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ATTORNEYS FOR APPELLANT W. Anthony Walker Lucas I. Cohen Gary, Indiana

ATTORNEY FOR APPELLEES Beth L. Brown Crown Point, Indiana

______________________________________________________________________________

In the

FILED
of the supreme court, court of appeals and tax court

Dec 10 2009, 9:35 am

Indiana Supreme Court
_________________________________ No. 45S05-0904-CV-145 GARY COMMUNITY SCHOOL CORPORATION,

CLERK

Appellant (Defendant below), v. LOLITA ROACH-WALKER AND VICTOR WALKER, Appellees (Plaintiffs below). _________________________________ Appeal from the Lake Superior Court, No. 45D04-0609-CT-262 The Honorable Gerald N. Svetanoff, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 45A05-0805-CV-275 _________________________________ December 10, 2009 Boehm, Justice. The Indiana Tort Claims Act confers immunity on units of government from liability for injuries caused by [t]he temporary condition of a public thoroughfare . . . that results from weather. We hold that this provision bars claims for injuries sustained during the time The

reasonably required for the governmental unit to respond to weather conditions.

governmental unit bears the burden of establishing its claim to immunity and in this case the Gary Schools did not carry its burden, so we affirm the judgment of the trial court in favor of the plaintiffs.

Facts and Procedural History On Saturday, February 5, 2005, Lolita Roach-Walker took her children to Bailly Middle School to attend enrichment classes conducted with the school's permission by the Gary Historical Society, an independent nonprofit organization. As Lolita approached the entrance to the school, she slipped and fell on the walkway. Lolita did not see what contributed to her fall before she fell. A witness described the area where Lolita slipped as slick and wet looking after the fall. The record as to weather conditions is inconclusive. No evidence established the most recent rain, snow, or sleet, but there was testimony that there had been no precipitation that day or the night before the accident. Lolita testified that the sky was clear that day and that the temperature was kind of cold. There were no other reports of slip-and-fall incidents on the walkway that day. Lolita and her husband, Victor Walker, sued the Gary Community School Corporation (GCSC), claiming negligence in maintaining the walkway, and seeking damages for Lolita's injuries and for Victor's loss of consortium. At the close of the Walkers' evidence, GCSC moved for a directed verdict, contending that the Indiana Tort Claims Act (ITCA) conferred immunity from liability because Lolita's fall occurred as a result of temporary conditions caused by the weather. The trial court concluded that immunity raised disputed factual issues and denied that motion. After both parties rested, GCSC tendered a proposed jury instruction on immunity which the trial court refused. The jury found for Lolita on the negligence claim and awarded $90,000. GCSC appealed, arguing that the trial court erred in denying its motion for a directed verdict and in refusing its proposed jury instruction. The Court of Appeals affirmed, reasoning that immunity is a question of law, so the issue was not to be submitted to the jury, and that GCSC had failed to demonstrate it was entitled to immunity as a matter of law. Gary Cmty. Sch. Corp. v. Roach-Walker, No. 45A05-0805-CV00275, 2008 WL 5412896, at *6 (Ind. Ct. App. Dec. 31, 2008). We granted transfer. I. Governmental Liability and Immunity A traditional formulation of tort liability requires the plaintiff to establish a duty, breach of that duty, proximate cause, and damages. 1 Dan B. Dobbs, The Law of Torts

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Indiana Law