Hochstetler v. Elkhart County Highway Department

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES

Jeffrey J. Stesiak Nathaniel M. Jordan

South Bend, Indiana Michael F. DeBoni

Sara J. MacLaughlin

Goshen, Indiana

In the

Indiana Supreme Court

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No. 20S05-0703-CV-97

MARVIN J. HOCHSTETLER,

Appellant (Plaintiff below),

v.

ELKHART COUNTY HIGHWAY DEPARTMENT,

ELKHART COUNTY SHERIFF DEPARTMENT, AND

ELKHART COUNTY COMMISSIONERS

Appellees (Defendants below).

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Appeal from the Elkhart Superior Court No. 2, No. 20D02-0209-CT-571

The Honorable Stephen E. Platt, Judge

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On Petition To Transfer from the Indiana Court of Appeals, No. 20A05-0602-CV-98

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June 20, 2007

Shepard, Chief Justice.

Riding his motorcycle sometime before 5 a.m. on the night of a substantial storm in

Elkhart County, appellant Marvin Hochstetler struck a tree that had fallen down across a county

road. The trial court granted judgment for various county entities on his negligence suit,

concluding that the county was immune for losses resulting from temporary conditions of a

public thoroughfare that result from weather. We affirm.

Facts and Case History

At around 1 a.m. on June 12, 2001, Elkhart County was hit by a strong storm that

produced many fallen trees and limbs and necessitated deployment of various county highway

crews to begin the clean up. The county started dispatching crews about 1:30 as calls began

coming in to the highway garage. There were eventually fifty-six reports of fallen trees on

county roads as a result of the storm. Among these reports, received about 2 a.m., was a call

about a tree down on County Road Four, north of State Road 120. It turns out that County Road

Four is some seven miles long, and State Road 120 does not intersect with it. Hochstetler

contends this was a report about the tree he hit.

Hochstetler sued the highway department, the county commissioners, and the county

sheriff, alleging that they were negligent and careless in maintaining the county road. The

county defendants moved for summary judgment on the basis of immunity under the Indiana

Tort Claims Act. The trial court granted them judgment. The Court of Appeals reversed.

Hochstetler v. Elkhart County Highway Dep’t, 855 N.E.2d 731 (Ind. Ct. App. 2006), vacated.

We granted transfer.

Common Law Duty and the Tort Claims Act

Indiana law has held for some time that governmental bodies have a common law duty to

exercise reasonable care and diligence to keep streets in a reasonably safe condition for travelers.

Higert v. City of Greencastle, 43 Ind. 574 (1873). Case law about government liability for losses

resulting from ice or snow, on the other hand, might fairly be characterized as less than a straight

line. Compare Johnson v. City of Evansville, 95 Ind. App. 417, 180 N.E. 600 (1932) (generally

no liability for accumulation of snow and ice), with City of Muncie v. Hey, 164 Ind. 570, 74

N.E. 250 (1905) (negligent failure to abate accumulation of ice creates liability).

In any event, more recent law established through the Indiana Tort Claims Act recognizes

that state and local governments may have tort responsibility for damages flowing from

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negligence, but grants immunity for that negligence under certain specified circumstances. Ind.

Code Ann. ch. 34-13-3 (West 2007). Immunity under the act is a question of law to be

determined by the court. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970 (Ind. 2001).

The party seeking immunity bears the burden of establishing it. Id.

The provision at issue in this litigation creates immunity for losses resulting from “[t]he

temporary condition of a public thoroughfare . . . that results from weather.” Ind. Code Ann.

§ 34-13-3-3(3). We last explored the application of this section in Catt v. Bd. of Comm’rs of

Knox County, 779 N.E.2d 1 (Ind. 2002). In that case, a driver was injured when he struck a

water-filled ditch in the middle of the road during the early morning hours. A torrential rain

overnight had washed out a culvert. Id. at 2. The trial court granted summary judgment for the

county, but a divided Court of Appeals reversed.

We observed in Catt that immunity under this section contains two key concepts, one

temporal and one causal. As for the latter, conditions caused “due to weather” distinguish

themselves from those in which the road condition was the result of, say, poor inspection, design,

or maintenance. The act does not bar suits based on this sort of claim. Id. at 4.

As for whether the condition was “temporary,” we noted that the county had no notice of

the wash-out until the driver’s accident, that the county highway department was busy on the

morning after the storm repairing other washed-out culverts of which it was aware, and had

repaired this particular culvert when it had been washed out on previous occasions. We said

these facts sufficed to carry the county’s burden to show it was entitled to immunity. Id. at 6.

As we noted in Mangold and Catt, 779 N.E.2d at 3, immunity under the act is a matter of

law for the court. In the present case, the storm had produced scores of trees and limbs down on

the roads, county highway crews were on the job, and they were still at work hours after the

storm had passed in the middle of the night. There might well be a case in which weather-related

conditions remained untended for so long a period that it no longer qualified as “temporary.”

This is not that case. The trial court was right that these facts sufficed to demonstrate that the

county was immune.

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Conclusion

We affirm the judgment of the trial court.

Sullivan, Boehm, and Rucker, JJ., concur.

Dickson, J., dissenting, believing that granting summary judgment to find immunity is improper

because of genuine issues of fact as to whether the hazard was temporary and whether its

efficient cause was weather or the government’s failure to monitor and maintain its roads with

reasonable care.

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