dissenting
I respectfully dissent for the majority's determination that the sehool is not entitled to immunity under the Indiana Tort Claims Act ("TTCA"), .C. § 34-18-8-8(8).
Neither party disputes that the school is a governmental entity or that both the parking lot and the sidewalk are public thoroughfares. However, Hertz alleges, and the majority holds, that even though her injuries were caused by the snow and ice accumulated in the parking lot and on the sidewalk, the school is not entitled to immunity because it was aware of the accumulation and had time and opportunity to remove it. The main authority for this position seems to be Van Bree v. Harrison County, 584 N.E.2d 1114 (Ind.Ct.App.1992), trans. denied.
In Van Bree, the plaintiff was injured when her car skidded on a snowy, icy road and collided with a dump truck. Id. at 1116. Van Bree argued that the county was negligent for failing to remove snow and ice that had been on the road for four or five days when the accident occurred. In our analysis of the case, we acknowledged that a governmental entity has a "common law duty to exercise reasonable care and diligence to keep its streets and sidewalks in a reasonably safe condition for travel" and that, in fact, this duty has been codified at Indiana Code section 34-4-16.5-8. Id. at 1117. However, a governmental entity is not generally. liable for injuries caused by the natural accumulation of snow and ice on streets and sidewalks. Id.
Our attention is drawn to language in Van Bree stating that a governmental entity "could be held liable under the common law for failure to remove snow and ice if it could be shown snow and ice were an obstruction to travel and that the [governmental entity] had an opportunity to remove the snow and ice." Id. (citing Ewald v. City of South Bend, 104 Ind.App. 679, 12 N.E.2d 995 (1988)). Approving of the pre-Tort Claims Act reasoning of Ewald, this Court went on to state that the burden was on Van Bree to "present evidence that the road had become defective because of the snow and ice and that the county had time and opportunity to remove it." Id. The plaintiff in Van Bree did not meet her burden because she had not demonstrated that the county had an opportunity to treat the road before the day of her accident. Accordingly, we affirmed the trial court's finding of immunity.
In the case at bar, Hertz alleges that the school had time and opportunity to remove the snow and ice from the parking lot and *490the sidewalk. In support of this contention, she points to evidence that there had been no precipitation for five days prior to her falls, that the person in charge of maintaining the areas where she fell noticed the ice on the morning of Hertz's falls, and that, in fact, someone from the school had spread forty pounds of salt in those areas a little over an hour before she fell. However, Hertz points to no evidence that the parking lot or the sidewalk had "become defective" due to the accumulation of snow and ice. Id. at 1118. She does not allege there were potholes or other irregularities in the surface or structure of the parking lot or sidewalk that were the result of accumulated snow and ice. Rather, she alleges only that the areas were slick.
In addition, Hertz has never alleged that her slip and fall incidents were due to a temporary weather condition that demonstrably and repeatedly created a hazard due to an underlying design defect. She simply slipped and fell on pavement made slick by accumulated ice and snow and the salt which had been recently applied in a reasonable attempt to remedy the situation. Therefore, the majority's reliance on Catt v. Board of Comm'rs of Knox County is misplaced.
As we noted in Van Bree, a governmental entity "is not liable for the consequent thawing and freezing of [snow and ice] and so far as we are advised is under no duty to remove all of the snow and ice." Id., (quoting Ewald, 12 N.E.2d at 996-97). Any time there is a natural accumulation of ice and snow, there are most assuredly going to be slick spots, with or without remediation by salt, other chemicals and/or sand. However, the mere fact that the areas in which Hertz fell were slick does not make them defective. The immunity provisions of ITCA "do not abrogate the common law duty to maintain highways, that duty simply does not apply when a road is temporarily icy because of inclement weather." N.E.2d 733, 735 (Ind.Ct.App.1992). Leinbach v. State, 587 Accordingly, I would hold that the school is entitled to immunity from liability for Hertz's alleged injuries, which were caused by a temporary condition of a public thoroughfare that results from weather.
Because I would hold that the school is entitled to immunity under TTCA, I would not reach the issue of common law sovereign immunity.
For all of these reasons, I would affirm the trial court's grant of summary judgment in favor of the school.