                                                                                 FILED
                                                                          Apr 05 2016, 12:20 pm

                                                                                 CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court

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
                        Indiana Supreme Court
                                   No. 49S02-1604-CT-165

CITY OF BEECH GROVE,
                                                           Appellant (Defendant below),

                                               v.

CATHY J. BELOAT,
                                                           Appellee (Plaintiff below).


              Appeal from the Marion Superior Court, No. 49D03-1302-CT-5276
                         The Honorable Patrick L. McCarty, Judge


               On Petition to Transfer from the Indiana Court of Appeals, No. 49



                                         April 5, 2016

David, Justice.


       Cathy Beloat, a citizen of Beech Grove, Indiana, fell and injured herself when she stepped
into a hole on one of the Beech Grove City streets. She subsequently brought a claim against the
City for her injuries. The City claimed it was immune from any liability under the discretionary
function immunity provision within the Indiana Tort Claims Act (ITCA), among other things. The
trial court denied the City’s motion for summary judgment. We now affirm that denial. To prevail
on a claim that the City was entitled to discretionary function immunity under the ITCA, the City
had the burden of showing that its omission was an official “policy decision made by consciously
balancing risks and benefits.” Peavler v. Board of Com’rs of Monroe County, 528 N.E.2d 40, 46
(Ind. 1988). The designated evidence failed to demonstrate that the City engaged in a policy
decision to implement a total reconstruction project over carrying out individual repairs of road
damage in the relevant area. Moreover, on summary judgment, “[a]ll facts and reasonable
inferences drawn from those facts are construed in favor of the non-moving party.” Mangold ex
rel. Mangold v. Indiana Dept. of Natural Resources, 756 N.E.2d 970, 973 (Ind. 2001). As such,
we affirm the trial court’s denial of summary judgment and remand for further proceedings.


                                  Facts and Procedural History


       On the afternoon of June 19, 2012, Cathy Beloat was walking from her home in Beech
Grove, Indiana (the City) to the library. Beloat walked up Main Street and then began crossing
the street where Main Street intersects with 10th Street. As she was crossing the street, she stepped
slightly outside of the crosswalk to avoid a white pick-up truck that had stopped a few feet into the
crosswalk area. She then heard a snap, and she fell to the ground. She looked down to see her
foot was wedged in a hole. Beloat remained sitting in the street until two individuals assisted her
to a nearby curb. One of these individuals then drove her to the hospital, where Beloat learned
that she had broken her leg.


       Beloat subsequently filed a complaint against the City, alleging that the City had
negligently failed to maintain Main Street, and as a result, she had stepped into a hole in the street,
causing her to fall and incur medical bills and pain and suffering for her injuries. The City
responded, denying any liability and asserting, among other things, immunity under the Indiana
Tort Claims Act (ITCA), Indiana Code § 34-13-3-3. On March 19, 2014, the City motioned for
summary judgment. The City asserted: (1) Beloat was unable to establish the cause of her injury;
(2) the City was immune from liability pursuant to the ITCA’s discretionary function immunity

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provision, Indiana Code § 34-13-3-3(7); and (3) Beloat was contributorily negligent. The City
designated an affidavit from the City’s mayor, Dennis Buckley, and minutes from multiple
meetings of the City Board of Works and Safety and City Council to support its argument that the
City was entitled to discretionary function immunity. Relevant facts regarding the designated
evidence will be discussed in greater detail below.


       A hearing on summary judgment was held on July 21, 2014. The City’s motion for
summary judgment was denied, and, upon the City’s request, the trial court certified the order for
interlocutory appeal. The Court of Appeals accepted interlocutory jurisdiction. In a split decision,
the Court of Appeals determined that the City was entitled to discretionary function immunity,
reversed the trial court’s denial of summary judgment on the issue of immunity, and remanded the
case with instructions to enter summary judgment in favor of the City. City of Beech Grove v.
Beloat, 39 N.E.3d 691, 696-97 (Ind. Ct. App. 2015), vacated. Judge Robb dissented, arguing that
the City failed to demonstrate that it was entitled to discretionary function immunity. Id. at 697-
98, (Judge Robb, dissenting). We now grant transfer, thereby vacating the Court of Appeals
opinion. Ind. Appellate Rule 58(A).


