                                                                         FILED
                                                                  May 20 2016, 9:56 am

                                                                         CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Patrick A. Elward                                          James S. Stephenson
Meaghan Klem Haller                                        Stephenson Morow & Semler
Jessica Whelan                                             Indianapolis, Indiana
Bingham Greenebaum Doll LLP
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Nikki Jones, as Personal                                  May 20, 2016
Representative of the Estate of                           Court of Appeals Case No.
Phillip Matthew Jones,                                    30A01-1506-CT-543
Appellant-Plaintiff,                                      Appeal from the Hancock Circuit
                                                          Court
        v.                                                The Honorable Richard D.
                                                          Culver, Judge
Hancock County Board of                                   Trial Court Cause No. 30C01-
Commissioners,                                            140l-CT-87
Appellee-Defendant.




Brown, Judge.




Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016                     Page 1 of 20
[1]   Nikki Jones as Personal Representative of the Estate of Phillip Matthew Jones

      (the “Estate”) appeals from the order of the trial court entering summary

      judgment in favor of the Hancock County Board of Commissioners (the

      “Board” or the “County”). The Estate raises one issue which we revise and

      restate as whether the court erred in entering summary judgment in favor of the

      Board. We affirm in part, reverse in part, and remand.


                                       Facts and Procedural History

[2]   On July 5, 2012, Phillip Matthew Jones (“Jones”) was driving in a truck

      northward on County Road 400 West (“CR 400W”). Jacqueline Thomas was

      driving in a blue car westward on County Road 200 North (“CR 200N”). At

      the intersection of CR 400W and CR 200N, drivers on CR 400W were not

      required to stop and drivers on CR 200N were required to stop at posted stop

      signs. The stop sign for westbound traffic on CR 200N at the intersection of CR

      400W had a “sign underneath that said cross traffic does not stop.” Appellant’s

      Appendix at 178. Thomas was seventeen years old and had obtained her

      driver’s license two days earlier on July 3, 2012, and she knew that traffic on

      CR 400W did not have a stop sign.


[3]   Thomas stopped on CR 200N at the stop sign at the intersection of CR 200N

      and CR 400W. Jones’s truck was traveling toward the intersection at fifty to

      sixty miles per hour and over the speed limit of forty-five miles per hour. A

      black vehicle traveling eastward on CR 200N stopped at the two-way stop at the

      intersection of CR 400W and CR 200N and then crossed the intersection

      quickly in front of Jones’s truck. At or close to the same time, Thomas “inched
      Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016   Page 2 of 20
      up a little bit past the stop sign to look both ways,” looked to the right, and then

      looked to the left and saw a truck which “felt like it was right in [her] window”

      immediately before the truck impacted her car.1 Id. at 180. Jones’s truck struck

      Thomas’s car and flipped or rolled several times before coming to a stop, and

      Jones died as a result of the crash.


[4]   The Estate, in an amended complaint, brought a wrongful death claim against

      the Hancock County Highway Department (the “Highway Department”) and

      the Board. The Estate alleged in part that the Board and Highway Department

      owed a duty to Jones to protect the users of Hancock County roadways from

      dangerous conditions on the roadways and to exercise reasonable care in

      installing proper traffic control devices, that they breached their duty “by failing

      to properly and diligently monitor traffic accidents in Hancock County starting

      in 2008, including traffic accidents occurring at the Intersection,” that they

      breached their duty “by failing to properly and diligently control traffic at the

      Intersection through the installation of an alternative traffic control device to

      the two-way stop which was obviously not properly controlling the

      Intersection,” and that their “failure to monitor and properly control the

      Intersection were a concurring and proximate cause of serious personal injury

      and death to [Jones], as well as emotional damages and lost income and

      earnings to Nikki Jones and her two minor children.” Id. at 66. The Estate




      1
       One witness to the crash testified that Jones’s “truck just barely missed the back of that black car” and
      “milliseconds later” struck the blue car driven by Thomas. Appellant’s Appendix at 227.

      Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016                              Page 3 of 20
      further alleged that, according to Ind. Code § 9-21-4-1, “[a] governmental

      agency in Indiana that is responsible for the signing, marking, and erection of

      traffic control devices on streets and highways within Indiana shall follow the

      Indiana Manual on Uniform Traffic Control Devices for Streets and Highways”

      (the “Manual”), that the Manual “further provides that such agencies shall use

      the [Manual] in determining the necessity of proper traffic control devices,” and

      that the Manual “provides for the installation of a multi-way stop for several

      different reasons, and one factor to be considered upon completion of an

      engineering study, is whether there have been ‘five or more reported crashes in

      a 12 month period that are susceptible to correction by a multi-way stop

      installation.’” Id. at 64-65.


[5]   In their answer, the Board and the Highway Department “admit the Manual

      . . . provides guidance and instructions concerning installation of regulatory and

      warning signs where decisions are made by governmental entities to install such

      signs.” Id. at 78. The Board and the Highway Department raised a number of

      affirmative defenses which included the defense of contributory negligence, that

      the claims are barred by any and all applicable immunities contained in the

      Indiana Tort Claims Act (the “ITCA”), including Ind. Code § 34-13-3-3(7) and

      (8), and that the Highway Department is not a proper party defendant and

      should be dismissed.


[6]   The Board and the Highway Department subsequently filed a motion for

      summary judgment together with a memorandum of law in support of the

      motion and designated evidence, which included among other materials

      Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016   Page 4 of 20
portions of the depositions of Thomas and witnesses to the crash and affidavits

related to the roadways and the existing county ordinances. In their motion,

the Board and the Highway Department argued in part that they were immune

from liability under Ind. Code § 34-13-3-3(8) for failing to convert the

intersection from a two-way to a four-way stop, immune from liability for

failing to adopt a law requiring landowners to trim back corn, immune for

failing to inspect private property, and immune from liability for the design of

CR 400W and CR 200N and the intersection. They also argued they did not

have a duty to remove weeds or maintain private property and that the

Highway Department was not a proper party defendant.2 In their

memorandum, the Board and the Highway Department argued that Hancock

County cannot be liable for failing to convert the two-way stop at the

intersection into a four-way stop because, pursuant to Ind. Code § 34-13-3-3(8),

“governmental entities are immune from liability in tort for failing to install

regulatory signs such as stop signs . . . .” Id. at 119. The designated evidence of

the affidavit of the Auditor of Hancock County states that, on December 14,

1992, the Board adopted Hancock County Ordinance 1992-12F which provided

that CR 400W was a preferential through road where it intersected CR 200N

and that vehicles traveling on CR 200N were required to come to a complete

stop at the intersection of CR 200N and CR 400W before entering the




2
    The Board did not move for summary judgment under Ind. Code § 34-13-3-3(7).

Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016            Page 5 of 20
      intersection and yield the right-of-way to other motor vehicles.3 The affidavit

      also states that, on August 7, 2012, the Board adopted Ordinance No. 2012-8A

      establishing a four-way stop at the intersection of CR 200N and CR 400W.


[7]   The Estate filed a response in opposition to the summary judgment motion

      together with a brief and designated evidence, which included among other

      materials a “200N & 400W Intersection Study” and portions of the Manual.4

      Id. at 298. The Estate argued that, prior to 2008, the Highway Department

      recorded accidents on a pushpin map after receiving accident reports from the

      Hancock County Sheriff’s Department, that in 2008 the Sheriff’s Department

      began to file accident reports electronically and the Highway Department

      effectively discontinued the use of the pushpin process, and that, “[h]ad the

      County continued its practice of diligently monitoring accidents at

      intersections, it would have seen a high frequency of accidents” at the

      intersection of CR 400W and CR 200N and “would have seen the necessity for

      an engineering study and for a four-way stop years before Matt Jones’s fatal

      accident.” Id. at 257. The Estate argued that the Board does not have



      3
       The designated evidence also includes an ordinance adopted by the Board in 1973 which similarly provided
      that CR 400W shall be a preferential through road at its intersection with CR 200N.
      4
        The portions of the Manual included in the Estate’s designated evidence include a page from the definitions
      section, defining a “Traffic Control Device” as “a sign . . . or other device used to regulate, warn, or guide
      traffic” and a “Warning Sign” as a sign “that gives notice to road users of a situation that might not be
      readily apparent,” and a page from a chapter of the Manual related to regulatory signs containing Section
      2B.O7, titled “Multi-Way Stop Applications.” That page states in part that “Multi-way stop control can be
      useful as a safety measure at intersections if certain traffic conditions exist” and, under the heading of
      “Guidance,” that “[t]he decision to install multi-way stop control should be based on an engineering study”
      and that “[t]he following criteria should be considered in the engineering study for a multi-way STOP sign
      installation: . . . B. Five or more reported crashes in a 12-month period that are susceptible to correction by a
      multi-way stop installation. . . .” Appellant’s Appendix at 332-333.

      Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016                               Page 6 of 20
      legislative immunity, that its “claim stems primarily from the County’s failure

      to monitor traffic accidents at the Intersection, not from a failure to adopt a law

      or ordinance to install a four-way stop,” that it had alleged “the County failed

      to exercise reasonable care in installing proper traffic control devices,” and that

      the definition of traffic control devices “includes both regulatory signs such as

      stop signs as well as non-regulatory signs such as warning signs.” Id. at 266-

      267. The Estate also argued that “[m]onitoring traffic accident frequency,

      conducting engineering studies of dangerous intersections, and erecting or

      modifying non-regulatory signs (e.g. warning signs) are all activities that do not

      require ordinances or other legislative action in order to be commenced.” Id. at

      268. The Estate agreed that the Highway Department was not a proper party

      and that summary judgment should be granted as to it.


[8]   The Board and Highway Department filed a reply memorandum and, with

      respect to warning signs, argued that the Estate’s claim “is not predicated upon

      the absence of a warning sign, nor does [it] inform the court of the absence of

      any warning sign which in her view rendered the roads unsafe,” that “there

      could be no such assertion on the record,” and that “[a] stop sign ahead, for

      example, was not needed here because the driver Thomas saw the stop sign

      ahead and stopped before entering the intersection.” Id. at 344-345.


[9]   Following a hearing, Court Commissioner R. Scott Sirk signed an order stating

      there is no genuine issue of material fact and all issues are resolved by statutory

      immunity and granting summary judgment in favor of the County. After the

      Estate argued the order was not signed by the trial court judge, the court

      Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016    Page 7 of 20
       entered an order signed by Judge Richard D. Culver containing findings of fact

       and conclusions thereon, finding in part that the Board and Highway

       Department were immune from liability under Ind. Code § 34-13-3-3 for failure

       to adopt an ordinance changing the traffic control devices from a two-way stop

       to a four-way stop prior to the accident, and that the Board and Highway

       Department were immune from liability for the design of the roads, and

       granting summary judgment in favor of the Board and Highway Department

       and against the Estate.


                                                         Discussion

[10]   The issue is whether the court erred in entering summary judgment in favor of

       the Board.5 Our standard of review is the same as it is for the trial court.

       Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). The moving party bears the

       initial 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. Id.

       Summary judgment is improper if the moving party fails to carry its burden, but

       if it succeeds, then the nonmoving party must come forward with evidence

       establishing the existence of a genuine issue of material fact. Id. We construe

       all factual inferences in favor of the nonmoving party and resolve all doubts as

       to the existence of a material issue against the moving party. Id. An appellate

       court reviewing a challenged trial court summary judgment ruling is limited to




       5
           The Estate notes that this appeal is being brought against only the Board.

       Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016           Page 8 of 20
       the designated evidence before the trial court, but is constrained to neither the

       claims and arguments presented at trial nor the rationale of the trial court

       ruling. Id.


[11]   The Estate contends that the Board was not entitled to legislative immunity

       because the alleged negligence did not arise from a failure to pass or enforce an

       ordinance, but rather arose from a failure to monitor and maintain the county’s

       roadways in a reasonably safe condition, a duty that is not subject to legislative

       decision-making. The Estate’s argument is that the Board failed to exercise

       reasonable care in installing proper traffic control devices, that such devices

       include non-regulatory signs such as warning signs, and that monitoring traffic

       accident frequency, conducting engineering studies of dangerous intersections,

       and erecting or modifying non-regulatory signs do not require ordinances or

       other legislative action in order to be commenced. It also argues that the entry

       of summary judgment is an incentive for counties to neglect their duty to follow

       the Manual, and that the Board chose to remain ignorant of the peril posed by

       the intersection.


