Tamara Walker and Davida Colquitt, Appellants-Plaintiffs v. Robert J. Bates, Oscar Winski Company, Inc., State of Indiana, Indiana State Highway Department, and Indiana Department of Transportation, Appellees-Defendants (2026)

Case Summary

[1] Tamera Walker ¹ and Davida Colquitt (collectively, the “Plaintiffs”) were passengers in a car involved in an accident at the intersection of U.S. 231 and Iowa Street (the “Intersection”) in Lake County, Indiana. The Plaintiffs filed a complaint against the State of Indiana; the Indiana State Highway Department;² and the Indiana Department of Transportation (“INDOT”) (collectively, the “State Defendants”).³ The State Defendants moved for summary judgment and—after the Plaintiffs responded—moved to strike certain exhibits from the Plaintiffs’ designated evidence. The trial court granted both motions.

[2] The Plaintiffs appeal, raising two issues: (1) Did the trial court abuse its discretion in striking the exhibits from their designated evidence? and (2) Were the State Defendants entitled to summary judgment on the issues of immunity and negligence? We affirm in part, reverse in part, and remand for further proceedings.

Facts and Procedural History

Facts Surrounding the Intersection

[3] INDOT is responsible for “the system of highways and streets that are of general economic importance to Indiana as a whole[.]” I.C. § 8-23-1.1-39 (2026) (replacing I.C. ch. 8-23-1). INDOT's road territory is divided into six districts. The LaPorte District covers thirteen counties in northwest Indiana, including Lake County, where the Intersection is located. Alan Holderread has been the traffic engineer for the LaPorte District since 2013.

[4] Federal safety funding for roadway improvements in Indiana is limited and allocated by INDOT on a statewide basis. The LaPorte District “compete[s] across the state, across tens of thousands of intersections and road segments” for funding. Appellants’ App. Vol. 2 at 176. “[O]f the six districts, it's possible some years that a district could get zero safety funding allocations and another district get more.” Id. Districts identify potential roadway improvement projects and “bring[ ] forward locations with a crash trend and a recommended improvement and a cost.” Id. at 152. INDOT then uses a “set of scoring rules” to decide which projects advance for federal funds. Id. The process evaluates several factors, including “motor vehicle traffic volume, collision history, type of proposed improvement, type of roadway, and budgetary restrictions.” Id. at 236. INDOT tries to prioritize projects that “reduce the most amount of crashes for the least amount of money.” Id. at 152. The State Defendants explained in the memorandum supporting their motion for summary judgment that the “federal safety funding is competitive state-wide” and the “process to secure federal funding is long.” Appellants’ App. Vol. 4 at 184.

[5] By statute, INDOT must follow the Indiana Manual on Uniform Traffic Control Devices (the “Manual”) with respect to “signing, marking, and erection of traffic control devices on streets and highways within Indiana[.]” See I.C. § 9-21-4-1 (1991). “One of the primary purposes of [the Manual] is to promote uniformity in the type of devices used throughout the State.” Manual Introduction at I-1 (2011) [https://perma.cc/Q3LW-EN3B].

[6] The image below depicts the Intersection near Crown Point in Lake County:

Tabular or graphical material not displayable at this time.

Appellants’ App. Vol. 10 at 57. Iowa Street has a north/south orientation and U.S. 231 has a roughly northwest/southeast orientation near the Intersection. They do not intersect at a ninety-degree angle. Both are two-lane roadways. The alignment of U.S. 231 has been the same since at least 1999.⁴ Iowa Street—the “minor road”—is stop controlled. Id. at 106. In other words, there are Stop signs for Iowa Street motorists, but none for U.S. 231 motorists. U.S. 231 motorists have the right of way. The speed limit for vehicles on Iowa Street is 40 m.p.h. The speed limit for vehicles on U.S. 231 is 55 m.p.h., although a 40-m.p.h. advisory speed limit sign is posted under an intersection-ahead warning sign on the left side of westbound U.S. 231 approaching the Intersection.⁵

[7] An “overhead intersection control beacon” was installed at the Intersection in 2001. Id. at 235. The beacon flashes red in both directions for Iowa Street motorists and yellow in both directions for U.S. 231 motorists. The yellow beacons “provide information to the motorist [on U.S. 231] to proceed with caution.” Id. at 169.

