Jalen Lee, A Minor Child, by and through his Next Friend, Crystal Estes and Crystal Estes, Individually v. Bartholomew Consolidated School Corporation, City of Columbus

FILED
Apr 11 2017, 5:54 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEES
David W. Stone IV James S. Stephenson
Anderson, Indiana Ian L. Stewart
Stephenson Morow & Semler
John H. Shean
Indianapolis, Indiana
Brandon E. Hall
Bloomington, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Jalen Lee, A Minor Child, by April 11, 2017
and through his Next Friend, Court of Appeals Case No.
Crystal Estes and Crystal Estes, 03A01-1608-CT-1900
Individually, Appeal from the Bartholomew
Appellants-Plaintiffs, Circuit Court
The Honorable Stephen R.
v. Heimann, Judge
Trial Court Cause No.
Bartholomew Consolidated 03C01-1501-CT-177
School Corporation, City of
Columbus, Columbus City
Planning Commission and
Columbus Police Department,
Appellees-Defendants.

Riley, Judge.

Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 1 of 37
 STATEMENT OF THE CASE
[1] Appellants-Plaintiffs, Jalen Lee (Lee)—by his next friend, Crystal Estes—and

Crystal Estes individually, appeal the trial court’s summary judgment in favor

of Appellee-Defendant, City of Columbus (City). 1

[2] We reverse and remand.

ISSUE
[3] Lee raises four issues on appeal, which we consolidate and restate as the

following single issue: Whether the trial court erred in granting the City’s

motion for summary judgment.

FACTS AND PROCEDURAL HISTORY
[4] On March 11, 2013, thirteen-year-old Lee, an eighth-grade student at Central

Middle School in the Bartholomew Consolidated School Corporation, left his

house at approximately 7:00 a.m. to walk the short distance to Columbus East

High School, where he would get on a school bus to be taken to Central Middle

School. That particular morning, it was raining and still dark outside, but Lee

had walked the same route to the high school every day throughout his seventh

and eighth grade years, regardless of the weather or season. Lee was wearing a

black hooded sweatshirt and blue jeans. As always, Lee was joined on his walk

1
The Columbus City Planning Commission and Columbus Police Department were also originally named
as defendants but, by stipulation of the parties, have been dismissed from the action. In addition,
Bartholomew Consolidated School Corporation is also listed as a defendant; however, it did not join in the
motion for summary judgment and did not file an appellate brief.

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 to school by his friend, Jacob Rhodes (Rhodes), who lived on the same street as

Lee. As Lee and Rhodes neared the high school, Rhodes observed a coin on

the ground and stopped to pick it up. Lee kept walking.

[5] The last leg of Lee’s trip to school required him to cross Marr Road. A mid-

block crosswalk on Marr Road provided a direct path from the school’s athletic

fields on the east side of Marr Road to the high school on the west side of Marr

Road. The crosswalk consisted of high visibility markings on the pavement,

and there were two reflective signs on each side of the crosswalk to alert

approaching drivers to the possibility of pedestrians (i.e., a “Crosswalk Ahead”

sign 209 feet away from the crosswalk, and a “Crosswalk” sign thirteen feet

away from the crosswalk). (Appellants’ App. Vol. III, p. 141). Also, drivers

approaching the crosswalk from either direction observed two speed limit signs.

In the northbound lane, the first sign drivers passed was 1,264 feet from the

crosswalk and indicated a school zone speed limit of twenty miles per hour; the

second sign was 427 feet away from the crosswalk and established a regular

speed limit of thirty miles per hour. In the southbound lane, the school zone

and regular speed limit signs were placed directly next to each other,

approximately one-half mile away from the crosswalk. 2

2
While a placard was added to the school zone speed limit signs on August 29, 2013, to indicate that the
twenty miles per hour speed limit is in effect only during certain school hours, on March 11, 2013, the signs
generically provided for a school zone speed limit of twenty miles per hour.

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[6] Lee used the Marr Road crosswalk to walk to Columbus East High School

every day. He knew to look both ways before crossing, and it was his habit to

wait for a vehicle to come to a full stop before crossing instead of assuming that

a slowing vehicle would fully stop. On this day, when Lee reached the Marr

Road crosswalk, he looked both ways and saw a vehicle approaching in the

northbound lane. That vehicle, a red 2006 Dodge Ram 3500 diesel pickup

truck, was driven by Kyle McLeod (McLeod), who was on his way to work.

McLeod had driven the same route along Marr Road at least 100 times, and he

was familiar with the crosswalk and had previously stopped to allow children to

cross. At the time, McLeod stated that he was traveling between twenty-five

and thirty miles per hour and had his headlights on. McLeod did not see

anyone near the crosswalk as he approached, and although Lee had observed

McLeod’s truck, Lee believed that he had sufficient time to cross Marr Road

without causing the oncoming vehicle to have to adjust its speed or stop.

Accordingly, Lee proceeded to cross, and McLeod never noticed him in the

crosswalk until he heard an impact and saw Lee “flying down the road.”

(Appellants’ App. Vol. II, p. 193). McLeod immediately slammed on his

brakes and exited his vehicle as he called 911; meanwhile, Rhodes ran to check

on Lee, who was lying on the ground approximately seventy-five feet away

from the crosswalk. Lee survived the accident, although he does not have any

memory of what occurred between the time he stepped into the crosswalk and

when he woke up at Riley Hospital for Children in Indianapolis. Lee sustained

a broken femur, multiple fractured ribs, a collapsed lung, a lacerated spleen, and

other abrasions.
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[7] On January 9, 2015, Lee filed a Complaint, alleging that the City was negligent

in the performance of its duties to those students who utilize the school buses

for transport to Central Middle School and that this negligence proximately

caused the accident and resulting injuries to Lee. The Complaint also alleged

that the City “negligently failed to take reasonable measures to warn

pedestrians utilizing the Crosswalk and drivers on Marr Road of the particular

dangers of the Crosswalk so as to reasonably mitigate the known dangers of the

Crosswalk.” (Appellants’ App. Vol. II, p. 26). Per Lee, this failure to warn

proximately caused his injuries. 3

[8] On March 22, 2016, the City filed a motion for summary judgment, claiming

that it was entitled to judgment as a matter of law on several grounds. First, the

City argued that it did not breach its duty of reasonable care because Marr

Road and the crosswalk were reasonably safe and there were adequate warnings

to alert drivers to the crosswalk. Second, the City contended that, as a matter of

law, it did not proximately cause the accident or Lee’s injuries because McLeod

was driving the vehicle and was aware of the crosswalk’s existence. Third, the

City claimed that it was entitled to statutory immunity as a governmental entity

pursuant to the Indiana Tort Claims Act. In particular, the City asserted that it

was not liable for any loss attributable to the roadway’s design because Marr

Road and the crosswalk had not been altered for over twenty years prior to the

3
The Chronological Case Summary indicates that Lee filed an amended complaint on January 26, 2015;
however, only the January 9, 2015 Complaint was included in the appellate record.

Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 5 of 37
 accident per Indiana Code section 34-13-3-3(18); it was not liable per Indiana

Code section 34-13-3-3(7) (discretionary function immunity) because it was in

the planning stages of making improvements to the crosswalk—specifically, the

installation of flashing lights; and it was not liable for failing to impose a lower

speed limit on Marr Road, install a stop sign at the crosswalk, or station

crossing guards at the crosswalk per Indiana Code section 34-13-3-3(8)

(immunity for failure to adopt or enforce laws). Fourth, the City also posited

that it should be afforded common law immunity based on any alleged failure

to take additional police action to enhance safety on Marr Road and at the

crosswalk. Finally, the City argued that Lee’s claim was barred based on his

own contributory negligence and Lee’s violation of Indiana Code section 9-21-

17-5.

[9] On May 3, 2016, Lee designated evidence to support his opposition to the

City’s summary judgment motion. The trial court subsequently conducted a

hearing on the City’s summary judgment motion. On July 15, 2016, the trial

court granted summary judgment to the City. The trial court found that Lee’s

claim was barred because Lee, in light of his “age, his knowledge, his judgment,

and his experience,” was contributorily negligent as a matter of law.

(Appellants’ App. Vol. II, p. 21). On August 3, 2016, the trial court entered

final judgment in favor of the City.

[10] Lee now appeals. Additional facts will be provided as necessary.

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 DISCUSSION AND DECISION
I. Standard of Review

[11] Lee appeals from the trial court’s entry of summary judgment in favor of the

City. We adhere to a well-settled standard of review in summary judgment

cases:

Summary judgment is appropriate only where there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. All facts and reasonable inferences
drawn from those facts are construed in favor of the nonmovant.
Our review of a summary judgment motion is limited to those
materials designated to the trial court. We must carefully review
a decision on summary judgment to ensure that a party was not
improperly denied its day in court. . . .

In reviewing a grant of summary judgment we face the same
issues as the trial court and follow the same process. Under Trial
Rule 56(C), the moving party bears the 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. If it is
successful, the burden shifts to the nonmoving party to designate
evidence establishing the existence of a genuine issue of material
fact.

Wabash Cnty. Young Men’s Christian Ass’n v. Thompson, 975 N.E.2d 362, 364–65

(Ind. Ct. App. 2012) (internal citations omitted), trans. denied. “A genuine issue

of material fact exists where facts concerning an issue which would dispose of

the litigation are in dispute or where the undisputed material facts are capable

of supporting conflicting inferences on such an issue.” Hamilton v. Ashton, 846

N.E.2d 309, 314, clarified on reh’g, 850 N.E.2d 466 (Ind. Ct. App. 2006), trans.

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 denied. The trial court’s grant of summary judgment “is clothed with a

presumption of validity,” and Lee bears the burden of establishing that the trial

court erred. Id. “If the trial court’s ruling can be sustained on any theory or

basis supported by the record, we must affirm.” Id.

[12] For negligence cases, “[s]ummary judgment is rarely appropriate” because these

cases “are particularly fact-sensitive and are governed by a standard of the

objective reasonable person.” Miller v. Rosehill Hotels, LLC, 45 N.E.3d 15, 19

(Ind. Ct. App. 2015). Thus, negligence cases are generally better suited for a

jury determination after hearing all the evidence. Id. Nevertheless, in order for

the City to prevail on its summary judgment motion, it “must show that the

undisputed material facts negate at least one of the elements essential to the

negligence claim, or that the claim is barred by an affirmative defense.”

Coffman v. PSI Energy, Inc., 815 N.E.2d 522, 526 (Ind. Ct. App. 2004), trans.

denied.

II. Contributory Negligence

[13] In this case, the trial court found that the City’s affirmative defense of

contributory negligence was dispositive. When a tort claim is filed against a

governmental entity, such as the City, the Comparative Fault Act—which

provides that “any contributory fault chargeable to the claimant diminishes

proportionately the amount awarded as compensatory damages for an injury

attributable to the claimant’s contributory fault, but does not bar recovery”—

does not apply. Ind. Code §§§ 34-51-2-2; -5; -6; see Hill v. Gephart, 54 N.E.3d

402, 406 (Ind. Ct. App. 2016), clarified on reh’g, trans. denied. Rather, the

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 common-law doctrine of contributory negligence applies. Hill, 54 N.E.3d at

406. Therefore, “if a plaintiff is negligent to even a small degree and that

negligence proximately contributes to his claimed damages, contributory

negligence will operate as a complete bar to his action.” Id. Here, the trial

court found that Lee’s claim against the City was barred based on his own

contributory negligence. Specifically, the trial court found that Lee “knew what

he was supposed to do for his own safety: wait for a vehicle to stop before you

cross a road. Instead of waiting, he chose to cross.” (Appellants’ App. Vol. II,

p. 20).

[14] It is well established that a plaintiff “is contributorily negligent when his

conduct falls below the standard to which he should conform for his own

protection and safety.” Hill, 54 N.E.3d at 406. Because “[n]egligence depends

upon the lack of reasonable care that an ordinary person would exercise in like

or similar circumstances,” “contributory negligence is the failure of a person to

exercise for his own safety that degree of care and caution which an ordinary,

reasonable, and prudent person in a similar situation would exercise.” Id.

Generally, contributory negligence is a question of fact for a jury. Id. However,

it may be a question of law appropriate for summary judgment “if the facts are

undisputed and only a single inference can be drawn therefrom.” Id. at 406-07.

[15] In this case, Lee was thirteen years old at the time of the accident. The

standard of care for a child is well established: “a child between seven and

[fourteen] is required to exercise due care for his or her own safety under the

circumstances and that the care is required to be measured by that ordinarily

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 exercised under similar circumstances by children of the same age, knowledge,

judgment, and experience.” Clay City Consol. Sch. Corp. v. Timberman, 918

N.E.2d 292, 295 (Ind. 2009). That said, in Indiana, there is also a

“presumption that children between the ages of seven and [fourteen] are

incapable of contributory negligence.” Id. at 297. However, this presumption is

rebuttable, and a child may be found contributorily negligent if the defendant

presents evidence that the child is “accountable for his actions” based on his

age, mental capacity, intelligence, and experience. Id. at 298.

[16] Lee contends that the trial court erred in granting summary judgment because

the facts of the case are subject to more than one inference, thereby precluding a

determination that he was contributorily negligent as a matter of law. Lee relies

on Maldonado by Maldonado v. Gill, 502 N.E.2d 1371, 1371-72 (Ind. Ct. App.