                                       Standard of Review


       On review of a motion for summary judgment, our standard is the same as that of the trial
court: “summary judgment is appropriate only where the evidence shows that there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law.” Mangold,
756 N.E.2d at 973. The facts and reasonable inferences are construed in favor of the non-moving
party. Id. The court may only rely upon the evidence designated by the parties. Id. Summary
judgment is not appropriate “merely because the non-movant appears unlikely to prevail at trial.”
Hughley v. State, 15 N.E.3d 1000, 1004 (Ind. 2014) (quoting Tucher v. Brothers Auto Salvage
Yard, Inc., 564 N.E.2d 560, 564 (Ind. Ct. App. 1991)). Rather, “Indiana consciously errs on the
side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting
meritorious claims.” Hughley, 15 N.E.3d at 1004.

                                                      3
                                                Discussion


        The parties now dispute only whether the City is entitled to discretionary function
immunity under the ITCA. Ind. Code § 34-13-3-3. “Pursuant to the ITCA, governmental entities
can be subject to liability for tortious conduct unless the conduct is within an immunity granted by
Section 3 of [the] ITCA.” Veolia Water Indianapolis, LLC v. National Trust Ins. Co., 3 N.E.3d 1,
5 (Ind. 2014). The ITCA provides in pertinent part that “[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 . . . .” Ind. Code § 34-13-3-3(7).
Whether an act is discretionary “is a question of law for the court’s determination.” Peavler, 528
N.E.2d at 46. The burden is upon the entity seeking immunity to demonstrate that “the challenged
act or omission was a policy decision made by consciously balancing risks and benefits.” Id.
Moreover, this Court has cautioned that “[d]iscretionary immunity must be narrowly construed
because it is an exception to the general rule of liability.” Id. (citing Larson v. Ind. School Dist.
No. 314, 289 N.W.2d 112, 121 (Minn. 1979)).


        Keeping in mind our summary judgment standard of review, requiring all inferences to be
construed in favor of the non-moving party, we ultimately conclude that the City’s motion for
summary judgment, based upon the designated evidence, must fail.


   I.    The Designated Evidence does not Support Application of Discretionary Function
                                           Immunity


        In Peavler, this Court expressly adopted the “planning/operational test” for addressing
claims of discretionary function immunity. Peavler, 528 N.E.2d at 46. This test is designed to
“insulate[] only those significant policy and political decisions which cannot be assessed by
customary tort standards.” Id. at 45. This assessment requires close consideration of the nature


                                                     4
of the governmental actions and the decision-making process that was involved. Id. Labeling an
action as planning or operational, without more, is insufficient to determine whether immunity
exists. Id. Planning activities include acts or omissions “in the exercise of a legislative, judicial,
or executive or planning function which involves formulation of basic policy decisions
characterized by official judgment or discretion in weighing alternatives and choosing public
policy.” Id. (citing Marrek v. Cleveland Metroparks Board of Com’rs, 9 Ohio 3d 194, 459 N.E.2d
873 (1984)). However, the distinction between planning and operational functions is only a
standard, not a precise rule. Peavler, 528 N.E.2d at 45. The ultimate consideration is whether the
action is one that was intended to be immune, and “the court should look to the purposes of
immunity to determine whether those purposes would be furthered by extending immunity to the
act in question.”1 Id. at 46.




1
    Factors that this Court delineated that may point toward immunity include:

      1. The nature of the conduct-
            a. Whether the conduct has a regulatory objective;
            b. Whether the conduct involved the balancing of factors without reliance on
                 a readily ascertainable rule or standard;
            c. Whether the conduct requires a judgment based on policy decisions;
            d. Whether the decision involved adopting general principles or only
                 applying them;
            e. Whether the conduct involved establishment of plans, specifications and
                 schedule; and
            f. Whether the decision involved assessing priorities, weighing of budgetary
                 considerations or allocation of resources.
      2. The effect on governmental operations-
            a. Whether the decision affects the feasibility or practicability of a
                 government program; and
            b. Whether liability will affect the effective administration of the function in
                 question.
      3. The capacity of the court to evaluate the propriety of the government’s action-
         Whether tort standards offer an insufficient evaluation of the plaintiff’s claim.



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        Our Court of Appeals has applied the planning/operational test under various
circumstances. In each case, similar types of evidence have been relied upon to determine whether
a policy decision was made, and ultimately whether application of discretionary function immunity
is appropriate. We now examine these cases to shed light on these commonalities and to aid our
assessment of the evidence that has been designated by the City in the present case.


