                                                                  FILED
                                                              Apr 11 2017, 5:54 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEES
David W. Stone IV                                          James S. Stephenson
Anderson, Indiana                                          Ian L. Stewart
                                                           Stephenson Morow & Semler
John H. Shean
                                                           Indianapolis, Indiana
Brandon E. Hall
Bloomington, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jalen Lee, A Minor Child, by                               April 11, 2017
and through his Next Friend,                               Court of Appeals Case No.
Crystal Estes and Crystal Estes,                           03A01-1608-CT-1900
Individually,                                              Appeal from the Bartholomew
Appellants-Plaintiffs,                                     Circuit Court
                                                           The Honorable Stephen R.
        v.                                                 Heimann, Judge
                                                           Trial Court Cause No.
Bartholomew Consolidated                                   03C01-1501-CT-177
School Corporation, City of
Columbus, Columbus City
Planning Commission and
Columbus Police Department,
Appellees-Defendants.



Riley, Judge.




Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017              Page 1 of 37
                                 STATEMENT OF THE CASE
[1]   Appellants-Plaintiffs, Jalen Lee (Lee)—by his next friend, Crystal Estes—and

      Crystal Estes individually, appeal the trial court’s summary judgment in favor

      of Appellee-Defendant, City of Columbus (City). 1


[2]   We reverse and remand.


                                                      ISSUE
[3]   Lee raises four issues on appeal, which we consolidate and restate as the

      following single issue: Whether the trial court erred in granting the City’s

      motion for summary judgment.


                       FACTS AND PROCEDURAL HISTORY
[4]   On March 11, 2013, thirteen-year-old Lee, an eighth-grade student at Central

      Middle School in the Bartholomew Consolidated School Corporation, left his

      house at approximately 7:00 a.m. to walk the short distance to Columbus East

      High School, where he would get on a school bus to be taken to Central Middle

      School. That particular morning, it was raining and still dark outside, but Lee

      had walked the same route to the high school every day throughout his seventh

      and eighth grade years, regardless of the weather or season. Lee was wearing a

      black hooded sweatshirt and blue jeans. As always, Lee was joined on his walk



      1
        The Columbus City Planning Commission and Columbus Police Department were also originally named
      as defendants but, by stipulation of the parties, have been dismissed from the action. In addition,
      Bartholomew Consolidated School Corporation is also listed as a defendant; however, it did not join in the
      motion for summary judgment and did not file an appellate brief.

      Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017                       Page 2 of 37
      to school by his friend, Jacob Rhodes (Rhodes), who lived on the same street as

      Lee. As Lee and Rhodes neared the high school, Rhodes observed a coin on

      the ground and stopped to pick it up. Lee kept walking.


[5]   The last leg of Lee’s trip to school required him to cross Marr Road. A mid-

      block crosswalk on Marr Road provided a direct path from the school’s athletic

      fields on the east side of Marr Road to the high school on the west side of Marr

      Road. The crosswalk consisted of high visibility markings on the pavement,

      and there were two reflective signs on each side of the crosswalk to alert

      approaching drivers to the possibility of pedestrians (i.e., a “Crosswalk Ahead”

      sign 209 feet away from the crosswalk, and a “Crosswalk” sign thirteen feet

      away from the crosswalk). (Appellants’ App. Vol. III, p. 141). Also, drivers

      approaching the crosswalk from either direction observed two speed limit signs.

      In the northbound lane, the first sign drivers passed was 1,264 feet from the

      crosswalk and indicated a school zone speed limit of twenty miles per hour; the

      second sign was 427 feet away from the crosswalk and established a regular

      speed limit of thirty miles per hour. In the southbound lane, the school zone

      and regular speed limit signs were placed directly next to each other,

      approximately one-half mile away from the crosswalk. 2




      2
        While a placard was added to the school zone speed limit signs on August 29, 2013, to indicate that the
      twenty miles per hour speed limit is in effect only during certain school hours, on March 11, 2013, the signs
      generically provided for a school zone speed limit of twenty miles per hour.

      Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017                         Page 3 of 37
[6]   Lee used the Marr Road crosswalk to walk to Columbus East High School

      every day. He knew to look both ways before crossing, and it was his habit to

      wait for a vehicle to come to a full stop before crossing instead of assuming that

      a slowing vehicle would fully stop. On this day, when Lee reached the Marr

      Road crosswalk, he looked both ways and saw a vehicle approaching in the

      northbound lane. That vehicle, a red 2006 Dodge Ram 3500 diesel pickup

      truck, was driven by Kyle McLeod (McLeod), who was on his way to work.

      McLeod had driven the same route along Marr Road at least 100 times, and he

      was familiar with the crosswalk and had previously stopped to allow children to

      cross. At the time, McLeod stated that he was traveling between twenty-five

      and thirty miles per hour and had his headlights on. McLeod did not see

      anyone near the crosswalk as he approached, and although Lee had observed

      McLeod’s truck, Lee believed that he had sufficient time to cross Marr Road

      without causing the oncoming vehicle to have to adjust its speed or stop.

      Accordingly, Lee proceeded to cross, and McLeod never noticed him in the

      crosswalk until he heard an impact and saw Lee “flying down the road.”

      (Appellants’ App. Vol. II, p. 193). McLeod immediately slammed on his

      brakes and exited his vehicle as he called 911; meanwhile, Rhodes ran to check

      on Lee, who was lying on the ground approximately seventy-five feet away

      from the crosswalk. Lee survived the accident, although he does not have any

      memory of what occurred between the time he stepped into the crosswalk and

      when he woke up at Riley Hospital for Children in Indianapolis. Lee sustained

      a broken femur, multiple fractured ribs, a collapsed lung, a lacerated spleen, and

      other abrasions.
      Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 4 of 37
[7]   On January 9, 2015, Lee filed a Complaint, alleging that the City was negligent

      in the performance of its duties to those students who utilize the school buses

      for transport to Central Middle School and that this negligence proximately

      caused the accident and resulting injuries to Lee. The Complaint also alleged

      that the City “negligently failed to take reasonable measures to warn

      pedestrians utilizing the Crosswalk and drivers on Marr Road of the particular

      dangers of the Crosswalk so as to reasonably mitigate the known dangers of the

      Crosswalk.” (Appellants’ App. Vol. II, p. 26). Per Lee, this failure to warn

      proximately caused his injuries. 3


[8]   On March 22, 2016, the City filed a motion for summary judgment, claiming

      that it was entitled to judgment as a matter of law on several grounds. First, the

      City argued that it did not breach its duty of reasonable care because Marr

      Road and the crosswalk were reasonably safe and there were adequate warnings

      to alert drivers to the crosswalk. Second, the City contended that, as a matter of

      law, it did not proximately cause the accident or Lee’s injuries because McLeod

      was driving the vehicle and was aware of the crosswalk’s existence. Third, the

      City claimed that it was entitled to statutory immunity as a governmental entity

      pursuant to the Indiana Tort Claims Act. In particular, the City asserted that it

      was not liable for any loss attributable to the roadway’s design because Marr

      Road and the crosswalk had not been altered for over twenty years prior to the




      3
        The Chronological Case Summary indicates that Lee filed an amended complaint on January 26, 2015;
      however, only the January 9, 2015 Complaint was included in the appellate record.

      Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017                  Page 5 of 37
       accident per Indiana Code section 34-13-3-3(18); it was not liable per Indiana

       Code section 34-13-3-3(7) (discretionary function immunity) because it was in

       the planning stages of making improvements to the crosswalk—specifically, the

       installation of flashing lights; and it was not liable for failing to impose a lower

       speed limit on Marr Road, install a stop sign at the crosswalk, or station

       crossing guards at the crosswalk per Indiana Code section 34-13-3-3(8)

       (immunity for failure to adopt or enforce laws). Fourth, the City also posited

       that it should be afforded common law immunity based on any alleged failure

       to take additional police action to enhance safety on Marr Road and at the

       crosswalk. Finally, the City argued that Lee’s claim was barred based on his

       own contributory negligence and Lee’s violation of Indiana Code section 9-21-

       17-5.


[9]    On May 3, 2016, Lee designated evidence to support his opposition to the

       City’s summary judgment motion. The trial court subsequently conducted a

       hearing on the City’s summary judgment motion. On July 15, 2016, the trial

       court granted summary judgment to the City. The trial court found that Lee’s

       claim was barred because Lee, in light of his “age, his knowledge, his judgment,

       and his experience,” was contributorily negligent as a matter of law.

       (Appellants’ App. Vol. II, p. 21). On August 3, 2016, the trial court entered

       final judgment in favor of the City.


[10]   Lee now appeals. Additional facts will be provided as necessary.




       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 6 of 37
                                DISCUSSION AND DECISION
                                               I. Standard of Review

[11]   Lee appeals from the trial court’s entry of summary judgment in favor of the

       City. We adhere to a well-settled standard of review in summary judgment

       cases:

                Summary judgment is appropriate only where there is no genuine
                issue of material fact and the moving party is entitled to
                judgment as a matter of law. All facts and reasonable inferences
                drawn from those facts are construed in favor of the nonmovant.
                Our review of a summary judgment motion is limited to those
                materials designated to the trial court. We must carefully review
                a decision on summary judgment to ensure that a party was not
                improperly denied its day in court. . . .


                In reviewing a grant of summary judgment we face the same
                issues as the trial court and follow the same process. Under Trial
                Rule 56(C), the moving party bears the 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. If it is
                successful, the burden shifts to the nonmoving party to designate
                evidence establishing the existence of a genuine issue of material
                fact.


       Wabash Cnty. Young Men’s Christian Ass’n v. Thompson, 975 N.E.2d 362, 364–65

       (Ind. Ct. App. 2012) (internal citations omitted), trans. denied. “A genuine issue

       of material fact exists where facts concerning an issue which would dispose of

       the litigation are in dispute or where the undisputed material facts are capable

       of supporting conflicting inferences on such an issue.” Hamilton v. Ashton, 846

       N.E.2d 309, 314, clarified on reh’g, 850 N.E.2d 466 (Ind. Ct. App. 2006), trans.

       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 7 of 37
       denied. The trial court’s grant of summary judgment “is clothed with a

       presumption of validity,” and Lee bears the burden of establishing that the trial

       court erred. Id. “If the trial court’s ruling can be sustained on any theory or

       basis supported by the record, we must affirm.” Id.


[12]   For negligence cases, “[s]ummary judgment is rarely appropriate” because these

       cases “are particularly fact-sensitive and are governed by a standard of the

       objective reasonable person.” Miller v. Rosehill Hotels, LLC, 45 N.E.3d 15, 19

       (Ind. Ct. App. 2015). Thus, negligence cases are generally better suited for a

       jury determination after hearing all the evidence. Id. Nevertheless, in order for

       the City to prevail on its summary judgment motion, it “must show that the

       undisputed material facts negate at least one of the elements essential to the

       negligence claim, or that the claim is barred by an affirmative defense.”

       Coffman v. PSI Energy, Inc., 815 N.E.2d 522, 526 (Ind. Ct. App. 2004), trans.

       denied.


                                           II. Contributory Negligence

[13]   In this case, the trial court found that the City’s affirmative defense of

       contributory negligence was dispositive. When a tort claim is filed against a

       governmental entity, such as the City, the Comparative Fault Act—which

       provides that “any contributory fault chargeable to the claimant diminishes

       proportionately the amount awarded as compensatory damages for an injury

       attributable to the claimant’s contributory fault, but does not bar recovery”—

       does not apply. Ind. Code §§§ 34-51-2-2; -5; -6; see Hill v. Gephart, 54 N.E.3d

       402, 406 (Ind. Ct. App. 2016), clarified on reh’g, trans. denied. Rather, the

       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017    Page 8 of 37
       common-law doctrine of contributory negligence applies. Hill, 54 N.E.3d at

       406. Therefore, “if a plaintiff is negligent to even a small degree and that

       negligence proximately contributes to his claimed damages, contributory

       negligence will operate as a complete bar to his action.” Id. Here, the trial

       court found that Lee’s claim against the City was barred based on his own

       contributory negligence. Specifically, the trial court found that Lee “knew what

       he was supposed to do for his own safety: wait for a vehicle to stop before you

       cross a road. Instead of waiting, he chose to cross.” (Appellants’ App. Vol. II,

       p. 20).


[14]   It is well established that a plaintiff “is contributorily negligent when his

       conduct falls below the standard to which he should conform for his own

       protection and safety.” Hill, 54 N.E.3d at 406. Because “[n]egligence depends

       upon the lack of reasonable care that an ordinary person would exercise in like

       or similar circumstances,” “contributory negligence is the failure of a person to

       exercise for his own safety that degree of care and caution which an ordinary,

       reasonable, and prudent person in a similar situation would exercise.” Id.

       Generally, contributory negligence is a question of fact for a jury. Id. However,

       it may be a question of law appropriate for summary judgment “if the facts are

       undisputed and only a single inference can be drawn therefrom.” Id. at 406-07.


[15]   In this case, Lee was thirteen years old at the time of the accident. The

       standard of care for a child is well established: “a child between seven and

       [fourteen] is required to exercise due care for his or her own safety under the

       circumstances and that the care is required to be measured by that ordinarily

       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 9 of 37
       exercised under similar circumstances by children of the same age, knowledge,

       judgment, and experience.” Clay City Consol. Sch. Corp. v. Timberman, 918

       N.E.2d 292, 295 (Ind. 2009). That said, in Indiana, there is also a

       “presumption that children between the ages of seven and [fourteen] are

       incapable of contributory negligence.” Id. at 297. However, this presumption is

       rebuttable, and a child may be found contributorily negligent if the defendant

       presents evidence that the child is “accountable for his actions” based on his

       age, mental capacity, intelligence, and experience. Id. at 298.