[12]   The Board maintains that, irrespective of how the Estate attempts to

       characterize its claim, tort liability is predicated upon whether or not the

       intersection was reasonably safe due to the two-way and not four-way stop, and

       that the Estate’s claim is barred under Ind. Code § 34-13-3-3(8). It contends

       that any failure to monitor the number of traffic accidents at the intersection

       relates to whether the intersection should have been converted to a four-way

       stop prior to the accident and is not an independent basis for tort liability. The

       Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016    Page 9 of 20
       Board further maintains that stop signs and other regulatory signs may be

       installed by the adoption of an ordinance, and that whether it complied with the

       Manual is irrelevant where legislative immunity defeats the Estate’s claim as a

       threshold determination.


[13]   Additionally, the Board argues that the Estate “does make a passing reference

       to the fact that non-regulatory signs such as warning signs do not require

       legislative action [], without advising the court what type of warning signs were

       needed in order to render the roadways reasonably safe” and that the Estate

       “offered no such evidence to the trial court either.” Appellee’s Brief at 16. The

       Board asserts that, while this court previously held that immunity did not apply

       to failing to install warning signs because, as conceded in that case, 6 counties do

       not have to adopt ordinances to install warning signs, the Estate’s claim “is not

       predicated upon the absence of a warning sign, nor did the plaintiff inform the

       lower court or this court of the absence of any warning sign which in her view

       rendered the roads unsafe.” Id. The Board also asserts that “[t]he record

       defeats any notion that additional warning signs would have imparted

       information Thomas did not otherwise know and act upon.” Id. at 17.


[14]   Immunity, whether under Indiana common law or the ITCA, assumes

       negligence but denies liability. Putnam Cnty. Sheriff v. Price, 954 N.E.2d 451, 453

       (Ind. 2011); Bules v. Marshall Cnty., 920 N.E.2d 247, 251 (Ind. 2010) (“Immunity




       6
           See Bd. of Commr’s of the Cnty. of Harrison v. Lowe, 753 N.E.2d 708, 710 (Ind. Ct. App. 2001), trans. denied.

       Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016                                 Page 10 of 20
       presumes duty and breach—without duty and breach, there is no need for

       immunity.”). A traditional formulation of tort liability requires the plaintiff to

       establish a duty, breach of that duty, proximate cause, and damages. Price, 954

       N.E.2d at 453. The Court has said: “In general, it is only after a determination

       is made that a governmental defendant is not immune under the ITCA that a

       court undertakes the analysis of whether a common law duty exists under the

       circumstances.” Id. (citing Benton v. City of Oakland City, 721 N.E.2d 224, 232

       (Ind. 1999)). This is generally so because “immunity trumps [a claim of

       negligence] and bars recovery even where ordinary tort principles would impose

       liability.” Id. at 453-454 (citing Gary Cmty. Sch. Corp. v. Roach-Walker, 917

       N.E.2d 1224, 1225 (Ind. 2009)).


[15]   At the time of the crash, Ind. Code § 34-13-3-3 (Supp. 2011) provided in part:

               A governmental entity or an employee acting within the scope of
               the employee’s employment is not liable if a loss results from the
               following:
                                                     *****
               (7)      The performance of a discretionary function; . . . .
               (8)      The adoption and enforcement of or failure to adopt or
                        enforce a law (including rules and regulations), unless the
                        act of enforcement constitutes false arrest or false
                        imprisonment.




       Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016     Page 11 of 20
       (Subsequently amended by Pub. L. No. 122-2013, § 2 (eff. April 30, 2013); Pub.

       L. No. 220-2013, § 2 (eff. July 1, 2013)).7


[16]   In Bd. of Comm’rs of the Cnty. of Harrison v. Lowe, the plaintiff was traveling

       westward on a road and approached an intersection with a north-south

       thoroughfare where two signs required eastbound and westbound traffic to stop

       but there were no stop or yield signs posted on the north-south thoroughfare.