1987), trans. denied, in which an eight-year-old plaintiff looked both ways,

stepped out into the street from in-between two parked cars, and was struck by

a vehicle. There was evidence that the driver of the vehicle had failed to stop at

a stop sign and was speeding at the time of the impact. Id. at 1373. Our court

found that the trial court erred in determining that the plaintiff was

contributorily negligent as a matter of law because “the uncontroverted

evidence that [the plaintiff] stopped and looked before attempting to cross the

street [was] sufficient to create an inference that he acted reasonably”; thus,

whether the child’s “behavior constituted contributory negligence [was] a

question of fact.” Id.

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[17] In turn, the City argues that summary judgment was proper. The City cites

Smith v. Diamond, 421 N.E.2d 1172, 1179 (Ind. Ct. App. 1981), where our court

found that the trial court was justified in concluding, as a matter of law, that a

twelve-year-old boy was contributorily negligent when he sustained injuries

after crossing into the street, admittedly without checking to see whether traffic

was approaching in the northbound lane. The City points out that Lee was a

year older than the plaintiff in Smith and, as in Smith, had been instructed on

proper traffic safety. The City emphasizes that Lee had crossed the Marr Road

crosswalk twice a day throughout his seventh and eighth grade years without

incident and knew that he should never cross the street until a slowing vehicle

fully stopped. Yet, “despite seeing the approaching truck and the headlights of

the truck that would eventually strike him, Lee chose to enter the road” and is

therefore, according to the City, contributorily negligent. (Appellee’s Br. p. 16).

[18] We find that the record contains genuine issues of material fact to preclude

summary judgment on the basis of contributory negligence. Unlike in Smith,

where the plaintiff failed to check whether any traffic was coming from the

northbound lane, Lee did check in both directions for traffic and observed

McLeod’s vehicle. However, he believed that the vehicle “was [at] a distance to

where I thought I could cross without him having to slow down or stop or

anything like that.” (Appellants’ App. Vol. II, p. 42). Similarly, in his

deposition, Lee’s friend, Rhodes, claimed that he also saw McCleod’s truck as

they approached the crosswalk and, like Lee, believed that there was sufficient

time to traverse the crosswalk. According to Rhodes, McLeod’s “truck was just

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 so far down the street. It wasn’t even in our minds that it would even be going

that fast to even hit us.” (Appellants’ App. Vol. III, p. 115). In fact, Rhodes

stated that, had he not stopped to pick up the coin, he would have felt safe in

entering the crosswalk at the same time as Lee. Furthermore, although

McLeod averred that he was travelling between twenty-five and thirty miles per

hour at the time of the accident, Rhodes estimated that McLeod’s speed must

have been closer to thirty-five or forty miles per hour. As in Maldonado, we find

that these facts give rise to an inference that Lee may have acted reasonably in

entering the crosswalk after looking both ways and assessing that he had

sufficient time to cross.

[19] Nonetheless, the City also maintains that Lee was contributorily

negligent/negligent per se because he violated Indiana Code section 9-21-17-5,

which provides that “[a] pedestrian may not suddenly leave a curb or other

place of safety and walk or run into the path of a vehicle that is so close as to

constitute an immediate hazard.” Our court has noted that “the violation of a

statute by a child must not be considered in the light of any presumption of

negligence.” Maldonado, 502 N.E.2d at 1373. Rather, the “violation of a

statute of this nature by a child is in itself only some evidence of negligence, at

least where the child’s activity is one which does not require adult

qualifications.” Smith, 421 N.E.2d at 1180 n.7. For the same reasons already

discussed, we cannot say that Lee’s conduct constitutes a violation of the statute

rendering him contributorily negligent as a matter of law. There is a genuine

evidentiary dispute as to whether Lee “suddenly [left]” the curb in the face of

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 “an immediate hazard” given his genuine belief that McLeod’s vehicle was

sufficiently far away that he could safely cross. I.C. § 9-21-17-5. Because the

evidence leads to multiple inferences as to whether a thirteen-year-old boy acted

reasonably in crossing the street despite the presence of an oncoming vehicle,

we find that the issue of contributory negligence was not a proper basis for

summary judgment and should have been reserved for determination by a jury.

III. Statutory Immunity

[20] Despite our finding that the trial court erred in granting summary judgment on

the basis that Lee was contributorily negligent, we may nevertheless affirm the

trial court’s summary judgment if it can be sustained on any other basis

supported by the record. Hamilton, 846 N.E.2d at 314. In its motion for

summary judgment, the City claimed that it was entitled to judgment as a

matter of law based on certain statutory immunities. The Indiana Tort Claims

Act (ITCA) provides that governmental entities may be liable for torts

committed by their agencies or employees. See I.C. Ch. 34-13-3. However,

under certain circumstances, the governmental entity is entitled to immunity for

those acts. Joseph v. LaPorte Cnty., 651 N.E.2d 1180, 1183 (Ind. Ct. App. 1995),

trans. denied. Whether the ITCA imparts immunity to a governmental entity is

a question of law for the court to decide. Savieo v. City of New Haven, 824

N.E.2d 1272, 1275 (Ind. Ct. App. 2005) (quoting Mangold ex rel. Mangold v. Dep’t

of Nat. Res., 756 N.E.2d 970, 975 (Ind. 2001)), trans. denied. “Because the ITCA

is in derogation of the common law, we construe it narrowly against the grant

of immunity.” Id. (quoting Mangold, 756 N.E.2d at 975). The party seeking

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 immunity bears the burden of proving that its conduct falls within the

provisions of the ITCA. Id. (quoting Mangold, 756 N.E.2d at 975).

[21] In his Complaint, Lee generically alleged that the City was negligent based on

its failure to adequately warn drivers and pedestrians about the dangers of the

Marr Road crosswalk. In response, the City argued that it cannot be held liable

under its discretionary function immunity because it was in the process of

planning improvements (i.e., flashing lights) to the crosswalk at the time of the

accident; it cannot be held liable for failing to implement a lower speed limit or

to assign crossing guards at the Marr Road crosswalk under its

adoption/enforcement immunity; and it is immune from any liability resulting

from the design of Marr Road and the crosswalk based on the fact that there

had been no substantial changes in the twenty years preceding the accident.

We will address each claim of immunity in turn.

A. Indiana Code Section 34-13-3-3(7): Discretionary Function Immunity

[22] First, we consider whether the City is entitled to discretionary function

immunity. “A governmental entity or an employee acting within the scope of

the employee’s employment is not liable if a loss results from . . . [t]he

performance of a discretionary function.” I.C. § 34-13-3-3(7). This type of

immunity shields certain policy decisions “which cannot be assessed by tort

standards.” Joseph, 651 N.E.2d at 1183. In determining whether discretionary

function immunity is applicable, “we apply the planning/operational test.” Id.

