A divided Indiana Court of Appeals recently found Michigan City immune from liability for a bicyclist’s injuries caused by a large pothole in a street. In Johnson v. City of Michigan City, Laura Johnson (“Johnson”) struck a large pothole in a street while riding her bicycle, which caused her to crash and suffer a tibial plateau fracture. Michigan City (“the City”) was responsible for maintaining the street. The City used a rating system to decide which streets to repair in any given year. The City’s engineering staff would decide which streets to repair based upon annual consulting reports that would evaluate 20% of the streets each year, with every street inspected every 5 years. The engineering staff would create a budget for resurfacing, the City would then contract with consultants to plan the projects, and the City’s Board of Works would approve individual projects for bidding. The engineering staff would also keep track of citizen complaints and consider them along with the street inspections in prioritizing street repairs. The City’s process for responding to complaints about individual potholes entailed the City’s Street Department receiving the complaint, preparing a work order, and then sending a crew to patch the pothole.
Prior to the accident in this case, the City had already decided the subject street needed to be resurfaced. The Board of Works had already approved the project for bidding, which was in process at the time of Johnson’s crash. In the month prior to Johnson’s crash, the City had also received two complaints about the street, one from a member of the LaPorte County Board of Commissioners describing the street as being in “dire shape,” and another complaint indicating the street had a “severe pothole problem,” which was causing cars to weave across lanes to avoid the potholes. The street was eventually resurfaced around 5-6 months after Johnson’s crash.
Johnson sued the City for negligence in causing her injuries. The City filed a motion for summary judgment arguing it was immune from liability under the Indiana Tort Claims Act, which grants immunity to governmental entities under some circumstances, including “[t]he performance of a discretionary function.” Indiana law distinguishes between planning and operational functions. Planning functions, which are afforded immunity, are “acts or omissions in the exercise of a legislative, judicial, or executive or planning function that involve formulation of basic policy decisions characterized by official judgment or discretion in weighing alternatives and choosing public policy.” Operational functions, such as the “execution or implementation of already formulated policy,” are not discretionary and are not afforded immunity. The purpose of governmental discretionary function immunity for planning and policy-making activities is to allow governments freedom to deal with difficult policy issues without the prospect of liability.
The trial court granted the City’s motion for summary judgment and Johnson appealed. On appeal, the Indiana Court of Appeals reviewed four prior cases, two of which found immunity and two which did not find immunity. Ultimately, the Court felt this case was more similar to the two cases that found immunity because the City had a “deliberative, systemic process to assess and prioritize street repairs,” and at the time of Johnson’s crash the City was in the process of planning repairs to the subject street. The Court characterized the City’s planning process as “a function involving the formulation of basic policy decisions characterized by weighing alternatives and choosing public policy.” While Johnson argued the City’s failure was operational as opposed to planning because the City simply did not patch the pothole, the Court disagreed because the City had a policy in place for repair of the street. Judge Brown dissented from the majority reasoning that the City had failed to designate evidence that a decision not to fill dangerous potholes involved a deliberative-policy driven process that was entirely a planning function and where there was no evidence of a “conscious balancing” of total resurfacing versus individual repairs of potholes.
You can read the full opinion here.