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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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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