We have held that planning functions are discretionary and thus shielded by

immunity, whereas operational functions are not. Id. “Planning functions

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 involve the formulation of basic policy characterized by official judgment,

discretion, weighing of alternatives, and public policy choices.” Id. (internal

quotation marks omitted). On the other hand, operational functions “involve

the execution or implementation of already formulated policy.” Id. (internal

quotation marks omitted).

[23] Whether an act is discretionary is a question of law. City of Beech Grove v. Beloat,

50 N.E.3d 135, 138 (Ind. 2016) (quoting Peavler v. Board of Comm’rs of Monroe

Cnty., 528 N.E.2d 40, 46 (Ind. 1988)). Essentially, we must consider “whether

the legislature intended acts such as those challenged to enjoy immunity.”

Joseph, 651 N.E.2d at 1183. In doing so, we “should look to the purposes of

immunity to determine whether those purposes would be furthered by

extending immunity to the act in question.” Beloat, 50 N.E.3d at 138. The City

must demonstrate that “the challenged act or omission was a policy decision

made by consciously balancing risks and benefits.” Id. (quoting Peavler, 528

N.E.2d at 46).

[24] According to the City, Lee cannot establish a viable negligence claim based on

a lack of adequate warnings in light of the fact that “there were already two

crosswalk warning signs in place in addition to the crosswalk markings itself at

the Marr Road Crosswalk, and the driver of the truck was already fully aware

of the presence of the crosswalk and saw the crosswalk and its warning signs on

the day of the incident.” (Appellee’s Br. pp. 29-30). Nevertheless, assuming

that Lee has a viable negligence claim, the City maintains that “[t]o the extent

that [Lee] argue[s] that there should have been a different type of warning sign

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 at the Marr Road crosswalk, such a claim is barred by discretionary function

immunity” because the City “was in the process of planning improvements to

the Marr Road crosswalk.” (Appellee’s Br. pp. 29-30). See City of Terre Haute v.

Pairsh, 883 N.E.2d 1203, 1208 (Ind. Ct. App. 2008) (“Immunity assumes

negligence but denies liability.”), trans. denied. In turn, Lee simply argues that

the City is not entitled to summary judgment based on discretionary function

immunity because “[d]ifficult policy decisions were not being resolved by the

City with respect to crosswalks and signage. There appears to be nothing more

than ad hoc decisions being made.” (Appellants’ Br. p. 23).

[25] The designated evidence establishes that in 2009, the City “identified the need

for an engineering solution for pedestrian crossings that fell between a

signalized intersection and a standard marked crosswalk” at multiple

crosswalks around Columbus. (Appellants’ App. Vol. II, p. 72). By May of

2011, the Indiana Manual on Uniform Traffic Control Devices had approved

the use of rectangular rapid flashing beacons (RRFBs) at pedestrian crossings. 4

Thus, to test the efficacy of RRFBs, the City installed one at an “important

school crossing that had been having major compliance issues with regards to

motorists yielding to pedestrians in the crosswalk.” (Appellants’ App. Vol. II,

p. 72). Thereafter, the City recorded a 95% compliance rate at the crosswalk

with the RRFB. In addition, the City found the “solution to be particularly

4
“Each traffic control signal on a street or highway within Indiana must conform with the standards,
specifications, and warrants set forth in the Indiana Manual on Uniform Traffic Control Devices for Streets
and Highways.” I.C. § 9-21-3-1.

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 effective because the [RRFB] must be actively activated by a pedestrian, thus

when it is not in use it does not degrade road capacity.” (Appellants’ App. Vol.

II, p. 72). Accordingly, in May of 2011—almost two years prior to the accident

that led to this appeal, the City applied for federal Highway Safety

Improvement Program (HSIP) funding to install RRFBs at six other pedestrian

crossings in Columbus, including the Marr Road crosswalk.

[26] The cost of installing an RRFB at the Marr Road crosswalk was estimated at

$75,000 (with the total cost for all six crosswalks estimated at $487,500). A

project that is eligible for HSIP funding receives 90% of the project costs from

the federal grant, and the City is responsible for paying the remaining 10%. In

addition, transportation projects that involve federal funding must be first

approved by the Indiana Department of Transportation (INDOT), and upon

the federal agency’s approval of an HSIP project, the money flows through

INDOT. On October 30, 2012, the Columbus Board of Works and Safety

discussed the project, noting that the City’s share of the costs would be paid for

through the City’s Thoroughfare Fund. During that meeting, the Board voted

to approve a contract for INDOT to serve as the project coordinator for the

improvement of the six pedestrian crosswalks. Then, on December 4, 2012, the

Board of Public Works and Safety approved a contract between the City and a

consulting firm, under which the consulting firm would develop the

construction documents necessary for the project. On January 5, 2013, a

contract between the City and INDOT was fully executed for the completion of

the RRFB project with HSIP funds. Pursuant to the contract, INDOT was

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 responsible for letting the project and reviewing bids. Thereafter, INDOT

would contract with an appropriate contractor for the construction of the

project and would establish the work schedule. Once INDOT received the

City’s payment for 10% of the project costs, the contractor would be permitted

to proceed with construction. The City was responsible for “manag[ing] the

project and keep[ing] it moving.” (Appellants’ App. Vol. II, p. 67). Upon

completion of the project, INDOT would “hand it back to the City and say it’s

yours to maintain.” (Appellants’ App. Vol. II, p. 65).

[27] On March 11, 2013—the date of Lee’s accident, the Columbus Area

Metropolitan Planning Organization met and inquired about accelerating the

RRFB installation process in light of the fact that a student had been struck by a

vehicle. The City’s engineer explained that a field check was scheduled for that

week, but the delays were the result of having to go through the federal and

state aid processes to fund the project. On August 20, 2013, the Board of Public

Works approved a request to amend the contract with the consulting firm.

Under the amended terms, the consulting firm would also complete necessary

studies for environmental documentation and design the curb bump outs as part

of the RRFB installation. Finally, at some point in 2015, INDOT opened the

project for bidding. Initially, the bids were too high, so INDOT tabled the

project for a few months before re-letting it. The second time, INDOT accepted

a bid and awarded the contract. However, as of December of 2015,

construction had not yet begun.

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[28] The City directs our attention to Lee v. State, 682 N.E.2d 576, 577 (Ind. Ct. App.

