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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Dec 31 2008, 8:50 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLANT: W. ANTHONY WALKER LUKAS I. COHEN The Walker Law Group, P.C. Gary, Indiana

ATTORNEY FOR APPELLEE: BETH L. BROWN Kelly Law Offices Crown Point, Indiana

IN THE COURT OF APPEALS OF INDIANA
GARY COMMUNITY SCHOOL CORPORATION, ) ) Appellant-Defendant, ) ) vs. ) ) LOLITA ROACH-WALKER and VICTOR WALKER, ) ) Appellees-Plaintiffs. )

No. 45A05-0805-CV-275

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Gerald N. Svetanoff, Judge Cause No. 45D04-0609-CT-262

December 31, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE The Gary Community School Corporation ("the School") appeals from a jury verdict in favor of Lolita Roach-Walker ("Walker") on Walkers complaint for damages arising from her slip and fall on the Schools property. The School presents two issues for review, which we consolidate and restate as whether the School is entitled to immunity from liability under Indiana Code Section 34-13-3-3 of the Indiana Tort Claims Act ("the Act"). Walker also presents an issue for review, namely, whether she is entitled to appellate attorneys fees. We affirm. FACTS AND PROCEDURAL HISTORY At nine oclock on the morning of February 5, 2005, Walker took her children to Bailly Middle School for Saturday classes presented by the Gary Historical Society. The School had given the Gary Historical Society permission to use the middle school for the Saturday classes, and the weather was sunny and clear that day. But as Walker

proceeded along the sidewalk entrance to the middle school, she slipped and fell on her knees. Walker reported the fall to the principal and completed an accident report. On September 27, 2006, Walker and her husband filed suit against the School to recover for the injuries she had received in the fall and for loss of consortium. A jury trial was conducted on March 26, 2008. At the close of plaintiffs evidence, the School moved for a directed verdict on the issue of the Schools immunity under the Indiana Tort Claims Act. The trial court denied that motion. At the conclusion of all the evidence, the jury returned a verdict in favor of Walker on her claims and in favor of the School on
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Walkers husbands loss of consortium claim. The School now appeals the verdict in favor of Walker. DISCUSSION AND DECISION Issue One: Immunity under the Indiana Tort Claims Act The School contends that it is entitled to immunity under Indiana Code Section 34-13-3-3 of the Indiana Tort Claims Act. The Act governs tort claims against

governmental entities and public employees. Brown v. Alexander, 876 N.E.2d 376, 380 (Ind. Ct. App. 2007), trans. denied. "Pursuant to the [Act], ,,governmental entities can be subjected to liability for tortious conduct unless the conduct is within an immunity granted by Section 3 of [the Act]." Id. (quoting Oshinski v. N. Ind. Commuter Transp. Dist., 843 N.E.2d 536, 543 (Ind. Ct. App. 2006)). Indiana Code Section 34-13-3-3(3) provides: "A governmental entity or an employee acting within the scope of the

employees employment is not liable if a loss results from . . . [t]he temporary condition of a public thoroughfare . . . that results from weather." The party claiming immunity bears the burden of establishing that its conduct comes within the Act. King v. Ne. Sec., Inc., 790 N.E.2d 474, 480 (Ind. 2003).

",,[W]hether a governmental entity is immune from liability under the Act is a question of law for the courts, although it may include an extended factual development." Linden v. Health Care 2000, Inc., 809 N.E.2d 929, 933 (Ind. Ct. App. 2004) (quoting Minks v. Pina, 709 N.E.2d 379, 382 (Ind. Ct. App. 1999), trans. denied.), trans. denied. Immunity under Section 34-13-3-3 "contains two key concepts, one temporal and one causal." Hochstetler, 868 N.E.2d 425, 426 (Ind. 2007). A determination of whether a condition is
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temporary or permanent is separate from a determination of whether the condition is due to some other cause. Catt v. Bd. Of Commrs, 779 N.E.2d 1, 5 (Ind. Ct. App. 2002). The focus of whether the condition is permanent is whether the governmental body has had the time and opportunity to remove the condition but failed to do so. See id. Here, the School argues that it is immune from liability under Indiana Code Section 34-13-3-3(3) because the accident occurred on a public thoroughfare due to a temporary condition caused by the weather. Again, Walker concedes that the middle school sidewalk is a public thoroughfare and that the weather was the condition that caused the accident. Thus, the only issue is whether the slick condition of the sidewalk was temporary. See Ind. Code

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