INDOT not entitled to immunity in wrongful death action

The Indiana Department of Transportation failed to convince the Court of Appeals that it is entitled to discretionary function immunity under the Indiana Tort Claims Act in a wrongful death lawsuit brought by the estate of a construction worker killed while working on an interstate project.

In Indiana Department of Transportation, and Ricardo Bustos v. Paula Sadler, as the Personal Representative of the Estate of Roger D. Sadler, 64A04-1411-CT-544, the estate of Roger Sadler sued INDOT and driver Ricardo Bustos, who killed Sadler after striking him with his vehicle. Sadler was working on a project on I-94 in northern Indiana, in which lanes on either side of the interstate were closed. However, the median crossover, which allows public safety vehicles to move from one side of the interstate to the other, was left open during construction. Bustos made a U-turn in the median crossover and entered one of the closed lanes and hit Sadler. Sadler died from his injuries several days later.

INDOT filed a motion for summary judgment, claiming it was immune from liability pursuant to the Indiana Tort Claims Act. The trial court denied its motion, leading to this interlocutory appeal.

INDOT claimed it is entitled to summary judgment because I.C. 34-13-3-3(7) of the ITCA provides immunity to a government entity or its employees from losses resulting from the performance of a discretionary function, and INDOT’s decision to not close the median crossover was a discretionary function.

But INDOT presented no evidence to support its claim, so the COA affirmed the lower court. The creation of the median crossovers was a discretionary function, but there is no written blanket policy that the crossovers were to always remain open.  Testimony from INDOT officials even suggested that the state agency might be willing to temporarily close or block a crossover if circumstances arising from road construction warranted it.

Judge Terry Crone also noted in a footnote that INDOT’s counsel, listed as J. Thomas Vetne and Brian R. Gates of Jones Obenchain LLP, have previously been admonished for noncompliance with Indiana Appellate Rule 22, which requires citation sentences. The footnote says appellant’s counsel used footnotes in this case and a third violation of the rule may be “treated more seriously than merely identifying it in a footnote.”