1997), trans. denied, in which a mother sued INDOT for negligence after her

seventeen-year-old daughter died in a car accident due to the driver’s failure “to

successfully negotiate a series of curves.” The plaintiff contended that INDOT

had improperly designed, constructed, and maintained the road and had failed

to warn motorists of the unreasonably dangerous nature of the s-shaped curves

or eliminate said dangerousness. Id. We held that INDOT was entitled to

discretionary function immunity because it was in the planning stages of

making improvements to the road curves at the time of the accident. Id. at 579.

The plaintiff attempted to argue that INDOT was not entitled to discretionary

function immunity because it had moved beyond the planning phase and into

the operational phase as the design and engineering aspects of the project were

completed at the time of her daughter’s accident. Id. We disagreed, noting that

“INDOT was required to purchase several parcels of land adjacent to [the road]

in order to straighten the road thereby eliminating the [curves].” Id. Thus,

“[t]he operational phase of the project did not begin until after the contract was

let for bidding on October 16, 1992. Decedent’s accident occurred in July of

1992, and hence the project was still in the planning phase.” Id. We found that

INDOT’s decision to correct the dangerous curves “was the type of

discretionary decision intended to be shielded from liability.” Id.

[29] Lee, however, argues that there is nothing in the designated evidence “which

show[s] consideration or weighing of policy issues” as required for discretionary

function immunity to apply. (Appellants’ Reply Br. p. 17). In support of this,

Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 19 of 37
Lee cites Beloat, 50 N.E.3d at 137, where the plaintiff sued the City of Beech

Grove after she stepped into a hole on a city street and broke her leg. Beech

Grove claimed that it was immune from liability pursuant to the ITCA’s

discretionary function immunity because it was in the planning stages of

performing a complete reconstruction of the entire street, as opposed to

piecemeal repairs. Id. at 140. As evidence, Beech Grove designated an affidavit

from its mayor, along with minutes from City Council and Board of Works and

Safety meetings. Id. Our supreme court determined that the mayor’s affidavit

was insufficient to demonstrate that an official policy decision had been made

as to why certain repairs should be made over others because the mayor’s

“comments and actions alone are not actions of the [governing] board itself”

and there is no indication that the mayor had been delegated individual

authority to make an independent policy decision about road repairs. Id. at

140-41. Furthermore, the supreme court noted that the meeting minutes of the

governing boards only discussed the financial aspects of the reconstruction

project. Id.at 141. “The minutes presented within the record [did] not reflect

any discussion about how the area encompassed within the [p]roject was

decided upon, why specific repairs were selected over others, what would be

done about road damage in the meantime, why total reconstruction was

necessary, or the costs of total reconstruction compared to conducting other

individual repairs.” Id. at 142. Rather, the minutes designated as evidence

“reflect[ed] the steps taken to fund a project that had already been discussed,

planned, and approved.” Id. Thus, Beech Grove was not entitled to summary

judgment based on discretionary function immunity. Id. at 143. Ultimately,
Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 20 of 37
 our supreme court determined that “a governmental entity must demonstrate

that ‘conscious balancing’ took place which can be shown by evidence that ‘the

governmental entity considered improvements of the general type alleged in

[the plaintiff’s] complaint.’” Id. (alteration in original). In addition, Lee relies

on Birge v. Town of Linden, 57 N.E.3d 839, 845 (Ind. Ct. App. 2016), which

emphasized that an application for funding of a project, by itself, does not

“demonstrate a conscious weighing of options” to grant discretionary function

immunity as a matter of law.

[30] We find that the present case is more akin to Lee than Beloat because the

designated evidence demonstrates the City’s involvement in various phases of

analysis, planning, approval, and contracting in order to complete the

installation of RRFBs at the Marr Road crosswalk. See Beloat, 50 N.E.3d at 139

(distinguishing Lee v. State on the basis that “[t]he evidence designated by

INDOT clearly demonstrated the multiple phases of investigation, planning,

modification, and approval necessary to complete the reconstruction of [the

road]”). Unlike in Beloat, here, the record is replete with details regarding the

policy considerations undertaken by the City in planning for the crosswalk

improvements. Specifically, in its application for HSIP funding, the City

explained that, after testing the efficacy of the RRFBs at a sample crosswalk

and noting a 95% compliance rate, it selected the Marr Road crosswalk as one

of six other pedestrian crossings throughout Columbus that would benefit from

the use of RRFBs. The City noted that it had received “very positive” feedback

“from parents, non-school related pedestrians, school crossing guards, and

Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 21 of 37
 motorists” with respect to the use of RRFBs. (Appellants’ App. Vol. III, p. 46).

The City also considered that the installation of RRFBs would be beneficial to

pedestrians without unnecessarily hindering traffic because the RRFBs “must

be actively activated by a pedestrian” and do not flash unless in use.

(Appellants’ App. Vol. III, p. 46). The Marr Road crosswalk was chosen for

improvement because

Marr Road is a minor arterial that runs adjacent to East High
School. Traffic volumes are 7,281 [average annual daily traffic].
Each school day, students from [Columbus] East High School
must cross Marr Road in order to reach the sports facilities
located on the other side of the road. The need for improved
pedestrian crossing at this location was identified during the High
School campus master planning process which was conducted
cooperatively between the School Corporation, the City and
other stakeholders as well as during the Bicycle and Pedestrian
Planning process.

(Appellants’ App. Vol. III, p. 47). In addition to studying the traffic patterns at

the crosswalk, the City calculated that 1,286 pedestrians utilize the Marr Road

crosswalk each day, not including additional evening pedestrian traffic for

sports and auditorium events. The City also considered that, despite the posted

speed limit of thirty miles per hour (with a school zone speed limit of twenty

miles per hour), the average observed speed in the northbound lane of Marr

Road was forty-two miles per hour and was thirty-eight miles per hour in the

southbound lane.

[31] The record also establishes that, in early 2011, the City sought approval for the

project from INDOT and applied for HSIP funding. Then, in December of
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 2012, the City entered into a contract with a consulting firm to handle the

development of necessary documents for the project, and this contract was

subsequently modified in August of 2013 to include additional work for

environmental studies and curb bump outs. In January of 2013, the City

contracted with INDOT to manage the project. As a result, the bidding

process, selection of a contractor, and schedule of work were all under

INDOT’s control. At the time of Lee’s accident in March of 2013, the City was

preparing for a field check, and INDOT had not let out the project for bidding

yet. Thus, despite the prolonged process, we find that the City was still in the

planning stages at the time of the accident. See Lee, 682 N.E.2d at 579.

[32] Furthermore, the evidence reveals that Lee was the second student within a

two-year period to be struck by a vehicle at the Marr Road crosswalk. Thus, it

is clear that the City recognized that, despite being in compliance with the

Indiana Manual on Uniform Traffic Control Devices with respect to the

warning signs and high visibility markings already in place, it could do more to

improve the safety of pedestrians in that area. The fact that it was a slow

process was not the fault of the City, but rather was due to the nature of

coordinating a federally-funded project with a state agency. We find that the

City’s effort to remedy the dangers associated with the Marr Road crosswalk

falls within the realm of activity that the legislature intended to protect with

discretionary function immunity. See id. Thus, to the extent that Lee maintains

that the City was negligent in failing to include additional warnings at the Marr

Road crosswalk, we find that the City has discretionary function immunity.

Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 23 of 37
 B. Indiana Code Section 34-13-3-3(8): Immunity for Failure to Adopt or Enforce Laws

[33] Next, we consider whether the City is entitled to immunity based on a failure to

adopt or enforce a law, rule, or regulation. “A governmental entity or an

employee acting within the scope of the employee’s employment is not liable if

a loss results from “[t]he adoption and enforcement of or failure to adopt or

enforce . . . a law (including rules and regulations).” I.C. § 34-13-3-3(8). It is

well established that “the legislature intended that a government entity be

immune only for failing to adopt or enforce a law that falls within the scope of

its purpose or operational power.” Gary Cmty. Sch. Corp. v. Boyd, 890 N.E.2d

794, 800 (Ind. Ct. App. 2008) (quoting King v. Ne. Security, Inc., 790 N.E.2d 474,

483 (Ind. 2003)), trans. denied. In seeking summary judgment, the City claimed

that it is immune from liability to the extent that Lee contends that the City

should have enacted a lower speed limit at the crosswalk, that the City should

have installed a stop sign at the crosswalk, or that the City should have utilized

crossing guards at the crosswalk.

[34] As a “local authorit[y]” under Indiana Code section 9-13-2-94(b), the City

“may adopt by ordinance additional traffic regulations with respect to highways

under the authority’s jurisdiction” so long as it does not “conflict with or

duplicate a statute.” I.C. § 9-21-1-2. In part, “with respect to private roads and

highways under the authority’s jurisdiction,” the City may “[r]egulate traffic by

means of police officers or traffic control signals”; “[d]esignate an intersection

as a stop intersection and require all vehicles to stop at one (1) or more

Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 24 of 37
 entrances to the intersection”; or “[a]lter the prima facie speed limits authorized

under [Indiana Code chapter] 9-21-5.” I.C. § 9-21-1-3(a)(2),(7),(11).

[35] Specifically with respect to altering prima facie speed limits, we note that Indiana

Code section 9-21-5-2(a)(1) establishes a “maximum lawful speed” limit of

“[t]hirty (30) miles per hour in an urban district.” However,

[a] city, town, or county may establish speed limits on a street or
highway upon which a school is located if the street or highway
is under the jurisdiction of the city, town, or county, respectively.
However, a speed limit established under this subsection is valid
only if the following conditions exist:

(1) The limit is not less than twenty (20) miles per hour.

(2) The limit is imposed only in the immediate vicinity of the
school.

(3) Children are present.

(4) The speed zone is properly signed. There must be:

(A) a sign located where the reduced speed zone begins or as
near as practical to the point where the reduced speed
zone begins indicating the reduced speed limit and a sign
located at the end of the reduced speed zone indicating
the end of the reduced speed zone; and

(B) if the school operates on a twelve (12) month schedule, a
sign indicating that the school is an all year school.

I.C. § 9-21-5-6(f).

Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 25 of 37
[36] The City thus had authority to adopt and enforce regulations regarding the use

of traffic control signals and police officers to regulate traffic. The City also had

power to designate intersections as stop intersections. Finally, the City could

alter the prima facie speed limit of thirty miles per hour for an urban area by

decreasing it to twenty miles per hour in the vicinity of a school. The wording

of Indiana Code section 34-13-3-3(8) makes it clear that the City is immune for

any failure to adopt or enforce a law, rule or regulation; as such, the City

cannot be liable because it did not erect a stop sign at the Marr Road crosswalk

or enact a lower speed limit. See Carter v. Indianapolis Power & Light Co., 837

N.E.2d 509, 522 n.20 (Ind. Ct. App. 2005) (finding immunity based on a

county’s failure to pass an ordinance for a reduced speed limit), trans. denied; Bd.

of Comm’rs of Cnty. of Harrison v. Lowe, 753 N.E.2d 708, 714 (Ind. Ct. App. 2001)

(noting that failing to erect a traffic control device is, in part, “a legislative act”

that is entitled to immunity under (what is now) Indiana Code section 34-13-3-

3(8)), trans. denied.

[37] Concerning whether the City should have utilized crossing guards at the Marr

Road crosswalk, the City insists that it is “immune under the ‘enforcement’

provision” of Indiana Code section 34-13-3-3(8). (Appellee’s Br. p. 27). The

City argues that this case is similar to State v. Flanigan, 489 N.E.2d 1216 (Ind.

Ct. App. 1986), trans. denied, and we agree. In Flanigan, the plaintiffs parked

their car at the side of a highway and then proceeded to walk along the highway

in order to attend a flea market where there had been inadequate parking. Id. at

1217. While walking, the plaintiffs were struck by a vehicle, and they sued the

Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 26 of 37
 State of Indiana for negligence, asserting that the Indiana State Police “failed to

provide any traffic control to assure that pedestrians could travel on the

highways safely.” Id. Our court held that “[a]ny decision by the [S]tate

[P]olice whether or not to patrol the area of [the] flea market or to provide

traffic control would be a decision on whether or not to enforce the law. Such

an act clearly is within and protected by the immunity granted by the [ITCA].”

Id. at 1220.

[38] Lee contends that the crossing guards cannot enforce laws because, as civilian

employees, they do not possess any police powers. Nevertheless, the

designated evidence establishes that “the crossing guards are part of the police

function, and the police decide where those will go.” (Appellants’ App. Vol. II,

p. 66). The Columbus Police Department (which is a department of—rather

than a separate entity from—the City) employs twenty-one crossing guards on a

seasonal, part-time basis. The crossing guards are paid from the police

department’s budget. Crossing guards who notice a compliance problem (i.e.,

an excessive number of speeding drivers) at their intersection/crosswalk are

instructed to notify the Columbus Police Department’s administrative special

secretary, who then raises the issue(s) with the appropriate officers for

enforcement. In determining where to place crossing guards, the police

department communicates with the school system; however, as a matter of

policy, the police department only assigns crossing guards to crosswalks and

intersections where elementary school students (i.e., up to sixth grade) would be

expected to cross. Thus, while the crossing guards themselves do not have any

Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 27 of 37
 enforcement authority, they are directly controlled by the Columbus Police

