City of Beech Grove v. Cathy J. Beloat

Jul 16 2015, 8:32 am

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ian L. Stewart David L. Byers
Stephenson Morow & Semler Andrew J. Noone
Indianapolis, Indiana Holwager, Byers, & Caughey
Beech Grove, Indiana

IN THE
COURT OF APPEALS OF INDIANA

City of Beech Grove, July 16, 2015

Appellant-Defendant, Court of Appeals Case No.
49A02-1409-CT-605
v. Appeal from the Marion Superior
Court
Cathy J. Beloat,
The Honorable Patrick L. McCarty,
Appellee-Plaintiff Judge
Cause No. 49D03-1302-CT-5276

Mathias, Judge.

[1] The City of Beech Grove, Indiana (“the City”), appeals the order of the Marion

Superior Court denying the City’s motion for summary judgment in the

negligence claim brought against the City by Cathy J. Beloat (“Beloat”). The

City appeals and argues that no genuine issues of material fact exist with regard

to whether the City was entitled to immunity from suit for performance of a

“discretionary function” under Indiana Code section 34-13-3-3(7).

Court of Appeals of Indiana | Opinion No. 49A02-1409-CT-605 | July 16, 2015 Page 1 of 15
[2] We reverse and remand.

Facts and Procedural History

[3] The facts in the light most favorable to Beloat, as the non-moving party, reveal

that on June 19, 2012, Beloat was walking across Main Street in Beech Grove,

Indiana at the intersection of Main Street and 10th Street. As she walked across

the street at the crosswalk, Beloat had to step outside of the crosswalk area to

walk around a white pickup truck that had blocked part of the crosswalk. As

Beloat did this, her foot went into a hole in the pavement and became stuck,

causing her to trip. Beloat heard her left leg “snap,” and she fell to the ground.

Two passersby saw Beloat fall and helped her up; one of these passersby took

her to the hospital, where she was treated for fractures in her left tibia and

fibula, the two bones in the lower leg.1

[4] Beloat filed a complaint against the City on February 11, 2013, alleging

negligence. The City responded on March 28, 2013, and almost a year later, on

March 10, 2014, the City filed a motion for summary judgment, claiming that

Beloat was unable to prove proximate cause because she did not know which

hole had caused her to fall, that the City was entitled to discretionary function

immunity under Indiana Code section 34-13-3-3(7), and that Beloat’s claim was

barred due to contributory negligence. Beloat filed a response to the City’s

motion, and the trial court held a summary judgment hearing on July 21, 2014.

The trial court issued an order denying the City’s motion for summary

1
See http://www.britannica.com/EBchecked/topic/595018/tibia.

Court of Appeals of Indiana | Opinion No. 49A02-1409-CT-605 | July 16, 2015 Page 2 of 15
 judgment on July 24, 2014. The City then requested that the trial court certify

its order for interlocutory appeal. The trial court did so, and we accepted

interlocutory jurisdiction on October 3, 2014.

Summary Judgment Standard of Review

[5] Our standard for reviewing a trial court’s order granting a motion for summary

judgment is well settled:

When reviewing a grant of summary judgment, our standard of
review is the same as that of the trial court. Considering only
those facts that the parties designated to the trial court, we must
determine whether there is a genuine issue as to any material fact
and whether the moving party is entitled to a judgment as a
matter of law. In answering these questions, the reviewing court
construes all factual inferences in the non-moving party's favor
and resolves all doubts as to the existence of a material issue
against the moving party. The moving party bears the burden of
making a prima facie showing that there are no genuine issues of
material fact and that the movant is entitled to judgment as a
matter of law; and once the movant satisfies the burden, the
burden then shifts to the non-moving party to designate and
produce evidence of facts showing the existence of a genuine issue
of material fact.
The party appealing a summary judgment decision has the burden
of persuading this court that the grant or denial of summary
judgment was erroneous. Where the facts are undisputed and the
issue presented is a pure question of law, we review the matter de
novo.
Importantly for this case, summary judgment is rarely appropriate
in negligence actions, since negligence cases are particularly fact
sensitive and are governed by a standard of the objective
reasonable person. This standard is best applied by a jury after
hearing all of the evidence.

