                                                                      Jul 16 2015, 8:32 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Ian L. Stewart                                             David L. Byers
      Stephenson Morow & Semler                                  Andrew J. Noone
      Indianapolis, Indiana                                      Holwager, Byers, & Caughey
                                                                 Beech Grove, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      City of Beech Grove,                                       July 16, 2015

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A02-1409-CT-605
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      Cathy J. Beloat,
                                                                 The Honorable Patrick L. McCarty,
      Appellee-Plaintiff                                         Judge
                                                                 Cause No. 49D03-1302-CT-5276




      Mathias, Judge.

[1]   The City of Beech Grove, Indiana (“the City”), appeals the order of the Marion

      Superior Court denying the City’s motion for summary judgment in the

      negligence claim brought against the City by Cathy J. Beloat (“Beloat”). The

      City appeals and argues that no genuine issues of material fact exist with regard

      to whether the City was entitled to immunity from suit for performance of a

      “discretionary function” under Indiana Code section 34-13-3-3(7).




      Court of Appeals of Indiana | Opinion No. 49A02-1409-CT-605 | July 16, 2015             Page 1 of 15
[2]   We reverse and remand.


                                      Facts and Procedural History

[3]   The facts in the light most favorable to Beloat, as the non-moving party, reveal

      that on June 19, 2012, Beloat was walking across Main Street in Beech Grove,

      Indiana at the intersection of Main Street and 10th Street. As she walked across

      the street at the crosswalk, Beloat had to step outside of the crosswalk area to

      walk around a white pickup truck that had blocked part of the crosswalk. As

      Beloat did this, her foot went into a hole in the pavement and became stuck,

      causing her to trip. Beloat heard her left leg “snap,” and she fell to the ground.

      Two passersby saw Beloat fall and helped her up; one of these passersby took

      her to the hospital, where she was treated for fractures in her left tibia and

      fibula, the two bones in the lower leg.1

[4]   Beloat filed a complaint against the City on February 11, 2013, alleging

      negligence. The City responded on March 28, 2013, and almost a year later, on

      March 10, 2014, the City filed a motion for summary judgment, claiming that

      Beloat was unable to prove proximate cause because she did not know which

      hole had caused her to fall, that the City was entitled to discretionary function

      immunity under Indiana Code section 34-13-3-3(7), and that Beloat’s claim was

      barred due to contributory negligence. Beloat filed a response to the City’s

      motion, and the trial court held a summary judgment hearing on July 21, 2014.

      The trial court issued an order denying the City’s motion for summary


      1
          See http://www.britannica.com/EBchecked/topic/595018/tibia.




      Court of Appeals of Indiana | Opinion No. 49A02-1409-CT-605 | July 16, 2015   Page 2 of 15
      judgment on July 24, 2014. The City then requested that the trial court certify

      its order for interlocutory appeal. The trial court did so, and we accepted

      interlocutory jurisdiction on October 3, 2014.


                             Summary Judgment Standard of Review

[5]   Our standard for reviewing a trial court’s order granting a motion for summary

      judgment is well settled:

              When reviewing a grant of summary judgment, our standard of
              review is the same as that of the trial court. Considering only
              those facts that the parties designated to the trial court, we must
              determine whether there is a genuine issue as to any material fact
              and whether the moving party is entitled to a judgment as a
              matter of law. In answering these questions, the reviewing court
              construes all factual inferences in the non-moving party's favor
              and resolves all doubts as to the existence of a material issue
              against the moving party. The moving party bears the burden of
              making a prima facie showing that there are no genuine issues of
              material fact and that the movant is entitled to judgment as a
              matter of law; and once the movant satisfies the burden, the
              burden then shifts to the non-moving party to designate and
              produce evidence of facts showing the existence of a genuine issue
              of material fact.
              The party appealing a summary judgment decision has the burden
              of persuading this court that the grant or denial of summary
              judgment was erroneous. Where the facts are undisputed and the
              issue presented is a pure question of law, we review the matter de
              novo.
              Importantly for this case, summary judgment is rarely appropriate
              in negligence actions, since negligence cases are particularly fact
              sensitive and are governed by a standard of the objective
              reasonable person. This standard is best applied by a jury after
              hearing all of the evidence.



      Court of Appeals of Indiana | Opinion No. 49A02-1409-CT-605 | July 16, 2015   Page 3 of 15
      M.S.D. of Martinsville v. Jackson, 9 N.E.3d 230, 235 (Ind. Ct. App. 2014), trans.

      denied (citations and internal quotations omitted).