        In Lee v. State, a vehicle accident on State Road 7, at the “Wirt Curves,” resulted in the
death of a teenager, whose parents alleged that the Indiana Department of Transportation was
negligent in the design and proper maintenance of the road and failed to warn motorists of the
danger. 682 N.E.2d 576, 577 (Ind. Ct. App. 1997).                The State asserted it was entitled to
discretionary function immunity. Id. The court noted that in “cases of omission ‘a conscious
balancing may be demonstrated by evidence showing that a governmental entity considered
improvements of the general type alleged in plaintiff’s complaint.’” Id. at 578 (quoting Voit v.
Allen Cnty., 634 N.E.2d 767, 770 (Ind. Ct. App. 1994)). The following evidence was presented
to demonstrate that improvements to S.R. 7 were in the planning phase: (1) “a significant amount
of correspondence” regarding the history of accidents and dangers presented by the Wirt Curves;
(2) two separate investigations by INDOT into replacing the bridge near the Wirt Curves; (3)
INDOT’s decision to combine the bridge replacement with the Wirt Curve project into one large
reconstruction project; (4) INDOT approval of the larger project; (5) holding of a public hearing
and obtaining approval from the Federal Highway Administration; (6) final completion of the
engineering for the project, and moving into appraising value of land that would have to be
acquired; and (7) awarding a contract for the project. Id. at 578-79. The evidence designated by
INDOT clearly demonstrated the multiple phases of investigation, planning, modification, and




Peavler, 528 N.E.2d at 46. Yet, these factors are not determinative, nor even applicable to every set of facts
that may arise.




                                                          6
approval necessary to complete the reconstruction of S.R. 7. Due to the policy decisions that had
been made by the State, the court held that the State was entitled to immunity.


       In City of Indianapolis v. Duffitt, a complaint was brought against the city of Indianapolis
for negligently failing to repair a sidewalk after Duffitt tripped and fell on a damaged area of the
sidewalk, causing her physical injury. 929 N.E.2d 231, 234 (Ind. Ct. App. 2010). Indianapolis
designated evidence demonstrating that it had limited funds to repair sidewalks, and due to the
high demand on these limited funds, it had implemented a policy prioritizing side walk repairs and
renovations. Id. at 237. The Department of Public Works or District Managers could then further
prioritize or de-prioritize side walk repairs by conducting a cost-benefit analysis, with
consideration of budgetary concerns and competing projects. Id. Indianapolis also demonstrated
that certain decision-making that had been delegated to District Managers was also part of a
“conscious policy decision.” Id. Because Indianapolis had demonstrated that it performed “cost-
benefit analyses which produced the City’s prioritization scheme,” the decisions were
discretionary under the planning/operational test, and discretionary function immunity was
appropriate. Id. at 238-39.


       In the present case, the City has designated: (1) The Mayor’s affidavit, and (2) Minutes
from the City Council and the Board of Works and Safety meetings. Beloat did not object to the
admission of the Mayor’s affidavit at the summary judgment hearing. Thus, we first address the
Mayor’s affidavit. Specifically, to what degree can the Mayor’s affidavit be relied upon to
determine whether the failure to conduct routine maintenance on Main Street was postponed due
to a policy determination to carry out complete reconstruction of Main Street.


       The Mayor stated that “[f]or a number of years, the City of Beech Grove was in the
planning and then execution process of a road reconstruction project of Main Street.” (App. at
32.) “Rather than doing piecemeal repairs on Main Street, the City of Beech Grove chose to
perform a complete road reconstruction of the street.” Id. The Main Street Project was going to
consist of: “pavement replacement, enclosed storm drainage system, parking lanes, bike lane, curb

                                                     7
and gutter, sidewalks, and other improvements to the Main Street pedestrian and vehicular
corridor.” Id. There is no mention of the specific cost-benefit analysis that occurred in order to
determine that a total reconstruction project was preferable, or how the City determined what
repairs would be included within the reconstruction project and why.


