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Jurich v. Indiana Department of Transportation

Court of Appeals of Indiana

May 29, 2019

Milan Jurich, Personal Representative of the Estate of Rade Jurich, and Rajna Jurich, Appellants-Plaintiffs,
v.
Indiana Department of Transportation, Appellee-Defendant.

          Appeal 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

          KIRSCH, JUDGE.

         [¶1] 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 against INDOT.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] 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.

         [¶4] 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.

         [¶5] 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).

         [¶6] 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.

         [¶7] 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, [1] which showed that increased traffic now met the criteria for installation of a traffic signal.[2] A traffic signal was placed at the Intersection. Id. at 29.

         [¶8] 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").[3] 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 55.

         [¶9] In January 2016, the Jurichs filed their complaint against INDOT, alleging that INDOT was negligent.[4] 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.[5] Id. at 8, 66-75.

         [¶10] 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 advisement.

         [¶11] 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.

         [¶12] 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.

         [¶13] 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.

         [¶14] 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.[6] 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.

         [¶15] 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.

         [¶16] 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.

         Discussion and Decision

         I. Summary Judgment

         A. ...


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