                                                                   Jun 10 2015, 8:53 am




ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
J. Thomas Vetne                                             Stephen W. Thompson
Brian R. Gates                                              Vaughn A. Wamsley
Jones Obenchain, LLP                                        Vaughn A. Wamsley, P.C.
South Bend, Indiana                                         Carmel, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Indiana Department of                                      June 10, 2015
Transportation,                                            Court of Appeals Case No.
                                                           64A04-1411-CT-544
Appellant-Defendant,
                                                           Interlocutory Appeal from the Porter
and                                                        Superior Court
                                                           The Honorable William E. Alexa,
Ricardo Bustos,                                            Judge
Defendant,                                                 Case No. 64D02-1103-CT-2072

        v.

Paula Sadler, as the Personal
Representative of the Estate of
Roger D. Sadler,
Appellee-Plaintiff




Crone, Judge.




Court of Appeals of Indiana | Opinion 64A04-1411-CT-544 | June 10, 2015                   Page 1 of 15
                                                 Case Summary
[1]   Roger D. Sadler was struck by a car and killed as he performed road work on

      an interstate. Paula Sadler, as personal representative of his estate (“the

      Estate”) filed a wrongful death action against Indiana Department of

      Transportation (“INDOT”), alleging that Roger’s death was caused by

      INDOT’s negligence in failing to temporarily close or block a median crossover

      as a safety measure during the road work.1 INDOT filed a summary judgment

      motion, arguing that it was immune from liability pursuant to the Indiana Tort

      Claims Act (“ITCA”). The trial court denied its summary judgment motion.


[2]   INDOT now brings this interlocutory appeal challenging the denial of its

      summary judgment motion. INDOT argues that it is entitled to summary

      judgment because Indiana Code Section 34-13-3-3(7) of the ITCA provides

      immunity to a government entity or its employee from losses resulting from the

      performance of a discretionary function and INDOT’s decision not to close the

      median crossover was a discretionary function.2 We conclude that INDOT has

      failed to carry its burden to show that it is entitled to immunity. Therefore, we

      affirm.




      1
          Ricardo Bustos was also named as a defendant, but he is not participating in this appeal.
      2
        INDOT dedicates five pages of its brief arguing that the ITCA immunized INDOT from vicarious liability
      for an independent contractor’s negligence, an issue it acknowledges that the Estate conceded and the trial
      court did not rule on.

      Court of Appeals of Indiana | Opinion 64A04-1411-CT-544 | June 10, 2015                         Page 2 of 15
                                   Facts and Procedural History
[3]   The facts most favorable to the Estate, the nonmoving party, are as follows.3

      INDOT hired Moonrock, Inc., to seal pavement cracks on I-94. The project

      was a mobile operation, meaning that the workers moved along the road as

      they worked. An INDOT engineer periodically visited the work site to ensure

      that Moonrock was following contract specifications, including proper safety

      precautions.


[4]   Roger was a Moonrock employee. On April 30, 2010, Roger was working in

      the scope of his employment as part of Moonrock’s sealing crew in the left-hand

      (inside) lane of westbound I-94 just west of mile marker 23.1 in Porter County.

      In this area, I-94 is a six-lane divided highway with three westbound and three

      eastbound lanes. Due to the road construction, the left-hand and center lanes of

      westbound I-94 were closed to traffic, while the right-hand (outside) lane was

      open. The westbound lanes were closed both east and west of mile marker

      23.1, with orange and white construction barrels between the closed lanes and

      the right-hand westbound lane. On I-94, the westbound and eastbound lanes




      3
        Appellant’s counsel use footnotes rather than citation sentences as required under Indiana Appellate Rule
      22. In City of Elkhart v. SFS, LLC, 968 N.E.2d 812 (Ind. Ct. App. 2012), we explained,
              Citation sentences are required under our appellate rules. Ind. Appellate Rule 22 (requiring
              adherence to Bluebook rules); see The Bluebook: A Uniform System of Citation R. B2, at 4
              (Columbia Law Review Ass’n et al. eds., 19th ed. 2010) (“In non-academic legal
              documents, citations appear within the text of the document as full sentences or as clauses
              within sentences directly after the propositions they support.”).
      Id. at 815 n.1. We have admonished counsel for noncompliance with Appellate Rule 22 before. Lane v.
      Rosenquist, No. 43A03-1111-CT-534, slip op. at 3 n.1 (Ind. Ct. App. 2012). A third violation of Appellate
      Rule 22 may be treated more seriously than merely identifying it in a footnote.

