Nikki Jones, as Personal Representative of the Estate of Phillip Matthew Jones v. Hancock County Board of Commissioners

FILED
May 20 2016, 9:56 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Patrick A. Elward James S. Stephenson
Meaghan Klem Haller Stephenson Morow & Semler
Jessica Whelan Indianapolis, Indiana
Bingham Greenebaum Doll LLP
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Nikki Jones, as Personal May 20, 2016
Representative of the Estate of Court of Appeals Case No.
Phillip Matthew Jones, 30A01-1506-CT-543
Appellant-Plaintiff, Appeal from the Hancock Circuit
Court
v. The Honorable Richard D.
Culver, Judge
Hancock County Board of Trial Court Cause No. 30C01-
Commissioners, 140l-CT-87
Appellee-Defendant.

Brown, Judge.

Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016 Page 1 of 20
[1] Nikki Jones as Personal Representative of the Estate of Phillip Matthew Jones

(the “Estate”) appeals from the order of the trial court entering summary

judgment in favor of the Hancock County Board of Commissioners (the

“Board” or the “County”). The Estate raises one issue which we revise and

restate as whether the court erred in entering summary judgment in favor of the

Board. We affirm in part, reverse in part, and remand.

Facts and Procedural History

[2] On July 5, 2012, Phillip Matthew Jones (“Jones”) was driving in a truck

northward on County Road 400 West (“CR 400W”). Jacqueline Thomas was

driving in a blue car westward on County Road 200 North (“CR 200N”). At

the intersection of CR 400W and CR 200N, drivers on CR 400W were not

required to stop and drivers on CR 200N were required to stop at posted stop

signs. The stop sign for westbound traffic on CR 200N at the intersection of CR

400W had a “sign underneath that said cross traffic does not stop.” Appellant’s

Appendix at 178. Thomas was seventeen years old and had obtained her

driver’s license two days earlier on July 3, 2012, and she knew that traffic on

CR 400W did not have a stop sign.

[3] Thomas stopped on CR 200N at the stop sign at the intersection of CR 200N

and CR 400W. Jones’s truck was traveling toward the intersection at fifty to

sixty miles per hour and over the speed limit of forty-five miles per hour. A

black vehicle traveling eastward on CR 200N stopped at the two-way stop at the

intersection of CR 400W and CR 200N and then crossed the intersection

quickly in front of Jones’s truck. At or close to the same time, Thomas “inched
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 up a little bit past the stop sign to look both ways,” looked to the right, and then

looked to the left and saw a truck which “felt like it was right in [her] window”

immediately before the truck impacted her car.1 Id. at 180. Jones’s truck struck

Thomas’s car and flipped or rolled several times before coming to a stop, and

Jones died as a result of the crash.

[4] The Estate, in an amended complaint, brought a wrongful death claim against

the Hancock County Highway Department (the “Highway Department”) and

the Board. The Estate alleged in part that the Board and Highway Department

owed a duty to Jones to protect the users of Hancock County roadways from

dangerous conditions on the roadways and to exercise reasonable care in

installing proper traffic control devices, that they breached their duty “by failing

to properly and diligently monitor traffic accidents in Hancock County starting

in 2008, including traffic accidents occurring at the Intersection,” that they

breached their duty “by failing to properly and diligently control traffic at the

Intersection through the installation of an alternative traffic control device to

the two-way stop which was obviously not properly controlling the

Intersection,” and that their “failure to monitor and properly control the

Intersection were a concurring and proximate cause of serious personal injury

and death to [Jones], as well as emotional damages and lost income and

earnings to Nikki Jones and her two minor children.” Id. at 66. The Estate

1
One witness to the crash testified that Jones’s “truck just barely missed the back of that black car” and
“milliseconds later” struck the blue car driven by Thomas. Appellant’s Appendix at 227.

