Milan Jurich, Personal Representative of the Estate of Rade Jurich, and Rajna Jurich, Appellants-Plaintiffs,
Indiana Department of Transportation, Appellee-Defendant.
from the Tippecanoe Superior Court The Honorable Steven P.
Meyer, Judge Trial Court Cause No. 79D02-1601-CT-10
ATTORNEYS FOR APPELLANTS William E. Emerick Tyler L. Jones
Stuart & Branigin LLP Lafayette, Indiana
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Andrea E. Rahman Patricia C. McMath Deputy
Attorneys General Indianapolis, Indiana
Rajna Jurich ("Rajna"), individually, and Milan
Jurich, as personal representative of the estate of Rade
Jurich (together, "the Jurichs"), appeal the trial
court's grant of summary judgment in favor of the Indiana
Department of Transportation ("INDOT") in the
Jurichs' suit alleging negligence, wrongful death, and
negligent infliction of emotional distress. On appeal, the
Jurichs raise the following restated issues:
I. Whether the trial court erred by granting summary
judgment in favor of INDOT, finding that INDOT had
discretionary function immunity because it engaged in a
policy-based planning decision to not install a temporary
traffic signal at the newly constructed intersection where
the Jurichs' accident occurred;
II. Whether the trial court abused its discretion by
denying the Jurichs' motion to correct error based on
their claim of the newly discovered evidence of a 2011
traffic study and related emails; and
III. Whether the trial court abused its discretion by
rescinding its previously ordered discovery sanctions
and Procedural History
The motor vehicle collision that gave rise to the instant
action occurred at the intersection ("the
Intersection") of U.S. Highway 231 ("US 231")
and Cumberland Avenue, West Lafayette, Indiana. The
Intersection was created as part of a $45, 600, 000
construction project ("the U.S. 231 Project") to
relocate and reconstruct U.S. 231 as a bypass around the City
of West Lafayette, in Tippecanoe County. Appellants'
App. Vol. 2 at 55. The U.S. 231 Project was
part of a "Major Moves" project. Id. A
traffic study for the U.S. 231 Project began around 2008 but
was not completed until 2010. Tr. Vol. 2 at 68. The
actual construction of the U.S. 231 Project began in 2011 and
was completed in 2013. Appellants' App. Vol.
2 at 55.
Around that same time, a "local highway safety
improvement project for Cumberland Avenue" was also
underway ("the Cumberland Project"). Id.
at 49. The Cumberland Project, which was "a federally
funded Local Partnership agreement with [Tippecanoe]
County" and distinct from the U.S. 231 Project, extended
Cumberland Avenue, thereby also impacting the Intersection.
Id. INDOT provided no state money for the Cumberland
Project and had minimal involvement in that project; instead,
INDOT "served as a pass-through entity for federal funds
to the County." Appellants' App. Vol. 3 at
122. In April 2014, "West Lafayette and Tippecanoe
County highway officials lobbied INDOT heavily-but
unsuccessfully-for the erection of [a temporary traffic
control] signal" at the Intersection as part of the
Cumberland Project. Appellants' App. Vol.
2 at 56.
By statute, INDOT must follow the Indiana Manual on Uniform
Traffic Control Devices ("the Manual") when
determining whether to install a traffic signal at a specific
intersection. See Ind. Code § 9-21-4-1.
Pursuant to the Manual, "[a]n engineering study of
traffic conditions, pedestrian characteristics, and physical
characteristics of the location shall be performed to
determine whether installation of a traffic control signal is
justified at a particular location." Appellants'
App. Vol. 2 at 99. The Manual contains a list of nine
factors ("warrants") that INDOT must consider in
making its decision whether to install a traffic signal at an
intersection. Id. The Manual states that a
"traffic control signal should not be installed
unless one or more of the [warrants] . . . are met."
Id. (emphasis added).
The U.S. 231 Project created eight new intersections. In
2010, George Kopcha ("Kopcha"), INDOT's
Crawfordsville District Traffic Planning Engineer, conducted
a "Signal Warrant Analysis" of those "Proposed
New Intersections" ("2010 Study").
Appellants' App. Vol. 2 at 182-89;
Appellee's App. Vol. 2 at 5-12. Looking only at
Warrant 1 (Eight-Hour Vehicular Volume), INDOT determined
that: (1) five of the eight intersections met the
Manual's ADT volume requirement to justify installation
of a temporary traffic signal; (2) one intersection needed to
be closer to completion to make a determination; and (3) two
intersections did not meet the Manual's requirements to
justify a temporary traffic signal. Appellants' App.
Vol. 2 at 182-89; Appellee's App. Vol. 2 at
5-12. The Intersection was one of the two intersections that
did not meet the ADT volume requirements to justify the
installation of a temporary traffic signal.
