                                                                              FILED
                                                                         May 29 2019, 8:50 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEYS FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
      William E. Emerick                                        Curtis T. Hill, Jr.
      Tyler L. Jones                                            Attorney General of Indiana
      Stuart & Branigin LLP                                     Andrea E. Rahman
      Lafayette, Indiana                                        Patricia C. McMath
                                                                Deputy Attorneys General
                                                                Indianapolis, Indiana



                                 IN THE
                       COURT OF APPEALS OF INDIANA

      Milan Jurich, Personal                                    May 29, 2019
      Representative of the Estate of                           Court of Appeals Case No.
      Rade Jurich, and Rajna Jurich,                            18A-CT-1417
      Appellants-Plaintiffs,
                                                                Appeal from the
              v.                                                Tippecanoe Superior Court
                                                                The Honorable
      Indiana Department of                                     Steven P. Meyer, Judge
      Transportation,                                           Trial Court Cause No.
      Appellee-Defendant.                                       79D02-1601-CT-10



      Kirsch, Judge.


[1]   Rajna Jurich (“Rajna”), individually, and Milan Jurich, as personal

      representative of the estate of Rade Jurich (together, “the Jurichs”), appeal the

      trial court’s grant of summary judgment in favor of the Indiana Department of

      Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019                            Page 1 of 32
      Transportation (“INDOT”) in the Jurichs’ suit alleging negligence, wrongful

      death, and negligent infliction of emotional distress. On appeal, the Jurichs

      raise the following restated issues:


              I. Whether the trial court erred by granting summary judgment
              in favor of INDOT, finding that INDOT had discretionary
              function immunity because it engaged in a policy-based planning
              decision to not install a temporary traffic signal at the newly
              constructed intersection where the Jurichs’ accident occurred;


              II. Whether the trial court abused its discretion by denying the
              Jurichs’ motion to correct error based on their claim of the newly
              discovered evidence of a 2011 traffic study and related emails;
              and


              III. Whether the trial court abused its discretion by rescinding its
              previously ordered discovery sanctions against INDOT.


[2]   We affirm.

                                  Facts and Procedural History
[3]   The motor vehicle collision that gave rise to the instant action occurred at the

      intersection (“the Intersection”) of U.S. Highway 231 (“US 231”) and

      Cumberland Avenue, West Lafayette, Indiana. The Intersection was created as

      part of a $45,600,000 construction project (“the US 231 Project”) to relocate

      and reconstruct US 231 as a bypass around the City of West Lafayette, in

      Tippecanoe County. Appellants’ App. Vol. 2 at 55. The US 231 Project was part

      of a “Major Moves” project. Id. A traffic study for the US 231 Project began

      around 2008 but was not completed until 2010. Tr. Vol. 2 at 68. The actual


      Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019           Page 2 of 32
      construction of the US 231 Project began in 2011 and was completed in 2013.

      Appellants’ App. Vol. 2 at 55.


[4]   Around that same time, a “local highway safety improvement project for

      Cumberland Avenue” was also underway (“the Cumberland Project”). Id. at

      49. The Cumberland Project, which was “a federally funded Local Partnership

      agreement with [Tippecanoe] County” and distinct from the US 231 Project,

      extended Cumberland Avenue, thereby also impacting the Intersection. Id.

      INDOT provided no state money for the Cumberland Project and had minimal

      involvement in that project; instead, INDOT “served as a pass-through entity

      for federal funds to the County.” Appellants’ App. Vol. 3 at 122. In April 2014,

      “West Lafayette and Tippecanoe County highway officials lobbied INDOT

      heavily—but unsuccessfully—for the erection of [a temporary traffic control]

      signal” at the Intersection as part of the Cumberland Project. Appellants’ App.

      Vol. 2 at 56.


[5]   By statute, INDOT must follow the Indiana Manual on Uniform Traffic

      Control Devices (“the Manual”) when determining whether to install a traffic

      signal at a specific intersection. See Ind. Code § 9-21-4-1. Pursuant to the

      Manual, “[a]n engineering study of traffic conditions, pedestrian characteristics,

      and physical characteristics of the location shall be performed to determine

      whether installation of a traffic control signal is justified at a particular

      location.” Appellants’ App. Vol. 2 at 99. The Manual contains a list of nine

      factors (“warrants”) that INDOT must consider in making its decision whether

      to install a traffic signal at an intersection. Id. The Manual states that a “traffic

      Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019                Page 3 of 32
      control signal should not be installed unless one or more of the [warrants] . . .

      are met.” Id. (emphasis added).


[6]   The US 231 Project created eight new intersections. In 2010, George Kopcha

      (“Kopcha”), INDOT’s Crawfordsville District Traffic Planning Engineer,

      conducted a “Signal Warrant Analysis” of those “Proposed New Intersections”

      (“2010 Study”). Appellants’ App. Vol. 2 at 182-89; Appellee’s App. Vol. 2 at 5-12.

      Looking only at Warrant 1 (Eight-Hour Vehicular Volume), INDOT

      determined that: (1) five of the eight intersections met the Manual’s ADT

      volume requirement to justify installation of a temporary traffic signal; (2) one

      intersection needed to be closer to completion to make a determination; and (3)

      two intersections did not meet the Manual’s requirements to justify a temporary

      traffic signal. Appellants’ App. Vol. 2 at 182-89; Appellee’s App. Vol. 2 at 5-12. The

      Intersection was one of the two intersections that did not meet the ADT volume

      requirements to justify the installation of a temporary traffic signal. Appellants’

      App. Vol. 2 at 185-86; Appellee’s App. Vol. 2 at 8-9. INDOT planned to do a

      second study after the intersection opened to traffic in April 2014, and in the

      meantime, INDOT decided to install stop signs for vehicles travelling

      eastbound and westbound on Cumberland Avenue. Appellants’ App. Vol. 2 at

      28, 39. Vehicles traveling northbound and southbound on US 231 were not

      required to stop. Id. at 172.


[7]   On July 15, 2014, about three months after the opening of the Intersection and

      twelve days before Rade and Rajna’s accident, Kopcha performed INDOT’s

      second traffic study. The analysis of the July 2014 traffic study, which was

      Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019            Page 4 of 32
      completed on August 14, 2014, showed that traffic still did not meet the

      Manual’s required minimum ADT volume to justify a temporary traffic signal.

      Id. at 29. Because INDOT anticipated an increase in traffic at the Intersection

      once Purdue University was back in session, INDOT planned to perform a

      third study in the fall of 2014. Id. at 103-04. In October 2014, INDOT

      conducted a third traffic study,1 which showed that increased traffic now met

      the criteria for installation of a traffic signal.2 A traffic signal was placed at the

      Intersection. Id. at 29.


