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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. ATTORNEY FOR APPELLANT: VINCENT M. CAMPITI Nemeth, Feeney, Masters & Campiti, P.C. South Bend, Indiana

FILED
Jul 13 2009, 9:15 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLEE: MARK A. HOLLOWAY Stephenson Morow & Semler Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ROBERT BULES AND BRIAN BULES, Appellants-Plaintiffs, vs. MARSHALL COUNTY AND MARSHALL COUNTY HIGHWAY DEPARTMENT, Appellees-Defendants. ) ) ) ) ) ) ) ) ) )

No. 50A03-0812-CV-620

APPEAL FROM THE MARSHALL SUPERIOR COURT The Honorable Curtis Palmer, Special Judge Cause No. 50D01-0701-CT-1

July 13, 2009

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Robert Bules appeals the trial courts grant of summary judgment in favor of Marshall County. For our review, Bules raises two issues, one of which we find dispositive: whether the trial court erred when it granted summary judgment in favor of Marshall County. Concluding summary judgment is not appropriate, we reverse and remand. Facts and Procedural History On January 15, 2005, at around 6:30 in the morning, Bules drove his tractor-trailer southbound on King Road in Marshall County. As he crested a hill, Bules saw deep water covering the road at the bottom of the hill just past the intersection of King Road and Plymouth-Goshen Trail. About this same time, Bules saw a high water warning sign. Bules attempted to slow his truck as he came down the hill, but he felt the truck start to slide and jack-knife. As a result, Bules attempted to drive through the water. As his truck exited the other side of the water, it began to slide, ultimately rolling onto its side. Bules testified that he only saw one warning sign in the southbound direction, which was located after the crest of the hill very close to the water. Marshall County had received numerous reports of high water blocking King Road at the site of Buless accident, beginning around 12:30 in the morning. In response, Richard Wallace, a Marshall County employee, placed warning signs near the water. Wallace testified that he placed two signs in the southbound direction, one near the crest of the hill approximately 1000 feet from the intersection of King Road and Plymouth-Goshen Trail and another approximately 1000 feet from the water.

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On January 11, 2007, Bules filed a complaint alleging that Marshall County failed to properly warn the public of the danger of high water on King Road. Marshall County filed a motion for summary judgment claiming immunity based on the Indiana Tort Claims Act, Indiana Code section 34-13-3-3(3) (the "Act"). After Bules filed his response in opposition to summary judgment, Marshall County moved to strike two paragraphs of Buless affidavit and a letter sent to Bules by a claims adjuster from Marshall Countys insurer. The trial court granted Marshall Countys motion to strike and granted summary judgment in favor of Marshall County. Bules now appeals. Discussion and Decision I. Standard of Review We review a grant of summary judgment de novo and employ the same standard as the trial court. Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695 (Ind. Ct. App. 2006). Summary judgment is only appropriate when the designated evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). We consider only the evidence designated to the trial court, and we construe all facts and reasonable inferences from those facts in the favor of the non-moving party. Cox, 848 N.E.2d at 965. II. Statutory Immunity The trial court granted summary judgment in favor of Marshall County "based upon the immunity granted to governmental entities for temporary conditions of roadways resulting from the weather pursuant to [the Act]." Appellants Appendix at 8. Therefore, the

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threshold question in this case is whether Marshall County is entitled to statutory immunity. Whether Marshall County is entitled to immunity is a question of law to be decided by the court, and Marshall County bears the burden of establishing immunity. Catt v. Bd. of Commrs of Knox County, 779 N.E.2d 1, 3 (Ind. 2002). The law is well settled that "a governmental entity has a common law duty to exercise reasonable care and diligence to keep its streets and sidewalks in a reasonably safe condition for travel." Id. However, under the Act, a governmental entity "is not liable if a loss results from ... the temporary condition of a public thoroughfare ... that results from weather." Ind. Code

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