                                  Discretionary Function Immunity

[6]   The City claims that it was entitled to summary judgment because it was

      entitled to immunity from Beloat’s claim under Indiana Code section 34-13-3-

      3(7). As we explained in Jackson:


              The Indiana Tort Claims Act (“ITCA”), Indiana Code section
              34-13-2-1 et seq., was enacted after our supreme court abrogated
              the common law sovereign immunity of governmental units from
              tort liability. The ITCA governs tort claims against governmental
              entities and public employees. Pursuant to the ITCA,
              governmental entities can be subjected to liability for tortious
              conduct unless the conduct is within an immunity granted by
              Section 3 of [the] ITCA. The party seeking immunity bears the
              burden of establishing that its conduct comes within the ITCA.
              The ITCA provides that a governmental entity or governmental
              employee who acts within the scope of that employee's duty will
              not be liable if a loss results from “[t]he performance of a
              discretionary function[.]” Ind. Code § 34-13-3-3(7). The party
              who seeks immunity bears the burden of establishing that its
              conduct falls within the discretionary function exception.

      Id. at 235-36 (some citations and internal quotations omitted).


[7]   Prior to our supreme court’s decision in Peavler v. Board of Commissioners of

      Monroe County, 528 N.E.2d 40, 46 (Ind. 1988), this court distinguished between

      “ministerial” and “discretionary” acts to determine if certain conduct was

      included within the immunity exception. Discretionary acts were immune;

      ministerial acts were not. See Jackson, 9 N.E.3d at 236 (citing Harvey v. Bd. of



      Court of Appeals of Indiana | Opinion No. 49A02-1409-CT-605 | July 16, 2015   Page 4 of 15
      Comm'rs of Wabash County, 416 N.E.2d 1296 (Ind. Ct. App. 1981)). We defined

      a “ministerial” act as “one which a person performs in a given state of facts in a

      prescribed manner, in obedience to the mandate of legal authority without

      regard to, or the exercise of, his own judgment upon the propriety of the act

      being done.” Id. (citing Dep’t of Mental Health v. Allen, 427 N.E.2d 2, 4 (Ind. Ct.

      App. 1981)). We classified conduct as discretionary if it involved discretion “on

      the part of the officer to determine whether or not he should perform a certain

      act, and, if so, in what particular way[.]” Id. (citing Adams v. Schneider, 71 Ind.

      App. 249, 124 N.E. 718, 720 (1919)).

[8]   However, in Peavler, our supreme court expressly rejected the ministerial-

      discretionary distinction analysis and held that discretionary judgments are not

      immune from legal challenge under the ITCA unless they can be properly

      characterized as “policy” decisions that have resulted from a conscious

      balancing of risks and benefits and/or weighing of priorities. Id. (citing Peavler,

      528 N.E.2d at 45-46). In rejecting the old ministerial/discretionary distinction,

      the Peavler court noted:


              The ministerial/discretionary test does not advance the public
              policy of government immunity because it does not consider the
              type of decision protected by immunity. Rather, it considers only
              the resulting conduct and attempts to label that conduct. The
              ministerial/discretionary test defines “discretionary” in the
              negative: anything which is non-ministerial is discretionary. The
              test does not require an affirmative finding that the governmental
              action arose from the type of policy-making decision protected by
              governmental immunity.

      Id.


      Court of Appeals of Indiana | Opinion No. 49A02-1409-CT-605 | July 16, 2015   Page 5 of 15
[9]    In place of the ministerial/discretionary test, the Peavler court instead adopted a

       “planning/operational” test, defining “planning activities” as those that

       “include acts or omissions in the exercise of a legislative, judicial, executive or

       planning function which involves formulation of basic policy decisions

       characterized by official judgment or discretion in weighing alternatives and

       choosing public policy” as well as “[g]overnment decisions about policy

       formation which involve assessment of competing priorities and a weighing of

       budgetary considerations or the allocation of scarce resources are also planning

       activities.” Id. at 45.


