*1 in disрute. proceedings income is not The last for not inconsistent with ductible this opinion. any agreement not reveal paragraph does parties as to when the deductible Reversed and remanded. income should be deducted from the bene-
fits. GARRARD, Sr.J., DARDEN, J., concur. special us to view the urges
GM also
payments purpose in the context of the
unemployment compensation benefits. that the benefits are not in
GM conténds “windfall”,
place Employees to allow the
ie., payment employer from the and un
employment compensation benefits as well.
Ridge
See Green
Min. v. Indiana Unem
Charles RICHARDSON and Judith
(Ind.Ct.
Bd.,
ployment Ins.
to the lost GM’s focus on the Transport, Inc., Commissioners alleged recovery double is not determinat Montgomery County and De special pay ive.7 GM did not make the partment Highways, Appellees-De payments ments at the normally time the fendants. been regard
would have due. The statute No. 54A05-9903-CV-120. ing timing specifi of deductible income cally Appeals Court of of Indiana. recognizes employees may re payments ceive such after the time the April 2000. payments would have been due and directs payments are deductible un frоm employment compensation benefits when payments actually paid. § are 22- IC
4-5-2(c). summary, we have determined that proper category timing of the de-
ductibility is that payments for vacation subsequent
made pay period normal
in which the vacation was taken. See IC 22^1-5-2(c). such,
§ special pay- As they
ments are deductible when were actu-
ally paid. Id. The Review Board’s deci-
sion is reversed and the cause is remanded Employees urge special payments, double recov- orandum on the GM was ery theory compelling granted required is no pay- less from the then a waiver as tо its view, Le., opposite point joint sponsored GM was allowed a ments into a fund GM/UAW special double payments. deduction for the until such time as GM recovered the total testimony Ollila's paid special Independence reveals that GM made the amounts funds, special payments Pay. from its then Week Shutdown Our resolution does special payments regular treated require Inde- not further consideration of thе "dou- pendence Pay recovery” Week Shutdown for its ac- ble and "double deduction” theo- counting purposes. By the terms of the mem- ries. *2 issues,1 parties present following
which we restate: I. Whether relieves the doctrine defendants of liability as a matter of law. *3 II. Whether the State is immune from according 10 of suit to section Act, Indiana Tort Claims IC 34-13- 3-3(10). reverse.
We
AND
FACTS
PROCEDURAL
HISTORY
highway
This case stems from a
collision
between a semi
a car
tractor-trailer and
Riсhardson,
high
driven
Jason
school
student. The case first came before this
1995,
plaintiffs’ appeal
court in
on
from the
summary
trial court’s
judgment
favor of
Montgomery County. We reversed the
summary judgment because of factual is-
about
County
sues
whether the
breached
Wernle,
Ayers,
E.
Ay-
James
Ristine &
construction,
duty
its
of care in
ers, Crawfordsville, Indiana, Attorney for
county
and maintenance of the
road inter-
Appellants.
secting
highway.
Richardson v. Sa-
Stephenson, Stephenson, Daly,
James S.
laam,
(Ind.Ct.App.1995),
sign at a highway intersection. Richard- OPINION son was approaching the same intersection highway. stop on the did not at Salaam KIRSCH, Judge sign, and Richardson collided with the Greta Harris and and Charles Judith semi’s rear axle. The semi crushed Rich- car, appeal Richardson the trial dragged court’s sum- ardson’s it across the inter- mаry section, judgment denying negligence pulled fifty up their feet Shiloh Hill, against Department claims killing injuring Richardson and his Transportation Montgomery County. passenger, eyewitness Harris. An Greta Department Transportation through cross- stated that when the semi ran appeals portion the trial stop sign, traveling fifty court’s it was about miles judgment rejecting per its defense. hour. superceding plaintiffs' theory premises
