A split Indiana Court of Appeals panel has affirmed judgment for Michigan City after a cyclist was injured on a city street, finding the city was immune from the cyclist’s negligence claim. A dissenting judge, however, would have reversed on the issue of immunity.
In the spring of 2017, Michigan City officials determined Duneland Beach Drive needed to be resurfaced, so City Engineer Charles Peller asked the local Board of Public Works to approve the project for bids. Meanwhile, city officials began receiving complaints about the road.
The Board of Works approved the projected and called for bids to be submitted by June 2017. But in mid-May, Laura Johnson was injured after striking a pothole and flying off her bicycle on the road. The accident left Johnson unable to walk for six months and prevented her from passing physical tests to enlist in the National Guard as she had planned.
The city continued its work on the resurfacing project, which was completed in early October 2017. But in December 2018, Johnson sued the city for negligence.
The city moved for summary judgment, which the LaPorte Superior Court granted on the grounds that the municipality was “immune from liability” under the Indiana Tort Claims Act. Johnson appealed but the Indiana Court of Appeals affirmed in Laura Johnson v. City of Michigan City, 21A-CT-114.
Writing for the majority, Senior Judge John Sharpnack agreed that the city was entitled to discretionary function immunity because it was engaged in a “planning” function.
“The City has a deliberative, systemic process to assess and prioritize street repairs, with the assistance of a consultant. The City’s engineers consider the PASER report and citizen complaints, as well as Peller’s own street inspections, in setting priorities,” Sharpnack wrote, referencing the city’s pavement surface evaluation and rating system. “In addition, there is no factual dispute that, prior to Johnson’s accident, the City had determined the Drive needed resurfacing, and the Board of Public Works was preparing to select a contractor to perform the work. The City’s planning process is the type of act intended to be protected by discretionary function immunity: a function involving the formulation of basic policy decisions characterized by weighing alternatives and choosing public policy.”
Johnson had argued the city was engaged in an operational function preventing immunity, but the COA disagreed, finding that the “existence of the policy for repair of street and the current application of that policy as to Duneland Beach Drive confers immunity even as to that which would otherwise be an operational matter.”
But Judge Elaine Brown dissented.
“I would find the City has failed to designate evidence that a decision to fill a pothole which poses a dangerous condition is a deliberative, policy-driven process, or that this process was entirely a planning function rather than an operational function,” Brown wrote in a separate opinion. “… I would further find that the City, which points only to Peller’s deposition in its memorandum of support of summary judgment, has not designated evidence establishing as a matter of law that the decision to resurface the Drive and when to do so, given the condition of its pavement, was the type of function that is immune.
“… In any event,” Brown continued,” the fact the City made a decision to repave the entire Drive does not mean that filling identified, dangerous potholes of which the City had actual knowledge was not an operational function.”
The dissent pointed to the cases of Peavler v. Bd. Of Comm’rs of Monroe Cnty., 528 N.E.2d 40 (Ind. 1988), and City of Beech Grove v. Beloat, 50 N.E.3d 135 (Ind. 2016). According to Brown, those decisions mean that “even when a ‘policy oriented decision-making process has been undertaken,’ … it may not matter to the extent the municipal body does not designate evidence of a ‘conscious balancing,’ or consideration of the two competing repairs in relation to one another.”
“At the summary judgment stage, all facts and reasonable inferences must be drawn in favor of the non-moving party, which here was Johnson,” Brown concluded. “… Based upon the designated evidence, I would conclude that the City failed to meet its burden and would deny it summary judgment.”
This article was first published in The Indiana Lawyer.