dissenting.
The evidence the City designated does not establish as a matter of law that its decision not to repair the sidewalk where Pairsh fell was performance of a discretionary function that entitles the City to tort immunity. I therefore believe the denial of the City’s summary judgment motion was correct, and I must respectfully dissent.
*1209Because the Tort Claims Act is in derogation of the common law, we must construe it narrowly and decline to find immunity if possible. Madden v. Indiana Dept. of Transp., 832 N.E.2d 1122, 1126 (Ind.Ct.App.2005). The party seeking immunity, here the City, bears the burden of proving it is shielded from liability. Id.
The Decker affidavit, on which the majority relies, states “the City counsel1 [sic] along with the Mayor has determined that given our City [sic] limited budget and manpower, it is impossible to fix all sidewalks; therefore, the decision was made to prioritize” sidewalk repair, and Decker says he was assigned to inspect and rate sidewalks for that purpose. (App. at 25.) I do not believe we may find discretionary function immunity on that basis. See Madden, 832 N.E.2d at 1128 (no discretionary function immunity based solely on testimony by a representative of the governmental entity that meetings were held, without written documentation of the meetings).
Boards and commissions speak or act officially only through the minutes and records made at duly organized meetings. Scott v. City of Seymour, 659 N.E.2d 585, 588 (Ind.Ct.App.1995). The public policy decisions that are entitled to discretionary function immunity must have been made by the governmental entity in its official capacity. Id. Unless the government entity submits minutes of meetings, a trial court cannot conclude the entity is entitled to immunity based on the exercise of its official judgment. Id.
We addressed a situation similar to the one before us in Scott, where the trial court entered summary judgment in favor of Seymour premised partly on governmental immunity. In reversing, we determined Seymour’s decision was not the re-suit of a policy-oriented decision-making process as contemplated in Peavler.
As she was walking, Scott’s shoe was caught in a hole in the street and she fell and fractured her foot. When Scott fell, Seymour was in the midst of a downtown redevelopment project, and maintenance and resurfacing of the street had been delayed until the end of the project. The project required cutting several downtown streets for underground wiring and curb installations. The application of asphalt overlay was delayed on the street where Scott was injured until other work on the project had been completed.
We found the decision to delay the resurfacing of the downtown area did not result from “a systematic decision-making process involving the formulation of basic policy characterized by official judgment.” Id. at 591. “We are concerned specifically with the actual decision-making process which occurred in this instance.” Id. The trial court therefore erred when it determined Seymour was entitled to governmental immunity.
The Seymour Board of Public Works was the governmental entity with legal authority and responsibility for the maintenance and resurfacing of city streets. In support of its claim of immunity, Seymour designated the deposition of the City Engineer and Director of Public Works, who testified he decided the application of asphalt overlay on the affected downtown streets should be delayed until the end of the redevelopment project so the overlay would be applied only once, thereby conserving Seymour’s resources. The mayor testified he believed the Board had authorized the delay of asphalt overlay to the downtown area, and said “you wouldn’t want to do the asphalt and then cut it back *1210up and put the railroad in, it’s like painting a wall then tearing the wall out.” Id. at 590. Finally, Seymour designated the deposition of a Board member who was not on the Board when the decision to delay resurfacing of the street was made, but knew that based on the recommendation of the City Engineer, application of the overlay had been postponed until the end of the project. “[Y]ou don’t want to go in there and do something, overlay, and then turn around and have to cut it out and then turn around and spend more taxpayer money then going back in and trying to overlay it again or to repair it.” Id.
From that record we found “no evidence of official Board action.” Id. The depositions in Scott did not suffice because:
It is well-settled in Indiana that boards and commissions speak or act officially only through the minutes and records made at duly organized meetings. Evidence outside of the board’s minutes and records that the board presumed to act in its official capacity is not competent evidence to substitute for the minutes and records of regular board action. The actions of individual members of a board or commission outside a meeting cannot be substituted for the actions at a duly constituted meeting or for the minutes thereof.
In the present case, there is no record or minutes of any Board meeting or action taken by the Board concerning its “policy decision” to postpone resurfacing the affected streets. Indeed, the evidence shows that the delay in resurfacing downtown area streets was made by [the Engineer] alone and not by the entity responsible for making such decisions. [The three witnesses] each expressed his understanding of the policy and budget considerations behind the decision to postpone application of the asphalt overlay. Without considering the merits of the decision, explanations of individual City officials outside of a meeting are not a substitute for official action and, therefore, are legally insufficient to confer discretionary function immunity. There is no evidence that the Board consciously weighed the risks and benefits of any decision while acting as a Board.
As we have noted, the 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. 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 590-91 (citations omitted). For the same reasons, the affidavit of the Terre Haute Transportation Infrastructure Manager in the case before us does not evidence official action.
In Scott we distinguished the Rutherford decision on which the majority opinion in the case before us relies:
Unlike the present case, in Rutherford there was ample evidence of a Board decision to utilize public monies and target certain areas for maintenance and renovation such as school zones, children’s play areas, and other high traffic zones. The parties did not dispute that Crown Point’s Board of Public Works had taken official action when it made *1211its decision .... [T]he key decision-makers contemplated and balanced public policy factors and weighed budgetary considerations in the allocation of resources.
⅝ ⅜ ⅝
Here, without a contemporaneous public record of Board action, there is no competent evidence that the City engaged in a systematic decision-making process involving the formulation of basic policy characterized by official judgment. The trial court erred when it determined that the City was entitled to governmental immunity on this issue.
Id. at 591 (emphasis supplied).
Even if Terre Haute had provided evidence of “official action,” I would still find summary judgment inappropriate. In Mills v. American Playground Device Co., 405 N.E.2d 621, 626 (Ind.Ct.App.1980), a child was injured when he fell from a slide installed in a Gas City park. The city argued it was immune from liability under the tort claims act because it was performing a discretionary function when it provided the park. We disagreed. “Once [Gas City] opted to provide a playground and to equip it, a ministerial duty arose to provide reasonably safe premises.” Id. at 626.
We distinguished a municipality’s discretionary and ministerial functions: A duty is discretionary when it involves on the part of the officer to determine whether or not he should perform a certain act, and, if so, in what particular way, and in the absence of corrupt motives in the exercise of such discretion he is not liable. His duties, however, in the performance of the act, after he has once determined that it shall be done, are ministerial, and for negligence in such performance, which results in injury, he may be liable in damages.
Id., quoting Adams v. Schneider, 71 Ind.App. 249, 255, 124 N.E. 718, 720 (1919).
The discretionary/ministerial distinction hinges on the demarcation between the decision to act and the acts or duties flowing from that decision. Id. We determined the decision to establish a park and to equip it was a discretionary function of local government “emanating from which is the ministerial duty to use reasonable care in carrying out that decision.” Id. Once the city opted to provide a playground and equip it, a ministerial duty arose to provide reasonably safe premises. Id. And see Benton v. City of Oakland City, 721 N.E.2d 224, 233 (Ind.1999) (noting the distinction we recognized in Mills).
We presumably determined the Crown Point “comprehensive scheme” to renovate its sidewalks addressed in Rutherford, 640 N.E.2d at 754, was akin to the decision the city made in Mills to establish a park and provide a playground. By contrast, I believe the Terre Haute decision merely to “prioritize” sidewalk repair is more akin to Gas City’s “ministerial” decision in Mills to choose and install playground equipment than its “discretionary” decision to build a park and provide a playground.
I would affirm the denial of the City’s motion for summary judgment.
. It appears from the context of this statement in the affidavit that Decker was referring to the City Council, and not to an attorney representing the City.