[10]   Thus, under Peavler, the discretionary function exception of the ITCA insulates

       from liability only planning activity, characterized as “only those significant

       policy and political decisions which cannot be assessed by customary tort

       standards” and as “the exercise of political power which is held accountable

       only to the Constitution or the political process.” Id. at 45. The supreme court

       was unambiguous in its declaration that it did not intend all decisions that

       involve “judgment or discernment” to be immune from liability, since “[i]t

       would be difficult to conceive of any official act, no matter how directly

       ministerial, that did not admit of some discretion in the manner of its

       performance.” Id. at 43, 45; see also Veolia Water Indianapolis, LLC v. Nat'l Trust

       Ins. Co., 3 N.E.3d 1 (Ind. 2014) (holding that the City’s failure to require for-

       profit water company to follow terms of management agreement by properly

       maintaining water supply to fire hydrants was not a discretionary function, and

       thus, statutory immunity under the ITCA did not protect the city from liability



       Court of Appeals of Indiana | Opinion No. 49A02-1409-CT-605 | July 16, 2015   Page 6 of 15
       for damages that resulted from a fire that destroyed a restaurant when

       firefighters’ efforts were delayed due to a frozen fire hydrant and when the city

       made no deliberate policy decision to fail to require company to follow the

       terms of a management agreement by properly maintaining fire hydrants' water

       supply, or make a conscious decision about policy formation which involved

       assessment of competing priorities and a weighing of budgetary considerations

       or the allocation of scarce resources); Jackson, 9 N.E.3d at 241-42 (holding that

       school corporation was not entitled to discretionary function immunity in claim

       against it in connection with the shooting of a student where school’s safety

       plan was developed by the school’s principal with no involvement from the

       school board or its committees and principal’s development of the safety plan

       was not an exercise of political power).


[11]   Here, the City designated evidence indicating that it was in the process of

       making a decision on improving Main Street. Specifically, the City was

       planning to totally reconstruct that portion of Main Street at the intersection of

       10th Street, where Beloat’s fall occurred, as opposed to performing piecemeal

       repairs. The City Council was in the process of approving the financing

       necessary to begin the complete reconstruction of Main Street at the time of

       Beloat’s fall. In fact, the day before Beloat’s fall, the City Council held the

       second of the three votes necessary to issue the bonds to fund the reconstruction

       project. This, the City argues, means that its decision not to improve the defects

       in Main Street prior to Beloat’s fall is subject to discretionary function

       immunity.




       Court of Appeals of Indiana | Opinion No. 49A02-1409-CT-605 | July 16, 2015   Page 7 of 15
       In support of its position, the City cites Lee v. State, 682 N.E.2d 576, 577 (Ind.

       Ct. App. 1997). In Lee, the decedent was killed in an automobile accident that

       occurred on a series of curves on State Road 7 (“S.R. 7”). The decedent’s

       mother filed suit against the State and the Indiana Department of

       Transportation (“INDOT”), claiming that INDOT negligently designed and

       constructed S.R. 7, failed to properly warn motorists of the unreasonably

       dangerous nature of S.R. 7, failed to maintain S.R. 7 so as to prevent injury to

       motorists, and failed to eliminate the known dangerous condition of S.R. 7. The

       trial court granted summary judgment in favor of the State on grounds that the

       State was immune to suit under the ITCA.


[12]   On appeal, we affirmed the trial court, noting that the designated evidence

       indicated that INDOT had engaged in decision making regarding the specific

       improvement alleged in Lee's complaint, and improvement of the curves was in

       the planning phase at the time of the decedent’s accident. Id. at 578. This, the

       Lee court held, was the exact sort of policy-based decision that the ITCA

       intended to shield from judicial review. Id. at 579.


[13]   The City also cites City of Indianapolis v. Duffitt, 929 N.E.2d 231 (Ind. Ct. App.

       2010), in which the plaintiff sued the city after tripping and falling on a city

       sidewalk. There, as here, at issue was whether the city was entitled to

       discretionary function immunity under the ITCA. After discussing the relevant

       case law, the Duffitt court held that the city was entitled to immunity, noting

       that the designated evidence revealed that the city had limited funds for

       sidewalk repair, that many projects competed for these funds, and therefore the



       Court of Appeals of Indiana | Opinion No. 49A02-1409-CT-605 | July 16, 2015   Page 8 of 15
       city had a policy regarding sidewalk repair prioritization in which sidewalks

       with the same level of priority were repaired in the order in which they were

       entered into the system. However, the Department of Public Works could have

       further prioritized or de-prioritized sidewalk repairs by conducting a cost-benefit

       analysis with due consideration for budgetary concerns and competing projects.

