MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                       Mar 15 2017, 9:48 am
court except for the purpose of establishing
                                                                    CLERK
the defense of res judicata, collateral                         Indiana Supreme Court
                                                                   Court of Appeals
estoppel, or the law of the case.                                    and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Philip H. Cade                                           R. Jeffrey Lowe
New Albany, Indiana                                      Crystal G. Rowe
                                                         Whitney E. Wood
                                                         Kightlinger & Gray, LLP
                                                         New Albany, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Kimberly D. Hickman,                                     March 15, 2017
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         72A01-1608-CT-1977
        v.                                               Appeal from the Scott Circuit
                                                         Court
City of Austin,                                          The Honorable Roger L. Duvall,
Appellee-Defendant                                       Judge
                                                         Trial Court Cause No.
                                                         72C01-1404-CT-9



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 72A01-1608-CT-1977 | March 15, 2017    Page 1 of 7
                                          Case Summary
[1]   Kimberly Hickman sued the City of Austin, alleging that the City had

      negligently maintained a street and that she had fallen as a result. The trial

      court granted summary judgment in favor of the City, concluding that

      Hickman’s claim relates to the City’s performance of a discretionary function

      and that the City is therefore immune from liability under the Indiana Tort

      Claims Act. We disagree with that conclusion and reverse.



                            Facts and Procedural History
[2]   In her complaint, Hickman alleges that she was walking on North Street in

      Austin on May 4, 2012, when she stepped in a hole, fell, and was injured. In

      the area in which she claims to have fallen, Stucker Fork Water Utility had

      made a “street cut” at some point during the preceding year. On “several

      occasions” after the street cut was made, including once during the two weeks

      before May 4, 2012, employees of the City placed “black top” on or near the cut

      “to try to even the road out,” a process known as “cold patching.” Appellee’s

      App. Vol. II p. 44. Hickman contends that the City “was negligent in the

      maintenance of its roadway[.]” Appellant’s App. Vol. II pp. 11-12.


[3]   The City moved for summary judgment pursuant to Indiana Code section 34-

      13-3-3(7), which provides that a governmental entity is immune from liability if

      the loss at issue results from “[t]he performance of a discretionary function[.]”

      The City argued that its “decision whether to patch or repave the road where


      Court of Appeals of Indiana | Memorandum Decision 72A01-1608-CT-1977 | March 15, 2017   Page 2 of 7
      Plaintiff fell was discretionary” within the meaning of that statute and that it “is

      therefore immune as a matter of law[.]” Id. at 22.


[4]   In support of it motion, the City designated the affidavit of Shane Terry, the

      City’s “Street Superintendent.” Appellee’s App. Vol. II p. 43. Among other

      things, Terry said:

              3. The City has limited funds to make repairs to roads.
              Therefore, the City elected officials have determined that it is
              impossible to permanently repair all roads.


              4. Based on the limited funds available to the City for road
              repairs, the decision was made to prioritize which roads need to
              be fully reconstructed, for which City Council approves and
              appropriates funds.


              5. In order to keep the City’s streets safe, the City devised an
              unwritten policy to make temporary repairs to roads until City
              Council is able to appropriate funds for permanent road repairs.
              Specifically, once a week, in my capacity as City Street
              Superintendent and employee of the City, I send members of my
              Department out into the City to check for potholes. They
              determine which holes need patched and then our Department
              places black top over the potholes in need of repair, which is also
              referred to as “cold patching.”


              6. To obtain funds for these “cold patching” repairs, each year I
              speak with the Board of Works, which includes the Mayor and
              Clerk-Treasurer, and request funds I anticipate will be needed for
              the cold patchwork, which they have the power to grant or deny.




      Court of Appeals of Indiana | Memorandum Decision 72A01-1608-CT-1977 | March 15, 2017   Page 3 of 7
      Id. at 43-44. He also explained that “cold patching is only a temporary solution

      and can wash out with rain or cold weather.” Id. at 44.


[5]   The City also designated the affidavit of Dillo Bush, the City’s mayor, who

      corroborated much of what Terry said and added:

              4. . . . The City Council prioritizes which roads receive the City’s
              limited funds for complete reconstruction and repair by listening
              to complaints from citizens and various City employees and
              experts, then weighing the benefits of the specific road repair
              against the cost of the repair.


                                           *       *        *       *


              9. Prior to Kimberly Hickman’s May 4, 2012 fall, based upon
              the lack of reports received from its experts, citizens and reports
              from employees (like Shane Terry, [whose] Department is
              specifically employed to evaluate and repair road conditions), the
              City Council had determined other roads, such as Boatman
              Road, were of greater priority and in more immediate needed to
              [sic] the limited funds available to repair roads than the street cut
              on North Street.