       753 N.E.2d 708, 710 (Ind. Ct. App. 2001), trans. denied. The plaintiff stopped at

       the intersection as required, proceeded into the intersection, and was struck by a

       northbound vehicle. Id. The plaintiff filed suit against Harrison County and

       the driver of the northbound vehicle, alleging in part that Harrison County

       negligently failed to mark and sign the intersection. Harrison County asserted it

       was immune from liability pursuant to Ind. Code § 34-13-3-3. Id. Harrison

       County later moved for summary judgment under subsection (7) of Ind. Code §

       34-13-3-3,8 which is substantially similar to the version of subsection (8) of the



       7
           The current version of Ind. Code § 34-13-3-3 (Supp. 2013) provides in part:

                  A governmental entity or an employee acting within the scope of the employee’s
                  employment is not liable if a loss results from the following:
                                                            *****
                  (7)      The performance of a discretionary function; . . . .
                  (8)      The adoption and enforcement of or failure to adopt or enforce:
                           (A) a law (including rules and regulations); or
                           (B) in the case of a public school or charter school, a policy;
                           unless the act of enforcement constitutes false arrest or false imprisonment.
       8
        According to Lowe, the paragraph of Ind. Code § 34-13-3-3 relevant to its discussion provided that a
       governmental entity was not liable if a loss resulted from “(7) the adoption and enforcement of or failure to
       adopt or enforce a law (including rules and regulations), unless the act of enforcement constitutes false arrest
       or imprisonment[.]” Lowe, 753 N.E.2d at 711.

       Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016                              Page 12 of 20
       statute in effect at the time of the crash in this case, which the trial court denied

       on this basis.9 Id. at 710-711.


[17]   On interlocutory appeal, this court noted that the ITCA allows suit against

       government entities for torts committed by their agencies or employees but

       grants immunity under the specific circumstances enumerated in Ind. Code §

       34-13-3-3, that whether a governmental entity is immune from liability under

       the ITCA is a question of law for the courts, that the ITCA is narrowly

       construed against the grant of immunity, that immunity assumes negligence but

       denies liability, and that, if immunity exists, Harrison County simply is not

       liable and the degree of its culpability and the nature of its tortious conduct are

       not relevant considerations. Id. at 711.


[18]   The court observed that Harrison County and its Board of Commissioners were

       political subdivisions and that the Harrison County Board was the county’s

       legislative body and exercised county powers by adopting ordinances. Id. at

       711-712. The court noted that, as a local authority, the Harrison County Board

       may adopt by ordinance traffic regulations with respect to streets and highways

       under its jurisdiction provided they do not conflict with or duplicate a statute.

       Id.




       9
         The trial court granted Harrison County partial summary judgment on certain other grounds, namely, that
       it had immunity with respect to the design of the roads and had no legal duty to remove weeds or vegetation.
       Lowe, 753 N.E.2d at 710-711.

       Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016                         Page 13 of 20
[19]   Following a review of previous opinions discussing the application of Ind. Code

       § 34-13-3-3, the court held that the provision under subsection (7), which was

       similar to that found under subsection (8) at the time of the crash in this case,

       “unambiguously sheltered [Harrison County] from civil liability for its failure to

       adopt traffic control ordinances.” Id. at 718. The court further held that

       Harrison County was “immune for its failure to adopt ordinances to erect or

       change the placement of stop signs . . . at the intersection in question.” Id. at

       720. The court also held that, “[s]ince [Harrison County] is entitled to

       immunity on this issue, any actual knowledge it might have had regarding the

       dangerous condition of the intersection is inconsequential” and “[t]hus, we

       need not determine whether [Harrison County’s] knowledge of the allegedly

       dangerous condition of the intersection imposed upon it a duty to remedy the

       condition by adopting traffic control ordinances.” Id. (footnote omitted).


[20]   After finding that Harrison County was immune from liability for its failure to

       adopt ordinances regarding stop signs, the court addressed whether Harrison

       County was entitled to summary judgment with respect to its failure to erect

       warning signs. Id. The court observed that Harrison County had not moved for

       summary judgment on this issue and that, since it failed to meet its burden to

       demonstrate the absence of a question of fact regarding warning signs, the

       plaintiffs were not required to designate this issue or any relevant evidence in

       response to Harrison County’s motion. Id. The court held Harrison County

       was not entitled to summary judgment with respect to this claim. See id.




       Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016    Page 14 of 20
[21]   In this case, the Board as a political subdivision is a governmental entity for

       purposes of the ITCA, see Ind. Code § 34-6-2-49 (defining governmental entities

       for purposes of Ind. Code §§ 34-13-3 as the state or a political subdivision of the

       state); Ind. Code § 34-6-2-110(1), (10) (defining political subdivision to include a

       county and a board or commission of a county), and, if a board of county

       commissioners is a county’s legislative body, the board exercises its powers by

       adopting ordinances. See Ind. Code § 36-1-2-9 (defining legislative body to

       include a board of county commissioners); Ind. Code § 36-1-3-6 (providing that

       a unit wanting to exercise a power must, if the unit is a county, adopt an

       ordinance); Lowe, 753 N.E.2d at 711-712.


[22]   Further, as a local authority under Ind. Code § 9-13-2-94(b)10 and Hancock

       County’s legislative body, the Board may adopt by ordinance traffic regulations

       with respect to highways under its jurisdiction. See Ind. Code § 9-21-1-2

       (providing “a local authority may adopt by ordinance traffic regulations”); Ind.

       Code § 8-17-1-40 (providing a “county legislative body may adopt ordinances

       regulating traffic on any highway in the county highway system”); Lowe, 753

       N.E.2d at 712. In addition, Ind. Code § 9-21-1-3(a) provides in part:

               A local authority, with respect to private roads and highways
               under the authority’s jurisdiction, in accordance with sections 2
               and 3.3(a) of this chapter, and within the reasonable exercise of
               the police power, may do the following:




       10
         Ind. Code § 9-13-2-94 provides that “Local authorities” means every county having authority to adopt local
       police regulations under the laws and the Constitution of the State of Indiana.

       Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016                         Page 15 of 20
                                                       *****

               (6)      Designate a highway as a through highway and require
                        that all vehicles stop before entering or crossing the
                        highway.

               (7)      Designate an intersection as a stop intersection and require
                        all vehicles to stop at one (1) or more entrances to the
                        intersection.[11]

[23]   The Board’s designated evidence includes an affidavit of the Auditor of

       Hancock County, which states that Hancock County Ordinance 1992-12F,

       which had been adopted by the Board on December 14, 1992, provided that CR

       400W was a preferential through road where it intersected CR 200N and that

       vehicles traveling on CR 200N were required to come to a complete stop at the

       intersection of CR 200N and CR 400W before entering the intersection and

       yield the right-of-way to other motor vehicles. The adoption of this ordinance

       by the Board designated CR 400W as a through highway, see Ind. Code § 9-21-

       1-3(a), and the ordinance was adopted to regulate traffic using CR 400W and

       CR 200N. See Ind. Code § 9-21-1-2; Ind. Code § 8-17-1-40. Pursuant to Ind.

       Code § 34-13-3-3(8), the Board is not liable if any loss results from the adoption

       of Hancock County Ordinance 1992-12F designating CR 400W as a through

       road and not requiring drivers on that road to come to a stop where CR 400W

       intersects CR 200N. See Lowe, 753 N.E.2d at 720 (holding the county was




       11
        Subsections (6) and (7) are identical to those provisions as they existed at the time Hancock County
       Ordinance 1992-12F was adopted in December 1992. See Pub. L. No. 2-1991, § 9 (1991).


       Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016                         Page 16 of 20
       immune for its failure to adopt ordinances to erect or change the placement of

       stop signs at the intersection). The Board is sheltered from civil liability for any

       failure to adopt traffic control ordinances. See id. at 718 (holding Ind. Code §

       34-13-3-3 unambiguously sheltered the county from civil liability for its failure

       to adopt traffic control ordinances).


[24]   Based upon the designated evidence, we conclude that the Board is immune

       under Ind. Code § 34-13-3-3(8) from liability for any loss resulting from the

       adoption of Hancock County Ordinance 1992-12F or any failure to adopt an

       ordinance, in response to the frequency of traffic accidents discovered by

       monitoring or for any other reason, or take other legislative action related to the

       intersection of CR 400W or CR 200N. See Lowe, 753 N.E.2d at 718-720. See

       also Carter v. Indianapolis Power & Light Co., 837 N.E.2d 509, 522 n.20 (Ind. Ct.