      Court of Appeals of Indiana | Opinion 64A04-1411-CT-544 | June 10, 2015                          Page 3 of 15
      are separated by permanent concrete median barriers. However, at mile marker

      23.1 there was an opening in the median barrier, commonly referred to as a

      median crossover. Median crossovers were created for police, emergency, and

      maintenance vehicles and are not intended for use by the general public. At

      mile marker 23.1, there was a “No U-turn” sign posted. Although the inside

      and center lanes running past the median crossover were blocked to traffic, the

      crossover itself was not blocked with any temporary traffic control devices.


[5]   At approximately 3:00 a.m., Ricardo Bustos was traveling eastbound on I-94

      and used the median crossover at mile marker 23.1 to do a U-turn onto

      westbound I-94. He travelled a short distance in the closed lanes and struck

      Roger with his vehicle. After several days of intensive medical care, Roger died

      as a result of the injuries he incurred when Bustos ran into him.


[6]   The Estate filed a wrongful death complaint against INDOT and Bustos.

      Relevant to this appeal, the Estate alleged that INDOT was negligent for failing

      to temporarily close or block the median crossover at mile marker 23.1 when

      Moonrock’s road crew was in the vicinity, which resulted in Roger’s death.

      INDOT moved for summary judgment arguing that the ITCA shielded it from

      any claims that it negligently allowed Bustos to enter the I-94 work zone

      through a median crossover placed in accord with INDOT’s departmental

      policy. The trial court denied INDOT’s summary judgment motion. This

      interlocutory appeal ensued.




      Court of Appeals of Indiana | Opinion 64A04-1411-CT-544 | June 10, 2015   Page 4 of 15
                                      Discussion and Decision
[7]   INDOT appeals the trial court’s denial of its summary judgment motion.


                      When reviewing a grant or denial of a motion for summary
              judgment our well-settled standard of review is the same as it is for the
              trial court: whether there is a genuine issue of material fact, and
              whether the moving party is entitled to judgment as a matter of law.
              Summary judgment should be granted only if the evidence sanctioned
              by Indiana Trial Rule 56(C) shows that there is no genuine issue of
              material fact and the moving party deserves judgment as a matter of
              law. All factual inferences must be construed in favor of the non-
              moving party, and all doubts as to the existence of a material issue
              must be resolved against the moving party.

      Kroger Co. v. Plonski, 930 N.E.2d 1, 4-5 (Ind. 2010) (citations omitted).


[8]   “A genuine issue of material fact exists where the facts concerning an issue that

      would dispose of the litigation are in dispute or where the undisputed material

      facts are capable of supporting conflicting inferences on such an issue.”

      Vanderhoek v. Willy, 728 N.E.2d 213, 215 (Ind. Ct. App. 2000). “Where the

      evidence is in conflict, or undisputed facts lead to conflicting inferences,

      summary judgment should not be granted, even if it appears that the

      nonmovant will not succeed at trial.” Dickerson v. Strand, 904 N.E.2d 711, 715

      (Ind. Ct. App. 2009).


[9]   INDOT asserts that it is entitled to summary judgment because it has

      “discretionary function” immunity pursuant to the ITCA. Government entities

      and their employees are subject to liability for torts committed by them, unless

      one of the ITCA exceptions provides immunity. Peavler v. Bd. of Comm’rs of


      Court of Appeals of Indiana | Opinion 64A04-1411-CT-544 | June 10, 2015         Page 5 of 15
Monroe Cnty., 528 N.E.2d 40, 42 (Ind. 1988). Indiana Code Section 34-13-3-

3(7) of the ITCA 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 performance of a discretionary function.”

        The policy underlying governmental immunity is the fundamental idea
        that certain kinds of executive branch decisions should not be subject
        to judicial review. The separation of powers doctrine forecloses the
        courts from reviewing political, social, and economic actions within
        the province of coordinate branches of government. In this way, the
        discretionary function exception articulates “a policy of preventing tort
        actions from becoming a vehicle for judicial interference with decision-
        making that is properly exercised by other branches of the
        government.” Blessing v. United States, 447 F. Supp. 1160, 1170 (E.D.
        Penn. 1978) (interpreting FTCA discretionary function exception).

        ….

        Immunity for discretionary functions, however, does not protect all
        mistakes of judgment. The discretionary function exception insulates
        only those significant policy and political decisions which cannot be
        assessed by customary tort standards. In this sense, the word
        discretionary does not mean mere judgment or discernment. Rather, it
        refers to the exercise of political power which is held accountable only
        to the Constitution or the political process.

        ….

