dissenting.
I would affirm the grant of summary judgment in favor of Elkhart County, and therefore respectfully dissent.
The statute upon which this case must be decided states, "[a] governmental entity . is not liable if a loss results from ... [tlhe temporary condition of a public thoroughfare ... that results from weather." Ind.Code Ann. § 34-13-3-8(8) (West, PREMISE through 2006 Public Laws approved and effective through March 15, 2006). On the face of it, it would seem the facts before us fit squarely within the *737boundaries of this provision. In the early morning hours of June 12, 2001, a violent storm blew a tree down onto a county road. Approximately four hours later, a motorist was injured when his vehicle struck that tree. Clearly, the roadway obstruction was caused by bad weather. Hochstetler does not allege otherwise, but contends there remain questions of fact necessary to determine whether the condition was "temporary" within the meaning of IC. § 34-13-3-3(8). The majority agrees.
Analyzing Dzierba v. City of Michigan City, 798 N.E.2d 463 (Ind.Ct.App.2003) and Catt v. Bd. Of Comm'rs, 779 N.E.2d 1 (Ind.2002), the majority concludes the County's claim of immunity hinges-and ultimately fails-upon two questions: (1) did the County have notice of the fallen tree, and (2) if so, did it have time to remove the tree before the accident occurred? In reversing the trial court's ruling, the majority rejects both Leinbach v. State, 587 N.E.2d 733 (Ind.Ct.App.1992) and Van Bree v. Harrison County 584 N.E.2d 1114 (Ind.Ct.App.1992), trans denied. Those decisions support the County's argument in this case, but the majority deems them to be in conflict with Catt, and thus superceded by it. Do they, in fact, conflict with Catt? I think not.
The facts of Van Bree and Leinbach are set out in the majority opinion and I need not repeat them here. To summarize, in both cases, this court determined that the governmental entity was immune from liability for accidents on roads that were icy as a result of inclement weather. In Lein-bach, the accident occurred "within a few hours after the storm began," Leinbach v. State, 587 N.E.2d at 735, and in Van Bree, the accident occurred on a road that the plaintiff claimed had been icy for four or five days. In the latter case, the court acknowledged that the term "temporary" is not so broad as to include everything that is "not permanent". Van Bree v. Harrison County 584 N.E.2d at 1117. We might infer from this that a period of four or five days between the creation of a dangerous condition and an accident caused thereby is long enough, when considered in isolation, to cast doubt upon the temporariness of the condition. The court decided, however, that elapsed time alone did not settle the question. Also considered in the temporariness analysis was the governmental entity's opportunity to remedy the situation. In fact, it is upon that basis that the court affirmed the judgment of immunity, stating there was no evidence "from which a jury could infer that the County had an opportunity to treat the road before" five days had passed. Van Bree v. Harrison County, 584 N.E.2d at 1118. The court noted in that regard a supervisor's testimony that the county "was responsible for over a thousand miles of county roads and that the crews had been out all week spreading salt and gravel on the roads." Id. In Leinbach, the time between the onset of the condition and the accident was much shorter, but the analysis was similar. Thus we learned in Van Bree and Leinbach that temporariness was a function not only of knowledge of the dangerous condition, but also of (1) the time elapsed between the weather that caused the dangerous condition and the accident, and (2) the governmental entity's ability, in light of the ctreumstances, to remedy the condition. In my view, Cott did not alter this analysis and it is upon this point that my views diverge from those of the majority.
The majority concludes the Supreme Court in Catt affirmed immunity primarily, if not solely, on the basis that the governmental entity did not have knowledge of the dangerous condition. Although that is true, it does not signal a change in the law as applied in Leinbach and Van Bree. *738Rather, Catt simply illustrates the point that the failure of one element when two are required obviates the need to analyze the second element. See, e.g., Young v. State, 746 N.E.2d 920 (Ind.2001) (because two elements are required to prove a claim of ineffective assistance of counsel, the court may dispose of the entire claim if it concludes one element was not proven, without need to consider the second element}. In this case, that means that even if Hochstetler sufficiently established that the County knew of the downed tree, he must also present sufficient evidence to show that it had the opportunity to remedy the situation but failed to do so. Catt, Leinbach, and Van Bree permit us to consider all of the circumstances in making that determination as a matter of law.
In my view, the majority's approach virtually precludes the possibility of immunity in almost every cireumstance of this type. The instant case illustrates the point. A violent storm blew through the county and left numerous trees and limbs scattered on county roads. Although it occurred in the early morning hours when traffic was presumably light, the seope of the storm damage generated more than fifty telephone reports of downed trees and limbs within the first few hours. Barely four hours after the storm passed, a motorist struck one of the downed trees. These facts support a ruling of immunity. By relegating the questions of knowledge and opportunity always to the realm of jury questions, as the majority seems to have done here, it necessarily forecloses the possibility of immunity, as that is a legal determination made by the court. In my view, the facts need no further development to support a holding of immunity.
As to the first element, it is undisputed that the first person who called to report the downed tree in question described a location that was impossible to trace, in that it was described as being near an intersection of two roads that run parallel to one another. The second call described the tree as being located on County Road 4 between County Roads 13 and 15. In fact, the tree fell-and the accident occurred-on County Road 4 between County Roads 85 and 39. The County became aware of the actual location only when it was apprised that an accident had occurred at that site.
Turning to the time and opportunity to remedy, I note that when the County learned of the actual location of that particular downed tree at approximately 5:00 am., it took almost three-and-one-half hours for a crew to arrive at the seene and to begin the task of removing the tree. This is not surprising in view of the facts that the storm had passed so recently and the resultant destruction was apparently so significant and widespread. Even assuming it knew of the existence and location of the downed trees, to hold that the County is not immune with respect to one that it was unable to remove in the first hour or two necessarily means that it was not immune with respect to any of them. Thus, the majority's analysis leads to the ironic result that the greater the natural disaster and the more widespread the dangerous conditions caused by such a natural calamity, the less likely the County will be immune from liability because in each instance a jury will be allowed to decide whether the County could hypothetically have taken care of that component of a much larger problem.
In the instant case, I believe the phone calls reporting the tree in question were too inaccurate to apprise the County of the location of the downed tree that caused Hochstetler's accident. Thus, the County had no knowledge and was immune on that basis. See Catt v. Bd. Of Comm'rs, 779 N.E.2d 1. Moreover, given the scope of the *739problems facing the County in the aftermath of the storm in the early morning hours of June 12, 2001, and the fact that it bad a crew at the seene less than five hours after the tree fell, I believe this fits the definition of "a temporary condition ... that results from the weather." IC. § 34-1838-8-3(8). I understand that the majority believes this is a factual question that should be reserved for the jury. On these facts, however, I believe we should hold that, as a matter of law, this condition was "temporary" within the meaning of the statute and the County is immune from liability therefor.