[16]   Lee contends that the trial court erred in granting summary judgment because

       the facts of the case are subject to more than one inference, thereby precluding a

       determination that he was contributorily negligent as a matter of law. Lee relies

       on Maldonado by Maldonado v. Gill, 502 N.E.2d 1371, 1371-72 (Ind. Ct. App.

       1987), trans. denied, in which an eight-year-old plaintiff looked both ways,

       stepped out into the street from in-between two parked cars, and was struck by

       a vehicle. There was evidence that the driver of the vehicle had failed to stop at

       a stop sign and was speeding at the time of the impact. Id. at 1373. Our court

       found that the trial court erred in determining that the plaintiff was

       contributorily negligent as a matter of law because “the uncontroverted

       evidence that [the plaintiff] stopped and looked before attempting to cross the

       street [was] sufficient to create an inference that he acted reasonably”; thus,

       whether the child’s “behavior constituted contributory negligence [was] a

       question of fact.” Id.




       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 10 of 37
[17]   In turn, the City argues that summary judgment was proper. The City cites

       Smith v. Diamond, 421 N.E.2d 1172, 1179 (Ind. Ct. App. 1981), where our court

       found that the trial court was justified in concluding, as a matter of law, that a

       twelve-year-old boy was contributorily negligent when he sustained injuries

       after crossing into the street, admittedly without checking to see whether traffic

       was approaching in the northbound lane. The City points out that Lee was a

       year older than the plaintiff in Smith and, as in Smith, had been instructed on

       proper traffic safety. The City emphasizes that Lee had crossed the Marr Road

       crosswalk twice a day throughout his seventh and eighth grade years without

       incident and knew that he should never cross the street until a slowing vehicle

       fully stopped. Yet, “despite seeing the approaching truck and the headlights of

       the truck that would eventually strike him, Lee chose to enter the road” and is

       therefore, according to the City, contributorily negligent. (Appellee’s Br. p. 16).


[18]   We find that the record contains genuine issues of material fact to preclude

       summary judgment on the basis of contributory negligence. Unlike in Smith,

       where the plaintiff failed to check whether any traffic was coming from the

       northbound lane, Lee did check in both directions for traffic and observed

       McLeod’s vehicle. However, he believed that the vehicle “was [at] a distance to

       where I thought I could cross without him having to slow down or stop or

       anything like that.” (Appellants’ App. Vol. II, p. 42). Similarly, in his

       deposition, Lee’s friend, Rhodes, claimed that he also saw McCleod’s truck as

       they approached the crosswalk and, like Lee, believed that there was sufficient

       time to traverse the crosswalk. According to Rhodes, McLeod’s “truck was just


       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 11 of 37
       so far down the street. It wasn’t even in our minds that it would even be going

       that fast to even hit us.” (Appellants’ App. Vol. III, p. 115). In fact, Rhodes

       stated that, had he not stopped to pick up the coin, he would have felt safe in

       entering the crosswalk at the same time as Lee. Furthermore, although

       McLeod averred that he was travelling between twenty-five and thirty miles per

       hour at the time of the accident, Rhodes estimated that McLeod’s speed must

       have been closer to thirty-five or forty miles per hour. As in Maldonado, we find

       that these facts give rise to an inference that Lee may have acted reasonably in

       entering the crosswalk after looking both ways and assessing that he had

       sufficient time to cross.


[19]   Nonetheless, the City also maintains that Lee was contributorily

       negligent/negligent per se because he violated Indiana Code section 9-21-17-5,

       which provides that “[a] pedestrian may not suddenly leave a curb or other

       place of safety and walk or run into the path of a vehicle that is so close as to

       constitute an immediate hazard.” Our court has noted that “the violation of a

       statute by a child must not be considered in the light of any presumption of

       negligence.” Maldonado, 502 N.E.2d at 1373. Rather, the “violation of a

       statute of this nature by a child is in itself only some evidence of negligence, at

       least where the child’s activity is one which does not require adult

       qualifications.” Smith, 421 N.E.2d at 1180 n.7. For the same reasons already

       discussed, we cannot say that Lee’s conduct constitutes a violation of the statute

       rendering him contributorily negligent as a matter of law. There is a genuine

       evidentiary dispute as to whether Lee “suddenly [left]” the curb in the face of


       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 12 of 37
       “an immediate hazard” given his genuine belief that McLeod’s vehicle was

       sufficiently far away that he could safely cross. I.C. § 9-21-17-5. Because the

       evidence leads to multiple inferences as to whether a thirteen-year-old boy acted

       reasonably in crossing the street despite the presence of an oncoming vehicle,

       we find that the issue of contributory negligence was not a proper basis for

       summary judgment and should have been reserved for determination by a jury.


                                             III. Statutory Immunity

[20]   Despite our finding that the trial court erred in granting summary judgment on

       the basis that Lee was contributorily negligent, we may nevertheless affirm the

       trial court’s summary judgment if it can be sustained on any other basis

       supported by the record. Hamilton, 846 N.E.2d at 314. In its motion for

       summary judgment, the City claimed that it was entitled to judgment as a

       matter of law based on certain statutory immunities. The Indiana Tort Claims

       Act (ITCA) provides that governmental entities may be liable for torts

       committed by their agencies or employees. See I.C. Ch. 34-13-3. However,

       under certain circumstances, the governmental entity is entitled to immunity for

       those acts. Joseph v. LaPorte Cnty., 651 N.E.2d 1180, 1183 (Ind. Ct. App. 1995),

       trans. denied. Whether the ITCA imparts immunity to a governmental entity is

       a question of law for the court to decide. Savieo v. City of New Haven, 824

       N.E.2d 1272, 1275 (Ind. Ct. App. 2005) (quoting Mangold ex rel. Mangold v. Dep’t

       of Nat. Res., 756 N.E.2d 970, 975 (Ind. 2001)), trans. denied. “Because the ITCA

       is in derogation of the common law, we construe it narrowly against the grant

       of immunity.” Id. (quoting Mangold, 756 N.E.2d at 975). The party seeking

       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 13 of 37
       immunity bears the burden of proving that its conduct falls within the

       provisions of the ITCA. Id. (quoting Mangold, 756 N.E.2d at 975).


[21]   In his Complaint, Lee generically alleged that the City was negligent based on

       its failure to adequately warn drivers and pedestrians about the dangers of the

       Marr Road crosswalk. In response, the City argued that it cannot be held liable

       under its discretionary function immunity because it was in the process of

       planning improvements (i.e., flashing lights) to the crosswalk at the time of the

       accident; it cannot be held liable for failing to implement a lower speed limit or

       to assign crossing guards at the Marr Road crosswalk under its

       adoption/enforcement immunity; and it is immune from any liability resulting

       from the design of Marr Road and the crosswalk based on the fact that there

       had been no substantial changes in the twenty years preceding the accident.

       We will address each claim of immunity in turn.