        Decisions from Indiana courts, within the context of the ITCA and in other contexts, have
reiterated that “[t]he actions of individual members of a board or commission outside a meeting
cannot be substituted for the actions at a duly constituted meeting or for the minutes thereof.”
Scott v. City of Seymour, 659 N.E.2d 585, 590 (Ind. Ct. App. 1995) (citing Jones v. State ex. rel.
Indiana Livestock Sanitary Bd., 240 Ind. 230, 238, 163 N.E.2d 605, 608 (1960)). See also
Brademas v. St. Joseph County Com’rs, 621 N.E.2d 1133, 1137 (Ind. Ct. App. 1993) (explaining
that “[b]oards and commissions speak or act officially only through the minutes and records made
at duly organized meetings”). Here, the Mayor served as the presiding officer over the City
Council, but his comments and actions alone are not actions of the board itself, as he only serves
as an individual member on that board. (Ord. 2-1983, § 31.04). “Discretionary immunity . . . was
not intended to protect a policy decision made by one Board member.” Scott, 659 N.E.2d at 591.
Thus, the Mayor’s affidavit cannot be solely relied upon to demonstrate that the City engaged in a
policy determination in this case. Because “[p]ublic 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,” we must look to the designated
minutes of the City Council and Board of Works and Safety to determine whether a policy-oriented
decision making process occurred.2 Id.




2
  Even if the Mayor’s affidavit alone could be relied upon, the Mayor’s affidavit is a conclusory statement
that a policy decision was made to perform a total reconstruction project rather than conduct piecemeal
repairs. This Court is required to look into “the nature of the governmental act and the decision-making


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        In addition, nothing in the record indicates that the Mayor had been delegated individual
authority to weigh the cost and benefits of road repairs and make an independent policy decision
regarding whether certain repairs should be made over others. The Mayor’s own affidavit does not
even claim to have such authority. Rather, the Mayor asserts that “the City of Beech Grove chose
to perform a complete road reconstruction.” (App. at 32.) (emphasis added). This is unlike City
of Terre Haute v. Pairsh, where the court considered the policy decisions made by the City
Transportation Infrastructure Manager, who had been specifically delegated policy-making and
prioritization assessment authority from the relevant governmental body. 883 N.E.2d 1203, 1207
(Ind. Ct. App. 2008). Here, the parties do not assert that the Mayor had been delegated authority
to individually make policy decisions on behalf of the entire City Council.3 Because the Mayor’s
affidavit alone cannot be relied upon to demonstrate that an official policy decision was made, we
now look to the designated minutes from the City Council and Board of Works and Safety
meetings.


        As for the remaining designated evidence of official conduct, the City Council meeting
minutes seem to almost exclusively discuss the financial aspect of the Main Street Project. At the
May 7, 2012, meeting, the Mayor explained that the money available in the general obligation
bond for the City was insufficient to pay for various projects, one of which included the Main
Street Project.     A representative from Crossroads Engineers (Crossroads) explained that




process involved.” Peavler, 528 N.E.2d at 45 (emphasis added). “Merely labeling an action as planning
or operational, without more, cannot pass for analysis.” Id.
3
  We acknowledge that the Court of Appeals in Pairsh was split on the issue of whether an individual who
has been delegated policy-making powers can constitute “official action” for purposes of immunity. See
Pairsh, 883 N.E.2d at 1209-1211 (Judge May, dissenting). Because the Mayor and the City make no claim
that the Mayor was delegated an independent policy-making role, we do not express our agreement or
disagreement with the conclusion in Pairsh. We find it sufficient to conclude that official action could not
be demonstrated by the Mayor’s affidavit alone in this case.



                                                         9
construction was expected to start in the fall, and while “there were no changes on paper, items
were scaled back within the projects.” (App. at 57.) On June 4, 2012, Crossroads gave an update
on the Main Street Project, but the details of that update were not provided in the minutes. A first
reading of Ordinance No. 18 and No. 19 were also voted upon, which authorized the issuance and
sale of bonds for City use, which included “various infrastructure improvement and updates.”
(App. at 67-68.) On June 18, 2012, the City Council heard the second reading of General
Ordinance No. 18. On July 2, 2012, the City Council voted for final approval of Ordinance No.
18 and Ordinance No. 19, which would allow for the funding of the Main Street Project, among
other things. Again on November 5, 2012, further discussion of the Main Street Project occurred,
namely that Crossroads had a temporary office set up to work with business owners with the goal
of “minimiz[ing] the impact to local business from the construction[.]” (App. at 118, 122.) The
Main Street Project was on track to begin after the Citizens Water project, which was addressing
water main issues underneath Main Street.4


        There was also mention of the Main Street project at the Board of Works and Safety
meetings. On April 16, 2012, the Clerk explained that a claim from Crossroads was presented in
relation to the Main Street Project. Again on May 7, 2012, the Mayor explained that certain bills
that were to be paid to Crossroads were for the Main Street Project. At the June 4, 2012, meeting,
the Board of Works and Safety approved by unanimous voice vote the Main Street Project
Inspection Agreement that was presented by Crossroads. As Peavler set out, planning activities
include, “Government decisions about policy formation which involve assessment of competing
priorities and a weighing of budgetary considerations or the allocation of scarce resources.” 528
N.E.2d at 45. The minutes presented within the record do not reflect any discussion about how




4
  The City Council minutes clarify that the Citizens Water Project, also occurring on Main Street, “should
not be confused with the Main Street project as Beech Grove is not affiliated with this, nor is Beech Grove
incurring the cost associated with it.” (App. at 122.)



