# Town of Highland v. Zerkel

> Indiana Court of Appeals · December 29, 1995 · 659 N.E.2d 1113

URL: https://www.frixlaw.com/law-library/cases/9704481

## Case

- **Full name:** TOWN OF HIGHLAND, Appellant-Defendant, v. Joyce ZERKEL, Appellee-Plaintiff
- **Court:** Indiana Court of Appeals
- **Decided:** December 29, 1995
- **Citations:** 659 N.E.2d 1113; 1995 Ind. App. LEXIS 1658; 1995 WL 763424
- **Precedential status:** Published
- **Opinion:** Concurrence by Chezem
- **Judges:** Riley, Chezem, Kirsch
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9704481

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9704481. Public record. Not legal advice.