               A. Indiana Code Section 34-13-3-3(7): Discretionary Function Immunity

[22]   First, we consider whether the City is entitled to discretionary function

       immunity. “A governmental entity or an employee acting within the scope of

       the employee’s employment is not liable if a loss results from . . . [t]he

       performance of a discretionary function.” I.C. § 34-13-3-3(7). This type of

       immunity shields certain policy decisions “which cannot be assessed by tort

       standards.” Joseph, 651 N.E.2d at 1183. In determining whether discretionary

       function immunity is applicable, “we apply the planning/operational test.” Id.

       We have held that planning functions are discretionary and thus shielded by

       immunity, whereas operational functions are not. Id. “Planning functions

       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017    Page 14 of 37
       involve the formulation of basic policy characterized by official judgment,

       discretion, weighing of alternatives, and public policy choices.” Id. (internal

       quotation marks omitted). On the other hand, operational functions “involve

       the execution or implementation of already formulated policy.” Id. (internal

       quotation marks omitted).


[23]   Whether an act is discretionary is a question of law. City of Beech Grove v. Beloat,

       50 N.E.3d 135, 138 (Ind. 2016) (quoting Peavler v. Board of Comm’rs of Monroe

       Cnty., 528 N.E.2d 40, 46 (Ind. 1988)). Essentially, we must consider “whether

       the legislature intended acts such as those challenged to enjoy immunity.”

       Joseph, 651 N.E.2d at 1183. In doing so, we “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. The City

       must demonstrate that “the challenged act or omission was a policy decision

       made by consciously balancing risks and benefits.” Id. (quoting Peavler, 528

       N.E.2d at 46).


[24]   According to the City, Lee cannot establish a viable negligence claim based on

       a lack of adequate warnings in light of the fact that “there were already two

       crosswalk warning signs in place in addition to the crosswalk markings itself at

       the Marr Road Crosswalk, and the driver of the truck was already fully aware

       of the presence of the crosswalk and saw the crosswalk and its warning signs on

       the day of the incident.” (Appellee’s Br. pp. 29-30). Nevertheless, assuming

       that Lee has a viable negligence claim, the City maintains that “[t]o the extent

       that [Lee] argue[s] that there should have been a different type of warning sign

       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 15 of 37
       at the Marr Road crosswalk, such a claim is barred by discretionary function

       immunity” because the City “was in the process of planning improvements to

       the Marr Road crosswalk.” (Appellee’s Br. pp. 29-30). See City of Terre Haute v.

       Pairsh, 883 N.E.2d 1203, 1208 (Ind. Ct. App. 2008) (“Immunity assumes

       negligence but denies liability.”), trans. denied. In turn, Lee simply argues that

       the City is not entitled to summary judgment based on discretionary function

       immunity because “[d]ifficult policy decisions were not being resolved by the

       City with respect to crosswalks and signage. There appears to be nothing more

       than ad hoc decisions being made.” (Appellants’ Br. p. 23).


[25]   The designated evidence establishes that in 2009, the City “identified the need

       for an engineering solution for pedestrian crossings that fell between a

       signalized intersection and a standard marked crosswalk” at multiple

       crosswalks around Columbus. (Appellants’ App. Vol. II, p. 72). By May of

       2011, the Indiana Manual on Uniform Traffic Control Devices had approved

       the use of rectangular rapid flashing beacons (RRFBs) at pedestrian crossings. 4

       Thus, to test the efficacy of RRFBs, the City installed one at an “important

       school crossing that had been having major compliance issues with regards to

       motorists yielding to pedestrians in the crosswalk.” (Appellants’ App. Vol. II,

       p. 72). Thereafter, the City recorded a 95% compliance rate at the crosswalk

       with the RRFB. In addition, the City found the “solution to be particularly



       4
         “Each traffic control signal on a street or highway within Indiana must conform with the standards,
       specifications, and warrants set forth in the Indiana Manual on Uniform Traffic Control Devices for Streets
       and Highways.” I.C. § 9-21-3-1.

       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017                      Page 16 of 37
       effective because the [RRFB] must be actively activated by a pedestrian, thus

       when it is not in use it does not degrade road capacity.” (Appellants’ App. Vol.

       II, p. 72). Accordingly, in May of 2011—almost two years prior to the accident

       that led to this appeal, the City applied for federal Highway Safety

       Improvement Program (HSIP) funding to install RRFBs at six other pedestrian

       crossings in Columbus, including the Marr Road crosswalk.


[26]   The cost of installing an RRFB at the Marr Road crosswalk was estimated at

       $75,000 (with the total cost for all six crosswalks estimated at $487,500). A

       project that is eligible for HSIP funding receives 90% of the project costs from

       the federal grant, and the City is responsible for paying the remaining 10%. In

       addition, transportation projects that involve federal funding must be first

       approved by the Indiana Department of Transportation (INDOT), and upon

       the federal agency’s approval of an HSIP project, the money flows through

       INDOT. On October 30, 2012, the Columbus Board of Works and Safety

       discussed the project, noting that the City’s share of the costs would be paid for

       through the City’s Thoroughfare Fund. During that meeting, the Board voted

       to approve a contract for INDOT to serve as the project coordinator for the

       improvement of the six pedestrian crosswalks. Then, on December 4, 2012, the

       Board of Public Works and Safety approved a contract between the City and a

       consulting firm, under which the consulting firm would develop the

       construction documents necessary for the project. On January 5, 2013, a

       contract between the City and INDOT was fully executed for the completion of

       the RRFB project with HSIP funds. Pursuant to the contract, INDOT was


       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 17 of 37
       responsible for letting the project and reviewing bids. Thereafter, INDOT

       would contract with an appropriate contractor for the construction of the

       project and would establish the work schedule. Once INDOT received the

       City’s payment for 10% of the project costs, the contractor would be permitted

       to proceed with construction. The City was responsible for “manag[ing] the

       project and keep[ing] it moving.” (Appellants’ App. Vol. II, p. 67). Upon

       completion of the project, INDOT would “hand it back to the City and say it’s

       yours to maintain.” (Appellants’ App. Vol. II, p. 65).


[27]   On March 11, 2013—the date of Lee’s accident, the Columbus Area

       Metropolitan Planning Organization met and inquired about accelerating the

       RRFB installation process in light of the fact that a student had been struck by a

       vehicle. The City’s engineer explained that a field check was scheduled for that

       week, but the delays were the result of having to go through the federal and

       state aid processes to fund the project. On August 20, 2013, the Board of Public

       Works approved a request to amend the contract with the consulting firm.

       Under the amended terms, the consulting firm would also complete necessary

       studies for environmental documentation and design the curb bump outs as part

       of the RRFB installation. Finally, at some point in 2015, INDOT opened the

       project for bidding. Initially, the bids were too high, so INDOT tabled the

       project for a few months before re-letting it. The second time, INDOT accepted

       a bid and awarded the contract. However, as of December of 2015,

       construction had not yet begun.




       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 18 of 37
[28]   The City directs our attention to Lee v. State, 682 N.E.2d 576, 577 (Ind. Ct. App.

