Nikki Jones, as Personal Representative of the Estate of Phillip Matthew Jones v. Hancock County Board of Commissioners , 55 N.E.3d 311 ( 2016 )

FILED
May 20 2016, 9:56 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Patrick A. Elward James S. Stephenson
Meaghan Klem Haller Stephenson Morow & Semler
Jessica Whelan Indianapolis, Indiana
Bingham Greenebaum Doll LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nikki Jones, as Personal May 20, 2016
Representative of the Estate of Court of Appeals Case No.
Phillip Matthew Jones, 30A01-1506-CT-543
Appellant-Plaintiff, Appeal from the Hancock Circuit
Court
v. The Honorable Richard D.
Culver, Judge
Hancock County Board of Trial Court Cause No. 30C01-
Commissioners, 140l-CT-87
Appellee-Defendant.
Brown, Judge.
Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016 Page 1 of 20
[1] Nikki Jones as Personal Representative of the Estate of Phillip Matthew Jones
(the “Estate”) appeals from the order of the trial court entering summary
judgment in favor of the Hancock County Board of Commissioners (the
“Board” or the “County”). The Estate raises one issue which we revise and
restate as whether the court erred in entering summary judgment in favor of the
Board. We affirm in part, reverse in part, and remand.
Facts and Procedural History
[2] On July 5, 2012, Phillip Matthew Jones (“Jones”) was driving in a truck
northward on County Road 400 West (“CR 400W”). Jacqueline Thomas was
driving in a blue car westward on County Road 200 North (“CR 200N”). At
the intersection of CR 400W and CR 200N, drivers on CR 400W were not
required to stop and drivers on CR 200N were required to stop at posted stop
signs. The stop sign for westbound traffic on CR 200N at the intersection of CR
400W had a “sign underneath that said cross traffic does not stop.” Appellant’s
Appendix at 178. Thomas was seventeen years old and had obtained her
driver’s license two days earlier on July 3, 2012, and she knew that traffic on
CR 400W did not have a stop sign.
[3] Thomas stopped on CR 200N at the stop sign at the intersection of CR 200N
and CR 400W. Jones’s truck was traveling toward the intersection at fifty to
sixty miles per hour and over the speed limit of forty-five miles per hour. A
black vehicle traveling eastward on CR 200N stopped at the two-way stop at the
intersection of CR 400W and CR 200N and then crossed the intersection
quickly in front of Jones’s truck. At or close to the same time, Thomas “inched
Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016 Page 2 of 20
up a little bit past the stop sign to look both ways,” looked to the right, and then
looked to the left and saw a truck which “felt like it was right in [her] window”
immediately before the truck impacted her car.1 Id. at 180. Jones’s truck struck
Thomas’s car and flipped or rolled several times before coming to a stop, and
Jones died as a result of the crash.
[4] The Estate, in an amended complaint, brought a wrongful death claim against
the Hancock County Highway Department (the “Highway Department”) and
the Board. The Estate alleged in part that the Board and Highway Department
owed a duty to Jones to protect the users of Hancock County roadways from
dangerous conditions on the roadways and to exercise reasonable care in
installing proper traffic control devices, that they breached their duty “by failing
to properly and diligently monitor traffic accidents in Hancock County starting
in 2008, including traffic accidents occurring at the Intersection,” that they
breached their duty “by failing to properly and diligently control traffic at the
Intersection through the installation of an alternative traffic control device to
the two-way stop which was obviously not properly controlling the
Intersection,” and that their “failure to monitor and properly control the
Intersection were a concurring and proximate cause of serious personal injury
and death to [Jones], as well as emotional damages and lost income and
earnings to Nikki Jones and her two minor children.” Id. at 66. The Estate
1
One witness to the crash testified that Jones’s “truck just barely missed the back of that black car” and
“milliseconds later” struck the blue car driven by Thomas. Appellant’s Appendix at 227.
Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016 Page 3 of 20
further alleged that, according to Ind. Code § 9-21-4-1, “[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”
(the “Manual”), that the Manual “further provides that such agencies shall use
the [Manual] in determining the necessity of proper traffic control devices,” and
that the Manual “provides for the installation of a multi-way stop for several
different reasons, and one factor to be considered upon completion of an
engineering study, is whether there have been ‘five or more reported crashes in
a 12 month period that are susceptible to correction by a multi-way stop
installation.’” Id. at 64-65.
[5] In their answer, the Board and the Highway Department “admit the Manual
. . . provides guidance and instructions concerning installation of regulatory and
warning signs where decisions are made by governmental entities to install such
signs.” Id. at 78. The Board and the Highway Department raised a number of
affirmative defenses which included the defense of contributory negligence, that
the claims are barred by any and all applicable immunities contained in the
Indiana Tort Claims Act (the “ITCA”), including Ind. Code § 34-13-3-3(7) and
(8), and that the Highway Department is not a proper party defendant and
should be dismissed.
[6] The Board and the Highway Department subsequently filed a motion for
summary judgment together with a memorandum of law in support of the
motion and designated evidence, which included among other materials
Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016 Page 4 of 20
portions of the depositions of Thomas and witnesses to the crash and affidavits
related to the roadways and the existing county ordinances. In their motion,
the Board and the Highway Department argued in part that they were immune
from liability under Ind. Code § 34-13-3-3(8) for failing to convert the
intersection from a two-way to a four-way stop, immune from liability for
failing to adopt a law requiring landowners to trim back corn, immune for
failing to inspect private property, and immune from liability for the design of
CR 400W and CR 200N and the intersection. They also argued they did not
have a duty to remove weeds or maintain private property and that the
Highway Department was not a proper party defendant.2 In their
memorandum, the Board and the Highway Department argued that Hancock
County cannot be liable for failing to convert the two-way stop at the
intersection into a four-way stop because, pursuant to Ind. Code § 34-13-3-3(8),
“governmental entities are immune from liability in tort for failing to install
regulatory signs such as stop signs . . . .” Id. at 119. The designated evidence of
the affidavit of the Auditor of Hancock County states that, on December 14,
1992, the Board adopted Hancock County Ordinance 1992-12F which provided
that CR 400W was a preferential through road where it intersected CR 200N
and that vehicles traveling on CR 200N were required to come to a complete
stop at the intersection of CR 200N and CR 400W before entering the
2
The Board did not move for summary judgment under Ind. Code § 34-13-3-3(7).
Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016 Page 5 of 20
intersection and yield the right-of-way to other motor vehicles.3 The affidavit
also states that, on August 7, 2012, the Board adopted Ordinance No. 2012-8A
establishing a four-way stop at the intersection of CR 200N and CR 400W.
[7] The Estate filed a response in opposition to the summary judgment motion
together with a brief and designated evidence, which included among other
materials a “200N & 400W Intersection Study” and portions of the Manual.4
Id. at 298. The Estate argued that, prior to 2008, the Highway Department
recorded accidents on a pushpin map after receiving accident reports from the
Hancock County Sheriff’s Department, that in 2008 the Sheriff’s Department
began to file accident reports electronically and the Highway Department
effectively discontinued the use of the pushpin process, and that, “[h]ad the
County continued its practice of diligently monitoring accidents at
intersections, it would have seen a high frequency of accidents” at the
intersection of CR 400W and CR 200N and “would have seen the necessity for
an engineering study and for a four-way stop years before Matt Jones’s fatal
accident.” Id. at 257. The Estate argued that the Board does not have
3
The designated evidence also includes an ordinance adopted by the Board in 1973 which similarly provided
that CR 400W shall be a preferential through road at its intersection with CR 200N.
