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Bridge complaint raises questions about governmental immunity

September 17, 2013

The Indiana Court of Appeals addressed conflicting caselaw about a government’s immunity from liability before siding with the older precedent and ruling that any move to overturn that case should be left to the Indiana Supreme Court.  

In Bartholomew County and Bartholomew County Commissioners v. Doug Johnson and Lucretia Johnson v. C & H/M Excavating and Construction, Inc., and Christopher B. Burke Engineering, LTD,  03A01-1212-CT-578, the Court of Appeals reversed the trial court and found the county was immune from the Johnsons’ complaint.

The complaint arose after the Johnsons’ home and outbuildings were flooded. They blamed the new bridge the county had built near their property. Their complaint alleged the county had negligently designed, constructed, maintained and operated the bridge which caused the flooding.

Bartholomew County responded by filing for summary judgment. It argued it had immunity from liability for the acts of contractor, C&H/M Excavating, Inc., and designer, Christopher Burke Engineering, Ltd., pursuant to Indiana Code Section 34-13-3-3(10). To support its argument, the county cited Henshaw v. Board of Commissioners of Jay County, 611 N.E.2d 637 (Ind. 1993).

The Johnsons countered that the county had a non-delegable common law and statutory duty to design, construct and maintain the bridge, and that it cannot avoid liability. They relied on Shand Mining, Inc. v. Clay County Board of Commissioners, 671 N.E. 2d 477 (Ind. Ct. App. 1996), trans. denied (1997) and City of Vincennes v. Reuhl 672 N.E.2d 495 (Ind. Ct. App. 1996), trans. denied (1997).

At trial, the lower court agreed with the Johnsons that the county is not immune from liability regarding the construction of its bridges.

The Court of Appeals reversed, concluding the trial court erred in not finding the county had immunity from liability for any of the designer’s acts or omissions. It cited Hinshaw as clearly holding that Indiana Code Section 34-13-3-3(10) grants immunity to a governmental entity in situations where an independent contractor was performing a delegable duty.

“Indiana Code Section 34-13-3-3(10) would be useless in situations involving an independent contractor if it did not apply to non-delegable duties and we ‘presume that the legislature did not enact a useless provision,’” Judge Terry Crone wrote for the court.

“To the extent that Shand Mining and Reuhl conflict with Hinshaw on this point, we respectfully disagree with those cases. If Hinshaw is to be abrogated, it should be done by our supreme court.”

The Court of Appeals noted the county’s summary judgment motion was directed only toward the negligence of third parties and the negligent design and construction. Consequently, it remanded for further proceedings as to the county’s allegedly negligent maintenance and operation of the bridge.
 

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