CITY OF TELL CITY, Indiana, Appellant, v. John Brian NOBLE, Appellee, United States Fidelity & Guaranty Insurance Underwriters, Inc., (Third Party Defendant in the Court below and a Non-Participating Party on Appeal).
No. 4-1184 A 322
Court of Appeals of Indiana, First District.
March 10, 1986
Rehearing Denied April 23, 1986.
489 N.E.2d 958
HOFFMAN, Judge.
The appellant in his Petition for Rehearing calls to the Court‘s attention that the Court has failed to address the issue of sufficiency of the evidence. The record of the proceedings has been carefully reviewed and there is more than sufficient evidence to support the verdict of guilty. The Petition for Rehearing is therefore denied.
STATON, P.J., and GARRARD, J., concur.
Donald R. Wright, W. Scott Shrode, Lynn, Wright, Evans & Daly, Evansville, for appellant.
Gary E. Becker, Zoercher, Becker & Huber, Tell City, for appellee.
NEAL, Judge.
STATEMENT OF THE CASE
Defendant-appellant, City of Tell City, Indiana (Tell City), suffered an adverse judgment in the amount of $300,000.00 entered pursuant to a jury verdict in the direction of the Chief Judge.1
We reverse.
STATEMENT OF THE FACTS
On July 8, 1982, at the intersection of Jefferson Street and Thirtieth Street in Tell City, Indiana, a collision occurred between a motorcycle, being ridden east on Jefferson Street by Noble, and a light truck, being driven south on Thirtieth Street by Jack M. Joyce (Joyce), as a result of which Noble was seriously injured.
Noble served Tell City his tort claim notice, pursuant to
Prior to trial, Noble settled his case against Joyce for $97,000.00 upon the execution of a covenant not to sue, and dismissed his complaint as to Joyce. The case proceeded to trial against Tell City upon the theory stated against Tell City in the amended complaint. The trial court instructed the jury, over Tell City‘s objection, that Tell City had a duty to exercise reasonable care in constructing, designing and maintaining its streets, which included the duty to erect STOP signs or warning signs at intersections where they were warranted, and that for a breach of that duty Tell City would be liable for damages. Noble presented evidence that a STOP sign should have been placed at the northwest corner of the intersection. There was also evidence that a comprehensive ordinance existed which delineated intersections in Tell City which should be marked. However, the intersection of Jefferson Street and Thirtieth Street was not included therein.
ISSUES
Tell City presents nine issues for review. Since we reverse on Issue I, which is dispositive of this litigation, we shall address only that issue. Issue I is as follows:
Whether the decision by defendant-appellant to allow the intersection where the accident occurred to remain unmarked
was a performance of a discretionary function by a government entity, and as a result thereof, whether the defendant is immune from liability pursuant to IND. CODE 34-4-16.5-3 .
DISCUSSION AND DECISION
An examination of the authorities reveals that the question of whether the failure to erect a STOP sign or other traffic markers is a discretionary act, thus affording the governmental entity immunity under
The immunity section of the Tort Claims Act,
“A governmental entity or an employee acting within the scope of his employment is not liable if a loss results from:
* * * * * *
(6) the performance of a discretionary function;
(7) the adoption and enforcement of or a failure to adopt or enforce a law (including rules and regulations), unless the act of enforcement constitutes false arrest or false imprisonment.”
Thus, the real question is whether the decision to place or not to place a sign on a street or highway is within either of the above immunities.
A statutory scheme exists in Indiana governing the placement of traffic markers on streets, roads, and highways; the legal effect of such placement; and the enforcement of adherence to those traffic markers. That scheme is contained in
Although the provisions of
“(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,
“(a) The department of highways with reference to state highways, and highway 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 specified 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 sign 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.,
The Manual, supra, at 2B-2 states that:
“[b]ecause the STOP sign causes a substantial inconvenience to motorists, it 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,
Though Campbell v. State (1972), 259 Ind. 55, 284 N.E.2d 733, abolished governmental immunity, it did not pretend to abolish all immunity. Governmental entities remain immune from liability, for, among other things, judicial acts, legislative acts, and discretionary acts.
The common law distinction between “discretionary” and “ministerial” acts was well described in Adams v. Schneider (1919), 71 Ind.App. 249, 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.)
If the duties imposed are of a legislative or judicial nature, or depend on judgment, the public entity is not responsible in damages either for failing to perform or error in performance. Brinkmeyer v. City of Evansville (1867), 29 Ind. 187.