4
The portions of the Manual included in the Estate’s designated evidence include a page from the definitions
section, defining a “Traffic Control Device” as “a sign . . . or other device used to regulate, warn, or guide
traffic” and a “Warning Sign” as a sign “that gives notice to road users of a situation that might not be
readily apparent,” and a page from a chapter of the Manual related to regulatory signs containing Section
2B.O7, titled “Multi-Way Stop Applications.” That page states in part that “Multi-way stop control can be
useful as a safety measure at intersections if certain traffic conditions exist” and, under the heading of
“Guidance,” that “[t]he decision to install multi-way stop control should be based on an engineering study”
and that “[t]he following criteria should be considered in the engineering study for a multi-way STOP sign
installation: . . . B. Five or more reported crashes in a 12-month period that are susceptible to correction by a
multi-way stop installation. . . .” Appellant’s Appendix at 332-333.
Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016 Page 6 of 20
legislative immunity, that its “claim stems primarily from the County’s failure
to monitor traffic accidents at the Intersection, not from a failure to adopt a law
or ordinance to install a four-way stop,” that it had alleged “the County failed
to exercise reasonable care in installing proper traffic control devices,” and that
the definition of traffic control devices “includes both regulatory signs such as
stop signs as well as non-regulatory signs such as warning signs.” Id. at 266-
267. The Estate also argued that “[m]onitoring traffic accident frequency,
conducting engineering studies of dangerous intersections, and erecting or
modifying non-regulatory signs (e.g. warning signs) are all activities that do not
require ordinances or other legislative action in order to be commenced.” Id. at
268. The Estate agreed that the Highway Department was not a proper party
and that summary judgment should be granted as to it.
[8] The Board and Highway Department filed a reply memorandum and, with
respect to warning signs, argued that the Estate’s claim “is not predicated upon
the absence of a warning sign, nor does [it] inform the court of the absence of
any warning sign which in her view rendered the roads unsafe,” that “there
could be no such assertion on the record,” and that “[a] stop sign ahead, for
example, was not needed here because the driver Thomas saw the stop sign
ahead and stopped before entering the intersection.” Id. at 344-345.
[9] Following a hearing, Court Commissioner R. Scott Sirk signed an order stating
there is no genuine issue of material fact and all issues are resolved by statutory
immunity and granting summary judgment in favor of the County. After the
Estate argued the order was not signed by the trial court judge, the court
Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016 Page 7 of 20
entered an order signed by Judge Richard D. Culver containing findings of fact
and conclusions thereon, finding in part that the Board and Highway
Department were immune from liability under Ind. Code § 34-13-3-3 for failure
to adopt an ordinance changing the traffic control devices from a two-way stop
to a four-way stop prior to the accident, and that the Board and Highway
Department were immune from liability for the design of the roads, and
granting summary judgment in favor of the Board and Highway Department
and against the Estate.
Discussion
[10] The issue is whether the court erred in entering summary judgment in favor of
the Board.5 Our standard of review is the same as it is for the trial court.
Manley v. Sherer, 992 N.E.2d 670, 673 (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.
Summary judgment is improper if the moving party fails to carry its burden, but
if it succeeds, then the nonmoving party must come forward with evidence
establishing the existence of a genuine issue of material fact. Id. We construe
all factual inferences in favor of the nonmoving party and resolve all doubts as
to the existence of a material issue against the moving party. Id. An appellate
court reviewing a challenged trial court summary judgment ruling is limited to
5
The Estate notes that this appeal is being brought against only the Board.
Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016 Page 8 of 20
the designated evidence before the trial court, but is constrained to neither the
claims and arguments presented at trial nor the rationale of the trial court
ruling. Id.
[11] The Estate contends that the Board was not entitled to legislative immunity
because the alleged negligence did not arise from a failure to pass or enforce an
ordinance, but rather arose from a failure to monitor and maintain the county’s
roadways in a reasonably safe condition, a duty that is not subject to legislative
decision-making. The Estate’s argument is that the Board failed to exercise
reasonable care in installing proper traffic control devices, that such devices
include non-regulatory signs such as warning signs, and that monitoring traffic
accident frequency, conducting engineering studies of dangerous intersections,
and erecting or modifying non-regulatory signs do not require ordinances or
other legislative action in order to be commenced. It also argues that the entry
of summary judgment is an incentive for counties to neglect their duty to follow
the Manual, and that the Board chose to remain ignorant of the peril posed by
the intersection.