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 further alleged that, according to Ind. Code § 9-21-4-1, “[a] governmental

agency in Indiana that is responsible for the signing, marking, and erection of

traffic control devices on streets and highways within Indiana shall follow the

Indiana Manual on Uniform Traffic Control Devices for Streets and Highways”

(the “Manual”), that the Manual “further provides that such agencies shall use

the [Manual] in determining the necessity of proper traffic control devices,” and

that the Manual “provides for the installation of a multi-way stop for several

different reasons, and one factor to be considered upon completion of an

engineering study, is whether there have been ‘five or more reported crashes in

a 12 month period that are susceptible to correction by a multi-way stop

installation.’” Id. at 64-65.

[5] In their answer, the Board and the Highway Department “admit the Manual

. . . provides guidance and instructions concerning installation of regulatory and

warning signs where decisions are made by governmental entities to install such

signs.” Id. at 78. The Board and the Highway Department raised a number of

affirmative defenses which included the defense of contributory negligence, that

the claims are barred by any and all applicable immunities contained in the

Indiana Tort Claims Act (the “ITCA”), including Ind. Code § 34-13-3-3(7) and

(8), and that the Highway Department is not a proper party defendant and

should be dismissed.

[6] The Board and the Highway Department subsequently filed a motion for

summary judgment together with a memorandum of law in support of the

motion and designated evidence, which included among other materials

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portions of the depositions of Thomas and witnesses to the crash and affidavits

related to the roadways and the existing county ordinances. In their motion,

the Board and the Highway Department argued in part that they were immune

from liability under Ind. Code § 34-13-3-3(8) for failing to convert the

intersection from a two-way to a four-way stop, immune from liability for

failing to adopt a law requiring landowners to trim back corn, immune for

failing to inspect private property, and immune from liability for the design of

CR 400W and CR 200N and the intersection. They also argued they did not

have a duty to remove weeds or maintain private property and that the

Highway Department was not a proper party defendant.2 In their

memorandum, the Board and the Highway Department argued that Hancock

County cannot be liable for failing to convert the two-way stop at the

intersection into a four-way stop because, pursuant to Ind. Code § 34-13-3-3(8),

“governmental entities are immune from liability in tort for failing to install

regulatory signs such as stop signs . . . .” Id. at 119. The designated evidence of

the affidavit of the Auditor of Hancock County states that, on December 14,

1992, the Board adopted Hancock County Ordinance 1992-12F which provided

that CR 400W was a preferential through road where it intersected CR 200N

and that vehicles traveling on CR 200N were required to come to a complete

stop at the intersection of CR 200N and CR 400W before entering the

2
The Board did not move for summary judgment under Ind. Code § 34-13-3-3(7).

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 intersection and yield the right-of-way to other motor vehicles.3 The affidavit

also states that, on August 7, 2012, the Board adopted Ordinance No. 2012-8A

establishing a four-way stop at the intersection of CR 200N and CR 400W.

[7] The Estate filed a response in opposition to the summary judgment motion

together with a brief and designated evidence, which included among other

materials a “200N & 400W Intersection Study” and portions of the Manual.4

Id. at 298. The Estate argued that, prior to 2008, the Highway Department

recorded accidents on a pushpin map after receiving accident reports from the

Hancock County Sheriff’s Department, that in 2008 the Sheriff’s Department

began to file accident reports electronically and the Highway Department

effectively discontinued the use of the pushpin process, and that, “[h]ad the

County continued its practice of diligently monitoring accidents at

intersections, it would have seen a high frequency of accidents” at the

intersection of CR 400W and CR 200N and “would have seen the necessity for

an engineering study and for a four-way stop years before Matt Jones’s fatal

accident.” Id. at 257. The Estate argued that the Board does not have

3
The designated evidence also includes an ordinance adopted by the Board in 1973 which similarly provided
that CR 400W shall be a preferential through road at its intersection with CR 200N.
4
The portions of the Manual included in the Estate’s designated evidence include a page from the definitions
section, defining a “Traffic Control Device” as “a sign . . . or other device used to regulate, warn, or guide
traffic” and a “Warning Sign” as a sign “that gives notice to road users of a situation that might not be
readily apparent,” and a page from a chapter of the Manual related to regulatory signs containing Section
2B.O7, titled “Multi-Way Stop Applications.” That page states in part that “Multi-way stop control can be
useful as a safety measure at intersections if certain traffic conditions exist” and, under the heading of
“Guidance,” that “[t]he decision to install multi-way stop control should be based on an engineering study”
and that “[t]he following criteria should be considered in the engineering study for a multi-way STOP sign
installation: . . . B. Five or more reported crashes in a 12-month period that are susceptible to correction by a
multi-way stop installation. . . .” Appellant’s Appendix at 332-333.