1. Because we find the cause is- alternate liabili- ty- dispositive, sue to be we do not reach the Act, -19, Fault plaintiffs contend that the State and tive IC 34-51-2-1 to non-governmental defendants County are liable for the accident because should be regarding governmental subsumed design of the unworkable intersec- defen- dants, Next, plaintiffs, plaintiffs argue the inter- as well. According tion. to the that even if the cause doctrine design section forced the semi driver regard governmental is viable with enti- stop sign run the order to have suffi- ties, application jury of the doctrine ais speed cient to climb Hill. The Shiloh question that cannot be decided on sum- plaintiffs further contend the State mary judgment. According plain- to the issuing was tiffs, dispute there is factual in this case permit County obtaining without about whether the intersection design regarding steep information Hill’s Shiloh caused the semi driver to run the grade. *4 sign. dispute, That plaintiffs argue, the County summary The State and the filed must by jury. be decided judgment regarding plaintiffs’ motions the response, In point the defendants out (1) claims, im- contending they that: are Comparative that the Fault Act does not (2) suit, plaintiffs’ mune from the the entities, apply governmental to citing IC intervening negligence of the semi driver such, 34-51-2-2. As the con- defendants chain any linking broke of causation the tinue, plaintiffs’ governed claims are injuries in- plaintiffs’ design of the principles, common law including the granted tersection. The trial court sum- superceding cause doctrine. The defen- mary judgment to both defendants on the acknowledge superceding dants that cause ground that the semi driver’s failure to ordinarily jury question, argue is but stop superseding was a cause of the acci- in this case the uncontested facts summary judgment dent. The ordеr also indicate that the semi driver’s failure to stated, however, that neither the State nor stop superceding was a cause. County were immune from suit. C.Comparative Fault vs. Common AND DISCUSSION DECISION Principles Law I. plaintiffs recognize SUPERCEDING CAUSE The that the Comparative apply Fault Act does not A. Standard of Review governmental See Sau defendants. summary judgment appeal, In a 16, v. County, ders Steuben 693 N.E.2d applies this court the same standard as the (Ind.1998). however, plaintiffs argue, The Wickey Sparks, trial court. 642 N.E.2d apply comparative this court should (Ind.Ct.App.1994), trans. denied. principles fault in this case so as to render Accordingly, desig this court examines the superceding inoperable. cause doctrine evidence, nated determines whether there plaintiffs rely upon dicta in in Sauders fact, any genuine are issues of material supreme appel which our court stated that moving party and decides whether the is adopt comparative late courts are free to summary judgment entitled to as a matter fault a matter of the doctrines as common 56(C). of law. Ind. Trial Rule law of this state even areas where the
legislature apply Comparative did not Arguments B. Parties’ Fault Act. Id. at 20. Sauders, plaintiffs contend the trial court the court did not state the
erred when it found that the comparative semi driver’s fault doctrines to which it re- ferred, any conduct was a we are unable to discern superceding cause of First, plaintiffs argue accident. doctrines of the wholesale inclu- such short governmental cause doctrine which has sion of entities into our com- system Compara- parative been subsumed the Indiana fault of loss allocation. denied). Thus, to constitute an acknowledge may that there be trans. we While in- intervening preclude reasons in favor of such sufficient to strong policy clusion,2 acknowledge that there we also wrongdoer’s liability the interven- original strong policy consider- may equally be independent act ing conduct must be an Here, how- against such inclusion.3 ations interrupts natural consequence which ever, fail to make sufficient the events. governmental enti- case for the inclusion Here, the conduct of the semi comparative system. fault ties in our independent gov neither of the driver is any chal- Record is void of constitutional allegedly negligent defendants’ ernmental evidentiary upon or basis lenge, legal or interrupt design, nor does it the conse predicate the extension of com- which to design defect. quences alleged parative governmental fault entities. Rather, the conduct of the semi driver adopt may While we have the freedom proceeding through sign fault, we have the li- comparative do not plaintiffs allege act which nat very to do so in the absence of a sufficient cense consequence negli ural of defendants’ conceptions other than our own basis Thus, present gence. this case does not good policy.
