Interlocutory Appeal from the Porter Superior Court. The Honorable William E. Alexa, Judge. Case No. 64D02-1103-CT-2072.
ATTORNEYS FOR APPELLANT: J. Thomas Vetne, Brian R. Gates, Jones Obenchain, LLP, South Bend, Indiana.
ATTORNEYS FOR APPELLEE: Stephen W. Thompson, Vaughn A. Wamsley, Vaughn A. Wamsley, P.C., Carmel, Indiana.
Crone, Judge. Brown, J., and Pyle, J., concur.
[¶1] Roger D. Sadler was struck by a car and killed as he performed road work on an interstate. Paula Sadler, as personal representative of his estate (" the Estate" ) filed a wrongful death action against Indiana Department of Transportation (" INDOT" ), alleging that Roger's death was caused by INDOT's negligence in failing to temporarily close or block a median crossover as a safety measure during the road work. INDOT filed a summary judgment motion, arguing that it was immune from liability pursuant to the Indiana Tort Claims Act (" ITCA" ). The trial court denied its summary judgment motion.
[¶2] INDOT now brings this interlocutory appeal challenging the denial of its summary judgment motion. INDOT argues that it is entitled to summary judgment because Indiana Code Section 34-13-3-3(7) of the ITCA provides immunity to a government entity or its employee from losses resulting from the performance of a discretionary function and INDOT's decision not to close the median crossover was a discretionary function. We conclude that INDOT has failed to carry its burden to show that it is entitled to immunity. Therefore, we affirm.
Facts and Procedural History
[¶3] The facts most favorable to the Estate, the nonmoving party, are as follows. INDOT hired Moonrock, Inc., to seal pavement cracks on I-94. The project was a mobile operation, meaning that the workers moved along the road as they worked. An INDOT engineer periodically visited the work site to ensure that Moonrock was following contract specifications, including proper safety precautions.
[¶4] Roger was a Moonrock employee. On April 30, 2010, Roger was working in the scope of his employment as part of Moonrock's sealing crew in the left-hand
(inside) lane of westbound I-94 just west of mile marker 23.1 in Porter County. In this area, I-94 is a six-lane divided highway with three westbound and three eastbound lanes. Due to the road construction, the left-hand and center lanes of westbound I-94 were closed to traffic, while the right-hand (outside) lane was open. The westbound lanes were closed both east and west of mile marker 23.1, with orange and white construction barrels between the closed lanes and the right-hand westbound lane. On I-94, the westbound and eastbound lanes are separated by permanent concrete median barriers. However, at mile marker 23.1 there was an opening in the median barrier, commonly referred to as a median crossover. Median crossovers were created for police, emergency, and maintenance vehicles and are not intended for use by the general public. At mile marker 23.1, there was a " No U-turn" sign posted. Although the inside and center lanes running past the median crossover were blocked to traffic, the crossover itself was not blocked with any temporary traffic control devices.
[¶5] At approximately 3:00 a.m., Ricardo Bustos was traveling eastbound on I-94 and used the median crossover at mile marker 23.1 to do a U-turn onto westbound I-94. He travelled a short distance in the closed lanes and struck Roger with his vehicle. After several days of intensive medical care, Roger died as a result of the injuries he incurred when Bustos ran into him.
[¶6] The Estate filed a wrongful death complaint against INDOT and Bustos. Relevant to this appeal, the Estate alleged that INDOT was negligent for failing to temporarily close or block the median crossover at mile marker 23.1 when Moonrock's road crew was in the vicinity, which resulted in Roger's death. INDOT moved for summary judgment arguing that the ITCA shielded it from any claims that it negligently allowed Bustos to enter the I-94 work zone through a median crossover placed in accord with ...