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 M.S.D. of Martinsville v. Jackson, 9 N.E.3d 230, 235 (Ind. Ct. App. 2014), trans.

denied (citations and internal quotations omitted).

Discretionary Function Immunity

[6] The City claims that it was entitled to summary judgment because it was

entitled to immunity from Beloat’s claim under Indiana Code section 34-13-3-

3(7). As we explained in Jackson:

The Indiana Tort Claims Act (“ITCA”), Indiana Code section
34-13-2-1 et seq., was enacted after our supreme court abrogated
the common law sovereign immunity of governmental units from
tort liability. The ITCA governs tort claims against governmental
entities and public employees. Pursuant to the ITCA,
governmental entities can be subjected to liability for tortious
conduct unless the conduct is within an immunity granted by
Section 3 of [the] ITCA. The party seeking immunity bears the
burden of establishing that its conduct comes within the ITCA.
The ITCA provides that a governmental entity or governmental
employee who acts within the scope of that employee's duty will
not be liable if a loss results from “[t]he performance of a
discretionary function[.]” Ind. Code § 34-13-3-3(7). The party
who seeks immunity bears the burden of establishing that its
conduct falls within the discretionary function exception.

Id. at 235-36 (some citations and internal quotations omitted).

[7] Prior to our supreme court’s decision in Peavler v. Board of Commissioners of

Monroe County, 528 N.E.2d 40, 46 (Ind. 1988), this court distinguished between

“ministerial” and “discretionary” acts to determine if certain conduct was

included within the immunity exception. Discretionary acts were immune;

ministerial acts were not. See Jackson, 9 N.E.3d at 236 (citing Harvey v. Bd. of

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 Comm'rs of Wabash County, 416 N.E.2d 1296 (Ind. Ct. App. 1981)). We defined

a “ministerial” act as “one which a person performs in a given state of facts in a

prescribed manner, in obedience to the mandate of legal authority without

regard to, or the exercise of, his own judgment upon the propriety of the act

being done.” Id. (citing Dep’t of Mental Health v. Allen, 427 N.E.2d 2, 4 (Ind. Ct.

App. 1981)). We classified conduct as discretionary if it involved discretion “on

the part of the officer to determine whether or not he should perform a certain

act, and, if so, in what particular way[.]” Id. (citing Adams v. Schneider, 71 Ind.

App. 249, 124 N.E. 718, 720 (1919)).

[8] However, in Peavler, our supreme court expressly rejected the ministerial-

discretionary distinction analysis and held that discretionary judgments are not

immune from legal challenge under the ITCA unless they can be properly

characterized as “policy” decisions that have resulted from a conscious

balancing of risks and benefits and/or weighing of priorities. Id. (citing Peavler,

528 N.E.2d at 45-46). In rejecting the old ministerial/discretionary distinction,

the Peavler court noted:

The ministerial/discretionary test does not advance the public
policy of government immunity because it does not consider the
type of decision protected by immunity. Rather, it considers only
the resulting conduct and attempts to label that conduct. The
ministerial/discretionary test defines “discretionary” in the
negative: anything which is non-ministerial is discretionary. The
test does not require an affirmative finding that the governmental
action arose from the type of policy-making decision protected by
governmental immunity.

Id.

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[9] In place of the ministerial/discretionary test, the Peavler court instead adopted a

“planning/operational” test, defining “planning activities” as those that

“include acts or omissions in the exercise of a legislative, judicial, executive or

planning function which involves formulation of basic policy decisions

characterized by official judgment or discretion in weighing alternatives and

choosing public policy” as well as “[g]overnment decisions about policy

formation which involve assessment of competing priorities and a weighing of

budgetary considerations or the allocation of scarce resources are also planning

activities.” Id. at 45.