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 legislative immunity, that its “claim stems primarily from the County’s failure

to monitor traffic accidents at the Intersection, not from a failure to adopt a law

or ordinance to install a four-way stop,” that it had alleged “the County failed

to exercise reasonable care in installing proper traffic control devices,” and that

the definition of traffic control devices “includes both regulatory signs such as

stop signs as well as non-regulatory signs such as warning signs.” Id. at 266-

267. The Estate also argued that “[m]onitoring traffic accident frequency,

conducting engineering studies of dangerous intersections, and erecting or

modifying non-regulatory signs (e.g. warning signs) are all activities that do not

require ordinances or other legislative action in order to be commenced.” Id. at

268. The Estate agreed that the Highway Department was not a proper party

and that summary judgment should be granted as to it.

[8] The Board and Highway Department filed a reply memorandum and, with

respect to warning signs, argued that the Estate’s claim “is not predicated upon

the absence of a warning sign, nor does [it] inform the court of the absence of

any warning sign which in her view rendered the roads unsafe,” that “there

could be no such assertion on the record,” and that “[a] stop sign ahead, for

example, was not needed here because the driver Thomas saw the stop sign

ahead and stopped before entering the intersection.” Id. at 344-345.

[9] Following a hearing, Court Commissioner R. Scott Sirk signed an order stating

there is no genuine issue of material fact and all issues are resolved by statutory

immunity and granting summary judgment in favor of the County. After the

Estate argued the order was not signed by the trial court judge, the court

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 entered an order signed by Judge Richard D. Culver containing findings of fact

and conclusions thereon, finding in part that the Board and Highway

Department were immune from liability under Ind. Code § 34-13-3-3 for failure

to adopt an ordinance changing the traffic control devices from a two-way stop

to a four-way stop prior to the accident, and that the Board and Highway

Department were immune from liability for the design of the roads, and

granting summary judgment in favor of the Board and Highway Department

and against the Estate.

Discussion

[10] The issue is whether the court erred in entering summary judgment in favor of

the Board.5 Our standard of review is the same as it is for the trial court.

Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). The moving party bears the

initial burden of making a prima facie showing that there are no genuine issues

of material fact and that it is entitled to judgment as a matter of law. Id.

Summary judgment is improper if the moving party fails to carry its burden, but

if it succeeds, then the nonmoving party must come forward with evidence

establishing the existence of a genuine issue of material fact. Id. We construe

all factual inferences in favor of the nonmoving party and resolve all doubts as

to the existence of a material issue against the moving party. Id. An appellate

court reviewing a challenged trial court summary judgment ruling is limited to

5
The Estate notes that this appeal is being brought against only the Board.

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 the designated evidence before the trial court, but is constrained to neither the

claims and arguments presented at trial nor the rationale of the trial court

ruling. Id.

[11] The Estate contends that the Board was not entitled to legislative immunity

because the alleged negligence did not arise from a failure to pass or enforce an

ordinance, but rather arose from a failure to monitor and maintain the county’s

roadways in a reasonably safe condition, a duty that is not subject to legislative

decision-making. The Estate’s argument is that the Board failed to exercise

reasonable care in installing proper traffic control devices, that such devices

include non-regulatory signs such as warning signs, and that monitoring traffic

accident frequency, conducting engineering studies of dangerous intersections,

and erecting or modifying non-regulatory signs do not require ordinances or

other legislative action in order to be commenced. It also argues that the entry

of summary judgment is an incentive for counties to neglect their duty to follow

the Manual, and that the Board chose to remain ignorant of the peril posed by

the intersection.