                                                        10
the area encompassed within the Project was decided upon, why specific repairs were selected
over others, what would be done about road damage in the meantime, why total reconstruction was
necessary, or the costs of total reconstruction compared to conducting other individual repairs.


        The minutes do demonstrate that a procedure was followed in approving the necessary
funding for the Main Street Project and that discussions regarding the funding and timeline for the
project spanned a significant period of time. With this, an inference could be made that the City
Council and/or the Board of Works and Safety, at some point, engaged in a policy discussion about
the benefits, risks, and cost allocation associated with the Main Street Project. The need for such
a large and expensive project was likely explained, the specifics of the project debated, and the
final plan for what would be included ultimately voted upon.


        However, our standard of review forbids such an inference. On summary judgment, all
facts and reasonable inferences must be drawn in favor of the non-moving party, which in this case
is Beloat, not the City. Mangold, 756 N.E.2d at 973. Here, the actual weighing of options,
discussion of alternatives, or cost-benefit analysis are nowhere within the minutes that were
designated as evidence for the purposes of summary judgment.5 They may exist somewhere, but
are not in the record we reviewed. Rather, the minutes reflect the steps taken to fund a project that
had already been discussed, planned, and approved.              Even the City seems to occasionally
acknowledge that the record shows the “systematic decision-making process involved in
approving financing for complete reconstruction of the area of Main Street where plaintiff fell.”
(Resp. Pet. Tr. at 4.) (emphasis added). Yet, the approval of financing alone does not demonstrate




5
 We also note that several of the relevant inquiries set out in Peavler, and provided in footnote one, would
also require inferences to be made in order to answer. For example, “whether the conduct involved the
balancing of factors without reliance on a readily ascertainable rule or standard?” Peavler, 528 N.E.2d at
46. Here, the minutes reflect no balancing of different options. Thus, it is impossible to assess whether the
balancing that possibly took place was done without reliance upon a rule or standard.



                                                         11
the cost-benefit analysis, weighing of other options, and prioritization discussions that are needed
to determine that the City had in fact engaged in a policy-oriented decision making process.


       We acknowledge that multiple cases have addressed discretionary function immunity and
explain that there is “no need for the entity to demonstrate that it considered and rejected the
specific improvements alleged.” Voit, 634 N.E.2d at 770. We agree and do not wish to change
that standard now. However, a governmental entity must demonstrate that “conscious balancing”
took place, which can be shown by evidence that “the governmental entity considered
improvements of the general type alleged in [the plaintiff’s] complaint.” Id. While the City did
not need to demonstrate that it considered whether it should fill the specific hole that was alleged
to have caused Beloat’s injuries, it did have to make some showing that the Main Street Project
was implemented instead of general road repairs, such as filling pot holes, and that the costs and
benefits of this decision were weighed. That is simply not present within this record.


       While the facts presented in this case may have made the decision on immunity a close
call, in those circumstances, we err on the side of narrowly construing a finding of immunity.
Because the designated evidence of official action does not demonstrate the prioritization or cost-
benefit analysis that went into the development and approval of the Main Street Project, the City
is not entitled to discretionary function immunity under the ITCA on summary judgment.
Although it may be true that the City was within the planning phase of its reconstruction project
when the incident occurred, we cannot reach that conclusion without drawing an inference against
the non-movant. Thus, we affirm the trial court’s denial of summary judgment. On remand, the
City “bear[s] the burden [of] demonstrat[ing] the discretionary nature of the decision in order to
prevail on a claim of immunity.” Peavler, 528 N.E.2d at 48.




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                                           Conclusion


       Based upon our review of the designated evidence and our existing precedent, the City
failed to meet its burden of demonstrating that the challenged act or omission was a policy decision
made by consciously balancing risks and benefits. Thus, the City was not entitled to summary
judgment on the question of discretionary function immunity under the ITCA. We affirm the trial
court’s denial of summary judgment and remand for further proceedings.


        Rush, C.J., Dickson, Rucker, and Massa, J.J., concur.




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