      Id. at 46-48.


[6]   After a hearing, the trial court granted the City’s motion, finding that it “is

      immune from liability for the injuries sustained by the Plaintiff pursuant to the

      Indiana Tort Claims Act under the discretionary immunity defense.”

      Appellant’s App. Vol. II p. 9.


[7]   Hickman now appeals.


      Court of Appeals of Indiana | Memorandum Decision 72A01-1608-CT-1977 | March 15, 2017   Page 4 of 7
                                 Discussion and Decision
[8]   Hickman contends that the trial court should have denied the City’s motion for

      summary judgment. She does not challenge the City’s designated evidence

      about its approach to street repairs, but she argues that the evidence is

      insufficient as a matter of law to entitle the City to discretionary-function

      immunity. On appeal from a grant of summary judgment, we address the

      issues de novo, giving no deference to the trial court’s decision. Rogers Group,

      Inc. v. Tippecanoe Cty., 52 N.E.3d 848, 850 (Ind. Ct. App. 2016), trans. denied.


[9]   As noted earlier, the Indiana Tort Claims Act provides that a governmental

      entity is immune from liability if the loss at issue results from “[t]he

      performance of a discretionary function[.]” Ind. Code § 34-13-3-3(7). In

      determining whether an alleged loss resulted from a government entity’s

      performance of a discretionary function, Indiana courts apply the

      “planning/operational test.” Peavler v. Bd. of Commr’s of Monroe Cty., 528

      N.E.2d 40, 43-45 (Ind. 1988). This test distinguishes “decisions involving the

      formulation of basic policy, entitled to immunity,” from “decisions regarding

      only the execution or implementation of that policy, not entitled to immunity.”

      Greathouse v. Armstrong, 616 N.E.2d 364, 366-67 (Ind. 1993). The test insulates

      “‘only those significant policy and political decisions which cannot be assessed

      by customary tort standards.’” City of Beech Grove v. Beloat, 50 N.E.3d 135, 138

      (Ind. 2016) (quoting Peavler, 528 N.E.2d at 45).




      Court of Appeals of Indiana | Memorandum Decision 72A01-1608-CT-1977 | March 15, 2017   Page 5 of 7
[10]   Here, the City argues that its “decision regarding whether to patch or repave the

       road where Hickman fell was the type of function that the legislature intended

       to protect with immunity.” Appellee’s Br. p. 19. In short, the City asserts that

       it made a policy decision that certain streets would not be patched or repaved.

       But the City actually made the exact opposite decision. As both the mayor and

       the street superintendent explained in their affidavits, “In order to keep the

       City’s streets safe, the City devised an unwritten policy to make temporary

       repairs to roads until City Council is able to appropriate funds for permanent

       road repairs.” Appellee’s App. Vol. II pp. 43, 47. Specifically, employees of

       the street department would be sent out to “determine which holes need

       patched and then place black top over the potholes in need of repair[.]” Id. at

       43-44, 47. Because it cannot be said that the condition of North Street at the

       time of Hickman’s fall was the result of a policy decision to leave certain streets

       unrepaired, the City is not entitled to discretionary-function immunity.1

[11]   This case is distinguishable from two sidewalk-repair cases that the City relies

       upon heavily: City of Indianapolis v. Duffitt, 929 N.E.2d 231 (Ind. Ct. App. 2010),

       and City of Terre Haute v. Pairsh, 883 N.E.2d 1203 (Ind. Ct. App. 2008), trans.

       denied. In both of those cases, the cities presented evidence that they had made




       1
        The City notes that its street employees necessarily exercise some level of discretion in deciding when and
       how to patch particular potholes, see Appellee’s Br. p. 8, but it does not argue that these are the sort of “policy
       decisions” entitled to discretionary-function immunity. As the City itself notes, “[t]he crucial question is not
       merely whether judgment was exercised but whether the nature of the judgment called for policy
       considerations.” Id. at 14 (citing Peavler, 528 N.E.2d at 45).

       Court of Appeals of Indiana | Memorandum Decision 72A01-1608-CT-1977 | March 15, 2017                  Page 6 of 7
       policy decisions that certain sidewalks would not be repaired until others were

       repaired. Again, the City made no such decision in this case.

[12]   Reversed.

       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 72A01-1608-CT-1977 | March 15, 2017   Page 7 of 7