[12] The Board maintains that, irrespective of how the Estate attempts to

characterize its claim, tort liability is predicated upon whether or not the

intersection was reasonably safe due to the two-way and not four-way stop, and

that the Estate’s claim is barred under Ind. Code § 34-13-3-3(8). It contends

that any failure to monitor the number of traffic accidents at the intersection

relates to whether the intersection should have been converted to a four-way

stop prior to the accident and is not an independent basis for tort liability. The

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 Board further maintains that stop signs and other regulatory signs may be

installed by the adoption of an ordinance, and that whether it complied with the

Manual is irrelevant where legislative immunity defeats the Estate’s claim as a

threshold determination.

[13] Additionally, the Board argues that the Estate “does make a passing reference

to the fact that non-regulatory signs such as warning signs do not require

legislative action [], without advising the court what type of warning signs were

needed in order to render the roadways reasonably safe” and that the Estate

“offered no such evidence to the trial court either.” Appellee’s Brief at 16. The

Board asserts that, while this court previously held that immunity did not apply

to failing to install warning signs because, as conceded in that case, 6 counties do

not have to adopt ordinances to install warning signs, the Estate’s claim “is not

predicated upon the absence of a warning sign, nor did the plaintiff inform the

lower court or this court of the absence of any warning sign which in her view

rendered the roads unsafe.” Id. The Board also asserts that “[t]he record

defeats any notion that additional warning signs would have imparted

information Thomas did not otherwise know and act upon.” Id. at 17.

[14] Immunity, whether under Indiana common law or the ITCA, assumes

negligence but denies liability. Putnam Cnty. Sheriff v. Price, 954 N.E.2d 451, 453

(Ind. 2011); Bules v. Marshall Cnty., 920 N.E.2d 247, 251 (Ind. 2010) (“Immunity

6
See Bd. of Commr’s of the Cnty. of Harrison v. Lowe, 753 N.E.2d 708, 710 (Ind. Ct. App. 2001), trans. denied.

Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016 Page 10 of 20
 presumes duty and breach—without duty and breach, there is no need for

immunity.”). A traditional formulation of tort liability requires the plaintiff to

establish a duty, breach of that duty, proximate cause, and damages. Price, 954

N.E.2d at 453. The Court has said: “In general, it is only after a determination

is made that a governmental defendant is not immune under the ITCA that a

court undertakes the analysis of whether a common law duty exists under the

circumstances.” Id. (citing Benton v. City of Oakland City, 721 N.E.2d 224, 232

(Ind. 1999)). This is generally so because “immunity trumps [a claim of

negligence] and bars recovery even where ordinary tort principles would impose

liability.” Id. at 453-454 (citing Gary Cmty. Sch. Corp. v. Roach-Walker, 917

N.E.2d 1224, 1225 (Ind. 2009)).

[15] At the time of the crash, Ind. Code § 34-13-3-3 (Supp. 2011) provided in part:

A governmental entity or an employee acting within the scope of
the employee’s employment is not liable if a loss results from the
following:
*****
(7) The performance of a discretionary function; . . . .
(8) The adoption and enforcement of or failure to adopt or
enforce a law (including rules and regulations), unless the
act of enforcement constitutes false arrest or false
imprisonment.

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 (Subsequently amended by Pub. L. No. 122-2013, § 2 (eff. April 30, 2013); Pub.

L. No. 220-2013, § 2 (eff. July 1, 2013)).7

[16] In Bd. of Comm’rs of the Cnty. of Harrison v. Lowe, the plaintiff was traveling

westward on a road and approached an intersection with a north-south

thoroughfare where two signs required eastbound and westbound traffic to stop

but there were no stop or yield signs posted on the north-south thoroughfare.