       1997), trans. denied, in which a mother sued INDOT for negligence after her

       seventeen-year-old daughter died in a car accident due to the driver’s failure “to

       successfully negotiate a series of curves.” The plaintiff contended that INDOT

       had improperly designed, constructed, and maintained the road and had failed

       to warn motorists of the unreasonably dangerous nature of the s-shaped curves

       or eliminate said dangerousness. Id. We held that INDOT was entitled to

       discretionary function immunity because it was in the planning stages of

       making improvements to the road curves at the time of the accident. Id. at 579.

       The plaintiff attempted to argue that INDOT was not entitled to discretionary

       function immunity because it had moved beyond the planning phase and into

       the operational phase as the design and engineering aspects of the project were

       completed at the time of her daughter’s accident. Id. We disagreed, noting that

       “INDOT was required to purchase several parcels of land adjacent to [the road]

       in order to straighten the road thereby eliminating the [curves].” Id. Thus,

       “[t]he operational phase of the project did not begin until after the contract was

       let for bidding on October 16, 1992. Decedent’s accident occurred in July of

       1992, and hence the project was still in the planning phase.” Id. We found that

       INDOT’s decision to correct the dangerous curves “was the type of

       discretionary decision intended to be shielded from liability.” Id.


[29]   Lee, however, argues that there is nothing in the designated evidence “which

       show[s] consideration or weighing of policy issues” as required for discretionary

       function immunity to apply. (Appellants’ Reply Br. p. 17). In support of this,

       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 19 of 37
Lee cites Beloat, 50 N.E.3d at 137, where the plaintiff sued the City of Beech

Grove after she stepped into a hole on a city street and broke her leg. Beech

Grove claimed that it was immune from liability pursuant to the ITCA’s

discretionary function immunity because it was in the planning stages of

performing a complete reconstruction of the entire street, as opposed to

piecemeal repairs. Id. at 140. As evidence, Beech Grove designated an affidavit

from its mayor, along with minutes from City Council and Board of Works and

Safety meetings. Id. Our supreme court determined that the mayor’s affidavit

was insufficient to demonstrate that an official policy decision had been made

as to why certain repairs should be made over others because the mayor’s

“comments and actions alone are not actions of the [governing] board itself”

and there is no indication that the mayor had been delegated individual

authority to make an independent policy decision about road repairs. Id. at

140-41. Furthermore, the supreme court noted that the meeting minutes of the

governing boards only discussed the financial aspects of the reconstruction

project. Id.at 141. “The minutes presented within the record [did] not reflect

any discussion about how the area encompassed within the [p]roject 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.” Id. at 142. Rather, the minutes designated as evidence

“reflect[ed] the steps taken to fund a project that had already been discussed,

planned, and approved.” Id. Thus, Beech Grove was not entitled to summary

judgment based on discretionary function immunity. Id. at 143. Ultimately,
Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 20 of 37
       our supreme court determined that “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. (alteration in original). In addition, Lee relies

       on Birge v. Town of Linden, 57 N.E.3d 839, 845 (Ind. Ct. App. 2016), which

       emphasized that an application for funding of a project, by itself, does not

       “demonstrate a conscious weighing of options” to grant discretionary function

       immunity as a matter of law.


[30]   We find that the present case is more akin to Lee than Beloat because the

       designated evidence demonstrates the City’s involvement in various phases of

       analysis, planning, approval, and contracting in order to complete the

       installation of RRFBs at the Marr Road crosswalk. See Beloat, 50 N.E.3d at 139

       (distinguishing Lee v. State on the basis that “[t]he evidence designated by

       INDOT clearly demonstrated the multiple phases of investigation, planning,

       modification, and approval necessary to complete the reconstruction of [the

       road]”). Unlike in Beloat, here, the record is replete with details regarding the

       policy considerations undertaken by the City in planning for the crosswalk

       improvements. Specifically, in its application for HSIP funding, the City

       explained that, after testing the efficacy of the RRFBs at a sample crosswalk

       and noting a 95% compliance rate, it selected the Marr Road crosswalk as one

       of six other pedestrian crossings throughout Columbus that would benefit from

       the use of RRFBs. The City noted that it had received “very positive” feedback

       “from parents, non-school related pedestrians, school crossing guards, and


       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 21 of 37
       motorists” with respect to the use of RRFBs. (Appellants’ App. Vol. III, p. 46).

       The City also considered that the installation of RRFBs would be beneficial to

       pedestrians without unnecessarily hindering traffic because the RRFBs “must

       be actively activated by a pedestrian” and do not flash unless in use.

       (Appellants’ App. Vol. III, p. 46). The Marr Road crosswalk was chosen for

       improvement because


               Marr Road is a minor arterial that runs adjacent to East High
               School. Traffic volumes are 7,281 [average annual daily traffic].
               Each school day, students from [Columbus] East High School
               must cross Marr Road in order to reach the sports facilities
               located on the other side of the road. The need for improved
               pedestrian crossing at this location was identified during the High
               School campus master planning process which was conducted
               cooperatively between the School Corporation, the City and
               other stakeholders as well as during the Bicycle and Pedestrian
               Planning process.


       (Appellants’ App. Vol. III, p. 47). In addition to studying the traffic patterns at

       the crosswalk, the City calculated that 1,286 pedestrians utilize the Marr Road

       crosswalk each day, not including additional evening pedestrian traffic for

       sports and auditorium events. The City also considered that, despite the posted

       speed limit of thirty miles per hour (with a school zone speed limit of twenty

       miles per hour), the average observed speed in the northbound lane of Marr

       Road was forty-two miles per hour and was thirty-eight miles per hour in the

       southbound lane.


[31]   The record also establishes that, in early 2011, the City sought approval for the

       project from INDOT and applied for HSIP funding. Then, in December of
       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 22 of 37
       2012, the City entered into a contract with a consulting firm to handle the

       development of necessary documents for the project, and this contract was

       subsequently modified in August of 2013 to include additional work for

       environmental studies and curb bump outs. In January of 2013, the City

       contracted with INDOT to manage the project. As a result, the bidding

       process, selection of a contractor, and schedule of work were all under

       INDOT’s control. At the time of Lee’s accident in March of 2013, the City was

       preparing for a field check, and INDOT had not let out the project for bidding

       yet. Thus, despite the prolonged process, we find that the City was still in the

       planning stages at the time of the accident. See Lee, 682 N.E.2d at 579.


[32]   Furthermore, the evidence reveals that Lee was the second student within a

       two-year period to be struck by a vehicle at the Marr Road crosswalk. Thus, it

       is clear that the City recognized that, despite being in compliance with the

       Indiana Manual on Uniform Traffic Control Devices with respect to the

       warning signs and high visibility markings already in place, it could do more to

       improve the safety of pedestrians in that area. The fact that it was a slow

       process was not the fault of the City, but rather was due to the nature of

       coordinating a federally-funded project with a state agency. We find that the

       City’s effort to remedy the dangers associated with the Marr Road crosswalk

       falls within the realm of activity that the legislature intended to protect with

       discretionary function immunity. See id. Thus, to the extent that Lee maintains

       that the City was negligent in failing to include additional warnings at the Marr

       Road crosswalk, we find that the City has discretionary function immunity.