[12] The Board maintains that, irrespective of how the Estate attempts to
characterize its claim, tort liability is predicated upon whether or not the
intersection was reasonably safe due to the two-way and not four-way stop, and
that the Estate’s claim is barred under Ind. Code § 34-13-3-3(8). It contends
that any failure to monitor the number of traffic accidents at the intersection
relates to whether the intersection should have been converted to a four-way
stop prior to the accident and is not an independent basis for tort liability. The
Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016 Page 9 of 20
Board further maintains that stop signs and other regulatory signs may be
installed by the adoption of an ordinance, and that whether it complied with the
Manual is irrelevant where legislative immunity defeats the Estate’s claim as a
threshold determination.
[13] Additionally, the Board argues that the Estate “does make a passing reference
to the fact that non-regulatory signs such as warning signs do not require
legislative action [], without advising the court what type of warning signs were
needed in order to render the roadways reasonably safe” and that the Estate
“offered no such evidence to the trial court either.” Appellee’s Brief at 16. The
Board asserts that, while this court previously held that immunity did not apply
to failing to install warning signs because, as conceded in that case, 6 counties do
not have to adopt ordinances to install warning signs, the Estate’s claim “is not
predicated upon the absence of a warning sign, nor did the plaintiff inform the
lower court or this court of the absence of any warning sign which in her view
rendered the roads unsafe.” Id. The Board also asserts that “[t]he record
defeats any notion that additional warning signs would have imparted
information Thomas did not otherwise know and act upon.” Id. at 17.
[14] Immunity, whether under Indiana common law or the ITCA, assumes
negligence but denies liability. Putnam Cnty. Sheriff v. Price, 954 N.E.2d 451, 453
(Ind. 2011); Bules v. Marshall Cnty., 920 N.E.2d 247, 251 (Ind. 2010) (“Immunity
6
See Bd. of Commr’s of the Cnty. of Harrison v. Lowe, 753 N.E.2d 708, 710 (Ind. Ct. App. 2001), trans. denied.
Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016 Page 10 of 20
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. Price, 954
N.E.2d at 453. The Court has said: “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. (citing Benton v. City of Oakland City, 721 N.E.2d 224, 232
(Ind. 1999)). This is generally so because “immunity trumps [a claim of
negligence] and bars recovery even where ordinary tort principles would impose
liability.” Id. at 453-454 (citing Gary Cmty. Sch. Corp. v. Roach-Walker, 917
N.E.2d 1224, 1225 (Ind. 2009)).
[15] At the time of the crash, Ind. Code § 34-13-3-3 (Supp. 2011) provided in part:
A governmental entity or an employee acting within the scope of
the employee’s employment is not liable if a loss results from the
following:
*****
(7) The performance of a discretionary function; . . . .
(8) The adoption and enforcement of or failure to adopt or
enforce a law (including rules and regulations), unless the
act of enforcement constitutes false arrest or false
imprisonment.
Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016 Page 11 of 20
(Subsequently amended by Pub. L. No. 122-2013, § 2 (eff. April 30, 2013); Pub.
L. No. 220-2013, § 2 (eff. July 1, 2013)).7
[16] In Bd. of Comm’rs of the Cnty. of Harrison v. Lowe, the plaintiff was traveling
westward on a road and approached an intersection with a north-south
thoroughfare where two signs required eastbound and westbound traffic to stop
but there were no stop or yield signs posted on the north-south thoroughfare.
753 N.E.2d 708, 710 (Ind. Ct. App. 2001), trans. denied. The plaintiff stopped at
the intersection as required, proceeded into the intersection, and was struck by a
northbound vehicle. Id. The plaintiff filed suit against Harrison County and
the driver of the northbound vehicle, alleging in part that Harrison County
negligently failed to mark and sign the intersection. Harrison County asserted it
was immune from liability pursuant to Ind. Code § 34-13-3-3. Id. Harrison
County later moved for summary judgment under subsection (7) of Ind. Code §
34-13-3-3,8 which is substantially similar to the version of subsection (8) of the
7
The current version of Ind. Code § 34-13-3-3 (Supp. 2013) provides in part:
A governmental entity or an employee acting within the scope of the employee’s
employment is not liable if a loss results from the following:
*****
(7) The performance of a discretionary function; . . . .