[8]   On July 27, 2014, before the results of the July 2014 traffic study had been

      released, Rade was driving his Honda Accord eastbound on Cumberland

      Avenue toward its intersection with US 231, with Rajna as his passenger. He

      approached US 231 driving in the left through-lane of Cumberland Avenue and

      came to a complete stop at the Intersection’s stop sign. Rade proceeded part

      way across the Intersection, when his car was struck by a Lexus operated by

      Saeyeov Kim (“Kim”).3 In an affidavit, accident-reconstruction expert Jay

      Nogan, stated Kim was traveling 72 miles-per-hour, a speed well over US 231’s

      posted speed limit of 55 miles-per-hour. Id. at 154. The force of the collision




      1
        It is not clear whether this study was completed in September or October of 2014. Appellants’ App. Vol. 3 at
      5, 14. For ease of reference, and because the exact date does not change our analysis, we will assume this
      traffic study was completed in October 2014.
      2
       The same four INDOT employees participated in the 2010, July 2014, and October 2014 traffic studies.
      They were Alan Plunkett, Crawfordsville District Deputy Commissioner; George Kopcha, Crawfordsville
      District Traffic Planning Engineer; William R. Smith, Crawfordsville District Traffic Engineer; and Joe
      Lewein, Crawfordsville District Technical Services Director. Appellants’ App. Vol. 2 at 101-04.
      3
          The record contains two spellings: Sae Y. Kim and Saeyeov Kim. Appellants’ App. Vol. 2 at 54, 63.


      Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019                                   Page 5 of 32
      propelled Rade’s vehicle across the Intersection, “where it careened off the

      roadway” and then veered back onto Cumberland Avenue, where it came to a

      rest. Id. Rade and Rajna suffered serious injuries, including fractured ribs,

      cracked teeth, severe bruising, internal bleeding, and the destruction of a

      cochlear implant; Rade ultimately died from his injuries. Id. at 155. Kim’s

      insurer, GEICO, agreed to tender the single person bodily injury limit of

      $100,000 to settle the Estate’s claim and $100,000 to settle Rajna’s claim.

      Appellants’ App. Vol. 2 at 55.


[9]   In January 2016, the Jurichs filed their complaint against INDOT, alleging that

      INDOT was negligent.4 Specifically, the Jurichs argued that INDOT breached

      its “duty to exercise reasonable care in the design and maintenance of its

      highways for the safety of public users” by “failing to properly conduct a traffic

      study” and “failing to erect a [temporary] traffic control signal at the

      [I]ntersection.” Id. at 57. The Jurichs claimed that INDOT’s alleged

      negligence resulted in injuries to Rajna, the wrongful death of Rade, and

      negligent infliction of emotional distress to Rajna. Id. at 57-59. In February

      2016, INDOT filed its answer and affirmative defenses.5 Id. at 8, 66-75.




      4
        On the date of the accident, the Jurichs were insured by Hanover Insurance Group LLC, which provided
      bodily injury coverage of $250,000 per person and $500,000 per occurrence. Appellants’ App. Vol. 2 at 54-55.
      The Jurichs’ policy also contained medical payments coverage of $10,000 per person and Uninsured
      Underinsured Motorist coverage of $250,000 per person and $500,000 per accident. Id. at 55. The Jurichs
      also named Hanover as a defendant. In October 2016, the trial court granted the Jurichs’ and Hanover’s
      Joint Stipulation for Dismissal. Id. at 11.
      5
        INDOT set forth affirmative defenses, including: (1) the Jurichs were careless and negligent with regard to
      their own safety and wellbeing, which proximately caused or contributed to the injuries and damages alleged;

      Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019                                 Page 6 of 32
[10]   On August 7, 2017, INDOT filed its motion for summary judgment and

       attached thereto its designated evidence. Appellants’ App. Vol. 2 at 14, 76-89.

       Summarized, INDOT argued that the Jurichs could not recover damages

       because: (1) Rade was contributorily negligent; (2) INDOT’s decision to not

       install a temporary traffic signal was entitled to discretionary function immunity

       pursuant to Indiana Code section 34-13-3-3(7) of the Indiana Tort Claims Act

       (“the ITCA”); and (3) the undisputed material evidence negated at least one

       element of the Jurichs’ negligence claim. Id. at 81-88. In September 2017, the

       Jurichs filed their response in opposition to summary judgment and designated

       their supporting evidence. That same day, the Jurichs also filed their motion to

       strike INDOT’s designated evidence. INDOT filed a reply to the Jurichs’

       response in opposition to summary judgment and a response to the Jurichs’

       motion to strike designated evidence. The Jurichs, in turn, filed a motion to

       substitute their previously designated Exhibit 4. Appellee’s App. Vol. 2 at 2-12.

       On October 18, 2017, the trial court held a hearing on the outstanding motions,

       including the motion for summary judgment. The trial court granted the

       Jurichs’ motion to strike INDOT’s Exhibit A (the crash report) and took all

       other matters under advisement.




       (2) the Jurichs’ alleged injuries were the proximate result of the their having voluntarily assumed risk; (3)
       INDOT is immune from liability because their act was a discretionary function under the Indiana Tort
       Claims Act; (4) the Jurichs have been fully or partially compensated for their injury and are not entitled to
       recover from INDOT and or INDOT is entitled to a full or partial set-off; (5) the Jurichs did not mitigate
       damages; (6) the Jurichs failed to state a cause of action upon which relief may be granted; (7) INDOT was
       not the proximate cause of the injuries; and (8) INDOT did not have actual or constructive notice of a
       dangerous situation. Appellants’ App. Vol. 2 at 73-74.

       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019                                   Page 7 of 32
[11]   Meanwhile, the parties were engaging in discovery. The Jurichs had served

       interrogatories and a request for production on INDOT. Specifically, the

       Jurichs asked INDOT “to provide information regarding the facts and studies

       [that] INDOT used to determine whether or not to install a [temporary] traffic

       signal at the [Intersection].” Appellants’ App. Vol. 3 at 2. In its response,

       INDOT provided the Jurichs with the following documents: (1) the 2010

       Study; (2) the July 2014 traffic study; and (3) the October 2014 traffic study. Id.

       at 3-4. INDOT did not produce a later-discovered 2011 study of the

       Intersection (“Structurepoint Study”), which American Structurepoint had

       completed for Tippecanoe County. Id. at 86. The Jurichs also asked INDOT to

       “[i]dentify all communication, contact, and correspondence INDOT received

       from officials and representatives from West Lafayette, Indiana, Tippecanoe

       County, Indiana and any other government entity regarding the intersection at

       US Highway 231 and Cumberland Avenue.” Appellants’ App. Vol. 2 at 101.