[8] In June 2013, Holderread and his direct report Tim Marker field checked various intersections in the LaPorte District to prepare for an upcoming visibility improvement project. They wrote instructions for traffic design manager Prakash Patel to incorporate into future plans. At that time, Holderread and Marker discussed whether to leave the beacon in place at the Intersection or convert to a different traffic control device ⁶ plan. They determined “it was more valuable to keep the overhead flashers in place” at the Intersection “because we did not have a crash pattern where drivers were mistaking the flashers for an all-way stop.” Appellants’ App. Vol. 2 at 116. The instructions for the Intersection called for “doubled-up 36 x 36 stop signs with Cross Traffic Does Not Stop plaques” to be installed on Iowa Street in both directions. Appellants’ App. Vol. 9 at 239.

[9] In 2014 and 2015, the Intersection was one of several in the LaPorte District that were part of a federally funded “visibility improvements at intersections” project. Id. at 102–03. This project was intended to improve the visibility of traffic control devices for motorists: “[T]he ultimate goal of any sign design or traffic signal layout for any intersection is the safety of the motorist[.]” Appellants’ App. Vol. 2 at 170. As a result of the project:

We installed stop bars, doubled up the stop signs on the Iowa approaches, replaced the Cross Traffic Does Not Stop sign, we placed Stop Ahead signs on Iowa, placed intersection ahead signs on U.S. 231 on the left side and the right side for both directions, advisory plaques of ․ Iowa Street, so there's advance notice to the driver of what street is coming up, is on the right side, and then the speed advisory was on the left side underneath the intersection warning sign.

Id. at 105. Under the Manual, a Cross Traffic Does Not Stop sign is an optional sign that may be used in combination with a Stop sign. See id. at 235. The “intended purpose” of the Cross Traffic Does Not Stop sign at the Intersection was to “bring extra awareness to the driver that U.S. 231 does not stop.” Id. at 109. Originally, such a sign was placed only under the Stop sign on the right side of northbound Iowa Street; later, one was placed under the Stop sign on the left side of the road as well. No other changes were made to the traffic control device plan after 2015; although INDOT conducted traffic counts and a traffic-signal warrant analysis for the Intersection in October 2018, it determined a traffic signal was not warranted.

[10] In late 2019, a resolution specialist from the LaPorte District forwarded a customer complaint about the Intersection to Holderread and Michael Yacullo, a traffic investigations engineer in the LaPorte District. After investigating the complaint, they “start[ed] scoping a new intersection improvement project” to be funded with federal safety dollars. Id. at 147. In early 2020, Holderread and Yacullo reviewed crash data and discussed the possibility of reconfiguring the Intersection. The Intersection complied with the Manual, but crash data showed “[h]igher than expected crashes” at the Intersection compared to other intersections with similar volume and similar traffic controls. Id. at 163.⁷ Crashes occurred more frequently during the day, and the majority were right-angle crashes with vehicles continuing on Iowa Street being struck by vehicles traveling on U.S. 231.

[11] Also in early 2020, USI Consultants (“USI”), an engineering firm, was hired to evaluate possible improvements to the Intersection.⁸ USI prepared an engineering assessment report (the “USI Report”) for the LaPorte District and delivered it to Holderread and other LaPorte District employees on June 17, 2020—sixty days before the accident at issue. The report examined several alternatives for improving the Intersection. In deciding how to move forward, Holderread explained, “We would have reviewed the report. If we didn't agree with the alternative analysis or the final recommendation, we would have had a back-and-forth on it.” Appellants’ App. Vol. 2 at 165–66. Although Holderread was unable to remember exact dates, to the best of his knowledge a decision was made before this accident occurred to pursue federal safety funding for improving the Intersection with a roundabout as the preferred alternative.