[10] Thus, under Peavler, the discretionary function exception of the ITCA insulates

from liability only planning activity, characterized as “only those significant

policy and political decisions which cannot be assessed by customary tort

standards” and as “the exercise of political power which is held accountable

only to the Constitution or the political process.” Id. at 45. The supreme court

was unambiguous in its declaration that it did not intend all decisions that

involve “judgment or discernment” to be immune from liability, since “[i]t

would be difficult to conceive of any official act, no matter how directly

ministerial, that did not admit of some discretion in the manner of its

performance.” Id. at 43, 45; see also Veolia Water Indianapolis, LLC v. Nat'l Trust

Ins. Co., 3 N.E.3d 1 (Ind. 2014) (holding that the City’s failure to require for-

profit water company to follow terms of management agreement by properly

maintaining water supply to fire hydrants was not a discretionary function, and

thus, statutory immunity under the ITCA did not protect the city from liability

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 for damages that resulted from a fire that destroyed a restaurant when

firefighters’ efforts were delayed due to a frozen fire hydrant and when the city

made no deliberate policy decision to fail to require company to follow the

terms of a management agreement by properly maintaining fire hydrants' water

supply, or make a conscious decision about policy formation which involved

assessment of competing priorities and a weighing of budgetary considerations

or the allocation of scarce resources); Jackson, 9 N.E.3d at 241-42 (holding that

school corporation was not entitled to discretionary function immunity in claim

against it in connection with the shooting of a student where school’s safety

plan was developed by the school’s principal with no involvement from the

school board or its committees and principal’s development of the safety plan

was not an exercise of political power).

[11] Here, the City designated evidence indicating that it was in the process of

making a decision on improving Main Street. Specifically, the City was

planning to totally reconstruct that portion of Main Street at the intersection of

10th Street, where Beloat’s fall occurred, as opposed to performing piecemeal

repairs. The City Council was in the process of approving the financing

necessary to begin the complete reconstruction of Main Street at the time of

Beloat’s fall. In fact, the day before Beloat’s fall, the City Council held the

second of the three votes necessary to issue the bonds to fund the reconstruction

project. This, the City argues, means that its decision not to improve the defects

in Main Street prior to Beloat’s fall is subject to discretionary function

immunity.

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 In support of its position, the City cites Lee v. State, 682 N.E.2d 576, 577 (Ind.

Ct. App. 1997). In Lee, the decedent was killed in an automobile accident that

occurred on a series of curves on State Road 7 (“S.R. 7”). The decedent’s

mother filed suit against the State and the Indiana Department of

Transportation (“INDOT”), claiming that INDOT negligently designed and

constructed S.R. 7, failed to properly warn motorists of the unreasonably

dangerous nature of S.R. 7, failed to maintain S.R. 7 so as to prevent injury to

motorists, and failed to eliminate the known dangerous condition of S.R. 7. The

trial court granted summary judgment in favor of the State on grounds that the

State was immune to suit under the ITCA.

[12] On appeal, we affirmed the trial court, noting that the designated evidence

indicated that INDOT had engaged in decision making regarding the specific

improvement alleged in Lee's complaint, and improvement of the curves was in

the planning phase at the time of the decedent’s accident. Id. at 578. This, the

Lee court held, was the exact sort of policy-based decision that the ITCA

intended to shield from judicial review. Id. at 579.

[13] The City also cites City of Indianapolis v. Duffitt, 929 N.E.2d 231 (Ind. Ct. App.

2010), in which the plaintiff sued the city after tripping and falling on a city

sidewalk. There, as here, at issue was whether the city was entitled to

discretionary function immunity under the ITCA. After discussing the relevant

case law, the Duffitt court held that the city was entitled to immunity, noting

that the designated evidence revealed that the city had limited funds for

sidewalk repair, that many projects competed for these funds, and therefore the

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 city had a policy regarding sidewalk repair prioritization in which sidewalks

with the same level of priority were repaired in the order in which they were

entered into the system. However, the Department of Public Works could have

further prioritized or de-prioritized sidewalk repairs by conducting a cost-benefit

analysis with due consideration for budgetary concerns and competing projects.