Department and serve as a mechanism of traffic control for safe pedestrian

crossing. Accordingly, we conclude that the decision not to place a crossing

guard at the Marr Road crosswalk is subject to immunity under Indiana Code

section 34-13-3-3(8). 5

IV. Negligence

[39] Because a finding of immunity precludes liability, we generally do not reach the

elements of negligence. See Pairsh, 883 N.E.2d at 1208. Here, although we

have concluded that summary judgment was not appropriate on the basis of

Lee’s contributory negligence, we have determined that the City is entitled to

immunity based on any perceived failure to include additional warnings, such

as RRFBs, at the Marr Road crosswalk or based on its failure to erect a stop

sign at the crosswalk, enact a reduced speed limit along Marr Road, or station

crossing guards at the crosswalk. Although there is immunity for a City’s

decision to enact an ordinance regarding the speed limit in a certain area, we

must nevertheless address the fact that there were multiple speed limit signs

5
The City also claimed that it was immune under Indiana Code section 34-13-3-3(18), which provides that
“[a] governmental entity or an employee acting within the scope of the employee’s employment is not liable
if a loss results from . . . [the] [d]esign of a highway . . . , toll road project . . . , tollway . . . , or project . . . if
the claimed loss occurs at least twenty (20) years after the public highway, toll road project, tollway, or
project was designed or substantially redesigned.” There is no dispute that the design of Marr Road and the
crosswalk had not been altered in the twenty years preceding the accident. Although Lee did not challenge
that the design of the road or crosswalk resulted in the accident, he nevertheless argued that the City could
not claim immunity under this provision because the placement of the speed limit signs, which were changed
in 2011, proximately caused the accident. Because we address the matter of the speed limit signs elsewhere
in this opinion, we need not address the City’s claim of immunity under Indiana Code section 34-13-3-3(18).
Likewise, we need not address the parties’ arguments as to whether the City was entitled to common law
immunity regarding the placement of crossing guards at the Marr Road crosswalk.

Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 28 of 37
 posted, creating a discrepancy as to whether, at the time of the accident, the

enacted speed limit was twenty miles per hour or thirty miles per hour

approaching the Marr Road crosswalk. The City offers no basis under the

ITCA that would grant it immunity if it posted an incorrect speed limit sign.

See, e.g., Joseph, 651 N.E.2d at 1185 (noting that posting an incorrect speed limit

sign “cannot be discretionary” and is, therefore, not shielded from liability

under Indiana Code section 34-13-3-3(7) because “[p]osting speed limits

involves nothing more than implementing established policy”).

[40] Lee maintains that the City is negligent because an improper speed limit sign

was the cause of the accident. In order to sustain an action for negligence, Lee

must establish: “(1) a duty owed by [the City] to conform its conduct to a

standard of care arising from its relationship with [Lee]; (2) a breach of that

duty; and (3) an injury proximately caused by the breach of that duty.” St. John

Town Bd. v. Lambert, 725 N.E.2d 507, 514 (Ind. Ct. App. 2000). Whether the

City has a duty is a question of law subject to the court’s determination, and our

courts have “long recognized a general duty on the part of the state, counties,

and municipalities to exercise reasonable care in the design, construction,

maintenance, and repair of the road and highways within their control.” Id. at

514-15. Moreover, we have previously identified a duty for such entities to

“regulate the use of the public ways,” such as by posting street signs, erecting

lights, or installing warning devices for the safety of the general public. Id. at

516. If a duty is breached, we must determine whether the breach is the

proximate cause of another’s injury by considering “whether the injury was a

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 natural and probable consequence of the negligent act which, in the light of the

attending circumstances, could have been reasonably foreseen or anticipated.”

Id. at 520. In other words, for a breach to proximately cause an injury, it “must

have set in motion a chain of circumstances which, in natural and continuous

sequence, le[d] to the resulting injury.” Id.

[41] Drivers approaching the Marr Road crosswalk in the northbound lane observed

two speed limit signs. The first sign drivers passed was 1,264 feet from the

crosswalk and indicated a school zone speed limit of twenty miles per hour.

This sign did not indicate that the school zone speed limit was only to be in

effect at specific times. Thereafter, 427 feet away from the crosswalk, a second

sign indicated that the speed limit was thirty miles per hour. Conversely, for

drivers approaching the crosswalk from the southbound lane, the school zone

speed limit sign of twenty miles per hour and the regular speed limit sign of

thirty miles per hour were placed directly next to each other, approximately

one-half mile away from the crosswalk.

[42] The City contends that it did not breach its duty because Marr Road was in a

reasonably safe condition at the time of the accident. The City designated the

affidavit of William Taylor (Taylor), a professor emeritus in the department of

civil engineering at Michigan State University, with a Ph.D in engineering.

Taylor concluded that the installation of the speed limit signs and crosswalk

warning signs “was in accordance with the [Indiana Manual on Uniform

Traffic Control Devices] and provided adequate and sufficient warning of the

approach of the crosswalk, of the potential presence of students crossing Marr

Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 30 of 37
 Road, and of the necessity to drive at modest speed and to be attentive on

school days.” (Appellants’ App. Vol. II, p. 103). Thus, notwithstanding any

confusion with respect to the placement of the speed limit signs, the City argues

that, even assuming the higher thirty-miles-per-hour speed limit was in effect for

the school zone, there is no evidence that the road was rendered unsafe.

[43] In response, Lee designated the affidavit of a civil engineer, Richard Hicks

(Hicks). Hicks noted that the Indiana Manual on Uniform Traffic Control

Devices “requires that [s]peed [l]imit signs shall be located at the points of

change from one speed limit to another, and that at the downstream end of the

section to which a speed limit applies, a [s]peed [l]imit sign showing the next

speed limit shall be installed.” (Appellants’ App. Vol. III, p. 142). See also I.C.

§ 9-21-5-6(f)(4)(A) (requiring a school zone reduced speed limit sign to be

“located where the reduced speed zone begins or as near as practical to the

point where the reduced speed zone begins indicating the reduced speed limit

and a sign located at the end of the reduced speed zone indicating the end of the

reduced speed zone”). Thus, Hicks concluded that

[t]he 20 miles per hour School Speed Limit zone for northbound
traffic on Marr Road was not properly signed on the day of . . .
Lee’s accident. The Speed Limit 30 sign, located 837 feet north of
the School Speed Limit 20 sign and 427 feet south of the
crosswalk, signaled that the speed limit of 20 was no longer in
effect and that the legal speed limit from that point forward was
30 miles per hour. The Speed Limit 30 sign told northbound
drivers like Mr. McLeod that it was acceptable to drive at speeds
more than 20 miles per hour and up to 30 miles per hour from
that point forward. The Speed Limit 30 sign should not have

Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 31 of 37
 been there. It should have been removed when the School Speed
Limit Assembly was installed.

(Appellants’ App. Vol. III, p. 143).

