Kimberly D. Hickman v. City of Austin (mem. dec.)
72A01-1608-CT-1977
| Ind. Ct. App. | Mar 15, 2017Background
- On May 4, 2012, Kimberly Hickman fell into a hole on North Street in Austin and was injured; a prior utility "street cut" had been cold-patched intermittently.
- City employees performed temporary "cold patching" periodically; cold patching was an unwritten, routine practice pending permanent repair funding.
- City officials (street superintendent and mayor) submitted affidavits explaining limited repair funds, a prioritization process by City Council, and routine weekly inspections to identify potholes for cold patching.
- The City moved for summary judgment asserting discretionary-function immunity under the Indiana Tort Claims Act, I.C. § 34-13-3-3(7).
- The trial court granted summary judgment for the City; Hickman appealed arguing the City was not entitled to discretionary-function immunity for these facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the City is immune under the discretionary-function exception of the Indiana Tort Claims Act | Hickman: the road condition resulted from routine operational actions (or failures) not protected policy decisions; immunity does not apply | City: choice to patch vs. repave and to prioritize repairs is discretionary policy decision entitled to immunity | Court: Reversed—the City made routine operational decisions to do temporary cold patching, not a policy decision to leave streets unrepaired; discretionary immunity does not apply |
Key Cases Cited
- Peavler v. Board of Commissioners of Monroe County, 528 N.E.2d 40 (Ind. 1988) (adopts the planning/operational test to distinguish policy decisions entitled to immunity from operational acts that are not)
- Greathouse v. Armstrong, 616 N.E.2d 364 (Ind. 1993) (explains planning/operational distinction and limits immunity to policy-level decisions)
- City of Beech Grove v. Beloat, 50 N.E.3d 135 (Ind. 2016) (describes immunity’s protection for significant policy and political decisions not amenable to tort standards)
- City of Indianapolis v. Duffitt, 929 N.E.2d 231 (Ind. Ct. App. 2010) (sidewalk-repair case where municipality showed a policy decision to defer repairs and was afforded immunity)
- City of Terre Haute v. Pairsh, 883 N.E.2d 1203 (Ind. Ct. App. 2008) (similar to Duffitt; immunity applied where city made policy choices about repair priorities)