what would be We thеrefore intervening an issue of cause at all. apply comparative princi- fault decline to Rather, presented the issue is whether ples this case. *5 plaintiffs’ proximately the losses were negligence. caused the defendants’ Validity Summary Judgment on D. of Superceding Cause plaintiffs’ expert testified that semi claim, prevail negligence
To on a stop sign drivers run the at the intersec- plaintiff prove must that the defendant’s speed tion in order to maintain the re- proximate cause of the conduct was quired to traverse Shiloh Hill: Homes, Rainwater, injuries. Best Inc. v. [Expert]: “I believe that there are two 702, (Ind.Ct.App.1999). N.E.2d 706 714 One, cause this accident. the causation evidence demonstrates When obviously, action of the truck driv- is the something that has between the intervened failing stop sign er in to for the as alleged and the negligenсe defendant’s County he was northbound on Road 400 injuries, presents plaintiffs the case a su East. perceding cause issue. We have described geometric design to that Related is cause as follows: doctrine roadway, of the which is what encour- law, independent “Under common inter truck to ages or forces drivers take vening precludes original conduct extremely steep action because wrongdoer’s liability when the later con grade on the north side of the intersec- interrupting duct constitutes a cause tion. events, turning natural sequence of at all It’s not unusual for truck drivers course, natu preventing aside their stop sign run that their and take probable original ral and result of the chances In the 45 minutes crossing 136. omission, act a result producing or and there, happen I I saw it twice. was reasonably that could not havе been an ‘run,’ speed? By you mean at [Counsel]: ticipated.” [Expert]: speed maybe or some re- L.K.I At Holdings, Tyner, Inc. v. 658 N.E.2d speed, certainly stopping but not (Ind.Ct.App.1995) (citing 119 duced Crull Platt, way.” (Ind.Ct.App.1984) right yielding N.E.2d and example, may be example, may argued 2. 3. For there concern over For it be that the apportionment liability commensurate with consequences of such inclusion. fiscal fairer, simpler, fault the harsh and avoids cоnsequences system aof winner-take-all contributory negligence. based on plaintiffs’ Another of the traffic. The trier of fact would then be Record at 259. required to determine whether in his affidavit: experts stated design, pre- construction or maintenance of Nucor design grade “5. The fully using vented loaded semis from north side of 136 is Road on the U.S. safely. intersection steep unreasonably unnecessarily and hauling trailer traffic for semi-tractor potential Given these inferences from manu- from the Nucor Record, steel northbound incorrect to state as facility toward Indiana State facturing matter of law that the semi driver’s con- ... Road 32 duct was unforeseeable. In this case the presented have sufficient evi- principles engineering Reasonable question dence to of fact raise design require standards or main- whether thе partic- anticipated at each circumstances proxi- of the was the tenance intersection ac- ular should be taken into location plaintiffs’ injuries. mate of the design process. The ex- count proximate causation determination is for steep grade to the north is not a tremely appropriate the trier of fact and is not design safely accommo- reasonable summary judgmеnt.5 truck traffic for which Nucor date the and, therefore, poses a Road was built II.Immunity traffic to all inter- hazard to such Arguments A. Parties’ jecting traffic. The trial court determined that neither excessively steep grade could 7. The County nor the State is immune from substantially reduced uti- have been liability. County appeal does not design principles while lizing reasonable State, however, ap- determination. The routing. utilizing still the samе decision, peals contending *6 misapplied that the trial court section 10 of of the defective 9. Because Act. the Indiana Tort Claims reasonably was foreseeable that south- plaintiffs respond The that the section bound truck traffic would be unable to liability, does not shield the State from truck stop safely, and that northbound because the failed to adhere to exist- State might fully stop traffic fail to for the rеconstruction ing regulations governing priority highway. U.S. 136 addition, permit plain- In applications. my opinion It is that because of 10. liability ex- tiffs contend that the State’s design, it and was fore- such is process, to include past permit tends seeable that truck traffic would fail to construct, maintain, liability failure to for signs and would cross U.S. 136 repair highway. safe speed pull northbound at order to hill.” Application B. the Tort Claims Act Record at 5.4 Supplemental Plaintiffs’ entities can be liable Governmental conduct A fact this for tortious conduct unless the is trier of could determine from immunity granted within an the Tort evidence that the defendants knew or Act, Flynn v. have known of the difficulties a Claims IC 34-13-3-3. See should Vehicles, Indiana Bureau Motor 716 steep grade present would to commercial records, supplemental jurisprudence literature than and that his rel- 4. This cаse has two by opin- and one filed question one filed of whether the evance to the County. clarity, identify we defendant For expert present a of two witnesses materi- ions according supplemental records regarding question the issue of al of fact filing party. as the cause is on the same level currency grammar. his cites Dickens’ Oliver The dissent Charles Twist. We believe that Dickens makes better 894 opinion demоn (Ind.Ct.App.1999), Flynn trans. As the 990
N.E.2d strates, Here, dispute turns an parties’ analysis requires a section 10 denied. provides of the Act on whether section and regulations examination of the statutes per- issuing immunity to the State permit ques license in governing the or reconstruction of the mit that authorized distinguish tion. This examination is Shiloh Hill intersection. general factor section 6 ing between “discretionary immunity function” and the 10 reads:
Section
immunity.
specific
more
section
Sec
entity ...
is not liable
governmental
“A
immunity applies
when the issu
tion
if
from:
a loss results
permit
“discretionary
ance of a
is
under
added).
