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The state of Indiana isn’t entitled to immunity in a case involving a woman who was paralyzed after stopping at the scene of an accident on a highway, the Court of Appeals of Indiana has affirmed.
Jennifer Lucas was injured in a motor vehicle accident on Interstate 69 in Fishers on July 17, 2015.
Lucas was driving southbound on a stretch of road the state had redesigned in 2012 to reduce congestion. The redesign included an added fourth lane, and an exception was granted to allow for a five-foot-wide shoulder instead of the prescribed minimum of 10 feet. The shoulder was separated from northbound lanes by a concrete barrier.
Ahead of Lucas was Nader Botros, who collided with another vehicle.
Botros’ vehicle came to a rest on the left shoulder against the barrier. Because of the narrowness of the shoulder, the vehicle was partially in the leftmost lane.
Lucas slowed down, activated her emergency flashers and stopped behind Botros, getting as close to the barrier as she could while still allowing room to open her door.
Lucas saw Botros was injured and called 911 from her vehicle.
Shortly after, Lucas’ car was hit from behind by a vehicle driven by Ashley Culp, who had been distracted by her child crying in the back seat.
The collision severed Lucas’ spinal cord, rendering her quadriplegic.
Lucas filed a notice of tort claim with the state and filed a negligence complaint against Culp, Botros, the state, the city of Fishers and the occupants of the vehicle that was involved in the initial crash with Botros.
Lucas’ amended complaint alleged the state’s negligence included negligent design and/or construction of I-69 at the location where she was injured.
Negligence, Lucas said in response to one of the state’s interrogatories, includes “failure to provide a left hand shoulder suitable for stopped vehicles and occupants to be out of traffic lane.”
The state moved for summary judgment, asserting it is entitled to immunity for the performance of a discretionary function under Indiana Code § 34-13-3-3(7) of the Indiana Tort Claims Act.
The Hamilton Superior Court disagreed, finding in part that “questions of fact exist as to whether I-69 was a reasonably safe highway at the time of the accident.”
The state challenged that finding on interlocutory appeal, but the Court of Appeals affirmed the trial court.
For the specific part of the ITCA the state relied on — subdivision (7) — the Court of Appeals said courts apply the “planning-operational” test to determine if a governmental entity engaged in a discretionary function that is immune from liability.
Lucas argued another subdivision of the ITCA — (18) — controls in this situation because it’s more specific than subdivision (7).
“The State does not contend that Lucas’s loss did not result from its 2012 redesign of southbound I-69, nor does it challenge the trial court’s determination that the redesign was ‘substantial’ for purposes of Indiana Code Section 34-13-3-3(18),” the opinion says. “Consequently, the State is not entitled to immunity under subdivision (18), nor is it entitled to immunity under subdivision (7) for the reasons given above.”
Judge Terry Crone wrote the opinion. Chief Judge Robert Altice and Judge Elizabeth Tavitas concurred.
The case is State of Indiana and City of Fishers v. Jennifer Diane Lucas, by Diane Zeiss Nevitt, Guardian, 22A-CT-1693.
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