A woman who sued the Indiana Department of Transportation after she was injured in a crash resulting from her vehicle hydroplaning on a northern Indiana highway cannot pursue her lawsuit against the state, a majority of the Indiana Court of Appeals ruled Wednesday. A dissenting judge, however, would reverse and send the matter back to the trial court to hear her claims.
Driving in the rain in January 2017, Tracy Ladra hit a flooded patch of Interstate 94 in Portage, hydroplaned, then lost control of her vehicle that struck a concrete barrier wall head-on, spun out of control and came to rest in a ditch. A responding state trooper noted water was above his ankle, and Indiana State Police determined that the flooded roadway had been caused by a clogged drain.
Ladra sued INDOT under the Indiana Tort Claims Act for negligence after she was injured in the crash, but the Porter Superior Court granted summary judgment to INDOT and the state, finding the defendants were entitled to immunity due to a temporary condition caused by the weather under Indiana Code § 34-13-3-3(3).
Ladra argued that immunity “is inapplicable because (1) the relevant ‘condition’ at issue is a clogged drain and (2) the flooded roadway is not the sole cause of the alleged injury. We disagree,” Judge Margret Robb wrote for the majority, joined by Judge L. Mark Bailey, in affirming summary judgment for the state in Tracy Ladra v. State of Indiana, et al., 20A-CT-1418.
The majority found Ladra had waived the issue of the clogged drain by not raising it prior to appeal, but added in a footnote, “Waiver notwithstanding, we believe that Ladra’s attempt to differentiate between the flooded interstate and the clogged drain is untenable. Claiming that the clogged drain alone is the condition ignores that Ladra undisputedly crashed due to hydroplaning on the flooded interstate. A flooded highway would clearly fall within the scope of Indiana Code section 34-13-3-3(3) if the flood was indeed shown to be temporary and caused by weather.”
Judge Elizabeth Tavitas dissented and would have reversed, permitting Ladra to pursue her claim.
“I conclude that genuine issues of material fact exist as to whether the condition was ‘temporary’ or whether ‘the hazardous condition of [the] roadway [was] due to poor inspection, design or maintenance,’” Tavitas wrote, quoting Catt v. Bd. of Comm’rs of Knox Cnty., 779 N.E.2d 1 (Ind. 2002).
But the judges did agree that Catt’s holding that “the frequency with which (a) culvert may have washed out in the past has no bearing on whether that condition is permanent” was troubling.
“In the nearly twenty years since Catt was decided, it has become clear that Catt has created a circular analysis that makes any factual variance irrelevant and the statute’s grant of immunity for a ‘temporary condition of a [public] thoroughfare that results from weather’ now covers all scenarios,” the court held in a footnote. “… And what has happened in the meantime is deemed a condition that ‘results’ from the weather when, in fact, the condition was not the result of the weather but a manifestation of the failure to repair or maintain. But that failure is only relevant to negligence and Catt instructs us that immunity assumes negligence but denies liability.
“We believe this not only allows for the State to be negligent, it encourages it. … However, Ladra designates no evidence to take us outside of the four corners of Catt and we are bound by it,” Robb wrote.
“The fact that the drain clogs when it rains may be indicative of ‘[p]oor inspection, design, or maintenance’ constituting negligence,” the majority concluded. “However, this is irrelevant because Ladra failed to designate any evidence that this clogging happens independently of rain. Thus, Ladra fails to present a genuine issue of material fact regarding whether the condition was caused by weather.”
Tavitas, though, said there was evidence precluding summary judgment from the state itself. “Here, INDOT designated evidence that (Indiana State Police) Officer (Rogelio) Escutia had highway maintenance clear the drain between ten and fifteen times in the four years that he has been an officer and each time it had rained heavily,” Tavitas wrote.