753 N.E.2d 708, 710 (Ind. Ct. App. 2001), trans. denied. The plaintiff stopped at

the intersection as required, proceeded into the intersection, and was struck by a

northbound vehicle. Id. The plaintiff filed suit against Harrison County and

the driver of the northbound vehicle, alleging in part that Harrison County

negligently failed to mark and sign the intersection. Harrison County asserted it

was immune from liability pursuant to Ind. Code § 34-13-3-3. Id. Harrison

County later moved for summary judgment under subsection (7) of Ind. Code §

34-13-3-3,8 which is substantially similar to the version of subsection (8) of the

7
The current version of Ind. Code § 34-13-3-3 (Supp. 2013) provides in part:

A governmental entity or an employee acting within the scope of the employee’s
employment is not liable if a loss results from the following:
*****
(7) The performance of a discretionary function; . . . .
(8) The adoption and enforcement of or failure to adopt or enforce:
(A) a law (including rules and regulations); or
(B) in the case of a public school or charter school, a policy;
unless the act of enforcement constitutes false arrest or false imprisonment.
8
According to Lowe, the paragraph of Ind. Code § 34-13-3-3 relevant to its discussion provided that a
governmental entity was not liable if a loss resulted from “(7) the adoption and enforcement of or failure to
adopt or enforce a law (including rules and regulations), unless the act of enforcement constitutes false arrest
or imprisonment[.]” Lowe, 753 N.E.2d at 711.

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 statute in effect at the time of the crash in this case, which the trial court denied

on this basis.9 Id. at 710-711.

[17] On interlocutory appeal, this court noted that the ITCA allows suit against

government entities for torts committed by their agencies or employees but

grants immunity under the specific circumstances enumerated in Ind. Code §

34-13-3-3, that whether a governmental entity is immune from liability under

the ITCA is a question of law for the courts, that the ITCA is narrowly

construed against the grant of immunity, that immunity assumes negligence but

denies liability, and that, if immunity exists, Harrison County simply is not

liable and the degree of its culpability and the nature of its tortious conduct are

not relevant considerations. Id. at 711.

[18] The court observed that Harrison County and its Board of Commissioners were

political subdivisions and that the Harrison County Board was the county’s

legislative body and exercised county powers by adopting ordinances. Id. at

711-712. The court noted that, as a local authority, the Harrison County Board

may adopt by ordinance traffic regulations with respect to streets and highways

under its jurisdiction provided they do not conflict with or duplicate a statute.

Id.

9
The trial court granted Harrison County partial summary judgment on certain other grounds, namely, that
it had immunity with respect to the design of the roads and had no legal duty to remove weeds or vegetation.
Lowe, 753 N.E.2d at 710-711.

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[19] Following a review of previous opinions discussing the application of Ind. Code

§ 34-13-3-3, the court held that the provision under subsection (7), which was

similar to that found under subsection (8) at the time of the crash in this case,

“unambiguously sheltered [Harrison County] from civil liability for its failure to

adopt traffic control ordinances.” Id. at 718. The court further held that

Harrison County was “immune for its failure to adopt ordinances to erect or

change the placement of stop signs . . . at the intersection in question.” Id. at

720. The court also held that, “[s]ince [Harrison County] is entitled to

immunity on this issue, any actual knowledge it might have had regarding the

dangerous condition of the intersection is inconsequential” and “[t]hus, we

need not determine whether [Harrison County’s] knowledge of the allegedly

dangerous condition of the intersection imposed upon it a duty to remedy the

condition by adopting traffic control ordinances.” Id. (footnote omitted).

[20] After finding that Harrison County was immune from liability for its failure to

adopt ordinances regarding stop signs, the court addressed whether Harrison

County was entitled to summary judgment with respect to its failure to erect

warning signs. Id. The court observed that Harrison County had not moved for

summary judgment on this issue and that, since it failed to meet its burden to

demonstrate the absence of a question of fact regarding warning signs, the

plaintiffs were not required to designate this issue or any relevant evidence in

response to Harrison County’s motion. Id. The court held Harrison County

was not entitled to summary judgment with respect to this claim. See id.

