MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                            Apr 30 2020, 8:25 am

court except for the purpose of establishing                             CLERK
                                                                     Indiana Supreme Court
the defense of res judicata, collateral                                 Court of Appeals
                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Edmond W. Foley                                           Curtis T. Hill, Jr.
Douglas D. Small                                          Attorney General of Indiana
Foley & Small
                                                          Abigail R. Recker
South Bend, Indiana                                       Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Annette Spicer,                                           April 30, 2020
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          19A-CT-2948
        v.                                                Appeal from the LaPorte Superior
                                                          Court
State of Indiana,                                         The Honorable Jeffrey L. Thorne,
Appellee-Defendant                                        Judge
                                                          Trial Court Cause No.
                                                          46D03-1802-CT-279



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CT-2948 | April 30, 2020               Page 1 of 11
[1]   Annette Spicer filed a negligence claim against the State after she was injured

      following a slip and fall in the parking lot of her place of employment, Westville

      Correctional Facility (Westville). The trial court entered summary judgment in

      favor of the State, finding as a matter of law that it was entitled to immunity

      under the Indiana Tort Claims Act (ITCA).1 The State argues that even if the

      trial court erred by finding that it was entitled to immunity as a matter of law,

      summary judgment in its favor is still appropriate because Spicer was

      contributorily negligent. Finding that there are genuine issues of material fact

      rendering summary judgment inappropriate, we reverse and remand for further

      proceedings.


                                                     Facts
[2]   At the time of Spicer’s fall, she was employed as a kitchen supervisor at

      Westville. On March 15, 2017, it snowed approximately two inches in the area.

      There may have been some rain or other precipitation during the next couple of

      days. On March 17, 2017, Spicer was scheduled to start work at 4:00 a.m.

      Normally, it took her approximately fifteen minutes to drive from home to

      work, but that day, she gave herself extra time because it was slippery outside.

      When she left home, there was no snow on her car, and she did not have any

      difficulty getting into her car because she had salted her property. Spicer left




      1
          Ind. Code ch. 34-13-3.


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2948 | April 30, 2020   Page 2 of 11
      home around 2:30 a.m. and arrived at work around 3:20 a.m.; it was very cold

      outside and the roads were icy in some places.


[3]   The Westville parking lot is dark and dimly lit. During the winter months, the

      parking lot is frequently slippery. It is unclear whether the parking lot had been

      salted in the hours leading up to Spicer’s accident, but there is evidence in the

      record that the parking lot was slippery and icy in spots. Westville employees

      were aware that there were areas in the parking lot where water tends to pool.


[4]   After Spicer pulled into the parking lot, she exited her vehicle with only her

      keys in her hand. She slipped on a patch of black ice behind her vehicle and

      fell, injuring herself; she heard a crack when she fell. She screamed and the

      people who responded found her on the ground, in pain. Westville staff helped

      Spicer into a wheelchair and transported her into the facility. A nurse called an

      ambulance and Spicer was transported to the hospital, to be treated for her

      injuries.


[5]   On February 27, 2018, Spicer filed a complaint against the State, alleging that

      she had sustained injuries and damages that were proximately caused by the

      negligence of the agents and employees of Westville. On January 29, 2019, the

      State moved for summary judgment, arguing that it is immune under the ITCA

      and that Spicer was contributorily negligent and, therefore, barred from

      recovery as a matter of law.


[6]   Following briefing and a hearing, the trial court granted the State’s summary

      judgment motion on December 6, 2019. In pertinent part, it concluded that

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2948 | April 30, 2020   Page 3 of 11
      Spicer’s “alleged injuries are directly related to a temporary condition caused by

      the weather and that the time and circumstances under which Spicer sustained

      her alleged injuries either preceded or occurred very early within the period of

      reasonable response by the [State].” Appealed Order p. 3 (emphasis in original

      omitted). The trial court did not rule on the State’s argument regarding

      contributory negligence. Spicer now appeals.


                                   Discussion and Decision
[7]   Spicer argues that the trial court erred by granting summary judgment in favor

      of the State because there are issues of fact that must be evaluated by a

      factfinder. Our standard of review on summary judgment is well settled:


              The party moving for summary judgment has the burden of
              making a prima facie showing that there is no genuine issue of
              material fact and that the moving party is entitled to judgment as
              a matter of law. Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012).
              Once these two requirements are met by the moving party, the
              burden then shifts to the non-moving party to show the existence
              of a genuine issue by setting forth specifically designated
              facts. Id. Any doubt as to any facts or inferences to be drawn
              therefrom must be resolved in favor of the non-moving
              party. Id. Summary judgment should be granted only if the
              evidence sanctioned by Indiana Trial Rule 56(C) shows there is
              no genuine issue of material fact and that the moving party
              deserves judgment as a matter of law. Freidline v. Shelby Ins.
              Co., 774 N.E.2d 37, 39 (Ind. 2002).


      Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016). Our

      Supreme Court has cautioned that “[a]s long as competent evidence has been

      designated in response to a summary judgment motion, . . . ‘weighing [the
      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2948 | April 30, 2020   Page 4 of 11
      evidence]—no matter how decisively the scales may seem to tip—[is] a matter

      for trial, not summary judgment.’” Stafford v. Szymanowski, 31 N.E.3d 959, 963

      (Ind. 2015) (quoting Hughley v. State, 15 N.E.3d 1000, 1005-06 (Ind. 2014)).


                                                  I. ITCA
[8]   Indiana Code section 34-13-3-3(3) 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 . . . [t]he temporary condition of a public thoroughfare . . .

      that results from weather.” (Emphasis added.) This provision, like all

      provisions in the ITCA, is in derogation of the common law and is strictly

      construed against the grant of immunity. Mullin v. Mun. City of South Bend, 639

      N.E.2d 278, 281 (Ind. 1994). The party seeking immunity has the burden of

      establishing that its conduct falls within the provisions of the Act. Id.

      “Whether a particular governmental act is immune is a question of law for the

      court to decide, although the question may require extensive factual

      development.” Barns v. Antich, 700 N.E.2d 262, 265 (Ind. Ct. App. 1998); see

      also Gary Cmty. Sch. Corp. v. Roach-Walker, 917 N.E.2d 1224, 1228 (Ind. 2009)

      (holding that the trial court properly refused a governmental entity’s proposed

      jury instruction on immunity under the ITCA “[b]ecause immunity is a matter

      of law for the court to decide”).


[9]   It is undisputed that Westville is a governmental entity and that the Westville

      parking lot is a public thoroughfare. It is likewise undisputed that Spicer’s

      accident was at least partially related to the weather. What must be


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2948 | April 30, 2020   Page 5 of 11
       determined, for summary judgment purposes, is whether it can be concluded as

       a matter of law that the weather-related condition was “temporary,” or, instead,

       was a condition that Westville had had the time and opportunity to ameliorate.


[10]   We find Roach-Walker instructive. In that case, the plaintiff took her children to

       a middle school to attend enrichment classes. The record as to weather

       conditions was inconclusive, with no evidence establishing when the most

       recent rain, snow, or sleet had occurred. As the plaintiff approached the

       entrance to the school, she slipped and fell. A witness later described the area

       where the plaintiff had slipped as “slick” and “wet looking” after the fall. Id. at

       1225. A jury ultimately found in favor of the plaintiff, and the school

       corporation appealed. Our Supreme Court noted that “whether a condition

       was ‘temporary’ ultimately hinge[s] on whether the governmental entity had a

       reasonable opportunity to remedy conditions initially caused by weather.” Id.

       at 1228. In other words,


               the government may be liable for negligence in maintaining
               roads, but when the government is in the process of responding
               to a weather condition, as a matter of law the immunity
               conferred in subsection (3) for ‘temporary conditions caused by
               weather’ extends to all claims caused by that condition during the
               period of reasonable response, whether the alleged injury
               occurred early or late in that period.


       Id. Our Supreme Court found that “[t]he record reasonably support[ed] both

       [the school’s] and [the plaintiff’s] explanation of the facts.” Id. As such, the

       school corporation failed to carry its burden. See also Bules v. Marshall Cty., 920


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2948 | April 30, 2020   Page 6 of 11
       N.E.2d 247, 250 (Ind. 2010) (holding that “[i]f the evidence permits conflicting

       reasonable inferences as to material facts, the government unit has failed to

       establish its immunity”). Therefore, in Roach-Walker, “[e]ven if attributable to

       weather, because [the school] has not established that it had no opportunity to

       cure the condition, [the school] has not established that the condition was

       ‘temporary.’ Accordingly, [the school] failed to establish immunity under the

       ITCA.” Id. at 1229.


[11]   Under Roach-Walker, two things are clear. First, the ITCA is strictly construed

       against the governmental entity, which bears the heavy burden of establishing

       its entitlement to immunity. Second, concomitantly, a record that reasonably

       supports both the governmental entity’s and the plaintiff’s version of the facts

       must be resolved in favor of the plaintiff and against immunity.


[12]   Here, the record contains the following evidence regarding the weather in the

       days leading up to Spicer’s accident:


           • It snowed approximately two inches in the area on March 15, 2017.
           • It did not snow the night before the accident. It may have rained the
             night before the accident.2
           • Spicer gave herself extra time to drive to Westville on March 17 because
             she was aware it was slippery outside. Her drive to work, which