Appellants' App. Vol. 2 at 185-86;
Appellee's App. Vol. 2 at 8-9. INDOT planned to
do a second study after the intersection opened to traffic in
April 2014, and in the meantime, INDOT decided to install
stop signs for vehicles travelling eastbound and westbound on
Cumberland Avenue. Appellants' App. Vol.
2 at 28, 39. Vehicles traveling northbound and
southbound on U.S. 231 were not required to stop.
Id. at 172.
On July 15, 2014, about three months after the opening of the
Intersection and twelve days before Rade and Rajna's
accident, Kopcha performed INDOT's second traffic study.
The analysis of the July 2014 traffic study, which was
completed on August 14, 2014, showed that traffic still did
not meet the Manual's required minimum ADT volume to
justify a temporary traffic signal. Id. at 29.
Because INDOT anticipated an increase in traffic at the
Intersection once Purdue University was back in session,
INDOT planned to perform a third study in the fall of 2014.
Id. at 103-04. In October 2014, INDOT conducted a
third traffic study,  which showed that increased traffic now
met the criteria for installation of a traffic
signal. A traffic signal was placed at the
Intersection. Id. at 29.
On July 27, 2014, before the results of the July 2014 traffic
study had been released, Rade was driving his Honda Accord
eastbound on Cumberland Avenue toward its intersection with
U.S. 231, with Rajna as his passenger. He approached U.S. 231
driving in the left through-lane of Cumberland Avenue and
came to a complete stop at the Intersection's stop sign.
Rade proceeded part way across the Intersection, when his car
was struck by a Lexus operated by Saeyeov Kim
("Kim"). In an affidavit, accident-reconstruction
expert Jay Nogan, stated Kim was traveling 72 miles-per-hour,
a speed well over U.S. 231's posted speed limit of 55
miles-per-hour. Id. at 154. The force of the
collision propelled Rade's vehicle across the
Intersection, "where it careened off the roadway"
and then veered back onto Cumberland Avenue, where it came to
a rest. Id. Rade and Rajna suffered serious
injuries, including fractured ribs, cracked teeth, severe
bruising, internal bleeding, and the destruction of a
cochlear implant; Rade ultimately died from his injuries.
Id. at 155. Kim's insurer, GEICO, agreed to
tender the single person bodily injury limit of $100, 000 to
settle the Estate's claim and $100, 000 to settle
Rajna's claim. Appellants' App. Vol. 2 at
In January 2016, the Jurichs filed their complaint against
INDOT, alleging that INDOT was negligent. Specifically, the
Jurichs argued that INDOT breached its "duty to exercise
reasonable care in the design and maintenance of its highways
for the safety of public users" by "failing to
properly conduct a traffic study" and "failing to
erect a [temporary] traffic control signal at the
[I]ntersection." Id. at 57. The Jurichs claimed
that INDOT's alleged negligence resulted in injuries to
Rajna, the wrongful death of Rade, and negligent infliction
of emotional distress to Rajna. Id. at 57-59. In
February 2016, INDOT filed its answer and affirmative
defenses. Id. at 8, 66-75.
On August 7, 2017, INDOT filed its motion for summary
judgment and attached thereto its designated evidence.
Appellants' App. Vol. 2 at 14, 76-89.
Summarized, INDOT argued that the Jurichs could not recover
damages because: (1) Rade was contributorily negligent; (2)
INDOT's decision to not install a temporary traffic
signal was entitled to discretionary function immunity
pursuant to Indiana Code section 34-13-3-3(7) of the Indiana
Tort Claims Act ("the ITCA"); and (3) the
undisputed material evidence negated at least one element of
the Jurichs' negligence claim. Id. at 81-88. In
September 2017, the Jurichs filed their response in
opposition to summary judgment and designated their
supporting evidence. That same day, the Jurichs also filed
their motion to strike INDOT's designated evidence. INDOT
filed a reply to the Jurichs' response in opposition to
summary judgment and a response to the Jurichs' motion to
strike designated evidence. The Jurichs, in turn, filed a
motion to substitute their previously designated Exhibit 4.
Appellee's App. Vol. 2 at 2-12. On October 18,
2017, the trial court held a hearing on the outstanding
motions, including the motion for summary judgment. The trial
court granted the Jurichs' motion to strike INDOT's
Exhibit A (the crash report) and took all other matters under
Meanwhile, the parties were engaging in discovery. The
Jurichs had served interrogatories and a request for
production on INDOT. Specifically, the Jurichs asked INDOT
"to provide information regarding the facts and studies
[that] INDOT used to determine whether or not to install a
[temporary] traffic signal at the [Intersection]."
Appellants' App. Vol. 3 at 2. In its
response, INDOT provided the Jurichs with the following
documents: (1) the 2010 Study; (2) the July 2014 traffic
study; and (3) the October 2014 traffic study. Id.
at 3-4. INDOT did not produce a later-discovered 2011 study
of the Intersection ("Structurepoint Study"), which
American Structurepoint had completed for Tippecanoe County.