(8) The adoption and enforcement of or failure to adopt or enforce:
(A) a law (including rules and regulations); or
(B) in the case of a public school or charter school, a policy;
unless the act of enforcement constitutes false arrest or false imprisonment.
8
According to Lowe, the paragraph of Ind. Code § 34-13-3-3 relevant to its discussion provided that a
governmental entity was not liable if a loss resulted from “(7) the adoption and enforcement of or failure to
adopt or enforce a law (including rules and regulations), unless the act of enforcement constitutes false arrest
or imprisonment[.]” Lowe, 753 N.E.2d at 711.
Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016 Page 12 of 20
statute in effect at the time of the crash in this case, which the trial court denied
on this basis.9 Id. at 710-711.
[17] On interlocutory appeal, this court noted that the ITCA allows suit against
government entities for torts committed by their agencies or employees but
grants immunity under the specific circumstances enumerated in Ind. Code §
34-13-3-3, that whether a governmental entity is immune from liability under
the ITCA is a question of law for the courts, that the ITCA is narrowly
construed against the grant of immunity, that immunity assumes negligence but
denies liability, and that, if immunity exists, Harrison County simply is not
liable and the degree of its culpability and the nature of its tortious conduct are
not relevant considerations. Id. at 711.
[18] The court observed that Harrison County and its Board of Commissioners were
political subdivisions and that the Harrison County Board was the county’s
legislative body and exercised county powers by adopting ordinances. Id. at
711-712. The court noted that, as a local authority, the Harrison County Board
may adopt by ordinance traffic regulations with respect to streets and highways
under its jurisdiction provided they do not conflict with or duplicate a statute.
Id.
9
The trial court granted Harrison County partial summary judgment on certain other grounds, namely, that
it had immunity with respect to the design of the roads and had no legal duty to remove weeds or vegetation.
Lowe, 753 N.E.2d at 710-711.
Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016 Page 13 of 20
[19] Following a review of previous opinions discussing the application of Ind. Code
§ 34-13-3-3, the court held that the provision under subsection (7), which was
similar to that found under subsection (8) at the time of the crash in this case,
“unambiguously sheltered [Harrison County] from civil liability for its failure to
adopt traffic control ordinances.” Id. at 718. The court further held that
Harrison County was “immune for its failure to adopt ordinances to erect or
change the placement of stop signs . . . at the intersection in question.” Id. at
720. The court also held that, “[s]ince [Harrison County] is entitled to
immunity on this issue, any actual knowledge it might have had regarding the
dangerous condition of the intersection is inconsequential” and “[t]hus, we
need not determine whether [Harrison County’s] knowledge of the allegedly
dangerous condition of the intersection imposed upon it a duty to remedy the
condition by adopting traffic control ordinances.” Id. (footnote omitted).
[20] After finding that Harrison County was immune from liability for its failure to
adopt ordinances regarding stop signs, the court addressed whether Harrison
County was entitled to summary judgment with respect to its failure to erect
warning signs. Id. The court observed that Harrison County had not moved for
summary judgment on this issue and that, since it failed to meet its burden to
demonstrate the absence of a question of fact regarding warning signs, the
plaintiffs were not required to designate this issue or any relevant evidence in
response to Harrison County’s motion. Id. The court held Harrison County
was not entitled to summary judgment with respect to this claim. See id.
Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016 Page 14 of 20
[21] In this case, the Board as a political subdivision is a governmental entity for
purposes of the ITCA, see Ind. Code § 34-6-2-49 (defining governmental entities
for purposes of Ind. Code §§ 34-13-3 as the state or a political subdivision of the
state); Ind. Code § 34-6-2-110(1), (10) (defining political subdivision to include a
county and a board or commission of a county), and, if a board of county
commissioners is a county’s legislative body, the board exercises its powers by
adopting ordinances. See Ind. Code § 36-1-2-9 (defining legislative body to
include a board of county commissioners); Ind. Code § 36-1-3-6 (providing that
a unit wanting to exercise a power must, if the unit is a county, adopt an
ordinance); Lowe, 753 N.E.2d at 711-712.
[22] Further, as a local authority under Ind. Code § 9-13-2-94(b)10 and Hancock
County’s legislative body, the Board may adopt by ordinance traffic regulations
with respect to highways under its jurisdiction. See Ind. Code § 9-21-1-2
(providing “a local authority may adopt by ordinance traffic regulations”); Ind.
Code § 8-17-1-40 (providing a “county legislative body may adopt ordinances
regulating traffic on any highway in the county highway system”); Lowe, 753
N.E.2d at 712. In addition, Ind. Code § 9-21-1-3(a) provides in part:
A local authority, with respect to private roads and highways
under the authority’s jurisdiction, in accordance with sections 2
and 3.3(a) of this chapter, and within the reasonable exercise of
the police power, may do the following:
10
Ind. Code § 9-13-2-94 provides that “Local authorities” means every county having authority to adopt local
police regulations under the laws and the Constitution of the State of Indiana.
Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016 Page 15 of 20
*****
(6) Designate a highway as a through highway and require
that all vehicles stop before entering or crossing the
highway.
(7) Designate an intersection as a stop intersection and require
all vehicles to stop at one (1) or more entrances to the
intersection.[11]
[23] The Board’s designated evidence includes an affidavit of the Auditor of
Hancock County, which states that Hancock County Ordinance 1992-12F,
which had been adopted by the Board on December 14, 1992, provided that CR
400W was a preferential through road where it intersected CR 200N and that
vehicles traveling on CR 200N were required to come to a complete stop at the
intersection of CR 200N and CR 400W before entering the intersection and
yield the right-of-way to other motor vehicles. The adoption of this ordinance
by the Board designated CR 400W as a through highway, see Ind. Code § 9-21-
1-3(a), and the ordinance was adopted to regulate traffic using CR 400W and
CR 200N. See Ind. Code § 9-21-1-2; Ind. Code § 8-17-1-40. Pursuant to Ind.
Code § 34-13-3-3(8), the Board is not liable if any loss results from the adoption
of Hancock County Ordinance 1992-12F designating CR 400W as a through
road and not requiring drivers on that road to come to a stop where CR 400W
intersects CR 200N. See Lowe, 753 N.E.2d at 720 (holding the county was
11
Subsections (6) and (7) are identical to those provisions as they existed at the time Hancock County
Ordinance 1992-12F was adopted in December 1992. See Pub. L. No. 2-1991, § 9 (1991).
Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016 Page 16 of 20
immune for its failure to adopt ordinances to erect or change the placement of
stop signs at the intersection). The Board is sheltered from civil liability for any
failure to adopt traffic control ordinances. See id. at 718 (holding Ind. Code §
34-13-3-3 unambiguously sheltered the county from civil liability for its failure
to adopt traffic control ordinances).
[24] Based upon the designated evidence, we conclude that the Board is immune
under Ind. Code § 34-13-3-3(8) from liability for any loss resulting from the
adoption of Hancock County Ordinance 1992-12F or any failure to adopt an
ordinance, in response to the frequency of traffic accidents discovered by
monitoring or for any other reason, or take other legislative action related to the
intersection of CR 400W or CR 200N. See Lowe, 753 N.E.2d at 718-720. See
also Carter v. Indianapolis Power & Light Co., 837 N.E.2d 509, 522 n.20 (Ind. Ct.