       2
         Spicer designated as evidence meteorological reports from the Porter County Regional Airport. The State
       argues that this evidence does not conclusively establish what conditions were like at Westville, which is
       approximately ten miles from the airport. As the movant and the party seeking immunity, it was the State
       that bore the burden of designating other, more specific meteorological evidence regarding conditions at
       Westville. Because the State did not do so, the only official evidence in the record regarding meteorological
       conditions (aside from the lay testimony of Westville employees regarding their recollection of the weather at
       the time) is that designated by Spicer.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2948 | April 30, 2020                    Page 7 of 11
               normally takes fifteen minutes, took nearly an hour because of road
               conditions.
           •   Spicer had no problems getting into her vehicle at home because she had
               salted her property well.
           •   When Spicer got into her vehicle at home, it did not have any snow on it.
           •   There was still snow in the Westville parking lot when Spicer pulled in;
               therefore, she proceeded carefully.
           •   At the time of Spicer’s accident, it was neither raining nor snowing.
           •   Westville employees did not know whether the parking lot had been
               salted in the hours leading up to the accident. They salted the parking lot
               after the accident, however.
           •   Westville employees did not know whether anyone at the facility inspects
               the parking lot to make sure that snow and ice haven’t built up or
               whether surfaces are salted at regular intervals. More than one employee
               indicated that they were aware that the lot was poorly lit and that there
               were areas in the lot where water, ice, and snow frequently accumulated.
           •   When the parking lot is salted, it is not salted in between parked vehicles.

[13]   We must determine whether the evidence conclusively establishes that

       Westville was “in the process of responding to a weather condition” when

       Spicer’s accident occurred. Roach-Walker, 917 N.E.2d at 1228. We find that

       the evidence does not reach that threshold. It is undisputed that two days had

       passed since the last major snow event. And even if we were to assume that

       there had been some precipitation overnight (which is not without dispute in

       the record), causing freezing on the roadways, Westville offered no evidence

       that it had not had a reasonable opportunity to ameliorate the conditions in its

       parking lot. Indeed, there is no evidence in the record that any Westville

       employees had salted, or attempted to salt, the parking lot in the hours leading

       up to Spicer’s accident, even though employees were aware that the lot was

       poorly lit and vulnerable to accumulating precipitation. Likewise, there is no

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2948 | April 30, 2020   Page 8 of 11
       evidence that any effort to salt would have been pointless or unreasonable.

       Therefore, we can only find that Westville has not met its burden on summary

       judgment to show that it is entitled to immunity.


[14]   We acknowledge the caselaw cited above, specifically Roach-Walker, which says

       that immunity is a determination that must be made as a matter of law. And

       the Roach-Walker Court held that if the evidence can support either party’s

       position, then the government has failed and is not entitled to immunity. But

       Roach-Walker was decided following a jury trial. Here, in contrast, the case is

       only at the summary judgment stage. Because there are questions of fact

       regarding weather conditions leading up to the time of Spicer’s accident (as well

       as possible other causes, including poor lighting and pavement conditions), the

       State has not met its burden as a summary judgment movant. It will have

       another opportunity to make its case, however, as part of a trial with a fully

       developed factual record. The trial court may, yet again, be called upon to

       determine whether the State is immune under the ITCA, but that will have to

       occur following a full presentation of evidence at trial. Therefore, we reverse

       the trial court’s grant of summary judgment on the basis of immunity and

       remand for further proceedings.


                                 II. Contributory Negligence
[15]   The State also argues that summary judgment should be entered in its favor

       because of Spicer’s alleged contributory negligence. Tort claims filed against

       governmental entities are governed by Indiana’s common law contributory


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2948 | April 30, 2020   Page 9 of 11
       negligence doctrine, meaning that “a plaintiff is barred from recovery when he

       or she is negligent and this negligence is even slightly the cause of the alleged

       damages.” Murray v. Indianapolis Pub. Schs., 128 N.E.3d 450, 452-53 (Ind.

       2019).


[16]   Contributory negligence results when a person fails to exercise “that degree of

       care and caution which an ordinary, reasonable, and prudent person in a

       similar situation would exercise.” Id. at 453 (internal quotation marks omitted).

       Contributory negligence is generally a question of fact to be answered by a jury,

       but it may be appropriately decided on summary judgment if the facts are

       undisputed and only a single inference may be drawn therefrom. Id.


[17]   The State argues that Spicer knew that it was icy outside when she was on her

       way into work. Indeed, she gave herself extra time to get to work because of

       the poor road conditions. According to the State, “[a] reasonable person would

       have been aware that because of the icy road conditions, the parking lot would

       have also been slippery and taken extra precautions to ensure that they were

       able to get into the facility without injury.” Appellee’s Br. p. 20.


[18]   Spicer attested that when she exited her vehicle, she was being very cautious.

       There is no evidence that she was heavily laden with items—instead, she only

       had her keys in her hands—nor is there evidence that she was moving quickly

       or recklessly or that she was distracted. Instead, Spicer attested that as she

       moved around the back end of her vehicle, she slipped on a patch of black ice




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2948 | April 30, 2020   Page 10 of 11
       that she could not see because of the poor lighting conditions in that area of the

       parking lot. Spicer did not believe that she contributed to the fall.


[19]   Spicer’s testimony is sufficient to create an issue of fact as to whether she acted

       with reasonable care when she exited her vehicle and walked around it. In

       other words, based on this record, we cannot resolve the issue of contributory

       negligence as a matter of law and the State is not entitled to summary judgment

       on this basis.


[20]   The judgment of the trial court is reversed and remanded for further

       proceedings.


       Bradford, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2948 | April 30, 2020   Page 11 of 11