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[21] In this case, the Board as a political subdivision is a governmental entity for

purposes of the ITCA, see Ind. Code § 34-6-2-49 (defining governmental entities

for purposes of Ind. Code §§ 34-13-3 as the state or a political subdivision of the

state); Ind. Code § 34-6-2-110(1), (10) (defining political subdivision to include a

county and a board or commission of a county), and, if a board of county

commissioners is a county’s legislative body, the board exercises its powers by

adopting ordinances. See Ind. Code § 36-1-2-9 (defining legislative body to

include a board of county commissioners); Ind. Code § 36-1-3-6 (providing that

a unit wanting to exercise a power must, if the unit is a county, adopt an

ordinance); Lowe, 753 N.E.2d at 711-712.

[22] Further, as a local authority under Ind. Code § 9-13-2-94(b)10 and Hancock

County’s legislative body, the Board may adopt by ordinance traffic regulations

with respect to highways under its jurisdiction. See Ind. Code § 9-21-1-2

(providing “a local authority may adopt by ordinance traffic regulations”); Ind.

Code § 8-17-1-40 (providing a “county legislative body may adopt ordinances

regulating traffic on any highway in the county highway system”); Lowe, 753

N.E.2d at 712. In addition, Ind. Code § 9-21-1-3(a) provides in part:

A local authority, with respect to private roads and highways
under the authority’s jurisdiction, in accordance with sections 2
and 3.3(a) of this chapter, and within the reasonable exercise of
the police power, may do the following:

10
Ind. Code § 9-13-2-94 provides that “Local authorities” means every county having authority to adopt local
police regulations under the laws and the Constitution of the State of Indiana.

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 *****

(6) Designate a highway as a through highway and require
that all vehicles stop before entering or crossing the
highway.

(7) Designate an intersection as a stop intersection and require
all vehicles to stop at one (1) or more entrances to the
intersection.[11]

[23] The Board’s designated evidence includes an affidavit of the Auditor of

Hancock County, which states that Hancock County Ordinance 1992-12F,

which had been adopted by the Board on December 14, 1992, provided that CR

400W was a preferential through road where it intersected CR 200N and that

vehicles traveling on CR 200N were required to come to a complete stop at the

intersection of CR 200N and CR 400W before entering the intersection and

yield the right-of-way to other motor vehicles. The adoption of this ordinance

by the Board designated CR 400W as a through highway, see Ind. Code § 9-21-

1-3(a), and the ordinance was adopted to regulate traffic using CR 400W and

CR 200N. See Ind. Code § 9-21-1-2; Ind. Code § 8-17-1-40. Pursuant to Ind.

Code § 34-13-3-3(8), the Board is not liable if any loss results from the adoption

of Hancock County Ordinance 1992-12F designating CR 400W as a through

road and not requiring drivers on that road to come to a stop where CR 400W

intersects CR 200N. See Lowe, 753 N.E.2d at 720 (holding the county was

11
Subsections (6) and (7) are identical to those provisions as they existed at the time Hancock County
Ordinance 1992-12F was adopted in December 1992. See Pub. L. No. 2-1991, § 9 (1991).

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 immune for its failure to adopt ordinances to erect or change the placement of

stop signs at the intersection). The Board is sheltered from civil liability for any

failure to adopt traffic control ordinances. See id. at 718 (holding Ind. Code §

34-13-3-3 unambiguously sheltered the county from civil liability for its failure

to adopt traffic control ordinances).

[24] Based upon the designated evidence, we conclude that the Board is immune

under Ind. Code § 34-13-3-3(8) from liability for any loss resulting from the

adoption of Hancock County Ordinance 1992-12F or any failure to adopt an

ordinance, in response to the frequency of traffic accidents discovered by

monitoring or for any other reason, or take other legislative action related to the

intersection of CR 400W or CR 200N. See Lowe, 753 N.E.2d at 718-720. See

also Carter v. Indianapolis Power & Light Co., 837 N.E.2d 509, 522 n.20 (Ind. Ct.

