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Bridge complaint raises questions about governmental immunity

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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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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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