Peavler v. BD. OF COM'RS MONROE CTY.

PIVARNIK, Justice,

dissenting.

I dissent to the consolidated majority opinion in both of these cases since it is in conflict with the law on this subject found in opinions by this court and the court of appeals, and is in direct contravention of a statutory scheme enacted by the Legislature on this very subject.

Judge Staton, writing for a unanimous court, clearly pointed this out and found the Board of Commissioners of Steuben County were immune from liability as a matter of law. In Campbell v. State (1972), 259 Ind. 55 , 284 N.E.2d 733 , this *49 court abolished a great deal of governmental immunity, but not all of it. Governmental entities remained immune from liability for, among other things, judicial acts, legislative acts, and discretionary acts. As Judge Neal pointed out in City of Tell City v. Noble (1986), Ind.App., 489 N.E.2d 958 , trans. denied, IC 34-4-16.5-3 contains specifications of immunity under the Tort Claims Act, including “the performance of a discretionary function.” There is no difficulty in determining the intention of the Legislature in using the language in “performance of a discretionary function” since it was a term used and well understood in the law of this jurisdiction and others. In Brinkmeyer v. City of Evansville (1867), 29 Ind. 187 , this court provided that if duties imposed are of a legislative nature or depend on judgment, the public entity is not responsible in damages either for failing to perform or error in performance. In 1919, the Indiana Appellate Court held in Adams v. Schneider (1919), 71 Ind.App. 249, 255-56 , 124 N.E. 718 , 720:

A duty is discretionary when it involves on the part of the officer to determine whether or not he should perform a certain act, and, if so, in what particular way, and in the absence of corrupt motives in the exercise of such discretion he is not liable. His duties, however, in the performance of the act, after he has once determined that it shall be done, are ministerial, and for negligence in such performance, which results in injury, he may be liable in damages, (citations omitted)

The majority only generally refers to the discretionary function exception of the Indiana Tort Claims Act and fails to mention the legislative expression regarding the manner in which roads and highways will be signed. Yet the majority states that whether an act is discretionary and therefore immune is a question of law for the court's determination and the essential inquiry is whether the challenged act is the type of function which the Legislature intended to protect with immunity. In Tell City v. Noble, the Court of Appeals pointed out that a statutory scheme exists in Indiana, governing the placement of traffic markers on streets, roads, and highways, and the legal effect of such placement, and the enforcement of adherence to those traffic markers. Tell City was very similar to both of the causes before us but it involved an allegation of negligence against the city for failure to place a stop sign at an allegedly dangerous intersection rather than the failure in both of the instant cases to place warning signs. The Tell'City court stated:

That scheme is contained in IND.CODE 9-4, the Uniform Act Regulating Traffic on Highways. It applies to all highways, roads and streets, including those in residential subdivisions, regardless of who maintains them. IND.CODE 9-4-1-22. The Act requires the adoption, by the Indiana State Highway Commission, of a manual specifying a uniform system for traffic control devices for use on all roads in the state. IND.CODE 9-4-1-30. The Manual, entitled The Indiana Manual on Uniform Traffic control Devices for Streets and Highways, must be adhered to by all governmental agencies responsible for the signing, marking and erection of any traffic control device on any street or highway in the state. IND. CODE 9-4-2-1. All such devices shall conform to the standards and specifications set forth in the Manual. IND. CODE 9-4-3.1-1. Control devices and signals are defined as “[all] signs, markings or devices, including railroad advance warning signs, ... placed or erected by authority of a public body or official having jurisdiction, for the purpose of regulating, warning and guiding traffic.” IND.CODE 9-4-1-19. Any unauthorized sign on a street or highway is forbidden. IND.CODE 9-4-1-38.

Although the provisions of IND.CODE 9-4 are applicable throughout the state, local authorities may adopt by ordinance additional traffic regulations with respect to streets and highways under their jurisdiction. However, any additional traffic regulation must not conflict with or duplicate the provisions of the statute. IND.CODE 9-4-1-27. “Local authorities” is defined as “[e]very county, municipal, and other local board or *50 body having authority to adopt local police regulations under the constitution and laws of this state.” IND.CODE 9-4-1-13. Such powers shall be exercised by ordinance. IND.CODE 36-1-3-6. Local authorities have the power, with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power, to regulate traffic by means of traffic control signals, to designate one-way streets, to designate any highway as a through highway, to require that all vehicles stop before entering or crossing any highway, to designate any intersection as a STOP intersection and to require that all vehicles stop at one or more entrances to a STOP intersection. IND.CODE 9-4-1-28. Thus, not only does IND.CODE 9-4-1-28 grant local authorities the power to regulate traffic when not pre-empted by the state, but it clearly contemplates, along with IND.CODE 9-4-1-81, the continued existence of some unmarked intersections. IND.CODE 9-4-1-81 provides as follows:

“(a) When two [2] vehicles approach or enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.

(b) The right-of-way rule in subsection (a) is modified at through highways and otherwise as stated in this chapter.”

