Preview:

ATTORNEY FOR APPELLANT Jeffrey J. Stesiak South Bend, Indiana

ATTORNEYS FOR APPELLEES Nathaniel M. Jordan Michael F. DeBoni Sara J. MacLaughlin Goshen, Indiana

In the

Indiana Supreme Court
_________________________________ No. 20S05-0703-CV-97 MARVIN J. HOCHSTETLER, Appellant (Plaintiff below), v. ELKHART COUNTY HIGHWAY DEPARTMENT, ELKHART COUNTY SHERIFF DEPARTMENT, AND ELKHART COUNTY COMMISSIONERS Appellees (Defendants below). _________________________________ Appeal from the Elkhart Superior Court No. 2, No. 20D02-0209-CT-571 The Honorable Stephen E. Platt, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 20A05-0602-CV-98 _________________________________ June 20, 2007

Shepard, Chief Justice.

Riding his motorcycle sometime before 5 a.m. on the night of a substantial storm in Elkhart County, appellant Marvin Hochstetler struck a tree that had fallen down across a county road. The trial court granted judgment for various county entities on his negligence suit,

concluding that the county was immune for losses resulting from temporary conditions of a public thoroughfare that result from weather. We affirm.

Facts and Case History

At around 1 a.m. on June 12, 2001, Elkhart County was hit by a strong storm that produced many fallen trees and limbs and necessitated deployment of various county highway crews to begin the clean up. The county started dispatching crews about 1:30 as calls began coming in to the highway garage. There were eventually fifty-six reports of fallen trees on county roads as a result of the storm. Among these reports, received about 2 a.m., was a call about a tree down on County Road Four, north of State Road 120. It turns out that County Road Four is some seven miles long, and State Road 120 does not intersect with it. Hochstetler contends this was a report about the tree he hit.

Hochstetler sued the highway department, the county commissioners, and the county sheriff, alleging that they were negligent and careless in maintaining the county road. The county defendants moved for summary judgment on the basis of immunity under the Indiana Tort Claims Act. The trial court granted them judgment. The Court of Appeals reversed. Hochstetler v. Elkhart County Highway Dep't, 855 N.E.2d 731 (Ind. Ct. App. 2006), vacated. We granted transfer.

Common Law Duty and the Tort Claims Act

Indiana law has held for some time that governmental bodies have a common law duty to exercise reasonable care and diligence to keep streets in a reasonably safe condition for travelers. Higert v. City of Greencastle, 43 Ind. 574 (1873). Case law about government liability for losses resulting from ice or snow, on the other hand, might fairly be characterized as less than a straight line. Compare Johnson v. City of Evansville, 95 Ind. App. 417, 180 N.E. 600 (1932) (generally no liability for accumulation of snow and ice), with City of Muncie v. Hey, 164 Ind. 570, 74 N.E. 250 (1905) (negligent failure to abate accumulation of ice creates liability).

In any event, more recent law established through the Indiana Tort Claims Act recognizes that state and local governments may have tort responsibility for damages flowing from

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negligence, but grants immunity for that negligence under certain specified circumstances. Ind. Code Ann. ch. 34-13-3 (West 2007). Immunity under the act is a question of law to be

determined by the court. Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970 (Ind. 2001). The party seeking immunity bears the burden of establishing it. Id.

The provision at issue in this litigation creates immunity for losses resulting from "[t]he temporary condition of a public thoroughfare . . . that results from weather." Ind. Code Ann.

Download Marvin Hochstetler v. Elkhart Co. Highway Dept., et al.pdf

Indiana Law