       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 23 of 37
       B. Indiana Code Section 34-13-3-3(8): Immunity for Failure to Adopt or Enforce Laws

[33]   Next, we consider whether the City is entitled to immunity based on a failure to

       adopt or enforce a law, rule, or regulation. “A governmental entity or an

       employee acting within the scope of the employee’s employment is not liable if

       a loss results from “[t]he adoption and enforcement of or failure to adopt or

       enforce . . . a law (including rules and regulations).” I.C. § 34-13-3-3(8). It is

       well established that “the legislature intended that a government entity be

       immune only for failing to adopt or enforce a law that falls within the scope of

       its purpose or operational power.” Gary Cmty. Sch. Corp. v. Boyd, 890 N.E.2d

       794, 800 (Ind. Ct. App. 2008) (quoting King v. Ne. Security, Inc., 790 N.E.2d 474,

       483 (Ind. 2003)), trans. denied. In seeking summary judgment, the City claimed

       that it is immune from liability to the extent that Lee contends that the City

       should have enacted a lower speed limit at the crosswalk, that the City should

       have installed a stop sign at the crosswalk, or that the City should have utilized

       crossing guards at the crosswalk.


[34]   As a “local authorit[y]” under Indiana Code section 9-13-2-94(b), the City

       “may adopt by ordinance additional traffic regulations with respect to highways

       under the authority’s jurisdiction” so long as it does not “conflict with or

       duplicate a statute.” I.C. § 9-21-1-2. In part, “with respect to private roads and

       highways under the authority’s jurisdiction,” the City may “[r]egulate traffic by

       means of police officers or traffic control signals”; “[d]esignate an intersection

       as a stop intersection and require all vehicles to stop at one (1) or more




       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 24 of 37
       entrances to the intersection”; or “[a]lter the prima facie speed limits authorized

       under [Indiana Code chapter] 9-21-5.” I.C. § 9-21-1-3(a)(2),(7),(11).


[35]   Specifically with respect to altering prima facie speed limits, we note that Indiana

       Code section 9-21-5-2(a)(1) establishes a “maximum lawful speed” limit of

       “[t]hirty (30) miles per hour in an urban district.” However,

               [a] city, town, or county may establish speed limits on a street or
               highway upon which a school is located if the street or highway
               is under the jurisdiction of the city, town, or county, respectively.
               However, a speed limit established under this subsection is valid
               only if the following conditions exist:


               (1) The limit is not less than twenty (20) miles per hour.


               (2) The limit is imposed only in the immediate vicinity of the
               school.


               (3) Children are present.


               (4) The speed zone is properly signed. There must be:


                    (A) a sign located where the reduced speed zone begins or as
                        near as practical to the point where the reduced speed
                        zone begins indicating the reduced speed limit and a sign
                        located at the end of the reduced speed zone indicating
                        the end of the reduced speed zone; and


                    (B) if the school operates on a twelve (12) month schedule, a
                        sign indicating that the school is an all year school.


       I.C. § 9-21-5-6(f).

       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 25 of 37
[36]   The City thus had authority to adopt and enforce regulations regarding the use

       of traffic control signals and police officers to regulate traffic. The City also had

       power to designate intersections as stop intersections. Finally, the City could

       alter the prima facie speed limit of thirty miles per hour for an urban area by

       decreasing it to twenty miles per hour in the vicinity of a school. The wording

       of Indiana Code section 34-13-3-3(8) makes it clear that the City is immune for

       any failure to adopt or enforce a law, rule or regulation; as such, the City

       cannot be liable because it did not erect a stop sign at the Marr Road crosswalk

       or enact a lower speed limit. See Carter v. Indianapolis Power & Light Co., 837

       N.E.2d 509, 522 n.20 (Ind. Ct. App. 2005) (finding immunity based on a

       county’s failure to pass an ordinance for a reduced speed limit), trans. denied; Bd.

       of Comm’rs of Cnty. of Harrison v. Lowe, 753 N.E.2d 708, 714 (Ind. Ct. App. 2001)

       (noting that failing to erect a traffic control device is, in part, “a legislative act”

       that is entitled to immunity under (what is now) Indiana Code section 34-13-3-

       3(8)), trans. denied.


[37]   Concerning whether the City should have utilized crossing guards at the Marr

       Road crosswalk, the City insists that it is “immune under the ‘enforcement’

       provision” of Indiana Code section 34-13-3-3(8). (Appellee’s Br. p. 27). The

       City argues that this case is similar to State v. Flanigan, 489 N.E.2d 1216 (Ind.

       Ct. App. 1986), trans. denied, and we agree. In Flanigan, the plaintiffs parked

       their car at the side of a highway and then proceeded to walk along the highway

       in order to attend a flea market where there had been inadequate parking. Id. at

       1217. While walking, the plaintiffs were struck by a vehicle, and they sued the

       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017    Page 26 of 37
       State of Indiana for negligence, asserting that the Indiana State Police “failed to

       provide any traffic control to assure that pedestrians could travel on the

       highways safely.” Id. Our court held that “[a]ny decision by the [S]tate

       [P]olice whether or not to patrol the area of [the] flea market or to provide

       traffic control would be a decision on whether or not to enforce the law. Such

       an act clearly is within and protected by the immunity granted by the [ITCA].”

       Id. at 1220.


[38]   Lee contends that the crossing guards cannot enforce laws because, as civilian

       employees, they do not possess any police powers. Nevertheless, the

       designated evidence establishes that “the crossing guards are part of the police

       function, and the police decide where those will go.” (Appellants’ App. Vol. II,

       p. 66). The Columbus Police Department (which is a department of—rather

       than a separate entity from—the City) employs twenty-one crossing guards on a

       seasonal, part-time basis. The crossing guards are paid from the police

       department’s budget. Crossing guards who notice a compliance problem (i.e.,

       an excessive number of speeding drivers) at their intersection/crosswalk are

       instructed to notify the Columbus Police Department’s administrative special

       secretary, who then raises the issue(s) with the appropriate officers for

       enforcement. In determining where to place crossing guards, the police

       department communicates with the school system; however, as a matter of

       policy, the police department only assigns crossing guards to crosswalks and

       intersections where elementary school students (i.e., up to sixth grade) would be

       expected to cross. Thus, while the crossing guards themselves do not have any


       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 27 of 37
       enforcement authority, they are directly controlled by the Columbus Police