        Immunity assumes negligence but denies liability. Thus, the issues of
        duty, breach and causation are not before the court in deciding
        whether the government entity is immune. If the court finds the
        government is not immune, the case may yet be decided on the basis of
        failure of any element of negligence. This should not be confused with
        the threshold determination of immunity.

Peavler, 528 N.E.2d at 44-47 (citations omitted).

Court of Appeals of Indiana | Opinion 64A04-1411-CT-544 | June 10, 2015        Page 6 of 15
[10]   Whether a government entity is immune from liability is a question of law,

       which we review de novo. E. Chicago Police Dep’t v. Bynum, 826 N.E.2d 22, 26

       (Ind. Ct. App. 2005), trans. denied (2006). Because the ITCA is in derogation of

       the common law, we construe it narrowly against the grant of immunity. Lee v.

       State, 682 N.E.2d 576, 578 (Ind. Ct. App. 1997), trans. denied (1998). The party

       seeking immunity has the burden of establishing that its conduct falls within

       one of the exceptions provided by the ITCA. Id.


[11]   To determine whether a government entity has engaged in a discretionary

       function and is thereby shielded from tort liability, we use the “planning-

       operational test.” Peavler, 528 N.E.2d at 46. Under that test, “a governmental

       entity will not be held liable for negligence arising from decisions which are

       made at a planning level, as opposed to an operational level.” Lee, 682 N.E.2d

       at 578. A decision is considered a “planning” action where it involves “the

       formulation of basic policy characterized by official judgment, discretion,

       weighing of alternatives, and public policy choices.” Voit v. Allen Cnty., 634

       N.E.2d 767, 770 (Ind. Ct. App. 1994). “Government decisions about policy

       formation which involve assessment of competing priorities, a weighing of

       budgetary considerations, or the allocation of scarce resources are also planning

       activities.” Id. In contrast, a decision is an “operational” action where it

       involves only the execution or implementation of already formulated policy.

       Id. “‘The governmental entity seeking to establish immunity bears the burden

       of proving that the challenged act or omission was a policy decision made by




       Court of Appeals of Indiana | Opinion 64A04-1411-CT-544 | June 10, 2015   Page 7 of 15
       the conscious balancing of risks and benefits.’” Id. (quoting Greathouse v.

       Armstrong, 616 N.E.2d 364, 367 (Ind. 1993)).


[12]   Here, the basis of the Estate’s claim is that INDOT caused Roger’s death by

       negligently failing to temporarily close or block the median crossover while

       workers were in the vicinity. INDOT contends that it performed a

       discretionary function when it installed the median crossovers. Specifically,

       INDOT asserts,

               INDOT formed a committee decades ago to consider whether
               crossovers are appropriate in light of roadway function, public safety,
               and the safety of workers who periodically perform roadway
               maintenance. In particular, the committee had to balance the need to
               accommodate emergency, maintenance, and traffic-service vehicles
               against the danger created when authorized or unauthorized vehicles
               use crossovers.
               The result of that committee’s deliberations is Departmental Policy 7-
               6. That policy created specific crossovers along I-94.
               ….
               INDOT should not face liability for how it weighed competing public
               policy concerns when it formulated Policy 7-6.

       Appellant’s Br. at 14-15.


[13]   Our review of Policy 7-6 shows that its purpose was to establish median

       crossovers and guide INDOT in deciding where median crossovers should be

       placed. For example, Policy 7-6 provides that median crossovers should be

       kept to a minimum and should not be located in urban areas and specifies the

       appropriate distance between them. Appellant’s App. at 171. Policy 7-6 also

       lists the location of permitted median crossovers, including the one at mile

       Court of Appeals of Indiana | Opinion 64A04-1411-CT-544 | June 10, 2015           Page 8 of 15
       marker 23.1. Id. at 195. We agree with INDOT’s statement that “[e]stablishing

       a median crossover at the 23.1 mile-marker on I-94 involved the very type of

       policy-driven judgment that I.C. § 34-13-3-3(7) protects.” Id. at 14 (emphasis

       added). See City of Crown Point v. Rutherford, 640 N.E.2d 750, 754-55 (Ind. Ct.

       App. 1994) (concluding that city’s decision to repair certain areas of sidewalk

       and not others was based on formulation of basic policy and balancing of risks

       and benefits and thus was shielded with discretionary function immunity), trans.

       denied (1995); Voit, 634 N.E.2d at 770-71 (concluding that highway department

       engaged in systematic process for determining what improvements would be

       made to highways, a policy-making decision that would receive discretionary

       function immunity).


