ILNews

Bridge complaint raises questions about governmental immunity

Back to TopCommentsE-mailPrintBookmark and Share

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.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

  2. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

  3. Indiana up holds this behavior. the state police know they got it made.

  4. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

  5. Agreed on 4th Amendment call - that was just bad policing that resulted in dismissal for repeat offender. What kind of parent names their boy "Kriston"?

ADVERTISEMENT