Many different rules have been formulated by the authorities on the subject. They apply various tests as to whether the public agency or department responsible for the tortious conduct is legislative or administrative in nature. Some are as follows: whether the act was discretionary or ministerial; whether the act was performed by persons whose offices were created either by the legislature or by the municipality; whether duties of the agency or department the Act included were mandatory or merely permissive under the enabling legislation. See City of Kokomo v. Loy (1916), 185 Ind. 18, 112 N.E. 994. Each case must be determined under a true interpretation of the statute under which the governmental entity was created and under a proper conception of the power and duties delegated to it. The foregoing tests seem to have been adopted by past cases. See City of Hammond v. Cataldi (1983), Ind.App., 449 N.E.2d 1184; Maroon v. State of Indiana Department of Mental Health (1980), Ind.App., 411 N.E.2d 404, trans. denied; Mills v. American Playground Device Co. (1980), Ind.App., 405 N.E.2d 621, on rehearing, (1981) 427 N.E.2d 1130. See also Board of Commissioners of Delaware County v. Briggs (1975), 167 Ind.App. 96, 337 N.E.2d 852, on rehearing (1976) 167 Ind.App. 96, 340 N.E.2d 373; Wallace v. Feehan (1934), 206 Ind. 522, 190 N.E. 438.
As applied to streets and highways, the decisions regarding immunity lack uniformity and have failed to directly address the specific issue before us. Briggs, supra, the facts of which occurred after Campbell, supra, but before the effective date of the Tort Claims Act, involved a STOP sign which had once been erected but had since fallen into disrepair. The court noted that “[o]nce the decision was made to place the signs at the intersection, the subsequent placement and maintenance of the signs was purely a ministerial act....” Briggs at 863. The court went on to state that:
“[I]f one undertakes to do a discretionary act, the performance of the act is a purely ministerial function, and for negligence in such performance that results in injury, there may be liability for damages. Having decided to place a sign at the intersection, the County had a duty to maintain the sign until such time as it exercises further discretion to remove or replace the sign with a more appropriate one....”
Briggs, supra, at 867.
Though Briggs involved only the maintenance of a traffic sign, it clearly inferred that the decision to place the signs was a discretionary act.
In a case somewhat similar to Briggs, Harvey v. Commissioner of Wabash County (1981), Ind.App., 416 N.E.2d 1296, the inference that the decision to erect a traffic control device is a discretionary act was even clearer. Harvey involved a YIELD sign that, although apparently erected and maintained properly, failed to conform to the Manual‘s color, size and height requirements. After quoting with approval pertinent portions of the Briggs decision, the Harvey court noted that “[t]he act of placing a [traffic control] sign thus changes the essential legal character of a county‘s liability.” Id. at 1300. The court went on to hold that adherence to the Manual‘s physical specifications regarding YIELD signs is a ministerial rather than a discretionary duty.
Although dicta, the view that the decision to install traffic control devices is a discretionary act was flatly stated in Smith v. Cook (1977), 172 Ind.App. 610, 361 N.E.2d 197. In that case Judge Robertson noted that “[t]he Manual plainly makes the decision to utilize many such devices [traffic control devices] discretionary. Some examples are the use of a STOP sign or a YIELD sign....” Id. at 201.
Cases exist which state as a general principle of law that a governmental entity has no absolute duty to provide signs, and that such a duty is discretionary. However, other cases conclude that the State does have a more general duty to exercise reasonable care in the design, construction and maintenance of its highways for the safety of the public. Such expressions are found in State v. Edgman (1983), Ind.App., 447 N.E.2d 1091, trans. denied; Hurst v. Board of Commissioners of Pulaski County (1983), Ind.App., 446 N.E.2d 347, aff‘d. on other grounds, (1985) 476 N.E.2d 832; City of Indianapolis v. Swanson (1982), Ind.App., 436 N.E.2d 1179, on rehearing, 439 N.E.2d 638, rev‘d. on other grounds, (1983) 448 N.E.2d 668; State v. Thompson (1979), 179 Ind.App. 227, 385 N.E.2d 198, trans. denied; and Elliott v. State (1976), 168 Ind.App. 210, 342 N.E.2d 674, trans. denied.
Elliott, supra, was a pre-Tort Claims Act case where the alleged negligence was the failure to erect warning signs. Immunity was not raised and was not at issue. In Swanson, supra, the issue of immunity was not raised either, rather the issue was the appropriateness of a jury instruction. In Hurst, supra, there was no issue of immunity, and the question only concerned the duty of a county to mow weeds. In Edgman, seventeen issues were presented for review; none dealt with the question of immunity. Of the above cases, only in Thompson, supra, was the theory of immunity argued.
Other non-highway cases involving immunity are instructive. In Maroon, supra, immunity was denied where the Indiana Department of Mental Health negligently permitted an inmate to escape. We held that the decision to commit the patient was discretionary, while the failure to keep him in custody was not. In Crouch v. Hall (1980), Ind.App., 406 N.E.2d 303, the failure to investigate a crime was held discretionary and therefore immunity existed. In Mills, supra, where the city established a park and equipped it accordingly, the court held that the decision to establish the park and equip it was a discretionary function, but once it opted to do so, the city had a duty to keep it reasonably safe. The court stated that the distinction between discretionary and ministerial acts hinges upon the decision to act, and the duties flowing from that decision.