       Around February 2017, INDOT responded, “None in INDOT’s possession as

       of today’s date.” Id.


[12]   In October 2017, after the hearing on summary judgment, the Jurichs’ counsel

       obtained—from Opal Kuhl, a retired engineer who had worked for Tippecanoe

       County—various documents, including a copy of the Structurepoint Study and

       related 2011 emails. The Structurepoint Study agreed with INDOT’s 2010

       Study’s determination that the Intersection’s average daily traffic (“ADT”)

       volume for Warrant 1 was not met; however, the Structurepoint Study found

       that the requirements for Warrant 3 (Peak Hour) had been met. Id. at 86.


       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019            Page 8 of 32
       Based on the discovery of these documents, the Jurichs concluded that INDOT

       had withheld important information, arguing that Warrant 3 justified the

       installation of a temporary traffic signal.


[13]   The Jurichs filed a motion for sanctions, alleging that INDOT had intentionally

       kept those documents from them. Id. at 2-10. INDOT responded, refuting as

       baseless the Jurichs’ contention that INDOT intentionally concealed the

       Structurepoint Study and associated 2011 emails. Appellants’ App. Vol. 3 at 40.

       INDOT cited to the deposition of William R. Smith (“Smith”), who was at that

       time INDOT’s Crawfordsville District Traffic Engineer, who said that he and

       other employees had searched for the emails; however, INDOT’s policy

       regarding purging old emails resulted in no emails prior to 2014 being in the

       system. Id. Furthermore, Smith said he had no record of ever receiving the

       Structurepoint Study, but even if he had, it would have been of no use to

       INDOT because INDOT could not have used this analysis to determine a

       temporary traffic signal was warranted at the Intersection “as Warrant 3—Peak

       Volume—cannot be used for future intersections according to the [Manual].”

       Id. at 41, 56. The Jurichs filed a reply.


[14]   On January 23, 2018, the trial court issued two separate orders. In its order

       pertaining to INDOT’s motion for summary judgment and the Jurichs’ motions

       to strike designated evidence and to substitute Exhibit 4, the trial court

       determined that the designated evidence was as follows: INDOT’s Exhibits B,

       C, D, E, and F and the Jurichs’ Exhibit 1, Substituted Exhibit 2 (striking



       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019             Page 9 of 32
       paragraph 11), Exhibit 3, and substituted Exhibit 4.6 The trial court denied

       INDOT’s motion for summary judgment on the claim that Rade had been

       contributorily negligent, finding that there was a genuine issue of material fact

       regarding “(a) whether Kim’s vehicle ‘constituted an immediate hazard’ to

       trigger the Rade’s duty to yield and (b) whether Rade had a genuine belief Kim

       was sufficiently far enough away to justify crossing the [I]ntersection.”

       Appellants’ App. Vol. 2 at 37. However, the trial court granted summary

       judgment in favor of INDOT, finding that INDOT qualified for discretionary

       function immunity under the ITCA. See Ind. Code § 34-13-3-3(7). Specifically,

       the trial court found that INDOT officials had “engaged in the required

       decision-making in considering the very improvement (traffic signal at US 231

       and Cumberland) alleged in [the] Jurichs’ complaint.” Appellants’ App. Vol. 2 at

       40.


[15]   That same day, and in a separate order, the trial court granted the Jurichs’

       motion for sanctions, citing INDOT’s “failure to disclose communications it

       had with Tippecanoe County officials regarding a temporary traffic signal at US

       231 and Cumberland.” Id. at 45. The trial court imposed sanctions and




       6
         INDOT’s designated exhibits consisted of: (1) Exhibit B, one page of the 2010 “Signal Warrant Analysis,
       Proposed US 231”; (2) Exhibit C, one page of the July 15, 2014 Signal Warrant Analysis of the Intersection;
       (3) Exhibit D, pages from the Manual; (4) Exhibit E, INDOT engineer Bill Smith’s responses to the Jurichs’
       interrogatories; (5 ) Exhibit F, the entire report of “Signal Warrant Analysis, Proposed US 231.” Appellants’
       App. Vol. 2 at 77, 95-108, 182-89. The Jurichs designated exhibits consisted of: (1) Exhibit 1, the Complaint;
       (2) Substituted Exhibit 2, Affidavit of Fred Hanscom, professional engineer, containing the corrected ADT
       volume of 1,400; (3) Exhibit 3, Affidavit of Jay Nogan, an accident reconstruction expert; and (4) Substituted
       Exhibit 4, the entire report of “Signal Warrant Analysis, Proposed US 231.” Id. at 144-52, 153-59; Appellee’s
       App. Vol. 2 at 2-12, 16-20.

       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019                                Page 10 of 32
       ordered INDOT to pay the reasonable costs and attorney fees the Jurichs had

       incurred in its discovery of the Structurepoint Study and 2011 emails. Id.


[16]   The Jurichs filed a motion to correct error on February 20, 2018, arguing that

       summary judgment should be overturned because the Structurepoint Study and

       related emails, which had come to the Jurichs’ attention only after the summary

       judgment hearing, created a genuine issue of material fact by contradicting

       INDOT’s claims that there was no justification for a temporary traffic signal at

       the Intersection. Appellants’ App. Vol. 3 at 74-80. Two days later, INDOT filed

       a motion for reconsideration of the sanctions, arguing that the Structurepoint

       Study and 2011 emails were not in INDOT’s possession after 2014, were

       irrelevant to INDOT’s claim of immunity, and were not discoverable under 23

       United States Code sections 409 and 148(h)(4). Id. at 112-19. On May 7, 2018,

       the trial court denied the Jurichs’ motion to correct error because the newly-

       discovered evidence was not material to the trial court’s decision and granted

       INDOT’s motion to reconsider sanctions because the evidence was not material

       and not discoverable. Appellants’ App. Vol. 2 at 47-51. The Jurichs now appeal.


                                       Discussion and Decision

                                        I. Summary Judgment
                                                  A. Immunity

[17]   The Jurichs appeal the trial court’s grant of summary judgment in favor of

       INDOT, contending that the trial court erred in finding that the ITCA

       conferred discretionary function immunity on INDOT’s decision to not install a

       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019        Page 11 of 32
       temporary traffic signal at the Intersection. Appellants’ Br. at 16. On appeal of

       the grant or denial of a motion for summary judgment, we apply the same

       standard applicable to the trial court. F.D. v. Ind. Dep’t of Child Servs., 1 N.E.3d

       131, 135 (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. (quoting Gill v. Evansville Sheet

       Metal Works, Inc., 970 N.E.2d 633, 637 (Ind. 2012)). If the moving party meets

       this burden, then the non-moving party must designate evidence demonstrating

       a genuine issue of material fact. Id.