       Department and serve as a mechanism of traffic control for safe pedestrian

       crossing. Accordingly, we conclude that the decision not to place a crossing

       guard at the Marr Road crosswalk is subject to immunity under Indiana Code

       section 34-13-3-3(8). 5


                                                           IV. Negligence

[39]   Because a finding of immunity precludes liability, we generally do not reach the

       elements of negligence. See Pairsh, 883 N.E.2d at 1208. Here, although we

       have concluded that summary judgment was not appropriate on the basis of

       Lee’s contributory negligence, we have determined that the City is entitled to

       immunity based on any perceived failure to include additional warnings, such

       as RRFBs, at the Marr Road crosswalk or based on its failure to erect a stop

       sign at the crosswalk, enact a reduced speed limit along Marr Road, or station

       crossing guards at the crosswalk. Although there is immunity for a City’s

       decision to enact an ordinance regarding the speed limit in a certain area, we

       must nevertheless address the fact that there were multiple speed limit signs



       5
          The City also claimed that it was immune under Indiana Code section 34-13-3-3(18), which provides that
       “[a] governmental entity or an employee acting within the scope of the employee’s employment is not liable
       if a loss results from . . . [the] [d]esign of a highway . . . , toll road project . . . , tollway . . . , or project . . . if
       the claimed loss occurs at least twenty (20) years after the public highway, toll road project, tollway, or
       project was designed or substantially redesigned.” There is no dispute that the design of Marr Road and the
       crosswalk had not been altered in the twenty years preceding the accident. Although Lee did not challenge
       that the design of the road or crosswalk resulted in the accident, he nevertheless argued that the City could
       not claim immunity under this provision because the placement of the speed limit signs, which were changed
       in 2011, proximately caused the accident. Because we address the matter of the speed limit signs elsewhere
       in this opinion, we need not address the City’s claim of immunity under Indiana Code section 34-13-3-3(18).
       Likewise, we need not address the parties’ arguments as to whether the City was entitled to common law
       immunity regarding the placement of crossing guards at the Marr Road crosswalk.

       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017                                      Page 28 of 37
       posted, creating a discrepancy as to whether, at the time of the accident, the

       enacted speed limit was twenty miles per hour or thirty miles per hour

       approaching the Marr Road crosswalk. The City offers no basis under the

       ITCA that would grant it immunity if it posted an incorrect speed limit sign.

       See, e.g., Joseph, 651 N.E.2d at 1185 (noting that posting an incorrect speed limit

       sign “cannot be discretionary” and is, therefore, not shielded from liability

       under Indiana Code section 34-13-3-3(7) because “[p]osting speed limits

       involves nothing more than implementing established policy”).


[40]   Lee maintains that the City is negligent because an improper speed limit sign

       was the cause of the accident. In order to sustain an action for negligence, Lee

       must establish: “(1) a duty owed by [the City] to conform its conduct to a

       standard of care arising from its relationship with [Lee]; (2) a breach of that

       duty; and (3) an injury proximately caused by the breach of that duty.” St. John

       Town Bd. v. Lambert, 725 N.E.2d 507, 514 (Ind. Ct. App. 2000). Whether the

       City has a duty is a question of law subject to the court’s determination, and our

       courts have “long recognized a general duty on the part of the state, counties,

       and municipalities to exercise reasonable care in the design, construction,

       maintenance, and repair of the road and highways within their control.” Id. at

       514-15. Moreover, we have previously identified a duty for such entities to

       “regulate the use of the public ways,” such as by posting street signs, erecting

       lights, or installing warning devices for the safety of the general public. Id. at

       516. If a duty is breached, we must determine whether the breach is the

       proximate cause of another’s injury by considering “whether the injury was a


       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 29 of 37
       natural and probable consequence of the negligent act which, in the light of the

       attending circumstances, could have been reasonably foreseen or anticipated.”

       Id. at 520. In other words, for a breach to proximately cause an injury, it “must

       have set in motion a chain of circumstances which, in natural and continuous

       sequence, le[d] to the resulting injury.” Id.


[41]   Drivers approaching the Marr Road crosswalk in the northbound lane observed

       two speed limit signs. The first sign drivers passed was 1,264 feet from the

       crosswalk and indicated a school zone speed limit of twenty miles per hour.

       This sign did not indicate that the school zone speed limit was only to be in

       effect at specific times. Thereafter, 427 feet away from the crosswalk, a second

       sign indicated that the speed limit was thirty miles per hour. Conversely, for

       drivers approaching the crosswalk from the southbound lane, the school zone

       speed limit sign of twenty miles per hour and the regular speed limit sign of

       thirty miles per hour were placed directly next to each other, approximately

       one-half mile away from the crosswalk.


[42]   The City contends that it did not breach its duty because Marr Road was in a

       reasonably safe condition at the time of the accident. The City designated the

       affidavit of William Taylor (Taylor), a professor emeritus in the department of

       civil engineering at Michigan State University, with a Ph.D in engineering.

       Taylor concluded that the installation of the speed limit signs and crosswalk

       warning signs “was in accordance with the [Indiana Manual on Uniform

       Traffic Control Devices] and provided adequate and sufficient warning of the

       approach of the crosswalk, of the potential presence of students crossing Marr

       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 30 of 37
       Road, and of the necessity to drive at modest speed and to be attentive on

       school days.” (Appellants’ App. Vol. II, p. 103). Thus, notwithstanding any

       confusion with respect to the placement of the speed limit signs, the City argues

       that, even assuming the higher thirty-miles-per-hour speed limit was in effect for

       the school zone, there is no evidence that the road was rendered unsafe.


[43]   In response, Lee designated the affidavit of a civil engineer, Richard Hicks

       (Hicks). Hicks noted that the Indiana Manual on Uniform Traffic Control

       Devices “requires that [s]peed [l]imit signs shall be located at the points of

       change from one speed limit to another, and that at the downstream end of the

       section to which a speed limit applies, a [s]peed [l]imit sign showing the next

       speed limit shall be installed.” (Appellants’ App. Vol. III, p. 142). See also I.C.

       § 9-21-5-6(f)(4)(A) (requiring a school zone reduced speed limit sign to be

       “located where the reduced speed zone begins or as near as practical to the

       point where the reduced speed zone begins indicating the reduced speed limit

       and a sign located at the end of the reduced speed zone indicating the end of the

       reduced speed zone”). Thus, Hicks concluded that

               [t]he 20 miles per hour School Speed Limit zone for northbound
               traffic on Marr Road was not properly signed on the day of . . .
               Lee’s accident. The Speed Limit 30 sign, located 837 feet north of
               the School Speed Limit 20 sign and 427 feet south of the
               crosswalk, signaled that the speed limit of 20 was no longer in
               effect and that the legal speed limit from that point forward was
               30 miles per hour. The Speed Limit 30 sign told northbound
               drivers like Mr. McLeod that it was acceptable to drive at speeds
               more than 20 miles per hour and up to 30 miles per hour from
               that point forward. The Speed Limit 30 sign should not have

       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 31 of 37
               been there. It should have been removed when the School Speed
               Limit Assembly was installed.


       (Appellants’ App. Vol. III, p. 143).