App. 2005) (noting that the county would be immune under Ind. Code § 34-13-

3-3(8) for its failure to pass an ordinance to reduce the speed limit and citing

Lowe), reh’g denied, trans. denied. Because the Board is entitled to immunity on

this issue, any actual knowledge it may have had regarding any dangerous

condition of the intersection is inconsequential, see Lowe, 753 N.E.2d at 720,

and we need not address whether a duty existed, under the Manual or

otherwise, which may have supported a negligence action against the Board

based on any action or inaction of the Board as Hancock County’s legislative

body. See Price, 954 N.E.2d at 453-454 (noting that immunity trumps a claim of

negligence and bars recovery even where ordinary tort principles would impose

liability); Lowe, 753 N.E.2d at 711 (if immunity exists, the governmental entity

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 simply is not liable and the degree of its culpability are not relevant

considerations).

[25] Having found that the Board is immune from liability for any loss resulting

from the adoption of Hancock County Ordinance 1992-12F or for its failure to

adopt any traffic control ordinance with respect to the intersection of CR 400W

or CR 200N, we turn to whether the County was entitled to summary judgment

with respect to its alleged failure to monitor the frequency of accidents at the

intersection and to erect appropriate warning signs. We observe that, in its

motion for summary judgment and supporting memorandum, while the County

argued it was immune from liability under Ind. Code § 34-13-3-3(8) for failing

to convert the intersection from a two-way stop to a four-way stop, it did not

request summary judgment with respect to any claim that it failed to install

warning signs or other non-regulatory signs.

[26] The County acknowledges the holding in Lowe with respect to warning signs

but argues that the Estate’s claim is not predicated upon the absence of a

warning sign and did not inform the lower court or this court of the warning

sign which rendered the roads unsafe.12 However, since the County did not

request summary judgment with respect to the claim it failed to install warning

signs, the Estate was not required to designate this issue or evidence with

12
At the hearing on its summary judgment motion, the County stated there was a distinction between
regulatory signs and warning signs, that ordinances are not required for a warning sign, that the Estate’s
claim is not predicated upon the absence of a warning sign nor could it be, and that the Estate offers no
response asserting that warning signs are needed to render the roadways or the intersection reasonably safe.

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 respect to this issue in response to the summary judgment motion. See Lowe,

753 N.E.2d at 720 (“Since [Harrison County] failed to meet its burden to

demonstrate the absence of a question of fact regarding warning signs, the

[plaintiffs] were not required to designate this issue or any relevant evidence in

response to [Harrison County’s] motion.”). Further, the Estate’s amended

complaint alleged that the County failed to control traffic at the intersection of

CR 400W or CR 200N through the installation of an alternative traffic control

device, and in its materials filed in opposition to the County’s summary

judgment request, the Estate designated the definitions contained in the Manual

indicating that the term “Traffic Control Device” includes signs to “warn, or

guide traffic” and argued that erecting or modifying non-regulatory signs such

as warning signs does “not require ordinances or other legislative action.”

Appellant’s Appendix at 268, 332. Also, the Estate argues the County could

have installed a warning sign related to the intersection of CR 400W or CR

200N for drivers using CR 400W.13 The County did not request and is not

entitled to summary judgment with respect to the claim that it failed to erect

appropriate warning signs.

[27] Based upon the summary judgment materials and Lowe, we reverse the entry of

summary judgment as to the claim the County failed to erect warning signs,

13
Section 2C.46 of the Manual relating to intersection warning signs discusses a cross road symbol which
may be used in advance of an intersection to indicate the presence of an intersection and the possibility of
turning or entering traffic, and the Manual provides guidelines as to the size of the sign and advance
placement distances.

Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016 Page 19 of 20
 affirm the entry of judgment in all other respects, and remand for further

proceedings.

Conclusion

[28] For the foregoing reasons, we affirm in part, reverse in part, and remand for

further proceedings consistent with this opinion.

[29] Affirmed in part, reversed in part, and remanded.

Kirsch, J., and Mathias, J., concur.

Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016 Page 20 of 20