[18]   “Review is limited to those facts designated to the trial court, Ind. Trial Rule

       56(H), and summary judgment is appropriate where the designated evidence

       ‘shows that there is no genuine issue as to any material fact and that the moving

       party is entitled to a judgment as a matter of law.’” Id. (citing T.R. 56(C)). “In

       applying the facts to the law, ‘[a]ll facts and reasonable inferences drawn from

       those facts are construed in favor of the non-moving party.’” Id. (quoting

       Mangold ex rel. Mangold v. Ind. Dep’t of Nat. Res., 756 N.E.2d 970, 973 (Ind.

       2001)). “We must carefully review a decision on a summary judgment motion

       to ensure that a party was not improperly denied its day in court.” Id.


[19]   “A trial court’s findings and conclusions offer insight into the rationale for the

       court’s judgment and facilitate appellate review but are not binding on this

       court.” Denson v. Estate of Dillard, 116 N.E.3d 535, 539 (Ind. Ct. App. 2018).

       Moreover, “we are not constrained to the claims and arguments presented to

       the trial court, and we may affirm a summary judgment ruling on any theory

       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019           Page 12 of 32
       supported by the designated evidence.” Id. The party that lost in the trial court

       has the burden of persuading us that the trial court erred. Id.


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

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

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

       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.” Jones v.

       Hancock Cty. Bd. of Comm’rs, 55 N.E.3d 311, 316 (Ind. Ct. App. 2016). “‘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. (quoting Price, 954

       N.E.2d at 453). “This is in recognition of ‘the principle that it is the legislature,

       and not the courts, that is in the best position to determine the nature and

       extent to which governmental units in Indiana should be insulated from tort

       liability.’” Veolia Water Indianapolis, LLC v. Nat’l Trust Ins. Co., 3 N.E.3d 1, 5

       (2014), summarily aff’d on reh’g, 12 N.E.3d 240 (Ind. 2014)).


[21]   ‘“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.”’ City of Beech Grove v. Beloat, 50 N.E.3d 135, 138 (Ind. 2016)

       (quoting Veolia Water, 3 N.E.3d at 5). Among other exempt acts, subsection (7)

       of Section 3 provides, “A governmental entity . . . is not liable if a loss results

       from . . . (7) [t]he performance of a discretionary function . . . .” Ind. Code §

       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019           Page 13 of 32
       34-13-3-3(7). “This type of immunity shields certain policy decisions which

       cannot be assessed by tort standards.” Lee by & through Estes v. Bartholomew

       Consol. Sch. Corp., 75 N.E.3d 518, 526 (Ind. Ct. App. 2017) (internal quotation

       marks omitted). In determining what acts qualify for discretionary function

       immunity under the ITCA, our Supreme Court has adopted the planning-

       operational test. Peavler v. Bd. of Comm’rs of Monroe Cty., 528 N.E.2d 40, 42 (Ind.

       1988).


[22]   “We have held that planning functions are discretionary and thus shielded by

       immunity, whereas operational functions are not.” Lee, 75 N.E.3d at 526.


                This assessment requires close consideration of the nature of the
                governmental actions and the decision-making process that was
                involved. . . . 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. . . . 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.


       Beloat, 50 N.E.3d at 138 (internal citations and quotation marks omitted).


[23]   The central issue in this case is whether INDOT performed a discretionary

       function under Indiana Code section 34-13-3-3(7). The discretionary nature of

       a decision to place a temporary traffic signal must be determined case by case.

       Peavler, 528 N.E.2d at 47. The starting point in our analysis is a review of the


       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019           Page 14 of 32
       process used by INDOT to make that decision. The Indiana General Assembly

       enacted legislation pertaining to “Traffic Control Devices” in Indiana Code

       chapter 9-21-4. Specifically, the legislature made the policy determination that

       “[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.” Ind. Code § 9-21-4-1 (emphasis added).


[24]   Pursuant to the Manual, “[a]n engineering study of traffic conditions,

       pedestrian characteristics, and physical characteristics of the location shall be

       performed to determine whether installation of a traffic control signal is justified

       at a particular location.” Appellants’ App. Vol. 2 at 99. Regarding installation of

       a temporary traffic signal at a new intersection, the Manual states:


               Temporary traffic signals may be installed at new intersections on
               predicted average daily traffic volumes, providing the predicted
               volumes meet prescribed minimum levels as noted in Condition
               A1 or Condition B1 of TABLE 4C-2. The temporary traffic
               signals may be placed in signal operation until proper traffic data
               and experience can be obtained. No downward adjustments are
               to be made to the [average daily traffic] required volumes.


       Appellants’ App. Vol. 3 at 133 (emphasis added). Conditions A1 and B1 of Table

       4C-2 are found only under a Warrant 1 analysis. Appellants’ App. Vol. 3 at 134.

       Conditions A1 and B1 reflect “Minimum Vehicular Volume” and “Interruption

       of Continuous Traffic,” respectively. Id. The Warrant 1 Conditions consider

       each street’s number of approach lanes and establish the required minimum


       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019          Page 15 of 32
       ADT volume of an intersection’s major and minor streets below which INDOT

       cannot consider the installation of a temporary traffic signal. Id.


[25]   At the Intersection, US 231 was the major street and Cumberland Avenue was

       the minor street and, at the time of the accident, both streets had two or more

       approach lanes. Id. at 97. When both streets have two or more lanes, the

       minimum ADT volume required to “justify consideration of signalization” (1)

       under Condition A1 is 10,000 for the major street and 6,000 for the minor street

       and (2) under Condition B1 is 15,000 for the major street and 3,100 for the

       minor street. Id. at 182-83.


[26]   The 2010 Study revealed that, of the eight new intersections that were created

       by the US 231 Project, the Intersection was one of only two intersections with a

       predicted ADT volume that did not meet the Manual’s standards to justify the

       installation of a temporary traffic signal under Warrant 1. Appellee’s App. Vol. 2

       at 8, 9. At the time of the 2010 Study, the Intersection’s predicted ADT volume

       for US 231, as the major street, was 12,250 cars for the northbound and

       southbound approach lanes and 3,200 cars for westbound Cumberland Avenue.

       Id. at 185, 189. The diagram from the 2010 Study showed that, at that time,

       there was no eastbound traffic on Cumberland Avenue. Id. at 189. By the time

       the July 2014 Study was completed, however, INDOT estimated that the

       potential ADT volume for the eastbound lane of Cumberland would be 1,400

       cars, for a total projected ADT volume of 4,600 cars on Cumberland.

       Appellants’ App. Vol. 2 at 33. Since the ADT volume did not satisfy the

       Manual’s Condition A1 or Condition B1 in either 2010 or July 2014, INDOT

       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019          Page 16 of 32
       had no discretion to install a traffic signal at the Intersection. Appellants’ App.

       Vol. 2 at 102.


[27]   As our Supreme Court has cautioned, the ITCA is in derogation of the

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

       Murray v. Indianapolis Pub. Sch., 116 N.E.3d 525, 532 (Ind. Ct. App. 2018) . The

       party seeking immunity has the burden of establishing that its conduct comes

       within the provisions of the ITCA. Id. “Whether a particular governmental act

       is immune is a question of law for the court to decide, although the question

       may require extensive factual development.” Barnes v. Antich, 700 N.E.2d 262,

       265 (Ind. Ct. App. 1998), trans. denied. 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.’” Beloat, 50 N.E.3d at 142.


[28]   The Jurichs contend that INDOT was not performing a discretionary function

       when it completed the 2010 Study but was merely implementing a pre-

       determined policy.7 Appellants’ Br. at 20. The implementation of pre-

       determined policy cannot constitute the basis for this immunity. See, e.g.,

       Chandradat v. State of Ind., Ind. Dep’t of Transp., 830 N.E.2d 904, 911 (Ind. Ct.




       7
         During the hearing on the motion for summary judgment, the Jurichs argued that INDOT was not engaged
       in planning because “[t]here has to be evidence that involves more than just a look at the numbers. . . . And
       if you just look at the numbers, that doesn’t take any planning at all. So, the State didn’t do any planning.
       There, there was no systematic approach. No systematic program . . . of looking at whether or not traffic
       signals should be installed.” Tr. Vol. 2 at 34.

       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019                                Page 17 of 32
       App. 2005) (holding that placement of signs was not part of planning stages of

       construction where INDOT-supervised contractors worked “pursuant to the

       plans, specifications, and direction of INDOT” and where the INDOT project-

       engineer did not determine where to put the signs “but instead implements the

       plan”), trans. denied.


[29]   Under the facts of this case, INDOT’s decision to not install a temporary traffic

       signal at a new intersection falls very close to the line between planning and

       operational activity. On the operational side, the parties do not dispute that US

       231’s predicted ADT volume was 12,250 and Cumberland’s was 4,600. 8

       Pursuant to Indiana Code section 9-21-4-1, INDOT was required to follow the

       Manual and, since the predicted ADT volume fell below the required minimum

       under Conditions A1 and B1 of Warrant 1, INDOT had no discretion to install

       a temporary traffic signal. Based on the Manual, INDOT could do nothing

       other than reject the proposal for the installation of a temporary traffic signal at

       the Intersection.


[30]   On the planning side, the details of the US 231 Project were still under

       consideration when the 2010 Study was performed. Neither the US 231 Project




       8
         As part of their response in opposition to INDOT’s motion for summary judgment, the Jurichs introduced
       an affidavit of engineer Fred Hanscom. Appellants’ App. Vol. 2 at 144-47. In his initial affidavit, Hanscom
       stated that Cumberland’s predicted ADT volume for the westbound lane was 3,200; however, he mistakenly
       said that Cumberland’s eastbound ADT volume was 4,100. Id. at 146. The Jurichs insisted, during the
       October 18, 2017 summary judgment hearing, that 4,100 was the correct ADT volume. Even so, on
       November 6, 2017, they filed a motion to substitute Hanscom’s affidavit with a corrected affidavit, which set
       forth the estimated ADT volume for eastbound Cumberland as 1,400 and not 4,100. Appellee’s App. Vol. 2 at
       19. Together, the eastbound and westbound lanes had a minimum ADT volume of 4,600.

       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019                                Page 18 of 32
       nor the Cumberland Project had commenced construction. As such, INDOT

       had to use predicted ADT volume to assess the need for a temporary traffic

       signal at the Intersection. In recognition that even a conscientious prediction

       can be flawed, the Manual states that a temporary traffic signal can be placed in

       operation until proper data and experience can be obtained. Appellants’ App.

       Vol. 3 at 133. The Manual, therefore, requires that an engineering study be

       conducted after six months but before one year of operation “to determine if the

       traffic signal is needed and should become permanent.” Id. When a traffic

       study finds that a signal is not justified, it shall be removed immediately. Id.

       We find this legislative scheme, which reflects the legislature’s understanding

       that INDOT may be mistaken in its initial determination regarding the

       placement of a temporary traffic signal, reveals the legislature’s intent to keep

       INDOT immune from liability for any negligence that arises from the presence

       or absence of a temporary traffic signal, when that determination was based on

       INDOT’s good faith prediction of ADT volumes. See Beloat, 50 N.E.3d at 138

       (“The ultimate consideration is whether the action is one that was intended to

       be immune . . . .”). Shielding INDOT from immunity for its initial good faith

       prediction of ADT volume, and resultant conclusion that the Manual prohibits

       the installation of a temporary traffic signal, is just the type of decision that

       “cannot be assessed by tort standards.” Lee, 75 N.E.3d at 526.


[31]   The Jurichs recognize that discretionary function immunity “‘avoids inhibiting

       the effective and efficient performance of governmental duties.’” Appellant’s Br.

       at 19 (quoting Peavler, 528 N.E.2d at 44). Furthermore, “policy-making

       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019            Page 19 of 32
       activities lie at the heart of governance and such essential acts should not be

       subject to judicial second-guessing or harassment by the actual or potential

       threat of liability litigation.” Id. (quoting Peavler, 528 N.E.2d at 44). The

       Peavler court noted, “Tort immunity for basic planning and policy-making

       functions is necessary to avoid the chilling effect on the ability of the

       government to deal effectively with difficult policy issues which it confronts

       daily.” Peavler, 528 N.E.2d at 44. Under the specific facts of this case, we find

       INDOT’s decision to not install a temporary traffic signal was a discretionary

       function and, therefore, immune under the ITCA.


                                                   B. Negligence

[32]   Recognizing that INDOT’s actions fall close to the planning/operational line,

       we note that, even without immunity, the designated facts do not support a

       claim that INDOT was negligent. To prevail on a negligence claim, a plaintiff

       must establish three elements: “(1) a duty owed to the plaintiff by the

       defendant; (2) a breach of that duty by allowing conduct to fall below the

       applicable standard of care; and (3) compensable injury proximately caused by

       the breach of that duty.” F.D., 1 N.E.3d at 142. A defendant may obtain

       summary judgment in a negligence action when the undisputed facts negate at

       least one element of the plaintiff’s claim. Id. Whether a defendant owes a duty

       of care to a plaintiff is generally a question of law for the court to decide.