Id. at 86. The Jurichs also asked INDOT to
"[i]dentify all communication, contact, and
correspondence INDOT received from officials and
representatives from West Lafayette, Indiana, Tippecanoe
County, Indiana and any other government entity regarding the
intersection at U.S. Highway 231 and Cumberland Avenue."
Appellants' App. Vol. 2 at 101. Around February
2017, INDOT responded, "None in INDOT's possession
as of today's date." Id.
In October 2017, after the hearing on summary judgment, the
Jurichs' counsel obtained-from Opal Kuhl, a retired
engineer who had worked for Tippecanoe County-various
documents, including a copy of the Structurepoint Study and
related 2011 emails. The Structurepoint Study agreed with
INDOT's 2010 Study's determination that the
Intersection's average daily traffic ("ADT")
volume for Warrant 1 was not met; however, the Structurepoint
Study found that the requirements for Warrant 3 (Peak Hour)
had been met. Id. at 86. Based on the discovery of
these documents, the Jurichs concluded that INDOT had
withheld important information, arguing that Warrant 3
justified the installation of a temporary traffic signal.
The Jurichs filed a motion for sanctions, alleging that INDOT
had intentionally kept those documents from them.
Id. at 2-10. INDOT responded, refuting as baseless
the Jurichs' contention that INDOT intentionally
concealed the Structurepoint Study and associated 2011
emails. Appellants' App. Vol. 3 at 40.
INDOT cited to the deposition of William R. Smith
("Smith"), who was at that time INDOT's
Crawfordsville District Traffic Engineer, who said that he
and other employees had searched for the emails; however,
INDOT's policy regarding purging old emails resulted in
no emails prior to 2014 being in the system. Id.
Furthermore, Smith said he had no record of ever receiving
the Structurepoint Study, but even if he had, it would have
been of no use to INDOT because INDOT could not have used
this analysis to determine a temporary traffic signal was
warranted at the Intersection "as Warrant 3-Peak
Volume-cannot be used for future intersections
according to the [Manual]." Id. at 41, 56. The
Jurichs filed a reply.
On January 23, 2018, the trial court issued two separate
orders. In its order pertaining to INDOT's motion for
summary judgment and the Jurichs' motions to strike
designated evidence and to substitute Exhibit 4, the trial
court determined that the designated evidence was as follows:
INDOT's Exhibits B, C, D, E, and F and the Jurichs'
Exhibit 1, Substituted Exhibit 2 (striking paragraph 11),
Exhibit 3, and substituted Exhibit 4. The trial court denied
INDOT's motion for summary judgment on the claim that
Rade had been contributorily negligent, finding that there
was a genuine issue of material fact regarding "(a)
whether Kim's vehicle 'constituted an immediate
hazard' to trigger the Rade's duty to yield and (b)
whether Rade had a genuine belief Kim was sufficiently far
enough away to justify crossing the [I]ntersection."
Appellants' App. Vol. 2 at 37. However,
the trial court granted summary judgment in favor of INDOT,
finding that INDOT qualified for discretionary function
immunity under the ITCA. See Ind. Code §
34-13-3-3(7). Specifically, the trial court found that INDOT
officials had "engaged in the required decision-making
in considering the very improvement (traffic signal at U.S.
231 and Cumberland) alleged in [the] Jurichs'
complaint." Appellants' App. Vol. 2 at 40.
That same day, and in a separate order, the trial court
granted the Jurichs' motion for sanctions, citing
INDOT's "failure to disclose communications it had
with Tippecanoe County officials regarding a temporary
traffic signal at U.S. 231 and Cumberland." Id.
at 45. The trial court imposed sanctions and ordered INDOT to
pay the reasonable costs and attorney fees the Jurichs had
incurred in its discovery of the Structurepoint Study and
2011 emails. Id.
The Jurichs filed a motion to correct error on February 20,
2018, arguing that summary judgment should be overturned
because the Structurepoint Study and related emails, which
had come to the Jurichs' attention only after the summary
judgment hearing, created a genuine issue of material fact by
contradicting INDOT's claims that there was no
justification for a temporary traffic signal at the
Intersection. Appellants' App. Vol. 3 at 74-80.
Two days later, INDOT filed a motion for reconsideration of
the sanctions, arguing that the Structurepoint Study and 2011
emails were not in INDOT's possession after 2014, were
irrelevant to INDOT's claim of immunity, and were not
discoverable under 23 United States Code sections 409 and
148(h)(4). Id. at 112-19. On May 7, 2018, the trial
court denied the Jurichs' motion to correct error because
the newly-discovered evidence was not material to the trial
court's decision and granted INDOT's motion to
reconsider sanctions because the evidence was not material
and not discoverable. Appellants' App. Vol.
2 at 47-51. The Jurichs now appeal.