holding that twenty-year design immunity does not automatically apply whenever a loss occurs involving a highway that was designed twenty years prior to the loss and that what is now subsection (18) “does not alter the continuing duty of [governmental entities] to keep [their] roadways in a reasonably safe condition for travel”
How later courts described this case
- holding that twenty-year design immunity does not automatically apply whenever a loss occurs involving a highway that was designed twenty years prior to the loss and that what is now subsection (18) “does not alter the continuing duty of [governmental entities] to keep [their] roadways in a reasonably safe condition for travel”
- holding that a county could properly be held liable for its failure to maintain a *747 roadway and bridge where an accident occurred
- the duty to repair and maintain roads attaches only when the municipality has actual or constructive notice of the dangerous condition
- Mullin test inapplicable where alleged act of negligence was county’s failure to maintain a roadway and bridge where an accident occurred
Written by the judges who cited it.
The opinion
RILEY, Judge,
concurring in result.
I concur in result. The trial court granted Orange County’s motion for summary judgment pursuant to the design immunity section of the Indiana Tort Claims Act (“the *1163 Act”). The section of the Act upon which the trial court and Orange County relied provides that
[a] governmental entity or an employee acting within the scope of the employee’s employment is not liable if a loss results from:
(16) design of a highway (as defined in IC '9-13-2-73), if the claimed loss occurs at least twenty (20) years after the public highway was designed or substantially redesigned; except that this subdivision shall not be construed to relieve a responsible governmental entity from the continuing duty to provide and maintain public highways in a reasonably safe condition ...
Ind.Code 34-4-16.5-3(16). (Emphasis added). Whether a governmental entity is immune from liability under section 16.5-3 is a question of law for the courts. Town of Highland v. Zerkel, 659 N.E.2d 1113, 1118 (Ind.Ct.App.1995), trans. denied. The undisputed material evidence reveals that the bridge at issue was built in 1913. Because the Harknesses’ accident occurred in 1994, Orange County is clearly insulated from liability concerning any allegations of the original design of the bridge. However, the Harknesses further allege that notwithstanding design defect immunity, Orange County had a continuing duty to maintain the bridge in a reasonably safe condition. This court had recently reaffirmed this long-standing duty as follows: “The State and its counties have a duty to maintain and repair the roads within their control. However, this duty does not attach unless the city has actual or constructive notice of a dangerous condition.” Templeton v. City of Hammond, at 1372. (Citations omitted). In Galbreath v. City of Logansport, 151 Ind.App. 291 , 279 N.E.2d 578, 580 (1972), we reviewed the law of constructive notice and said that “[t]he rule of constructive knowledge applies only to such defects as might have been discovered by the exercise of ordinary care and diligence.”
In addition to the Harknesses’ Notice of Tort Claim, the undisputed material evidence contains other reports of collision damage on the bridge at issue. The firm retained by the Orange County Commissioners to conduct periodic bridge inspections issued reports which specifically noted collision damage to the bridge. Furthermore, the firm retained to conduct these inspections repeatedly recommended replacement of the bridge, repair and widening of the bridge, additional curve signage, improvements in the approaches and replacement of the bridge railings. Accordingly, genuine issues of material fact remain as to whether Orange County owed and breached its continuing duty to maintain its roadways in a reasonably safe condition. More specifically, a genuine issue of material fact exists as to whether the County had actual or constructive notice of a dangerous condition on the roadway due to the bridge inspection reports and indications of collision damage on the bridge. A trier of fact should be given the opportunity to determine whether these undisputed facts are sufficient to put Orange County on notice of the alleged defect. Because I believe that these issues are more appropriately left to a jury’s determination, I concur with the majority opinion to reverse the trial court’s entry of summary judgment in favor of Orange County-
ORDER
This Court having heretofore handed down its opinion in this cause on July 21, 1997 marked “Memorandum Decision, Not for Publication”; and
Come now the appellants, by counsel, and file herein their Motion to Publish Memorandum Decision, alleging therein that the decision should be published for the reason that the decision clarifies the law as to the application of the private duty test in governmental negligence cases and will make all members of the bar aware that the private duty test was not applied to highway design, signage and maintenance cases, which said Motion is more particularly in the following words and figures, to-wit:
(H.I.)
And come also the appellees, by their counsel, and file herein their Response to Appellants’ Motion to Publish Memorandum Decision, which said Response is in the following words and figures, to-wit:
*1164 (H.I.)
And the Court, having examined said Motion and Response and being duly advised, now finds that the appellants’ Motion to Publish Memorandum Decision should be granted and this Court’s opinion heretofore handed down in this cause on July 21, 1997 as a Memorandum Decision, Not for Publication, should now be ordered published.
IT IS THEREFORE ORDERED as follows:
1.The appellants’ Motion to Publish Memorandum Decision is granted; this Court’s opinion heretofore handed down in this cause on July 21, 1997 marked “Memorandum Decision, Not for Publication” is now ordered published;