       Chandradat, 830 N.E.2d at 908.


[33]   Governmental entities have a general duty to exercise reasonable care in

       designing, constructing, and maintaining highways for the safety of public
       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019            Page 20 of 32
       users. Brown v. City of Indianapolis, 113 N.E.3d 244, 250 (Ind. Ct. App. 2018).

       The Jurichs were part of the traveling public. Furthermore, by statute, INDOT

       had the duty to follow the Manual. I.C. § 9-21-4-1. While the Manual is not a

       legal basis for a statutory negligence action, it is evidence bearing upon the

       general duty to exercise reasonable care. Chandradat, 830 N.E.2d at 909.


[34]   In their complaint, the Jurichs maintained that INDOT breached its duty of

       care by “failing to properly conduct a traffic study in a timely and appropriate

       manner and by failing to erect a traffic control signal at the Intersection.”9

       Appellants’ App. Vol. 2 at 57, 58, 59. With its motion for summary judgment,

       INDOT designated the 2010 Study, which showed that the minimum ADT

       volume requirements under Warrant 1 were not met. Id. at 95. Without the

       minimum ADT volume, the Manual prevented INDOT from installing a

       temporary traffic signal at the Intersection. Appellants’ App. Vol. 3 at 133

       (“Temporary traffic signals may be installed at new intersections on predicted

       hourly vehicular volumes, providing the predicted volumes meet the prescribed

       minimum vehicular volume levels as noted in Condition A or Condition B of

       TABLE 4C-1.”) (emphasis added). In his interrogatory, Smith stated that he

       was one of the individuals who had worked on the 2010 Study and verified that

       the Manual’s guidelines for traffic signal analysis had been followed. Appellants’




       9
         The Jurichs contend that INDOT had: (1) a duty to install a temporary traffic signal; (2) a duty to properly
       design the intersection; and (3) a duty to properly conduct a traffic study. Appellant’s Reply Br. at 5. While
       apparently distinct, the Jurichs’ arguments regarding the Intersection’s design and traffic study, arise only in
       the context of whether INDOT was negligent when it did not install a temporary traffic signal at the
       Intersection.

       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019                                   Page 21 of 32
       App. Vol. 2 at 102. Smith confirmed that the “[a]ppropriate projected traffic

       volumes did not exist for US 231 and Cumberland for signal criteria to be met.”

       Id. at 102.


[35]   The Jurichs’ response to INDOT’s motion for summary judgment focused on

       their claim that INDOT had been negligent in using incomplete data as part of

       its traffic study. A temporary traffic signal can be installed only when Warrant

       1 is satisfied.10 To support its claim that the study was flawed, and a temporary

       traffic signal should have been installed at the Intersection, the Jurichs

       designated an affidavit of engineer Fred Hanscom (“Hanscom”). In the

       affidavit, Hanscom stated that INDOT was negligent when it did not consider

       an ADT volume of 4,100 for the eastbound approach. Appellants’ App. Vol. 2 at

       146. If correct, that predicted ADT volume, when added to the westbound

       approach would have satisfied Warrant 1’s minimum ADT volume to allow

       INDOT to consider the installation of a temporary traffic signal. However,

       before the trial court could rule on the motion for summary judgment, the

       Jurichs substituted Hanscom’s affidavit. In the revised affidavit, Hanscom

       corrected the ADT volume from 4,100 to 1,400. Appellee’s App. Vol. 2 at 19.

       With this change, the minimum ADT volume was not met, and pursuant to the

       Manual, Warrant 1 was not satisfied. INDOT was, therefore, barred from

       placing a temporary traffic signal at the Intersection. Accordingly, the Jurichs




       10
            See our discussion in Section II of this opinion.


       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019             Page 22 of 32
       did not meet their burden of showing that a genuine issue of material fact

       precluded summary judgment in favor of INDOT.


                                    II. Motion to Correct Error
[36]   The Jurichs next argue that the trial court erred in denying their motion to

       correct error pursuant to Trial Rule 59(A)(1). In that motion, the Jurichs asked

       the trial court to vacate its summary judgment order to allow the Jurichs to

       “conduct additional discovery and submit additional evidence in response to

       INDOT’s motion for summary judgment.” Appellants’ App. Vol. 3 at 79.


[37]   “Indiana courts have long viewed motions under Trial Rule 59(A)(1) with great

       caution because courts place a high value on finality of judicial resolutions.”

       Faulkinbury v. Broshears, 28 N.E.3d 1115, 1122 (Ind. Ct. App. 2015) (internal

       quotation marks omitted). The decision whether to grant a Trial Rule 59

       motion to correct error on the basis of newly discovered evidence “is an

       equitable one and requires the court to ‘balance the alleged injustice suffered by

       the party moving for relief against the interest of the winning party and society

       in general in the finality of litigation.’” Id. (quoting Estate of Lee ex rel. McGarrah

       v. Lee & Urbahns Co., 876 N.E.2d 361, 371 (Ind. Ct. App. 2007)). Under Trial

       Rule 59(A)(1), newly discovered evidence must be material, more than

       cumulative or impeaching, not privileged or incompetent, shown not to have

       been discoverable before trial by the exercise of due diligence, and evidence that

       will reasonably and probably change the outcome. Otter Creek Trading Co. v.

       PCM Enviro PTY, LTD, 60 N.E.3d 217, 227 (Ind. Ct. App. 2016), trans. denied.


       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019            Page 23 of 32
[38]   The crux of the parties’ dispute is whether Warrant 3 (Peak Hour) should have

       been considered in INDOT’s determination of whether a temporary traffic

       signal should have been installed at the Intersection. The Jurichs contend that

       the conclusion of Structurepoint Study that Warrant 3 was satisfied is a material

       fact in this litigation because it goes to whether INDOT was negligent when it

       did not install the temporary traffic signal. Appellants’ Br. at 28-30. INDOT

       responds that, because Warrant 1 is the only warrant that can be considered in

       the determination of whether to install a temporary traffic signal at a new

       intersection, the evidence that Warrant 3 was satisfied in the “[Structurepoint]

       Study was immaterial in addressing whether INDOT breached a duty to the

       Jurichs.” Appellee’s Br. at 32. From the evidence before us, we agree that

       Warrant 3 was not material, and the trial court did not err when it denied the

       Jurichs’ motion to correct error.