Accordingly, the Duffitt court held that, “[g]iven the budgetary considerations

and cost-benefit analyses which produced the City’s prioritization scheme, the

City’s designated evidence demonstrates that its decisions are discretionary

under the “planning-operational” test[.]” Id. at 238.

[14] The same is true in the present case. Here, the designated evidence reveals that

the City Council was in the planning phase of an improvement project that

would reconstruct Main Street at the location where Beloat’s fall occurred. In

making this decision, the City had to balance budgetary concerns with the need

to repair the street. Instead of performing piecemeal repairs, the City decided to

wholly reconstruct the street and was in the process of approving the bonding

required to fund the repairs at the time of Beloat’s accident. This sort of policy

decision is the sort of planning decision that is afforded immunity under the

ITCA’s discretionary function immunity.

[15] We find Beloat’s reliance on Jackson and Scott v. City of Seymour, 659 N.E.2d 585

(Ind. Ct. App. 1995), to be unavailing. In Jackson, we held that the school

district was not entitled to discretionary function immunity because the school

safety plan was developed by the school principal, who was not a public official

or a public-policy maker. Id. at 240-41. Only the elected school board could

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 create a policy that would be subject to such immunity. Id. Because the school

principal was not a public official and was not granted any statutory authority

to develop a safety plan, we held that the principal’s development of the safety

plan was not an exercise of political power that would be immune from suit. Id.

at 242. Similarly, in Scott, we held that the city was not entitled to discretionary

function immunity because the decision to repair city streets was not made by

the city board of public works but was instead the decision of one man—the

city engineer and director of public works. 659 N.E.2d at 590. We held:

[T]he fundamental concept underlying governmental immunity is
the notion that certain kinds of executive or legislative branch
policy decisions should not be subject to judicial review. Peavler,
528 N.E.2d at 44. Discretionary immunity, however, was not
intended to protect a policy decision made by one Board
member. Public policy decisions committed to a board or commission
and entitled to discretionary immunity must be made in public in the
manner provided by law, not on an informal basis outside of the public
record. Without any minutes of a duly constituted Board meeting,
we cannot conclude that the City, acting through its Board of
Public Works, exercised official judgment or engaged in the
necessary policy oriented decision-making process.

Id. at 591 (emphasis added).

[16] In contrast here, the decision regarding repaving and reconstructing Main Street

was not made by one individual acting outside the normal policy-making

procedures. Instead, it was made by the City’s Board of Works and Safety and

the City Counsel, as shown in the designated meetings of these bodies.

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[17] Beloat also cites Scott for the proposition that the City is not shielded from her

claim because her claim can be addressed under traditional tort standards. We

think this reads too much into that case. In Scott, the court wrote:

[T]he discretionary function exception is not absolute but
insulates only those significant policy and political decisions
which cannot be assessed by customary tort standards. It is not
the province of the court to second-guess the wisdom of those executive or
legislative decisions which were the result of a policy oriented decision-
making process. Rather, that exercise of power is held accountable
only to the Constitution or the political process.

Id. at 589. Here, the decision not to make piecemeal repairs to Main Street and

instead reconstruct the street is the very sort of policy-oriented decision which

we are unwilling to second guess. The fact that Beloat frames her claim as

simple negligence does not alter the fact that her claim ultimately calls into

question the decision of the City to reconstruct the street instead of make

smaller repairs.

Conclusion

[18] The designated evidence establishes that the policy decision to reconstruct Main

Street was made by the elected policy makers, and the reconstruction of Main

Street was in the planning stages when Beloat fell. Accordingly, we hold that

the City is entitled to discretionary function immunity under section 34-13-3-

3(7) of the ITCA. The trial court therefore erred in denying the City’s motion

for summary judgment, and we accordingly reverse the order of the trial court

and remand with instructions to enter summary judgment in favor of the City.

