City Not Liable For injury Caused By Pothole

Written by Marilyn Odendahl for www.theindianalawyer.com

The Indiana Court of Appeals split over the extent of governmental immunity after a woman who broke her leg crossing the street sued the city of Beech Grove for negligence.

Cathy Beloat suffered two broken bones in her lower leg when she stepped into a pothole while crossing Main Street in Beech Grove. The city filed a motion for summary judgment, arguing it was entitled discretionary immunity under Indiana Code 34-13-3-3(7).

Marion Superior court denied the motion and the city filed an interlocutory appeal.

Before the Court of Appeals, Beech Grove presented evidence indicating that rather than making “piecemeal repairs,” it was in the process of planning to totally reconstruct a portion of Main Street that included the intersection where Beloat fell. Consequently, the city contended, its decision not to improve the defects on Main Street prior to Beloat’s accident is covered by discretionary function immunity.

The Court of Appeals found the city’s planning decision was subject to immunity as established in Peavler v. Board of Commissioners of Monroe County, 528 N.E.2d 40, 46 (Ind. 1998). In that ruling, the Indiana Supreme Court held government decisions which involve the assessment of competing priorities and weighing of budgetary considerations are planning activities and therefore are immune from liability.

Finding, Beech Grove’s actions fit that criteria, the Court of Appeals reversed the denial of summary judgment in City of Beech Grove v. Cathy J. Beloat, 49A02-1409-CT-605.

“Here, the decision not to make piecemeal repairs to Main Street and instead reconstruct the street is the very sort of policy-oriented decision which we are unwilling to second guess,” Paul Mathias wrote for the majority. “The fact that Beloat frames her claim as simple negligence does not alter the fact that her claim ultimately calls into question the decision of the City to reconstruct the street instead of make smaller repairs.

However in her dissent, Judge Margret Robb asserted the majority’s view of “discretionary function” immunity was too broad.

She held the evidence did not support the proposition that the city either made a conscious policy decision to forego repairs or engaged in an assessment and established a policy regarding repairs that might need to be made pending the start of the reconstruction project.

“In short, simply filling a pothole does not strike me as the kind of ‘piecemeal repair’ that was set aside in favor of the overall improvement project, assuming that the City in fact made the policy decision to eschew repairs of any kind,” Robb wrote. “It is not a matter of repaving several feet of a lane of traffic or realigning an intersection, for example.”