. at 202.
According to Manning the Highway Department received no notice of the culvert at
issue here being washed-out until after the accident had occurred. R.
at 202. He further testified that in 1993 a different culvert in
the same area washed out and was replaced with a larger culvert to
accommodate the water flow. Manning elaborated,
[f]rom the time we replaced the culvert until the accident, we had no
complaints of the larger culvert washing-out or flooding. Also from the time
we replaced the culvert until we received notice of the wash-out in question,
the Knox County Highway Department was not aware and had no knowledge that
this larger culvert had ever washed-out.
R. at 202.
In opposition to the Countys motion for summary judgment, Catt presented evidence that
the culvert in question had washed-out on many occasions since 1972, R. at
266; and that the County Highway Department would come out and check the
culvert after some of the storms. R. at 263-64. Focusing on
the repeated instances of the culvert being washed away during rainstorms, Catt insists
that the condition of the roadway, culvert, and drainage system near the roadway
. . . a long term, permanent, condition, which caused the culvert to
wash away, and the mud to accumulate on the roadway, caus[ed] Catts wreck.
Br. of Appellant at 10. However, as we have indicated the
frequency with which the culvert may have washed out in the past has
no bearing on whether that condition is permanent. As for whether the
accident was due to causes other than weather, Catt seems to suggest one
of two possibilities: either (1) negligent inspection, design, or maintenance of the
roadway resulted in his injuries, or (2) negligent, inspection, design, or maintenance of
the roadway caused the culvert to be washed away by rain which resulted
in his injuries. Concerning the former, Catt presented no Indiana Trial Rule
56 material to support his claim. Compare Angulo, 655 N.E.2d at 513,
514 (designating materials to demonstrate conditions of the roadway other than weather conditions
contributed to plaintiffs injuries). As for the latter, the negligence of the
County is not relevant if it is immune. Immunity assumes negligence but
denies liability. Ind. Dept of Fin. Insts. v. Worthington Bancshares, Inc., 728
N.E.2d 899, 902 (Ind. Ct. App. 2000), trans. denied. As this Court
has previously observed:
[T]he issues of duty, breach and causation are not before the court in
deciding whether the government entity is immune. If the court finds the
government is not immune, the case may yet be decided on the basis
of failure of any element of negligence. This should not be confused
with the threshold determination of immunity.
Peavler v. Bd. of Commrs of Monroe County, 528 N.E.2d 40, 46-47 (Ind.
In this case, the County has shown that the washed-out culvert was the
result of a rainstorm and that it had no notice that the culvert
washed out until after Catts accident. Although there is no evidence in
this record that the culvert has since been repaired, the record does show
that the Knox County Highway Department was busy on the morning after the
storm repairing other washed out culverts of which it was aware, and had
repaired this particular culvert when it had been washed out on previous occasions.
We conclude that the County carried its burden of demonstrating that the
condition of the roadway was temporary and resulted from weather. It is
therefore immune under the Act, and the trial court properly granted summary judgment
in the Countys favor.
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
Amended by P.L. 250-2001, § 6. The provision now reads
in relevant part: A governmental entity or an employee acting within the
scope of the employees employment is not liable if a loss results from
the following . . . (3) The temporary condition of a public thoroughfare
or extreme sport area that results from weather. I.C. § 34-13-3-3(3) (West