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[19] Reversed and remanded.

May, J., concurs.

Robb, J., dissents with opinion.

Court of Appeals of Indiana | Opinion No. 49A02-1409-CT-605 | July 16, 2015 Page 12 of 15
 IN THE
COURT OF APPEALS OF INDIANA

City of Beech Grove, Court of Appeals Case No.
49A02-1409-CT-605
Appellant-Defendant,

v.
Cathy J. Beloat,
Appellee-Plaintiff.

Robb, Judge, dissenting.

[1] I respectfully dissent from my colleagues’ determination that summary

judgment was improperly denied because the City is entitled to “discretionary

function” immunity from Beloat’s suit. See Ind. Code § 34-13-3-3(7), slip op. at

¶ 18. I believe that the decision takes too broad a view of the discretionary

function exception.

[2] As the majority notes, Peavler adopted the “planning/operation” test for

determining whether a particular governmental act is discretionary and

therefore entitled to immunity. See slip op. at ¶ 9. “Essentially, the test provides

that a governmental entity is immune from liability when the alleged negligence

arises from decisions which are made at the planning level, as opposed to the

operational level.” Scott, 659 N.E.2d at 588-89.

Court of Appeals of Indiana | Opinion 49A02-1409-CT-605 | July 16, 2015 Page 13 of 15
 Planning activities include acts or omissions in the exercise of a
legislative, executive or planning function which involves formulation
of basic policy decisions characterized by official judgment or
discretion in weighing alternatives and choosing public policy.
Government decisions about policy formation which involve
assessment of competing priorities and a weighing of budgetary
considerations or the allocation of scarce resources are also planning
activities.

Peavler, 528 N.E.2d at 45 (internal citations omitted). Discretionary function

immunity “must be narrowly construed because it is an exception to the general

rule of liability.” Id. at 46. The City must therefore show “that the challenged

act or omission was a policy decision made by consciously balancing risks and

benefits.” Id.

[3] Here, the City’s mayor stated the following in an affidavit designated on

summary judgment:

For a number of years, [the City] was in the planning and then
execution process of a road reconstruction project of Main Street from
its intersection with Emerson Avenue to its intersection with 13th Street
. . . . Rather than doing piecemeal repairs on Main Street, [the City]
chose to perform a complete road reconstruction of the street. The
Main Street Project consisted of pavement replacement, enclosed
storm drainage system, parking lanes, bike lane, curb and gutter,
sidewalks and other improvements to the Main Street pedestrian and
vehicular corridor.

Appendix of Appellant at 32. Attached to the affidavit are minutes from Board

of Works and Safety meetings at which the project design and funding was

discussed, beginning in March of 2012. The “physical road reconstruction of

the Main Street Project began in March 2013 with the entire reconstruction

project concluding in November 2013.” Id. I find no support in the designated

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 evidence for the proposition that the City made a conscious policy decision to

perform no repairs—no matter how obvious the defect or serious the danger—to

several blocks of Main Street beginning in March 2012 because a reconstruction

project was being discussed. Nor do I find support for the proposition that the

City engaged in an assessment of repairs that might need to be made pending

the start of the reconstruction project and established a policy based upon that

assessment. See Duffitt, 929 N.E.2d at 242 (“In the case of omissions, a

conscious balancing may be demonstrated by evidence showing that the

governmental entity considered improvements of the general type alleged in the

plaintiff’s complaint. Where this is shown, there is no need for the entity to

demonstrate that it considered and rejected the specific improvements

alleged.”).

[4] In short, simply filling a pothole does not strike me as the kind of “piecemeal

repair” that was set aside in favor of the overall improvement project, assuming

that the City in fact made the policy decision to eschew repairs of any kind. It is

not a matter of repaving several feet of a lane of traffic or realigning an

intersection, for example. Although there are certainly claims surrounding this

time and place for which the City would have discretionary function immunity

due to the reconstruction project, I do not believe this is one of them.

[5] I would affirm the trial court’s denial of summary judgment.

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