Chamberlain, McMath: Filing a tort claim against a governmental entity

The concept of sovereign immunity originated in medieval England. The belief that “the king can do no wrong” was widely accepted during feudal society and carried over to America. Indiana enjoyed extensive immunity until 1972, when the state’s Supreme Court, in the landmark case of Campbell v. State, abolished governmental immunity and asserted that the issue should be addressed by the Legislature rather than the courts. See, State v. Turner, 286 N.E2d 697, 698 (Ind. App. 1972). In response, the Indiana Legislature enacted the Indiana Tort Claims Act in 1974, which imposed limitations on government liability.

This article explains the statutory changes that have occurred over the years, including the time limits for filing notice of a claim. It clarifies the notice requirements for claims against the state or an agency of the state, as well as claims against a political subdivision. This article also explores the concept of substantial compliance with the notice requirement and highlights recent updates in caselaw.

The statutory notice requirement

A claim against a state governmental entity is controlled by Indiana Code § 34-13-3-1, et seq. In general, the ITCA provides that the state, state agency and/or political subdivision is liable for the negligent acts of its employees if notice is properly filed after the claimant’s loss or injury occurs. All notices must be submitted in writing and delivered in person by registered mail. I.C. 34-13-3-6, 8. Thus, even though an employee is acting within the scope and course of employment on behalf of the state, state agency and/or political subdivision, there are 24 exceptions that exempt the state from liability. I.C. 34-13-3-3.

Under I.C. 34-13-3-9, an incapacitated person has 180 days after the incapacity is removed to file a claim until it is barred. A minor qualifies as an incapacitated person under the section and the deadline for filing notice is postponed “until 180 days after the minority ends.” City of Indianapolis v. Hicks ex rel. Richards, 932 N.E.2d 227, 234 (Ind. Ct. App. 2010) (quoting S. Bend Cmty. Sch. Corp. v. Widawski, 622 N.E.2d 160 (Ind. 1993)).

Claims against the state or a state agency

If the claim is against the state of Indiana or an agency of the state (e.g., INDOT), notice must be given pursuant to I.C. 34-13-3-6. ITCA defines the state and its agencies to include the following: the state of Indiana and its board, commission, department, division, and governmental subdivision, including a soil and water conservation district, bureau, committee, authority, military body, or other instrumentality of the state other than a political subdivision.

ITCA mandates that “a claim against the state is barred unless notice is filed with the attorney general or the state agency involved within 270 days after the loss occurs.” I.C. 34-13-3-6. The attorney general and the state agency must be served by certified mail with return receipt or by personal delivery. The attorney general must be served at 302 W. Washington Street, 5th Floor, Indianapolis, 46204, Attn.: Tort Claims. Information on the proper address of a state agency is available by phone from the State Information Center at 317-233-0800 or by live chat at in.gov/idoa/state-information-center/.

Claims against a political subdivision

If the claim is against a political subdivision, notice must be given pursuant to I.C. 34-13-3-8. ITCA mandates that “a claim against a political subdivision is barred unless notice is filed with: (1) the governing body of that political subdivision; and (2) the Indiana political subdivision risk management commission created under I.C. 27-1-29; within 180 days after the loss occurs.” I.C. 34-13-3-8(a). However, a claim against a political subdivision is not barred if, at the time of injury, the political subdivision was not a member of the commission. I.C. 34-13-3-8(b). Notice to the commission must be delivered to 311 W. Washinton St., Suite 103, Indianapolis, 46204. To determine whether the subject entity is covered by the commission, call 317-232-2401.

Sufficient notice

Indiana courts take a flexible and functional approach to the notice requirement by utilizing substantial compliance. Substantial compliance focuses on substance rather than the form of the notice, striking a balance between the interests of claimants seeking redress and providing the governmental entity adequate time to investigate potential claims.

Whether notice substantially complies with the requirements and purpose of the statute is a question of law that is determined on a case-by-case basis. Collier v. Prater, 544 N.E.2d 497, 499 (Ind. 1989). Generally, the crux of a substantial compliance determination is whether the notice is filed timely and “informed the [governmental entity] of the claimant’s intent to make a claim and contains sufficient information which reasonably affords the [governmental entity] opportunity to promptly investigate the claim.” Id.

Updates in caselaw

I.C. 34-13-3-3(3) provides that a governmental entity is not liable if a loss results from the “temporary condition of a public thoroughfare … that results from weather.” Prior to December 2021, courts used the standard set in Catt v. Board of Commissioners when deciding whether this immunity exception applies to a case. 2002 Ind. Lexis 902, 779 N.E.2d 1. Under Catt, the court must assess whether a condition is temporary or permanent — specifically, “whether the government has had the time and opportunity to remove the obstruction but failed to do so.” Id. at 5. The court in Catt deemed the “government’s prior negligence in the design or maintenance of a public thoroughfare” and its knowledge of weather-related hazards prone to an area as irrelevant in determining the permanence of a condition. Id.

In Ladra v. State, 177 N.E.3d 412 (Ind. 2021), the court modified its previous rule in Catt and concluded that the government’s negligence in the design or maintenance of a public thoroughfare is relevant when determining immunity. The court found that the Catt rule effectively grants the state blanket immunity by not allowing courts to consider prior negligence and therefore sanctions negligent government conduct. Id. at 418, 419.

In Lowe v. Ind. Commuter Transp. Dist., the Supreme Court of Indiana decided a question of first impression regarding whether a district that operates a government-owned railroad is a “state agency” or “political subdivision” under the ITCA. Lowe v. N. Ind. Commuter Transp. Dist., 177 N.E.3d 796 (Ind. 2021). In its opinion, the court held that, (1) when a state is sued under the Federal Employers Liability Act, it is subject to the ITCA, and (2) the district is defined as a political subdivision for the purposes of the act. Id. at 799. Importantly, the court noted that “the mere fact that FELA is a federal statute does not automatically exclude from consideration the procedural constraints of our state’s Tort Claims Act.” Id. In categorizing the district, the court relied on the act’s “political subdivision” definition, which includes a “separate municipal corporation.” Id. at 800. The district’s enabling statute designated it as a “distinct municipal corporation,” which the court interpreted as falling within the definition of a political subdivision. Id.

Conclusion

Filing a tort claim against a governmental entity in Indiana requires careful adherence to statutory requirements and time limits.

Indiana courts employ the doctrine of substantial compliance to determine whether the notice requirement has been met, focusing on providing claimants an opportunity for redress while allowing governmental entities to investigate potential claims.

It is crucial for practitioners and claimants to understand these legal principles and procedures to navigate the complexities of filing a tort claim against a governmental entity in Indiana.•

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Daniel S. Chamberlain is an attorney with Cohen & Malad LLP. Molly K. McMath is a law clerk with Cohen & Malad. Opinions expressed are those of the authors.