[39]   The following three documents guide our decision: (1) Smith’s affidavit,

       Appellants’ App. Vol. 3 at 53-56; (2) Kopcha’s deposition, id. at 136-40; and (3)

       Hanscom’s amended affidavit, Appellee’s App. Vol. 2 at 16-21. INDOT

       submitted Smith’s affidavit as Exhibit A to its response to the Jurichs’ motion

       for sanctions.11 In his affidavit, Smith stated that he “had the official capacity to

       determine[,] in conjunction with the [Manual,] the placement of traffic signals

       for future and existing intersections.” Appellants’ App. Vol. 3 at 53. Smith stated



       11
         The trial court placed its ruling on the motion to correct error “on hold” until INDOT responded to the
       Jurichs’ motion for sanctions. Tr. Vol. 2 at 81. As such, the trial court was able to consider the motion for
       sanctions and attached exhibits when it ruled on the motion to correct error.

       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019                                  Page 24 of 32
that Warrant 3 was inapplicable in the determination of whether a temporary

traffic signal should be placed at a future intersection. Specifically, he stated:


        15. According to the [Manual], in order to place a traffic control
        signal at an existing intersection, a study must he performed in
        which at least one of nine different warrants are met. The
        satisfaction of a traffic signal warrant or warrants shall not in
        itself require the installation of a traffic control signal.


        16. According to the [Manual], in order to place a traffic control
        signal at a future intersection, such as Cumberland Avenue and
        US 231 in as late as April 2014, a study must be performed in
        which only one of the nine different warrants can be used,
        Warrant 1. Warrant 3 . . . cannot be used for [] future
        intersections according to the [Manual]. In fact, Warrant 3 --
        Peak Volume [--]was determined to be inapplicable when the
        [I]ntersection was open for traffic for the following reason:
        Warrant 3—Peak Volume shall be applied only in unusual cases,
        such as office complexes, manufacturing plants, industrial
        complexes, or high-occupancy vehicle facilities that attract or
        discharge large numbers of vehicles over a short time. It was
        determined these conditions did not exist at the [I]ntersection of
        US Highway 231 and Cumberland Avenue . . . when the
        intersection was opened for traffic.


        17. A traffic signal was not installed at the [I]ntersection . . . prior
        to July 2014 because according to the [Manual] appropriate
        projected traffic volumes did not exist . . . for signal criteria to be
        met. This includes Warrant l for the INDOT projected traffic
        volumes before the intersection opened for traffic and all nine
        warrants three months after the [I]ntersection was opened for
        traffic.


Id. at 55-56.


Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019              Page 25 of 32
[40]   INDOT submitted Kopcha’s deposition as Exhibit 2 to their response to the

       Jurichs’ motion to correct error. Id. at 136-40. In his deposition, Kopcha

       agreed with Smith’s assessment that Warrant 3 could not be used to determine

       the need for a temporary traffic signal at a future intersection. When asked

       whether the peak volumes were meant to justify a temporary traffic signal at a

       new intersection, Kopcha testified:


               The Indiana [Manual] has only Warrant No. 1 for a provisional
               signal, so based on forecasted values. There’s only Warrant No. 1,
               and for Warrant No. l, there’s two tables that you can use, and so
               the table that I choose is the daily volume of traffic table, but the
               second table is hourly volumes, that you need to meet it for 8
               hours.


       Id. at 139 (emphasis added). While recognizing that peak volumes can be used

       to determine whether a traffic signal should be installed at an existing

       intersection, Kopcha made clear that the Manual specifies the use of Warrant 1

       when “forecasted values” are used to determine the need for a temporary traffic

       signal at a new intersection. Id. at 139. Smith’s and Kopcha’s sworn statements

       established that Warrant 3 was inapplicable to the determination of whether a

       temporary traffic signal could be installed at the new Intersection.


[41]   The Jurichs provided no evidence to challenge Smith’s and Kopcha’s

       statements that only one of the nine warrants, Warrant 1, can be used in the

       analysis of whether to place a temporary traffic signal at a future intersection.

       In fact, the Jurichs’ own expert, Hanscom, concurred with Smith and Kopcha

       that only Warrant 1 can be considered in such a study. In his amended

       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019           Page 26 of 32
       affidavit, Hanscom stated that he was “familiar with the standards of care that

       pertain to highway design; specifically, the safety precautions needed for

       motorists to navigate an intersection such as [the Intersection].” Appellee’s App.

       Vol. 2 at 17. Hanscom was also familiar with “the appropriate standard of care

       for traffic control signal analyses.” Id. at 18.


[42]   In paragraph 7 of his affidavit, Hanscom confirmed that Section 4C.02 of the

       Manual, i.e., Warrant 1, allows temporary traffic signals to be installed at new

       intersections on predicted ADT volumes, “providing the predicted volumes meet

       the prescribed minimal levels as noted in Condition A1 or Condition B1”12 of

       Table 4C-2. Id. (emphasis added). Here, the major street, US 231, and the

       minor street, Cumberland, each had two or more lanes approaching the

       Intersection. Under Condition A1 of Warrant 1, a temporary traffic signal

       could be justified if US 231 had a predicted minimum ADT volume of 10,000

       and Cumberland had a predicted ADT volume of 6,000. Hanscom testified

       that US 231 had an ADT volume of 12,250 and Cumberland had an ADT

       volume of 4,600. Id. at 19. Even by Hanscom’s own calculation, there was no

       justification under the Manual for a temporary traffic signal to be installed at

       the Intersection.13




       12
         The ADT volume for US 231, as the major street, was 12,250—a number that did not reach the Condition
       B1 minimum of 12,500, regardless of the number of approach lanes. Here, Condition B1 was clearly not
       met.
       13
         A temporary traffic signal may be installed at an intersection where the major street has two or more
       approach lanes, with an ADT volume of 10,000, and the minor street has just one approach lane with an
       ADT volume of 4,600. While Hanscom understood that US 231 had an ADT volume of 12,250 and that

       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019                              Page 27 of 32
[43]   The trial court found INDOT “ha[d] demonstrated that Warrant 3 applied only

       to existing roadways and not to future roadways.” Appellants’ App. Vol. 2 at 48.

       As such, the trial court concluded that (1) the Structurepoint “[S]tudy upon

       which [the] Jurichs rely is not material since it did not apply to the intersection

       at issue”; and (2) the newly discovered evidence did not lead the trial court to

       an outcome different than the one it reached in its January 23, 2018 order.