[14]   However, INDOT’s decision to locate a median crossover at mile marker 23.1

       is not the action that the Estate alleges caused Roger’s death. Rather, the Estate

       alleges that INDOT’s failure to decide to temporarily close or block the median

       crossover when workers were near it caused Roger’s death. Although INDOT

       asserts that it has a policy to keep median crossovers open at all times that is

       based on Policy 7-6, Policy 7-6 does not provide any guidance as to whether

       median crossovers should be kept open at all times. INDOT itself concedes

       that “Policy 7-6 [does not] explicitly say that crossovers must remain open at all

       times.” Appellant’s Br. at 20. Therefore, INDOT’s argument that it performed

       a discretionary function in adopting Policy 7-6 does not adequately address the

       threshold question of whether INDOT had a policy of never closing median

       crossovers, which INDOT adopted by weighing alternative solutions and


       Court of Appeals of Indiana | Opinion 64A04-1411-CT-544 | June 10, 2015   Page 9 of 15
       competing priorities, considering budgetary constraints and the allocation of

       scarce resources, or performing a risk-benefit analysis.


[15]   INDOT claims that the testimony of two of its employees establishes that “it

       conducted a risk-benefit analysis as to keeping the crossovers open in the

       vicinity of road-improvement projects.” Id. at 17. First, INDOT directs us to

       the affidavit of Mark Miller, INDOT’s chief engineer, director of construction

       management, and chair of its Highway Construction Specification Committee.

       Miller testified that “Policy 7-6 was guided in its deliberations by three primary

       concerns: ‘roadway function, safety of travelers, and workers who would

       periodically perform maintenance on the roads.’” Id. at 18 (quoting Appellant’s

       App. at 32). However, as we concluded earlier, Policy 7-6 addresses the

       existence and location of median crossovers but does not show that INDOT

       adopted a policy that median crossovers remain open when construction

       workers are present. As such, Miller’s testimony fails to answer the threshold

       question of whether INDOT had a policy that median crossovers remain open

       during road construction, so we do not find it persuasive. Keeping the crossover

       open did not preclude blocking a U-turn directly into the closed lanes where the

       workers were present. The crossover could have stayed open with crossover

       traffic utilizing the open lanes of westbound I-94.


[16]   Second, INDOT refers us to the testimony of Nathan Butts, an INDOT office-

       area engineer. Butts did not have statewide responsibilities. INDOT asserts,

       “According to Butts, INDOT ‘weighed safety for the public for emergency

       responses with the safety for the workers on the job-site in deciding whether to

       Court of Appeals of Indiana | Opinion 64A04-1411-CT-544 | June 10, 2015   Page 10 of 15
       keep those (crossovers) open or closed.’” Id. at 19 (quoting Appellant’s App. at

       226). Our review of Butts’s testimony reveals that he answered affirmatively

       when asked whether he weighed public safety and worker’s safety in deciding

       whether to keep “those medians open or closed.” Appellant’s App. at 226

       (emphasis added). He also answered affirmatively when asked whether it was

       “current policy of INDOT that those median cuts should not be closed by

       barrels or any type of device.” Id.


[17]   However, Butts also testified that there is nothing in writing from INDOT that

       requires or specifies that median crossovers always be kept open, but that “it’s

       just general practice.” Id. More importantly, he testified that INDOT would

       have been open to either placing a barrel or parking a truck in the median

       crossover as two viable alternatives that would both protect the public by

       permitting police and emergency vehicles access through the median crossover

       while better protecting the workers. Appellee’s App. at 138. Viewed in the

       light most favorable to the Estate, the inference arising from Butts’s testimony is

       that INDOT had not consciously adopted a policy that median crossovers

       remain open during all road construction; rather, INDOT might have been

       willing to temporarily close or block a median crossover if circumstances arising

       from road construction warranted it.


[18]   Further, INDOT Standard Specifications, which were incorporated into

       INDOT’s contract with Moonrock, suggest that INDOT did not have a blanket

       policy of keeping median crossovers open during road construction. Section

       105.03 provides, “Any deviation from the plans or specifications that may be

       Court of Appeals of Indiana | Opinion 64A04-1411-CT-544 | June 10, 2015   Page 11 of 15
       required by the exigencies of construction will be determined by the Engineer

       and authorized in writing.” Id. at 9. Section 107.12 provides, “All necessary

       precautions shall be taken for the protection of the work and safety of the

       public. … Sufficient barricades, supplemented by watchers or flaggers when

       necessary, shall be provided continuously to protect any and all parts of the

       work.” Id. at 13-14. Such provisions support the position that the engineer

       assigned to the road construction project had the authority to make decisions

       regarding safety, including temporarily closing or blocking a median crossover

       or taking other safety measures that would allow emergency vehicles access

       through the crossover but blocking access to the closed lanes. Therefore, we

       conclude that INDOT has failed to carry its burden to show that it had a policy

       that median crossovers always remain open regardless of the particular safety

       considerations arising from a given road construction project.


