939 N.E.2d 1098
Ind. Ct. App.2010Background
- On Feb 20, 2008, Tara Simpson collided with a car going the wrong way down a hill; a school bus driven by Barry Matesick then slid into Simpson, followed by two more cars.
- Matesick could not see Simpson due to a concrete barrier and only saw her after turning onto West Lake North Drive; the bus then moved into the median and later into Simpson’s car due to gravity.
- Simpson initially stayed in her car after the first collision but then decided to move; the bus overran her vehicle during the incident.
- Simpson served a May 7, 2008 notice of tort claim to the School District alleging negligent hiring/training of bus drivers and failure to train in accident prevention; complaint also asserted independent and vicarious liability against the District.
- The trial court granted summary judgment to the School District and Matesick on May 26, 2010; the appellate court sustained review to address sufficiency of notice, immunity, negligence, and contributory negligence/incurred risk.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Simpson's ITCA notice adequate? | Simpson's notice described negligent hiring/training; complaint showed vicarious liability. | Notice differed from complaint, potentially foreclosing new theories. | Notice adequate; no entirely new claims raised beyond same facts. |
| Are the defendants entitled to immunity under the weather-immunity provision? | Not applicable if the conduct meaningfully caused the harm. | Weather-related temporary condition immunizes government entities. | Not entitled to immunity; genuine issues as to causation remain. |
| Was there a genuine issue of material fact as to negligence by Matesick or the District? | Evidence shows potential negligent operation and training failures. | No sufficient showing of breach or causation. | There are genuine issues of material fact as to negligence. |
| Is Simpson contributorily negligent or did she incur the risk? | She acted reasonably; the other driver’s loss of control supports liability for the District. | Simpson’s actions could be contributory or incurring risk. | jury questions remain; not a matter of law. |
Key Cases Cited
- Gary Cmty. Sch. Corp. v. Roach-Walker, 917 N.E.2d 1224 (Ind. 2009) (weather immunity requires a temporary condition not yet remedied)
- Dahms v. Henry, 629 N.E.2d 249 (Ind. Ct. App. 1994) (whether loss results from weather or employee conduct determines immunity)
- Madden v. Erie Ins. Grp., 634 N.E.2d 791 (Ind. Ct. App. 1994) (ITCA notice issues are a procedural prerequisite to suit)
- Collier v. Prater, 544 N.E.2d 497 (Ind. 1989) (strictly construed ITCA limitations against claimants)
- Boushehry v. City of Indianapolis, 931 N.E.2d 892 (Ind. Ct. App. 2010) (new theories cannot be raised in complaint if not in tort notice)
- Nesvig v. Town of Porter, 668 N.E.2d 1276 (Ind. Ct. App. 1996) (contributory negligence standard for governmental entities)