       Accordingly, the Duffitt court held that, “[g]iven the budgetary considerations

       and cost-benefit analyses which produced the City’s prioritization scheme, the

       City’s designated evidence demonstrates that its decisions are discretionary

       under the “planning-operational” test[.]” Id. at 238.


[14]   The same is true in the present case. Here, the designated evidence reveals that

       the City Council was in the planning phase of an improvement project that

       would reconstruct Main Street at the location where Beloat’s fall occurred. In

       making this decision, the City had to balance budgetary concerns with the need

       to repair the street. Instead of performing piecemeal repairs, the City decided to

       wholly reconstruct the street and was in the process of approving the bonding

       required to fund the repairs at the time of Beloat’s accident. This sort of policy

       decision is the sort of planning decision that is afforded immunity under the

       ITCA’s discretionary function immunity.

[15]   We find Beloat’s reliance on Jackson and Scott v. City of Seymour, 659 N.E.2d 585

       (Ind. Ct. App. 1995), to be unavailing. In Jackson, we held that the school

       district was not entitled to discretionary function immunity because the school

       safety plan was developed by the school principal, who was not a public official

       or a public-policy maker. Id. at 240-41. Only the elected school board could



       Court of Appeals of Indiana | Opinion No. 49A02-1409-CT-605 | July 16, 2015   Page 9 of 15
       create a policy that would be subject to such immunity. Id. Because the school

       principal was not a public official and was not granted any statutory authority

       to develop a safety plan, we held that the principal’s development of the safety

       plan was not an exercise of political power that would be immune from suit. Id.

       at 242. Similarly, in Scott, we held that the city was not entitled to discretionary

       function immunity because the decision to repair city streets was not made by

       the city board of public works but was instead the decision of one man—the

       city engineer and director of public works. 659 N.E.2d at 590. We held:

               [T]he fundamental concept underlying governmental immunity is
               the notion that certain kinds of executive or legislative branch
               policy decisions should not be subject to judicial review. Peavler,
               528 N.E.2d at 44. Discretionary immunity, however, was not
               intended to protect a policy decision made by one Board
               member. Public policy decisions committed to a board or commission
               and entitled to discretionary immunity must be made in public in the
               manner provided by law, not on an informal basis outside of the public
               record. Without any minutes of a duly constituted Board meeting,
               we cannot conclude that the City, acting through its Board of
               Public Works, exercised official judgment or engaged in the
               necessary policy oriented decision-making process.

       Id. at 591 (emphasis added).


[16]   In contrast here, the decision regarding repaving and reconstructing Main Street

       was not made by one individual acting outside the normal policy-making

       procedures. Instead, it was made by the City’s Board of Works and Safety and

       the City Counsel, as shown in the designated meetings of these bodies.




       Court of Appeals of Indiana | Opinion No. 49A02-1409-CT-605 | July 16, 2015   Page 10 of 15
[17]   Beloat also cites Scott for the proposition that the City is not shielded from her

       claim because her claim can be addressed under traditional tort standards. We

       think this reads too much into that case. In Scott, the court wrote:


               [T]he discretionary function exception is not absolute but
               insulates only those significant policy and political decisions
               which cannot be assessed by customary tort standards. It is not
               the province of the court to second-guess the wisdom of those executive or
               legislative decisions which were the result of a policy oriented decision-
               making process. Rather, that exercise of power is held accountable
               only to the Constitution or the political process.

       Id. at 589. Here, the decision not to make piecemeal repairs to Main Street and

       instead reconstruct the street is the very sort of policy-oriented decision which

       we are unwilling to second guess. The fact that Beloat frames her claim as

       simple negligence does not alter the fact that her claim ultimately calls into

       question the decision of the City to reconstruct the street instead of make

       smaller repairs.


                                                    Conclusion

[18]   The designated evidence establishes that the policy decision to reconstruct Main

       Street was made by the elected policy makers, and the reconstruction of Main

       Street was in the planning stages when Beloat fell. Accordingly, we hold that

       the City is entitled to discretionary function immunity under section 34-13-3-

       3(7) of the ITCA. The trial court therefore erred in denying the City’s motion

       for summary judgment, and we accordingly reverse the order of the trial court

       and remand with instructions to enter summary judgment in favor of the City.




       Court of Appeals of Indiana | Opinion No. 49A02-1409-CT-605 | July 16, 2015     Page 11 of 15
[19]   Reversed and remanded.