       App. 2005) (noting that the county would be immune under Ind. Code § 34-13-

       3-3(8) for its failure to pass an ordinance to reduce the speed limit and citing

       Lowe), reh’g denied, trans. denied. Because the Board is entitled to immunity on

       this issue, any actual knowledge it may have had regarding any dangerous

       condition of the intersection is inconsequential, see Lowe, 753 N.E.2d at 720,

       and we need not address whether a duty existed, under the Manual or

       otherwise, which may have supported a negligence action against the Board

       based on any action or inaction of the Board as Hancock County’s legislative

       body. See Price, 954 N.E.2d at 453-454 (noting that immunity trumps a claim of

       negligence and bars recovery even where ordinary tort principles would impose

       liability); Lowe, 753 N.E.2d at 711 (if immunity exists, the governmental entity


       Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016    Page 17 of 20
       simply is not liable and the degree of its culpability are not relevant

       considerations).


[25]   Having found that the Board is immune from liability for any loss resulting

       from the adoption of Hancock County Ordinance 1992-12F or for its failure to

       adopt any traffic control ordinance with respect to the intersection of CR 400W

       or CR 200N, we turn to whether the County was entitled to summary judgment

       with respect to its alleged failure to monitor the frequency of accidents at the

       intersection and to erect appropriate warning signs. We observe that, in its

       motion for summary judgment and supporting memorandum, while the County

       argued it was immune from liability under Ind. Code § 34-13-3-3(8) for failing

       to convert the intersection from a two-way stop to a four-way stop, it did not

       request summary judgment with respect to any claim that it failed to install

       warning signs or other non-regulatory signs.


[26]   The County acknowledges the holding in Lowe with respect to warning signs

       but argues that the Estate’s claim is not predicated upon the absence of a

       warning sign and did not inform the lower court or this court of the warning

       sign which rendered the roads unsafe.12 However, since the County did not

       request summary judgment with respect to the claim it failed to install warning

       signs, the Estate was not required to designate this issue or evidence with




       12
         At the hearing on its summary judgment motion, the County stated there was a distinction between
       regulatory signs and warning signs, that ordinances are not required for a warning sign, that the Estate’s
       claim is not predicated upon the absence of a warning sign nor could it be, and that the Estate offers no
       response asserting that warning signs are needed to render the roadways or the intersection reasonably safe.

       Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016                          Page 18 of 20
       respect to this issue in response to the summary judgment motion. See Lowe,

       753 N.E.2d at 720 (“Since [Harrison County] failed to meet its burden to

       demonstrate the absence of a question of fact regarding warning signs, the

       [plaintiffs] were not required to designate this issue or any relevant evidence in

       response to [Harrison County’s] motion.”). Further, the Estate’s amended

       complaint alleged that the County failed to control traffic at the intersection of

       CR 400W or CR 200N through the installation of an alternative traffic control

       device, and in its materials filed in opposition to the County’s summary

       judgment request, the Estate designated the definitions contained in the Manual

       indicating that the term “Traffic Control Device” includes signs to “warn, or

       guide traffic” and argued that erecting or modifying non-regulatory signs such

       as warning signs does “not require ordinances or other legislative action.”

       Appellant’s Appendix at 268, 332. Also, the Estate argues the County could

       have installed a warning sign related to the intersection of CR 400W or CR

       200N for drivers using CR 400W.13 The County did not request and is not

       entitled to summary judgment with respect to the claim that it failed to erect

       appropriate warning signs.


[27]   Based upon the summary judgment materials and Lowe, we reverse the entry of

       summary judgment as to the claim the County failed to erect warning signs,




       13
         Section 2C.46 of the Manual relating to intersection warning signs discusses a cross road symbol which
       may be used in advance of an intersection to indicate the presence of an intersection and the possibility of
       turning or entering traffic, and the Manual provides guidelines as to the size of the sign and advance
       placement distances.

       Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016                            Page 19 of 20
       affirm the entry of judgment in all other respects, and remand for further

       proceedings.


                                                    Conclusion

[28]   For the foregoing reasons, we affirm in part, reverse in part, and remand for

       further proceedings consistent with this opinion.


[29]   Affirmed in part, reversed in part, and remanded.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016   Page 20 of 20