Finally, the case of Cataldi, supra, is helpful. The plaintiff charged that the city was negligent in fighting a fire, which destroyed his restaurant, in the following particulars: (1) failing to provide sufficient personnel; (2) failing to properly train the personnel; (3) failing to have adequate equipment on hand; and (4) using negligent methods to fight the fire. The city raised the issue of immunity, arguing that the acts were a discretionary function under
“Several allegations of the amended complaint concern negligence in training and supervision. Our Supreme Court has stated:
‘Clearly, the employment and supervision of deputies and employees in governmental offices, including the prosecutor‘s office, is a discretionary function.’
Therefore, these allegations involve discretionary duties and the city is not liable for any loss resulting from their performance.
We disagree with the Cataldis’ analysis that once the decision was made to fight the fire, all further actions were ministerial. First, the definition of a discretionary duty includes the determination of how an act should be done Adams v. Schneider, supra. Second, the actions alleged to be negligent required the exercise of judgment by the fire department and by the fire fighters. The Fourth District of this Court considered and rejected a similar argument with respect to police investigation of a crime because[:]
‘[S]uch an analysis belittles the judgments that must be made by police officers concerning methods of investigation, quantum of evidence necessary for arrest, timing of arrest and the like.’
Likewise, decisions as to how to fight a particular fire require that judgments be made regarding appropriate methods and techniques for the unique situation presented by that fire. Although it is possible that ministerial actions may be taken in the course of fire fighting, the plaintiffs’ allegations do not indicate that the actions they complain of were not discretionary. Therefore, the city is immune from liability as a matter of law and summary judgment should be entered in its favor.” (Some citations omitted.)
Cataldi, supra, at 1187.
As seen in Cataldi, the act of establishing a fire department did not exhaust the city‘s discretion, but rather discretion flowed into many aspects of the fire department.
After analyzing the above material, we find that the alleged negligent act in the instant case was Tell City‘s failure to erect traffic control devices at the intersection in question. We are not dealing with an assertion of faulty maintenance, or an assertion that the physical aspect of the signs did not meet the manual‘s specifications. Nor are we dealing with an assertion that the alleged negligent act was committed by a workman, by a maintenance crew foreman, or even by the director of the street department. We are dealing with an act of the governing body itself. Under
Therefore, under the plain meaning of
As shown by the analysis, no case has squarely faced the question of immunity for the erection or non-erection of traffic control devices under
For the above reasons, this cause is reversed and the trial court is ordered to enter judgment for Tell City.
Judgment reversed.
ROBERTSON, P.J., concurs.
RATLIFF, J., concurs with opinion.
RATLIFF, Judge, concurring.
The notice given to the City by Noble pursuant to the requirements of the Indiana Tort Claims Act,
Compliance with the statutory notice requirements of the Tort Claims Act is a procedural prerequisite to recovery against a governmental entity. Hedges v. Rawley (1981), Ind.App., 419 N.E.2d 224, trans. denied. Failure to give a timely notice to a governmental entity is a jurisdictional bar to maintaining a tort action against the entity. Teague v. Boone (1982), Ind.App., 442 N.E.2d 1119.
The notice given here made no mention whatever of the failure of the city to erect a stop sign at the intersection as a causal factor or as a basis for Noble‘s right of recovery against the city. Rather, the notice referred only to the failure of the city‘s employee to yield the right of way at an unmarked intersection. Although substantial compliance with the notice requirements of the Tort Claims Act is sufficient where the purpose of the notice requirement is satisfied, Burggrabe v. Board of Public Works of the City of Evansville (1984), Ind.App., 469 N.E.2d 1233, trans. denied, a notice which is in effect no notice of the claim asserted in the suit filed cannot, and does not suffice.
In Hedges v. Rawley (1981), Ind.App., 419 N.E.2d 224, trans. denied, we held that an action for slander against the City of Terre Haute and its sewage treatment plant superintendent, predicated upon an alleged republication of defamatory matter could not be maintained because letters which purported to constitute the tort claims notice made no mention of any republication of the slander. Hedges is controlling here. There was no notice given concerning the failure to erect a stop sign, hence, no action can be maintained against the City on that ground.
Because this case can be decided on the basis that no proper Tort Claims notice was given, and the judgment must be reversed on that ground, we do not need to decide the immunity issue which forms the basis of the majority opinion.
Assuming we are required to decide the immunity issue, I limit my concurrence to the narrow issue that the determination either to erect or not erect a stop sign at the intersection in question was a discretionary act and thereby immune under