(emphasis
the law.” IC 34-13-3-3
(10)
issuance, denial,
or
suspension,
To determine whether the State has dis
of,
refusal
revocation
or failure or
case,
cretion under the law this
we must
revoke,
issue,
suspend,
any per-
deny,
or
enabling
statutes
determine whether
order,
mit, license, certificate, approval,
applicable regulations
or
authorize state
authorization,
the au-
or similar
where
to make choices as to whether to
thority
discretionary under the law.” officials
is
deny
permits.
If the
grant or
34-13-3-3(10).
analyzed
This court
IC
authority
place
re
state officials have
(Ind.
Flynn,
10 in
immunity. plaintiff argued that sec- process aspect permitting is unam- inapplicable tion 10 was because the biguous: not a discre- BMV’s issuance of title was tionary act. department highways “[t]he issue, To resolve the we exam- to determine and authorized establish statute, enabling ined the BMV’s which *7 and for requirements such restrictions read, “If the bureau is satisfied that the may driveway approaches as be neces- person applying for a certificate of title ... sary safety and convenience ... the owner of the vehicle the bureau highway. traffic A written on may appropriate an certificate of issue permit application shall be considered added). (emphasis title.” 9-17-2-10 IC (accordance and, department, inif Flynn, at 991. held See 716 N.E.2d We regulations properly with established that legislature’s use of the term a requirements, permit and shall be “may” enabling in the statute indicated granted subject appropriate to condi- to ” authority that BMV’s issue titles provisions. tions and discretionary. plaintiff argued The that added). (1992) (emphasis 7-1-1 105 IAC statutory imposed other restric- sections au- the State the regulation grants discretion, tions on the and that as BMV’s permit application if it thority deny provide immunity. section such 10 did not rеgula- comply with established does not rejected ground that on the argument We tions, permit place conditions on and to that none of the referenced restrictions regulation places per- approval. This removed the BMV’s discretion to issue or within the discre- mitting process State’s deny Flynn, title. 716 certificates of tionary authority, and as such entitles the N.E.2d at 992.
895
immunity
arising
sign
highway
for claims
out of
crossing
State to
at a rate of
permitting process.
approximately fifty
per
miles
hour. As a
law,
matter of
I believe that such reckless-
plaintiffs argue that the State has
probable
ness was not a natural and
conse-
comply
immunity
no
because it failed to
quence
design.
of the intersection’s
See
regulation mandating
review of the
with
Lindbloom,
City
Portage v.
655 N.E.2d
Further,
Hill.
at
proposed slope of Shiloh
(“A
(Ind.Ct.App.1995)
86
act
plaintiffs’
counsel ar
argument,
oral
or omission is the
cause of an
supreme
that our
court’s recent deci
gued
injury
injury
if
proba-
is a natural and
scope of immunity.
have limited the
sions
which,
ble consequence
light
in
of the cir-
fail,
they
arguments
Both of these
because
cumstances,
reasonably
should
have been
are
at common law or discretion
directed
anticipated.”),
foreseen or
denied.
trans.
ary
immunity,
function
rather than section
Specifically,
I note that the
con-
immunity.
City
In Benton v.
Oak
argument
ceded at oral
that
(Ind.1999)
coming to a
land,
Reversed.
MATTINGLY, J., concurs.
BAKER, J., in part concurs and dissents
in part separate opinion. with (Adamson) MITCHELL, L. Catherine BAKER, Judge, part concurring Appellant-Defendant, dissenting part *8 I fully majority’s While concur with the BANK, STAR FINANCIAL holding that section 10 of the Tort Claims Appellee-Plaintiff. provides Act immunity for the State’s issu- permit, ance of the I agree cannot with its No. 27A02-9909-CV-672. finding a genuine question there is Appeals Court of of Indiana. fact as to whether the or maintenance of the intersection was the April proximate plaintiffs’ injuries. cause of the view, my cause of the plaintiffs’ injuries was the semi driver’s
intentional act of blowing through the