“the trial court correctly instructed the jury that the duty to maintain the reasonably safe condition of town sidewalks lies solely with Highland and that the homeowners abutting the sidewalk have no duty to repair the sidewalks”
How later courts described this case
- “the trial court correctly instructed the jury that the duty to maintain the reasonably safe condition of town sidewalks lies solely with Highland and that the homeowners abutting the sidewalk have no duty to repair the sidewalks”
Written by the judges who cited it.
The opinion
CHEZEM, Judge,
concurring in result opinion.
While I fully concur in issues I, III, IV, and V, I concur in result as to issue II. I agree that the trial court properly determined that Highland was not entitled to immunity pursuant to IC. 34-4-16.5-8(6). However, I disagree with the majority's statement that the record is "completely devoid of the elements necessary to create dis-eretionary immunity[.]" Slip op. at 10.
At the evidentiary hearing on Highlands motion for summary judgment, Highland's director of public works testified that it was his understanding that the sidewalk replacement program was adopted in an attempt to deal with the limited resources available to repair and maintain the town's considerable miles of sidewalk. (Tr., R. at 199). This indicates that there was some sort of a weighing of budgetary considerations when the program was being designed. Although I do not believe that this limited description of budgetary considerations, in and of itself, was enough to entitle Highland to discretionary immunity, I cannot agree that Highland did not present any of the elements necessary to create discretionary immunity. Accordingly, I am compelled to concur in result on this issue.