Discretionary Immunity for City in Personal Injury Claim Concerning Street Maintenance

On, July 16, 2015, the Indiana Court of Appeals decided the case of City of Beech Grove v. Beloat. The plaintiff was a woman who stepped in a pothole and broke her leg. She sued the City, claiming it was negligent in its maintenance of the street.

The trial court denied the City’s motion for summary judgment which claimed, among other things, that the City was immune from suit under the Indiana Tort Claims Act, specifically discretionary function immunity under IC 34-13-3-3(7) which says that a governmental entity is not liable if a loss results from performance of a discretionary function. The courts have struggled to separate discretionary functions from ministerial functions in this context. The general idea is to immunize governments from liability for making policy decisions that a jury or plaintiff might find disagreeable but subject them to traditional rules of liability where there is no political judgment being exercised, only decisions about how to execute a particular duty imposed on the entity or public employee.

The problem is that one has a way of bleeding into the other. Prior to 1988, the approach was to define a ministerial act as being “one which a person performs in a given state of facts in a
prescribed manner, in obedience to the mandate of legal authority without regard to, or the exercise of, his own judgment upon the propriety of the act being done.” Anything that did not fit within that definition was, by default, discretionary and entitled to immunity. In 1988, the Indiana Supreme Court decided that immunized the government too much and took a different approach, offering a narrower definition for discretionary functions and requiring that the activity in question fit within that narrower definition to qualify for immunity. In Peavler v. Commissioners of Monroe County, the Indiana Supreme Court set out a “planning/operational” test where “planning” functions were entitled to the discretionary immunity protection but operational functions were not. Planning activities were defined as:

[T]hose that “include acts or omissions in the exercise of a legislative, judicial, executive or planning function which involves formulation of basic policy decisions characterized by official judgment or discretion in weighing alternatives and choosing public policy” as well as “[g]overnment decisions about policy formation which involve assessment of competing priorities and a weighing of budgetary considerations or the allocation of scarce resources are also planning activities.”

With that in mind, the majority of the Court of Appeals panel regarded evidence that the City had plans to reconstruct the intersection in question and, as a result, was avoiding piecemeal repairs as conclusive. Such decisions were planning and, therefore, immune under the discretionary function approach. You can see how slippery the concepts are, however, when you compare the majority decision to the dissent. The dissent would have found that there was insufficient evidence for judgment based on discretionary function immunity because, in the dissenting judge’s view, despite the general sense of the city that it wanted to avoid piecemeal repairs in favor of a more comprehensive street improvements, there was not enough evidence that the city’s plans were sufficiently focused on the issue of whether or not to repair the potholes.

Because the concept is so elusive, most government defense cases relying on discretionary function immunity are likely to be hard fought affairs and close calls when the courts issue their opinions.