[19]   Even if we were to accept INDOT’s assertion that Policy 7-6 included a policy

       that median crossovers always remain open, INDOT concedes that Policy 7-6

       permits a deviation from such a policy if authorized in writing by the

       appropriate INDOT engineer. INDOT asserts that it is nevertheless entitled to

       immunity because its engineers simply followed the policy of keeping median

       crossovers open and “nothing about Moonrock’s project raised any red flags

       that would have required INDOT to conclude that an open crossover posed a

       threat to workers that outweighed the crossover’s proven benefits.” Appellant’s

       Reply Br. at 8; see also Appellant’s Br. at 21 (“There was no need for INDOT to

       reconsider its median crossover policy in the specific context of Moonrock’s


       Court of Appeals of Indiana | Opinion 64A04-1411-CT-544 | June 10, 2015   Page 12 of 15
       work along I-94.”). But INDOT’s assertion that it was not necessary under the

       circumstances to temporarily close the median crossover does not answer the

       question of immunity. Rather, the decision whether to close the median

       crossover under the particular circumstances goes to the heart of the alleged

       negligence.


[20]   Finally, INDOT contends that any decision by one of its engineers as to

       whether a specific median crossover should be temporarily blocked due to road

       construction is itself a discretionary function immune from liability because by

       “its very nature, any decision to open or close a crossover requires a policy-

       oriented judgment call and a balancing of public interests and safety concerns.”

       Appellant’s Reply Br. at 10. But in determining whether a governmental entity

       or its employee engaged in a discretionary function, the critical inquiry is “not

       merely whether judgment was exercised but whether the nature of the judgment

       called for policy considerations.” Peavler, 528 N.E.2d at 45. We agree that the

       decision whether to temporarily close or block a median crossover due to road

       construction would require the appropriate INDOT engineer to exercise his or

       her professional judgment. But what is the nature of that judgment?


[21]   “Exercising professional judgment, without more, is not equivalent to the

       formulation of basic policy. Countless government employees make

       professional judgments every day that do not constitute discretionary

       functions.” Greathouse, 616 N.E.2d at 368. Here, when exercising his or her

       professional judgment to decide whether to temporarily close a specific median

       crossover while road workers were near it, the engineer would have to follow

       Court of Appeals of Indiana | Opinion 64A04-1411-CT-544 | June 10, 2015   Page 13 of 15
the specific contract provisions governing the road construction project,

INDOT’s Standard Specifications, and other relevant documents.4 As such, the

engineer’s determination of the proper safety precautions for a specific road

project at a specific site is more of an implementation of INDOT policies rather

than a policy decision in itself; it is performed at an operational level rather than

a planning level. Although a government employee may be permitted to

exercise some discretion in how he or she implements policy, such discretion

does not equate to the level of executive judgments that should be afforded

protection under the governmental immunity doctrine. Id. at 367. Finally, we

observe that the designated evidence shows that no engineer exercised any

judgment in deciding whether to temporarily close the median crossover or

keep it open while workers were nearby. Butts testified that whether to use

barrels or vehicles to temporarily close the median crossover was never

considered. Appellee’s App. at 138. Given the procedural posture of this case,

the designated evidence does not reveal what other safety measures could have

been considered and implemented. Leaving a median crossover completely

open and unguarded or completely closing it are not the only two options.

Some combination of safety devices could be used to allow access through the

median crossover to an emergency vehicle while still preventing vehicles from

doing a U-turn directly into the closed lanes where workers are present.




4
 For example, INDOT Standard Specifications include reference to the Manual of Uniform Traffic Control
Devices.

Court of Appeals of Indiana | Opinion 64A04-1411-CT-544 | June 10, 2015                   Page 14 of 15
[22]   We must construe all factual inferences in favor of the Estate. In addition, we

       must construe the ITCA against the grant of immunity. We conclude that

       INDOT has failed to carry its burden to show that it is entitled to discretionary

       function immunity, and therefore the trial court properly denied its summary

       judgment motion.


[23]   Affirmed.


       Brown, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 64A04-1411-CT-544 | June 10, 2015   Page 15 of 15