       Appellants’ App. Vol. 2 at 48. The trial court did not abuse its discretion when it

       denied the Jurichs’ motion to correct error on the basis of the newly discovered

       evidence.


                             III. Motion to Reconsider Sanctions
[44]   The Jurichs next contend that the trial court abused its discretion by rescinding

       its previous order that required INDOT to pay attorney fees as a sanction for

       the alleged discovery violation of not producing the Structurepoint Study and

       the related 2011 email communications pertaining to whether a temporary

       traffic signal should be placed at the Intersection.


[45]   A party may seek discovery sanctions against another party under Indiana Trial

       Rule 37. See Outback Steakhouse of Fla., Inc. v. Markley, 856 N.E.2d 65, 82 (Ind.

       2006). The purpose of discovery sanctions is twofold; sanctions are intended to

       be punitive and to deter others from engaging in similar conduct. Nagel v. N.




       Cumberland had an ADT volume of 4,600, he misunderstood the configuration of the Intersection and
       believed that Cumberland had just one approach lane. From this, Hanscom incorrectly concluded that
       Condition A1 of Warrant 1 had been met.

       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019                           Page 28 of 32
       Ind. Pub. Serv. Co., 26 N.E.3d 30, 39 (Ind. Ct. App. 2015), trans. denied.

       However, there are exceptions to the imposition of sanctions. First, under Rule

       37(D), even though the trial court “shall require the party failing to act . . . to

       pay the reasonable expenses, including attorney’s fees, caused by the failure,”

       such requirement is lifted when that failure to act was substantially justified or

       the circumstances make an award of expenses unjust. Second, under Rule

       37(E), “[a]bsent exceptional circumstances,” a court may not impose sanctions

       on a party “for failing to provide electronically stored information lost as a

       result of the routine, good faith operation of an electronic information system.”


[46]   The following pertinent evidence was before the trial court when it considered

       the Jurichs’ motion for sanctions. American Structurepoint prepared its study

       for Tippecanoe County in connection with a local highway safety improvement

       project for Cumberland Avenue. The Cumberland Project was a federally

       funded Local Partnership agreement with Tippecanoe County; INDOT had

       minimal involvement and only served as a pass-through entity for federal funds

       to the County. Appellants’ App. Vol. 3 at 122. INDOT provided no state money

       for the Cumberland Project. Id. The Structurepoint Study analyzed Warrant 1

       and Warrant 3 and found that only Warrant 3 was satisfied. However, as

       discussed in the previous section, Warrant 3 is not pertinent to an analysis of

       the need for a temporary traffic signal at a specific intersection. The trial court

       also considered statements in Smith’s deposition that it was INDOT’s internal

       policy to remove from the system emails that were more than three years old.

       Id. at 59, 60. The emails at issue were dated from May through December


       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019             Page 29 of 32
       2011, and the one that contained a page of the Structurepoint Study was dated

       May 17, 2011 and addressed to Opal Kuhl. Id. at 84-93 The trial court

       recognized that INDOT policy required the agency to purge the 2011 emails

       and that the Structurepoint Study may not have been in INDOT’s possession.

       Even so, the trial court “was not persuaded that INDOT should be entirely free

       from sanctions for its failure to at least acknowledge and disclose it had prior

       communications with Tippecanoe County officials. Appellants’ App. Vol. 2 at 49-

       50. Accordingly, the trial court imposed sanctions against INDOT.


[47]   In February 2018, INDOT filed its motion to reconsider sanctions, claiming

       that the study was not material, that the failure to disclose the Structurepoint

       Study was inadvertent, and the Structurepoint Study was protected from

       disclosure by federal law under 23 United States Code section 409. Appellee’s

       Br. at 25-26 (citing Appellants’ App. Vol. 3 at 112-20). Section 409 provides:


               Notwithstanding any other provision of law, reports, surveys,
               schedules, lists, or data compiled or collected for the purpose of .
               . . developing any highway safety construction improvement
               project which may be implemented utilizing Federal-aid highway
               funds shall not be subject to discovery or admitted into evidence
               in a Federal or State court proceeding or considered for other
               purposes in any action for damages arising from any occurrence
               at a location mentioned or addressed in such reports, surveys,
               schedules, lists, or data.


       23 U.S.C. § 409. Congress created this privilege “to foster the free flow of

       safety-related information between the railroad industry and its regulatory

       bodies by precluding the possibility that such information would be

       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019          Page 30 of 32
       discoverable and admissible in civil suits.” Madden v. Ind. Dep’t of Transp., 832

       N.E.2d 1122, 1128 (Ind. Ct. App. 2005). We find the same rationale for barring

       discovery applies to government entities that request federal-aid funds to

       construct highway improvement projects.


[48]   While recognizing that INDOT was raising this federal discovery law for the

       first time, the trial court still considered the merits of INDOT’s claim. First, the

       trial court determined that, since the Structurepoint Study was prepared in

       connection with the federally funded Cumberland Project, the federal bar to

       discovery applied to the Structurepoint Study. Appellants’ App. Vol. 2 at 50.

       Second, the trial court determined that the Structurepoint Study was not

       material because, as we discussed above, the Structurepoint Study’s report that

       Warrant 3 had been satisfied, was not material to the Jurichs’ claim of

       INDOT’s negligence. These factors compelled the trial court to reconsider its

       earlier award of sanctions, and finding that the previous sanctions were

       improper, the trial court vacated those sanctions.


[49]   “We vest trial courts with wide discretion in dealing with discovery matters and

       will reverse a trial court’s decision regarding discovery only for an abuse of

       discretion.” N. Ind. Pub. Serv. Co. v. Aqua Envtl. Container Corp., 102 N.E.3d 290,

       300 (Ind. Ct. App. 2018). The trial court initially granted sanctions, believing

       that the disclosure of the communications could have led the Jurichs to find

       evidence helpful to their case. The Structurepoint Study found that Warrant 3

       was satisfied. Warrant 3, however, was not material to the question of whether

       INDOT should, or even could, place a temporary traffic signal at the

       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019          Page 31 of 32
       Intersection. The 2011 emails, which were sent after the Structurepoint Study,

       emphasized that a warrant analysis was the “critical piece.” Appellant’s App.

       Vol. 3 at 87. Even after the Jurichs knew about Tippecanoe County’s

       involvement, no additional study came to light. The Structurepoint Study and

       the 2011 emails, if found during discovery and if discoverable under federal

       law, would not have been material to the Jurichs’ case. Vesting courts with

       wide discretion in dealing with discovery matters, we find the trial court did not

       abuse its discretion when it vacated its prior order for sanctions.


[50]   Affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CT-1417 | May 29, 2019        Page 32 of 32