App. 2005) (noting that the county would be immune under Ind. Code § 34-13-
3-3(8) for its failure to pass an ordinance to reduce the speed limit and citing
Lowe), reh’g denied, trans. denied. Because the Board is entitled to immunity on
this issue, any actual knowledge it may have had regarding any dangerous
condition of the intersection is inconsequential, see Lowe, 753 N.E.2d at 720,
and we need not address whether a duty existed, under the Manual or
otherwise, which may have supported a negligence action against the Board
based on any action or inaction of the Board as Hancock County’s legislative
body. See Price, 954 N.E.2d at 453-454 (noting that immunity trumps a claim of
negligence and bars recovery even where ordinary tort principles would impose
liability); Lowe, 753 N.E.2d at 711 (if immunity exists, the governmental entity
Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016 Page 17 of 20
simply is not liable and the degree of its culpability are not relevant
considerations).
[25] Having found that the Board is immune from liability for any loss resulting
from the adoption of Hancock County Ordinance 1992-12F or for its failure to
adopt any traffic control ordinance with respect to the intersection of CR 400W
or CR 200N, we turn to whether the County was entitled to summary judgment
with respect to its alleged failure to monitor the frequency of accidents at the
intersection and to erect appropriate warning signs. We observe that, in its
motion for summary judgment and supporting memorandum, while the County
argued it was immune from liability under Ind. Code § 34-13-3-3(8) for failing
to convert the intersection from a two-way stop to a four-way stop, it did not
request summary judgment with respect to any claim that it failed to install
warning signs or other non-regulatory signs.
[26] The County acknowledges the holding in Lowe with respect to warning signs
but argues that the Estate’s claim is not predicated upon the absence of a
warning sign and did not inform the lower court or this court of the warning
sign which rendered the roads unsafe.12 However, since the County did not
request summary judgment with respect to the claim it failed to install warning
signs, the Estate was not required to designate this issue or evidence with
12
At the hearing on its summary judgment motion, the County stated there was a distinction between
regulatory signs and warning signs, that ordinances are not required for a warning sign, that the Estate’s
claim is not predicated upon the absence of a warning sign nor could it be, and that the Estate offers no
response asserting that warning signs are needed to render the roadways or the intersection reasonably safe.
Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016 Page 18 of 20
respect to this issue in response to the summary judgment motion. See Lowe,
753 N.E.2d at 720 (“Since [Harrison County] failed to meet its burden to
demonstrate the absence of a question of fact regarding warning signs, the
[plaintiffs] were not required to designate this issue or any relevant evidence in
response to [Harrison County’s] motion.”). Further, the Estate’s amended
complaint alleged that the County failed to control traffic at the intersection of
CR 400W or CR 200N through the installation of an alternative traffic control
device, and in its materials filed in opposition to the County’s summary
judgment request, the Estate designated the definitions contained in the Manual
indicating that the term “Traffic Control Device” includes signs to “warn, or
guide traffic” and argued that erecting or modifying non-regulatory signs such
as warning signs does “not require ordinances or other legislative action.”
Appellant’s Appendix at 268, 332. Also, the Estate argues the County could
have installed a warning sign related to the intersection of CR 400W or CR
200N for drivers using CR 400W.13 The County did not request and is not
entitled to summary judgment with respect to the claim that it failed to erect
appropriate warning signs.
[27] Based upon the summary judgment materials and Lowe, we reverse the entry of
summary judgment as to the claim the County failed to erect warning signs,
13
Section 2C.46 of the Manual relating to intersection warning signs discusses a cross road symbol which
may be used in advance of an intersection to indicate the presence of an intersection and the possibility of
turning or entering traffic, and the Manual provides guidelines as to the size of the sign and advance
placement distances.
Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016 Page 19 of 20
affirm the entry of judgment in all other respects, and remand for further
proceedings.
Conclusion
[28] For the foregoing reasons, we affirm in part, reverse in part, and remand for
further proceedings consistent with this opinion.
[29] Affirmed in part, reversed in part, and remanded.
Kirsch, J., and Mathias, J., concur.
Court of Appeals of Indiana | Opinion 30A01-1506-CT-543 | May 20, 2016 Page 20 of 20