In regard to erecting STOP or YIELD signs, IND.CODE 9-4-1-110 provides:

“(a) The department of highways with reference to state highways, and high way routes through cities, and local authorities with reference to other highways under their jurisdiction, may, upon an engineering and traffic investigation, designate through highways and erect stop or yield signs at specific entrances thereto or may designate any intersection as a stop or yield intersection and erect like signs at one or more entrances to such intersection.

(b) Every stop sign and yield sign shall be manufactured and installed in conformance with the Indiana manual on uniform traffic control devices for roads and streets as provided under section 30[9 — 4—1—30] of this chapter and under IC 9-4-2-1.

(c) Every driver of a vehicle shall stop or yield in obedience to any such signs as the case may be, before entering such intersection except when directed to proceed by a police officer or traffic control signal.”

Throughout the Act it is stated in many ways and in many sections that local authorities who are responsible for roads and streets may, pursuant to an engineering and traffic investigation, determine by ordinance that traffic should be regulated and signs posted. See, e.g., IND.CODE 9-4-1-70 concerning hazardous passing; IND.CODE 9-4-1-75 concerning turning; IND.CODE 9-4-1-71 concerning one-way streets; IND.CODE 9-4-1-74 concerning the regulation of freeways; IND.CODE 9-4-1-83 concerning STOP and YIELD signs at through highways; and IND.CODE 9-4-1-86 concerning pedestrians at cross walks. In addition, adherence to official traffic control devices is mandated by statute. IND.CODE 9-4-1-33. In fact, disobedience to signs posted in accordance with the various statutory sections is either a Class C misdemeanor or a Class C infraction. IND.CODE 9-4-1-127. Throughout the statutes cited above, the granting of traffic control powers to the State Highway Commission and to local authorities is preceded by the word “may.” The word “may” ordinarily indicates a permissive condition and discretion. Noble v. City of Warsaw (1973), 156 Ind. App. 618 , 297 N.E.2d 916 , trans. denied. As the Manual so states “ ‘may’ is meant to be a permissive and not mandatory condition. No specific requirements are intended in the design or use of the device.” Manual on Uniform Traffic Control Devices for Streets and Highways, Sec. 1A5, p. 1A-4 (1981 ed.).

The Manual, supra, at 2B2 states that:

“[b] because the STOP sign causes a substantial inconvenience to motorists, it *51 should be used only where warranted. A STOP sign may be warranted at an intersection where one or more of the following conditions exist:

(1) Intersection of a less important road with a main road where application of the normal right-of-way rule is not recommended by field investigation.

(2) Street entering a through highway or street.

(3) Unsignalized intersection in a signalized area.

(4) Other intersections where a combination of high speed, restricted view and accident record may indicate a need for control by the STOP sign.”

(Our emphasis.)

Should the legislature have intended to make the placing of STOP signs mandatory, it would have used the word “shall.” See Sharton v. Slack (1982), Ind.App., 433 N.E.2d 856 . Of course it would have been impractical for the legislature to do so, since the signing of streets and highways clearly requires judgment and discretion.

Tell City, 489 N.E.2d at 960-62 . It thus is clear that the Legislature intended the discretionary function exception to apply to the governmental act of signing streets and roadways and was the type of act intended to be protected by immunity. The majority seems to infer that with respect to every point in every road and street in this state, whether it is a curve, a hill, an intersection, or any other type of terrain, the governing body must be able to show that it had an affirmative hearing and made express and affirmative findings that a sign was not necessary at that particular point. Obviously, this is a burden no governing body can hope to carry and certainly is not what the Legislature intended. The governing body is to determine where, when, and how, a particular point is to be signed, and once having done so then becomes responsible for any negligence in the manner in which it is done. This is an affirmative action and not a negative one where there must be some finding as to what led the governing body not to put a sign at some other point at which they are challenged.

Since the Legislature, as the policy making body in this State, has well set out this scheme, I see no point in adopting a new set of standards which the majority has characterized as the planning/operational test. Although some jurisdictions have found it helpful, I find it no less confusing than the method presently used. I also feel we should not amend this statutory scheme to one we presume to be better. It is true the discretionary/ministerial test has been a difficult one to apply but I believe that is because the subject matter is inherently difficult and requires the courts to make a case by case determination. I do not feel the planning/operational test will simplify it. Further, requiring the governing body to affirmatively show a decision making procedure at any particular point in which a sign was not placed, is impracticable, unworkable, and complicates the problem far beyond the complexities we face in applying it now. I think it is unfortunate the Indiana Supreme Court has taken upon itself a process of legislating policy in this field that has been dealt with by our legislature. This is the proper function of the legislature as direct representatives of the people. The affect of the holding of the majority is to virtually wipe out all governmental immunity and make the taxpayers more vulnerable to financing losses on our streets and roads regardless of clear liability in the actual tortfeasor. The clear and reasonable balance in our legislative scheme and our law has now become very unbalanced.

I would grant transfer in Peavler v. Board of Commissioners of Monroe County, vacate the opinion of the Court of Appeals and affirm the trial court. I would deny transfer in Board of Commissioners of the County of Steuben v. Hout.