       May, J., concurs.

       Robb, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion No. 49A02-1409-CT-605 | July 16, 2015   Page 12 of 15
                                                   IN THE
          COURT OF APPEALS OF INDIANA

      City of Beech Grove,                                        Court of Appeals Case No.
                                                                  49A02-1409-CT-605
      Appellant-Defendant,

              v.
      Cathy J. Beloat,
      Appellee-Plaintiff.




      Robb, Judge, dissenting.

[1]   I respectfully dissent from my colleagues’ determination that summary

      judgment was improperly denied because the City is entitled to “discretionary

      function” immunity from Beloat’s suit. See Ind. Code § 34-13-3-3(7), slip op. at

      ¶ 18. I believe that the decision takes too broad a view of the discretionary

      function exception.

[2]   As the majority notes, Peavler adopted the “planning/operation” test for

      determining whether a particular governmental act is discretionary and

      therefore entitled to immunity. See slip op. at ¶ 9. “Essentially, the test provides

      that a governmental entity is immune from liability when the alleged negligence

      arises from decisions which are made at the planning level, as opposed to the

      operational level.” Scott, 659 N.E.2d at 588-89.




      Court of Appeals of Indiana | Opinion 49A02-1409-CT-605 | July 16, 2015                 Page 13 of 15
              Planning activities include acts or omissions in the exercise of a
              legislative, executive or planning function which involves formulation
              of basic policy decisions characterized by official judgment or
              discretion in weighing alternatives and choosing public policy.
              Government decisions about policy formation which involve
              assessment of competing priorities and a weighing of budgetary
              considerations or the allocation of scarce resources are also planning
              activities.

      Peavler, 528 N.E.2d at 45 (internal citations omitted). Discretionary function

      immunity “must be narrowly construed because it is an exception to the general

      rule of liability.” Id. at 46. The City must therefore show “that the challenged

      act or omission was a policy decision made by consciously balancing risks and

      benefits.” Id.


[3]   Here, the City’s mayor stated the following in an affidavit designated on

      summary judgment:

              For a number of years, [the City] was in the planning and then
              execution process of a road reconstruction project of Main Street from
              its intersection with Emerson Avenue to its intersection with 13th Street
              . . . . Rather than doing piecemeal repairs on Main Street, [the City]
              chose to perform a complete road reconstruction of the street. The
              Main Street Project consisted of pavement replacement, enclosed
              storm drainage system, parking lanes, bike lane, curb and gutter,
              sidewalks and other improvements to the Main Street pedestrian and
              vehicular corridor.

      Appendix of Appellant at 32. Attached to the affidavit are minutes from Board

      of Works and Safety meetings at which the project design and funding was

      discussed, beginning in March of 2012. The “physical road reconstruction of

      the Main Street Project began in March 2013 with the entire reconstruction

      project concluding in November 2013.” Id. I find no support in the designated



      Court of Appeals of Indiana | Opinion 49A02-1409-CT-605 | July 16, 2015       Page 14 of 15
      evidence for the proposition that the City made a conscious policy decision to

      perform no repairs—no matter how obvious the defect or serious the danger—to

      several blocks of Main Street beginning in March 2012 because a reconstruction

      project was being discussed. Nor do I find support for the proposition that the

      City engaged in an assessment of repairs that might need to be made pending

      the start of the reconstruction project and established a policy based upon that

      assessment. See Duffitt, 929 N.E.2d at 242 (“In the case of omissions, a

      conscious balancing may be demonstrated by evidence showing that the

      governmental entity considered improvements of the general type alleged in the

      plaintiff’s complaint. Where this is shown, there is no need for the entity to

      demonstrate that it considered and rejected the specific improvements

      alleged.”).


[4]   In short, simply filling a pothole does not strike me as the kind of “piecemeal

      repair” that was set aside in favor of the overall improvement project, assuming

      that the City in fact made the policy decision to eschew repairs of any kind. It is

      not a matter of repaving several feet of a lane of traffic or realigning an

      intersection, for example. Although there are certainly claims surrounding this

      time and place for which the City would have discretionary function immunity

      due to the reconstruction project, I do not believe this is one of them.


[5]   I would affirm the trial court’s denial of summary judgment.




      Court of Appeals of Indiana | Opinion 49A02-1409-CT-605 | July 16, 2015    Page 15 of 15