[44] The evidence establishes that McLeod did not see Lee until after the impact;

thus, this is not a situation where the speed limit affected McLeod’s ability to

apply his brakes fast enough. However, the speed limit may present a timing

issue. McLeod believed that the set speed limit was thirty miles per hour, and

he claimed to be travelling between twenty-five and thirty miles per hour at the

time of the accident. Additionally, there is evidence indicating that the speed

limit was twenty miles per hour through the school zone. In his deposition,

McLeod conceded that “had I been traveling [twenty] miles an hour instead of

[thirty], if that is, in fact, the case, I may not have been to the crosswalk at the

time that [Lee] was crossing.” (Appellants’ App. Vol. III, p. 135). Similarly,

Hicks determined that “[a] time and distance analysis shows that if . . . McLeod

had been driving [twenty] miles per hour instead of ‘someplace between

[twenty-five] and [thirty]’ miles per hour from the location of the Speed Limit

30 sign 427 feet south of the crosswalk, . . . Lee walking at a normal rate would

have been beyond . . . McLeod’s path of travel by the time . . . McLeod reached

the crosswalk.” (Appellants’ App. Vol. III, p. 144).

[45] We find that whether the City’s dual placement of speed limit signs

approaching the Marr Road crosswalk constituted a breach of its duty to

exercise reasonable care in the maintenance and regulation of public roadways

is a question of fact that should be determined by a jury. See Mangold, 756
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 N.E.2d at 975 (noting that, unless “the facts are undisputed and lead to but a

single inference or conclusion,” “a breach of duty, which requires a reasonable

relationship between the duty imposed and the act alleged to have constituted

the breach, is usually a matter left to the trier of fact”). Furthermore, if it is

determined that such conduct constitutes a breach, we find that a question of

fact exists as to whether the City’s placement of varying speed limit signs

proximately caused the accident resulting in Lee’s injuries. See Correll v. Ind.

Dep’t of Transp., 783 N.E.2d 706, 707 (Ind. Ct. App. 2002) (“The injurious act

must be both the proximate cause and the cause in fact of an injury. Generally,

causation, and proximate cause in particular, is a question of fact for the jury’s

determination.”) (internal quotation marks and citation omitted), trans. denied.

Accordingly, we reverse the trial court’s entry of summary judgment and

remand for further proceedings.

CONCLUSION
[46] Based on the foregoing, we conclude that the trial court erred in granting

summary judgment on the basis of contributory negligence. We further

conclude that the City is entitled to statutory immunity with respect to its plans

for improvements to the crosswalk and its decision to enact a certain speed limit

and to not erect a stop sign or station crossing guards at the crosswalk.

Nevertheless, we conclude that summary judgment is improper because there

are genuine issues of material fact as to whether the City breached its duty of

reasonable care by installing conflicting speed limit signs and whether such a

Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 33 of 37
 breach, if any, proximately caused the accident. Therefore, we remand this

case for further proceedings.

[47] Reversed and remanded.

[48] Altice, J. concurs

[49] Crone, J. dissents with separate opinion

Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 34 of 37
 IN THE
COURT OF APPEALS OF INDIANA

Jalen Lee, A Minor Child, by Court of Appeals Case No.
and through his Next Friend, 03A01-1608-CT-1900
Crystal Estes, and Crystal Estes,
Individually,
Appellants-Plaintiffs,

v.

Bartholomew Consolidated
School Corporation, City of
Columbus, Columbus City
Planning Commission, and
Columbus Police Department,
Appellees-Defendants

Crone, Judge, dissenting.

[50] I respectfully dissent. If a plaintiff who files a tort claim against a governmental

entity, such as the City, “is negligent to even a small degree and that negligence

proximately contributes to his claimed damages, contributory negligence will

operate as a complete bar to his action.” Hill, 54 N.E.3d at 406. Although

generally a question of fact, contributory negligence may be “a question of law

appropriate for summary judgment if the facts are undisputed and only a single

Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 35 of 37
 inference can be drawn therefrom.” Id. at 406-07. The relevant facts here are

undisputed, and I believe that the only inference that can be drawn from them

is that Lee was contributorily negligent and therefore the City is entitled to

summary judgment as a matter of law.

[51] “[C]ontributory negligence is the failure of a person to exercise for his own

safety that degree of care and caution which an ordinary, reasonable, and

prudent person in a similar situation would exercise.” Id. at 406. Under

Indiana law, children between the ages of seven and fourteen are presumed to

be incapable of contributory negligence. Timberman, 918 N.E.2d at 297. But

“the existence of the presumption will not preclude summary judgment for the

alleged tortfeasor on grounds of contributory negligence in the appropriate

case.” Id. at n.4. Indeed, the presumption is rebuttable with evidence showing

the child’s capacity, i.e., by offering proof that the child, “based on his age,

mental capacity, intelligence and experience, was accountable for his actions.”

Id. at 298.

[52] In my view, the City rebutted the presumption in this case. Lee was a thirteen-

year-old eighth-grader with no cognitive infirmities. He had used the same

crosswalk twice each school day and in every kind of weather for the past two

years. “He knew to look both ways before crossing, and it was his habit to wait

for a vehicle to come to a full stop before crossing instead of assuming that a

slowing vehicle would fully stop.” Slip op. at 4. On the day of the accident,

Lee looked both ways when he approached the crosswalk from the east and saw

McLeod’s truck approaching in the northbound lane (i.e., the lane that was

Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017 Page 36 of 37
 closer to him), but he walked into the crosswalk anyway. Although Lee

believed that he had sufficient time to cross the road without causing the truck

to have to adjust its speed or stop, he apparently failed to watch the truck when

he entered the crosswalk or he would have noticed it did not slow down.

McLeod testified that he did not see Lee and did not brake until after he heard

the impact.

[53] The undisputed evidence shows that Lee should be held accountable for his

actions. He knew and appreciated the dangers of using the crosswalk and had

exercised reasonable care in the past by waiting for vehicles to come to a full

stop before crossing the road. He failed to exercise reasonable care on the day

he was struck and therefore was contributorily negligent as a matter of law.

Consequently, I would affirm the trial court’s entry of summary judgment for

the City on this ground.

I would also affirm on the basis that any negligence on the City’s part with

respect to the speed limit signs did not proximately cause Lee’s injuries as a

matter of law. The majority acknowledges that “McLeod did not see Lee until

after the impact; thus, this is not a situation where the speed limit affected

McLeod’s ability to apply his brakes fast enough.” Id. at 32. McLeod did not

know precisely how fast he was going when he hit Lee, and the notion that he

would have driven more slowly and not hit Lee if the posted speed limit had

been twenty miles per hour is mere speculation, which cannot create a question

of fact on summary judgment. Beatty v. LaFountaine, 896 N.E.2d 16, 20 (Ind.

Ct. App. 2008), trans. denied (2009).

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