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Thursday, July 16, 2015

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 4 NFP memorandum decisions)

For publication opinions today (2):

In City of Beech Grove v. Cathy J. Beloat, a 15-page, 2-1 opinion, Judge Mathias writes:

The City of Beech Grove, Indiana (“the City”), appeals the order of the Marion Superior Court denying the City’s motion for summary judgment in the negligence claim brought against the City by Cathy J. Beloat (“Beloat”). The City appeals and argues that no genuine issues of material fact exist with regard to whether the City was entitled to immunity from suit for performance of a “discretionary function” under Indiana Code section 34-13-3-3(7). We reverse and remand. * * *

[O]n June 19, 2012, Beloat was walking across Main Street in Beech Grove, Indiana at the intersection of Main Street and 10th Street. As she walked across the street at the crosswalk, Beloat had to step outside of the crosswalk area to walk around a white pickup truck that had blocked part of the crosswalk. As Beloat did this, her foot went into a hole in the pavement and became stuck, causing her to trip. Beloat heard her left leg “snap,” and she fell to the ground. * * *

Prior to our supreme court’s decision in Peavler v. Board of Commissioners of Monroe County, 528 N.E.2d 40, 46 (Ind. 1988), this court distinguished between “ministerial” and “discretionary” acts to determine if certain conduct was included within the immunity exception. Discretionary acts were immune; ministerial acts were not. See Jackson, 9 N.E.3d at 236 (citing Harvey v. Bd. of Comm'rs of Wabash County, 416 N.E.2d 1296 (Ind. Ct. App. 1981)). * * *

However, in Peavler, our supreme court expressly rejected the ministerialdiscretionary distinction analysis and held that discretionary judgments are not immune from legal challenge under the ITCA unless they can be properly characterized as “policy” decisions that have resulted from a conscious balancing of risks and benefits and/or weighing of priorities. * * *

[U]nder Peavler, the discretionary function exception of the ITCA insulates from liability only planning activity, characterized as “only those significant policy and political decisions which cannot be assessed by customary tort standards” and as “the exercise of political power which is held accountable only to the Constitution or the political process.” * * *

Here, the City designated evidence indicating that it was in the process of making a decision on improving Main Street. Specifically, the City was planning to totally reconstruct that portion of Main Street at the intersection of 10th Street, where Beloat’s fall occurred, as opposed to performing piecemeal repairs. The City Council was in the process of approving the financing necessary to begin the complete reconstruction of Main Street at the time of Beloat’s fall. In fact, the day before Beloat’s fall, the City Council held the second of the three votes necessary to issue the bonds to fund the reconstruction project. This, the City argues, means that its decision not to improve the defects in Main Street prior to Beloat’s fall is subject to discretionary function immunity. * * *

The designated evidence establishes that the policy decision to reconstruct Main Street was made by the elected policy makers, and the reconstruction of Main Street was in the planning stages when Beloat fell. Accordingly, we hold that the City is entitled to discretionary function immunity under section 34-13-3- 3(7) of the ITCA. The trial court therefore erred in denying the City’s motion for summary judgment, and we accordingly reverse the order of the trial court and remand with instructions to enter summary judgment in favor of the City.

May, J., concurs.
Robb, J., dissents with opinion. [which begins at p. 13 - ILB emphasis added] I respectfully dissent from my colleagues’ determination that summary judgment was improperly denied because the City is entitled to “discretionary function” immunity from Beloat’s suit. See Ind. Code § 34-13-3-3(7), slip op. at ¶ 18. I believe that the decision takes too broad a view of the discretionary function exception. * * * In short, simply filling a pothole does not strike me as the kind of “piecemeal repair” that was set aside in favor of the overall improvement project, assuming that the City in fact made the policy decision to eschew repairs of any kind. It is not a matter of repaving several feet of a lane of traffic or realigning an intersection, for example. Although there are certainly claims surrounding this time and place for which the City would have discretionary function immunity due to the reconstruction project, I do not believe this is one of them.

In In re the Paternity of M.R.A. and L.R.C.: M.A. v. B.C. , a 15-page opinion, Judge Robb writes:
Michael Ayers (“Father”) appeals the trial court’s order regarding custody, parenting time, and child support for his two children, M.R.A. and L.R.A, with Brandy Caldwell (“Mother”). He raises two issues for our review: 1) whether the trial court erred in vacating an agreed paternity order and establishing Father’s child support obligation and setting his arrearage, including reimbursement to Mother for child care costs; and 2) whether the trial court erred in ordering Father to pay Mother’s attorney’s fees. Concluding the trial court did not abuse its discretion in its determination regarding attorney’s fees, we affirm that part of the trial court’s order. However, concluding the trial court applied an incorrect legal standard to the determination of child support and that its judgment regarding child care expenses is unsupported by the evidence, we reverse and remand in part.
NFP civil decisions today (1):

Christopher Lee Thompson v. Natasha Nicole Smith (mem. dec.)

NFP criminal decisions today (3):

Eric Williams v. State of Indiana (mem. dec.)

Kenny Weaver v. State of Indiana (mem. dec.)

Christopher W. Hovis v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on July 16, 2015 12:08 PM
Posted to Ind. App.Ct. Decisions