[44]   The evidence establishes that McLeod did not see Lee until after the impact;

       thus, this is not a situation where the speed limit affected McLeod’s ability to

       apply his brakes fast enough. However, the speed limit may present a timing

       issue. McLeod believed that the set speed limit was thirty miles per hour, and

       he claimed to be travelling between twenty-five and thirty miles per hour at the

       time of the accident. Additionally, there is evidence indicating that the speed

       limit was twenty miles per hour through the school zone. In his deposition,

       McLeod conceded that “had I been traveling [twenty] miles an hour instead of

       [thirty], if that is, in fact, the case, I may not have been to the crosswalk at the

       time that [Lee] was crossing.” (Appellants’ App. Vol. III, p. 135). Similarly,

       Hicks determined that “[a] time and distance analysis shows that if . . . McLeod

       had been driving [twenty] miles per hour instead of ‘someplace between

       [twenty-five] and [thirty]’ miles per hour from the location of the Speed Limit

       30 sign 427 feet south of the crosswalk, . . . Lee walking at a normal rate would

       have been beyond . . . McLeod’s path of travel by the time . . . McLeod reached

       the crosswalk.” (Appellants’ App. Vol. III, p. 144).


[45]   We find that whether the City’s dual placement of speed limit signs

       approaching the Marr Road crosswalk constituted a breach of its duty to

       exercise reasonable care in the maintenance and regulation of public roadways

       is a question of fact that should be determined by a jury. See Mangold, 756
       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 32 of 37
       N.E.2d at 975 (noting that, unless “the facts are undisputed and lead to but a

       single inference or conclusion,” “a breach of duty, which requires a reasonable

       relationship between the duty imposed and the act alleged to have constituted

       the breach, is usually a matter left to the trier of fact”). Furthermore, if it is

       determined that such conduct constitutes a breach, we find that a question of

       fact exists as to whether the City’s placement of varying speed limit signs

       proximately caused the accident resulting in Lee’s injuries. See Correll v. Ind.

       Dep’t of Transp., 783 N.E.2d 706, 707 (Ind. Ct. App. 2002) (“The injurious act

       must be both the proximate cause and the cause in fact of an injury. Generally,

       causation, and proximate cause in particular, is a question of fact for the jury’s

       determination.”) (internal quotation marks and citation omitted), trans. denied.

       Accordingly, we reverse the trial court’s entry of summary judgment and

       remand for further proceedings.


                                               CONCLUSION
[46]   Based on the foregoing, we conclude that the trial court erred in granting

       summary judgment on the basis of contributory negligence. We further

       conclude that the City is entitled to statutory immunity with respect to its plans

       for improvements to the crosswalk and its decision to enact a certain speed limit

       and to not erect a stop sign or station crossing guards at the crosswalk.

       Nevertheless, we conclude that summary judgment is improper because there

       are genuine issues of material fact as to whether the City breached its duty of

       reasonable care by installing conflicting speed limit signs and whether such a



       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 33 of 37
       breach, if any, proximately caused the accident. Therefore, we remand this

       case for further proceedings.


[47]   Reversed and remanded.


[48]   Altice, J. concurs


[49]   Crone, J. dissents with separate opinion




       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 34 of 37
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Jalen Lee, A Minor Child, by                               Court of Appeals Case No.
       and through his Next Friend,                               03A01-1608-CT-1900
       Crystal Estes, and Crystal Estes,
       Individually,
       Appellants-Plaintiffs,

               v.

       Bartholomew Consolidated
       School Corporation, City of
       Columbus, Columbus City
       Planning Commission, and
       Columbus Police Department,
       Appellees-Defendants




       Crone, Judge, dissenting.


[50]   I respectfully dissent. If a plaintiff who files a tort claim against a governmental

       entity, such as the City, “is negligent to even a small degree and that negligence

       proximately contributes to his claimed damages, contributory negligence will

       operate as a complete bar to his action.” Hill, 54 N.E.3d at 406. Although

       generally a question of fact, contributory negligence may be “a question of law

       appropriate for summary judgment if the facts are undisputed and only a single

       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017              Page 35 of 37
       inference can be drawn therefrom.” Id. at 406-07. The relevant facts here are

       undisputed, and I believe that the only inference that can be drawn from them

       is that Lee was contributorily negligent and therefore the City is entitled to

       summary judgment as a matter of law.


[51]   “[C]ontributory negligence is the failure of a person to exercise for his own

       safety that degree of care and caution which an ordinary, reasonable, and

       prudent person in a similar situation would exercise.” Id. at 406. Under

       Indiana law, children between the ages of seven and fourteen are presumed to

       be incapable of contributory negligence. Timberman, 918 N.E.2d at 297. But

       “the existence of the presumption will not preclude summary judgment for the

       alleged tortfeasor on grounds of contributory negligence in the appropriate

       case.” Id. at n.4. Indeed, the presumption is rebuttable with evidence showing

       the child’s capacity, i.e., by offering proof that the child, “based on his age,

       mental capacity, intelligence and experience, was accountable for his actions.”

       Id. at 298.


[52]   In my view, the City rebutted the presumption in this case. Lee was a thirteen-

       year-old eighth-grader with no cognitive infirmities. He had used the same

       crosswalk twice each school day and in every kind of weather for the past two

       years. “He knew to look both ways before crossing, and it was his habit to wait

       for a vehicle to come to a full stop before crossing instead of assuming that a

       slowing vehicle would fully stop.” Slip op. at 4. On the day of the accident,

       Lee looked both ways when he approached the crosswalk from the east and saw

       McLeod’s truck approaching in the northbound lane (i.e., the lane that was

       Court of Appeals of Indiana | Opinion 03A01-1608-CT-1900 | April 11, 2017   Page 36 of 37
       closer to him), but he walked into the crosswalk anyway. Although Lee

       believed that he had sufficient time to cross the road without causing the truck

       to have to adjust its speed or stop, he apparently failed to watch the truck when

       he entered the crosswalk or he would have noticed it did not slow down.

       McLeod testified that he did not see Lee and did not brake until after he heard

       the impact.


[53]   The undisputed evidence shows that Lee should be held accountable for his

       actions. He knew and appreciated the dangers of using the crosswalk and had

       exercised reasonable care in the past by waiting for vehicles to come to a full

       stop before crossing the road. He failed to exercise reasonable care on the day

       he was struck and therefore was contributorily negligent as a matter of law.

       Consequently, I would affirm the trial court’s entry of summary judgment for

       the City on this ground.


       I would also affirm on the basis that any negligence on the City’s part with

       respect to the speed limit signs did not proximately cause Lee’s injuries as a

       matter of law. The majority acknowledges that “McLeod did not see Lee until

       after the impact; thus, this is not a situation where the speed limit affected

       McLeod’s ability to apply his brakes fast enough.” Id. at 32. McLeod did not

       know precisely how fast he was going when he hit Lee, and the notion that he

       would have driven more slowly and not hit Lee if the posted speed limit had

       been twenty miles per hour is mere speculation, which cannot create a question

       of fact on summary judgment. Beatty v. LaFountaine, 896 N.E.2d 16, 20 (Ind.

       Ct. App. 2008), trans. denied (2009).

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