[12] The Federal Highway Administration approved the roundabout project on April 15, 2021. Land had to be acquired because the roundabout would not fit within INDOT's existing right-of-way; the land acquisition phase began on September 16, 2023, and the engineering report and survey were completed on September 28, 2023. As of May 29, 2024, when the State Defendants filed their motion for summary judgment, the project had not been let for contractor bids.

Facts Surrounding the Accident

[13] Walker, Colquitt, and Sheila Taylor-Harris worked at Edgewater Behavioral Health as wraparound facilitators for at-risk kids. On August 17, 2020, Taylor-Harris drove them all from their office in Gary to a client's house in Lowell. They spent several hours with the client and headed back to the office between 1:30 and 2:00 p.m. Taylor-Harris was driving, Walker was the front seat passenger, and Colquitt was behind Walker in the back seat. It was a clear, sunny day as they drove north on Iowa Street. They had not taken this route to the client's house, but the client gave them directions for a quicker route back. As they approached the intersection with U.S. 231, Taylor-Harris saw a Stop sign for motorists on Iowa Street; she did not recall seeing a traffic signal. Walker saw a Stop sign and overhead red flashing lights at the intersection. Neither Taylor-Harris nor Walker saw a “Cross Traffic Does Not Stop” or a similar “Traffic from the left and right does not stop” warning sign under the Stop sign. Appellants’ App. Vol. 6 at 146; Appellants’ App. Vol. 7 at 207. In March and July 2020, work orders had been issued to replace knocked down or bent signs at the Intersection. See Appellants’ App. Vol. 10 at 54–55.

[14] Taylor-Harris stopped at the Stop sign. Although she was unaware vehicles on U.S. 231 had the right of way, she saw no vehicles approaching from either direction. She proceeded into the Intersection to continue north on Iowa Street.

[15] At the same time, Bates, in an OWC dump truck, was traveling northwest on U.S. 231 approaching the Intersection. Bates drove this road regularly and was familiar with the Intersection. The overhead beacon facing him flashed yellow and there were intersection-ahead warning signs posted on both sides of the road—the signpost to the right of the road had a sign identifying “Iowa St.” below the warning sign and the signpost to the left of the road had an advisory 40-m.p.h. speed limit sign below the warning sign. As Taylor-Harris crossed U.S. 231, Bates collided with the rear passenger side of her car. Walker and Colquitt were injured.

[16] The Plaintiffs filed a complaint stating a claim for negligence, alleging the State Defendants

contributed to cause the collision including by negligently designing the roadway and intersection involved, failing to install adequate signage and traffic control devices, installing and allowing to remain traffic control devices that were confusing and dangerous, failing to appropriately regulate vehicle speeds approaching the intersection at issue, failing to address and remedy known hazards and design defects at the intersection and other negligent design, layout and configuration of the intersection, approach and traffic control measures.

Appellants’ App. Vol. 2 at 36; see also id. at 46–47 (alleging the State Defendants each had a “duty to behave reasonably and not to endanger the lives and welfare of [the Plaintiffs] and the motoring public” and further alleging they had breached those duties in the specific ways described above). The State Defendants answered and asserted affirmative defenses including governmental immunity.

[17] The State Defendants moved for summary judgment on several grounds. The Plaintiffs responded and designated evidence in opposition to summary judgment. The State Defendants replied and moved to strike some of the Plaintiffs’ designated exhibits. Following a hearing, the trial court issued an order striking the Plaintiffs’ exhibits and granting summary judgment for the State Defendants.⁹ Additional facts will be provided as necessary.

The trial court erred in striking some of the Plaintiffs’ designated evidence.

[18] “[T]he trial court's decision to admit or strike evidence at the summary-judgment stage is reviewed for an abuse of discretion.” Pennington v. Mem'l Hosp. of S. Bend, Inc., 223 N.E.3d 1086, 1093 (Ind. 2024). We review a summary judgment decision de novo, applying the same standard as the trial court. