concurring in part and dissenting in part
I fully concur with the majority’s affirmation of summary judgment on the Crossnos’ permit-related claims. However, I respectfully dissent from the majority’s reversal of summary judgment on the Crossnos’ claims for the State’s negligent design, construction, and maintenance of the bridge overpass and failure to warn of the overpass height restrictions.
In response to the State’s summary judgment motion, the Crossnos asserted that “the issuance of a permit directing Morris underneath a low overpass is obviously unrelated to the State’s design, construction and maintenance of the bridge, as well as its failure to warn via signage.” While I recognize that the Trial Rules do not authorize a sua sponte entry of summary judgment, I cannot agree with the majority’s conclusion that the Crossnos “did not have an adequate opportunity to prepare and present materials in opposition to the State’s motion for summary judgment” on these issues. Moreover, contrary to the majority, I believe the Crossnos’ permit-related claims and their claims regarding the negligent design, construction, and maintenance of the overpass are both factually and legally inseparable. Their purely tactical decision not to designate additional evidence to demonstrate the existence of a genuine issue of material fact should not preclude the grant of summary judgment with respect to their overpass-related claims.
Absent any indication to the contrary, the Crossnos’ allegations regarding the overpass are premised solely on their assumption that the overpass was too low. The overpass was indeed too low for Morris’s oversized load: a circumstance that necessitated the State’s issuance of a permit directing Morris to travel underneath certain overpasses with sufficient clearance heights to allow his safe passage over Indiana highways. The overpass in question did not have a sufficient clearance height — not because it was negligently designed, constructed, or maintained, but because the State mistakenly instructed Morris to transport his oversized load underneath it. The majority has held, and I agree, that the State is immune from any liability for instructing Morris to drive underneath the overpass. In my view, however, the fact that the overpass was too low for his load is directly related to the State’s discretionary issuance of the oversized load permit and should not be considered a genuine issue of material fact precluding summary judgment on the Crossnos’ overpass-related claims. Had the overpass collapsed when it was struck by the steel truss and injured Crossno, a genuine issue of material fact might have remained with respect to its design, construction, and maintenance because such an occurrence would not have been inherently contingent upon the Crossnos’ permit-related claims. Such is not the case here.5
With respect to the Crossnos’ failure to warn claim, the uncontroverted evidence designated by both parties reflects that in May 1993 - more than one year before the accident - the State erected two 48-inch-by-48-ineh yellow warning signs at 2,892 feet and two identical signs at 454 feet south of the overpass, in addition to plac*384ing one 42-inch-by-24-inch yellow warning sign on the south side of the overpass itself. All signs marked the overpass clearance as 14 feet.6 It is important to note that at the trial court level, the Cross-nos based their claim not on the adequacy of the warning signage erected by the State, but strictly on the State’s failure to warn of the overpass height restrictions altogether.7 Because the designated evidence demonstrates the absence of a genuine issue of material fact regarding the State’s alleged failure to warn, I believe the trial court properly granted summary judgment on this claim.
Accordingly, I would affirm the trial court’s judgment in all respects.
. In its summary judgment memorandum, the State asserted that the Crossnos’ complaint failed to detail “how the bridge construction was negligent.” Although merely alleging that a plaintiff has failed to produce evidence on each element of a claim “is insufficient to entitle the defendant to summary judgment ■ under Indiana law,” Jarboe v. Landmark Community Newspapers of Indiana, Inc., 644 N.E.2d 118, 123 (Ind.1994), we may affirm the trial court’s grant of summary judgment "on any legal basis supported by the designated evidentiary material.” Wolfe v. Stork RMS-Protecon, Inc., 683 N.E.2d 264, 267 (Ind.Ct.App.1997). For the reasons stated above, I believe the factual and legal inseparability of the Crossnos’ permit- and overpass-related claims would allow this court to affirm the trial court’s grant of summary judgment on the latter claims based on the evidence designated in support of the former.
. See Ind. Admin. Code tit. 105, r. 9-2-1 (1996) (recognizing INDOT’s adoption of Indiana Manual on Uniform Traffic Control Devices for Streets and Highways (1988)); see also Indiana Manual on Uniform Traffic Control Devices for Streets and Highways at 2C-25, 2C-26 (1988) (depicting, describing, and authorizing the use of "low clearance" and "clearance height" signs on or in front of "overhead structures” with a clearance of less than 14 feet 6 inches).
. In their appellate brief, the Crossnos assert for the first time that the "tort of negligent failure to warn via adequate signage" is unrelated "to the State’s actions with respect to issuing oversize load permits.” (Emphasis added.) It is well settled that "[a]n appellant who has presented his case to the trial court on a certain definite theory shall not be permitted to change on appeal and prevail upon another theory not previously advanced.” Thompson v. Public Serv. Co. of Indiana, Inc., 499 N.E.2d 788, 791 (Ind.Ct.App.1986), trans. denied (1987). Thus, I respectfully submit that the Crossnos should not be permitted to avoid summary judgment simply by reframing their issues at this stage of the proceedings, and that the issue of contributory negligence addressed by the majority should be considered moot for purposes of this appeal.