Teresa Voit and her daughter, Stephanie Voit, received injuries when the vehicle Teresa was driving left an Indiana roadway and collided with roadside obstacles. Teresa, Stephanie, and Stephen Voit sued Allen County (County), claiming negligence because the County had not performed needed roadway maintenance and had not made Adams Center Road "a reasonably safe highway." The Allen Superior Court granted the County partial summary judgment. When the plaintiffs appealed, the Court of Appeals of Indiana, Third District, found decisions on roadway maintenance and improvement were discretionary and sustained summary judgment in favor of the County.

The Crash

On August 6, 1989, Teresa Voit drove northbound on Adams Center Road between Moeller Road and U.S. Highway 30 in Allen County, Indiana. Her daughter was a passenger. Avoiding an oncoming vehicle that intruded into her lane, Voit swerved onto the gravel shoulder of the roadway. She lost control of her vehicle and went off the east side of Adams Center Road. The vehicle collided with a bridge warning sign, went over a ditch/culvert, hit an earth embankment on the opposite side of the ditch/culvert, and landed in a field. Teresa and her daughter were injured.

These facts were not disputed during the trial.

Trial Court Decision

The plaintiffs filed suit in Allen Superior Court on April 8, 1991. They alleged the County "had failed to perform necessary maintenance to Adams Center Road and . . . Adams Center Road was not a reasonably safe highway." The County countered with a request for partial summary judgment based on governmental immunity.

Following an evidentiary hearing, the trial count found the County immune from liability for any design defects in Adams Center Road. Immunity arose from the discretionary nature of the County's decision to defer improvements in the departial summary judgment. In addition, the court granted the County's motion to exclude from the jury trial evidence of alleged design defects in Adams Center Road.

The jury then considered the issue of whether the County was negligent in performing necessary maintenance to Adams Center Road and maintaining Adams Center Road as a reasonably safe highway. The verdict favored the County.

Appellate Court Decision

The plaintiffs appealed the partial summary judgment granting the County governmental immunity. The appellate court pointed out that, to prevail in this appeal, the plaintiffs needed to show that the trial court was in error when it found there was no genuine issue of material fact and, therefore, granted the County summary judgment as a matter of law (see Greathouse v. Armstrong (1993), Ind., 616 N.E.2d 364, 365). In making its decision, the appellate court construed the evidence in the light most favorable to the nonmoving party.

The issue of a governmental entity's immunity from liability is a matter of law for the courts to decide (see Peavler v. Board of Comm'rs of Monroe County (1988), Ind., 528 N.E.2d 40, 46). Here, the courts based their granting of summary judgment on Indiana Tort Claims Act provisions which read:

IC 34-4-16.5-3. Immunity from liability.--A governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from:
. . . . . . . . . . . . . . . . . .
(6) The performance of a discretionary function;
. . . . . . . . . . . . . . . . . .
(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[.]

The County originally designed and built Adams Center Road and the culvert to the east of it in 1962. The County had not redesigned or rebuilt the road or culvert since then. Teresa Voit's crash happened in 1989, more than 20 years after the County designed and built the road and culvert. Therefore, Subdivision 16 above would cover allegations regarding defects in the road or culvert.

The plaintiffs did not base their case on a breach of Subdivision 16, however. They argued that the County was negligent because of its failure to update the design of the roadway and culvert to reflect "modern safety technology" and to adjust for the increase in traffic on Adams Center Road since 1962. A plaintiffs' expert witness described steps the County might have taken to "abate the safety hazard" alleged to exist on Adams Center Road. According to the plaintiffs, not taking such steps was a violation of the County's "continuing duty to provide and maintain public highways in a reasonably safe condition."

The appellate court agreed that, to the extent the plaintiffs did not claim defects in the 1962 design and construction of Adams Center Road but claimed negligence for a current failure to improve the road, Subdivision 16 did not apply. On the other hand, these allegations brought into question the County's access to governmental immunity for discretionary functions as defined by Subdivision 6.

Referring again to Greathouse and Peavler, the court applied the "planning-operational" test to learn whether the County's actions here were protected discretionary functions. "Operational" decisions, according to Greathouse, are "decisions regarding only the execution or implementation of already formulated policy." Such decisions are not discretionary and are not subject to immunity. "Planning" decisions, according to Peavler, involve "the formulation of basic policy characterized by official judgment, discretion, weighing of alternatives, and public policy choices." Governmental decisions based on weighing options and subsequently allocating limited funds fall under this umbrella. Such decisions are discretionary and subject to immunity.

In Peavler, the Supreme Court cited a rationale for having the distinction between planning and operational decisions. The court commented:

The policy underlying governmental immunity is the fundamental idea that certain kinds of executive branch decisions should not be subject to judicial review. The separation of powers doctrine forecloses the courts from reviewing political, social and economic actions within the province of coordinate branches of government. In this way, the discretionary function exception articulates 'a policy of preventing tort actions from becoming a vehicle for judicial interference with decision-making that is properly exercised by other branches of the government.'

Peavler, 528 N.E.2d at 44 (quoting Blessing v. United States, 447 F.Supp. 1160, 1170 (E.D.Penn.1978) (interpreting FTCA discretionary function exception)).

In addition, government immunity for discretionary actions allows governmental entities to make planning and policy decisions without being subject to "the chilling effect" that a threat of liability litigation and "judicial second-guessing" would have on such decision-making.

To claim immunity in this case, the County had to show that it had weighed the risks and benefits of making improvements of the general type the plaintiffs alleged the County should have made. The County did not need to show that it had considered the specific improvements alleged, only that it had consciously considered and rejected improvements of the same general type.

Reviewing the records, the appellate court found that the County had shown it engaged "in a systematic process for determining what improvements will be made to highways in Allen County." The court traced this process from the Director of Transportation Planning for Local Governments, through the Urban Transportation Advisory Board (UTAB), and through the Board of Commissioners of Allen County (Board). The process also allowed for consideration of accident records, citizen complaints, and "other safety problems." In addition, the Director of the Allen County Highway Department could make recommendations to the Board. The Board would then make the final decision to proceed or not proceed and would prioritize the recommended projects.

Tracing this process as it applied to Adams Center Road, the court learned that UTAB did not find that traffic projections called for improving Adams Center Road. Moreover, there were no citizen complaints concerning the road. Therefore, receiving no recommendations concerning improvements to Adams Center Road, the Board did not consider such improvements. The appellate court felt that evidence the County had followed this process "was sufficient to demonstrate that [the County] consciously engaged in decision making regarding the general type of improvements alleged in plaintiffs' complaint." Therefore, the appellate court affirmed the trial court's decision that the County had access to partial summary judgment in this case.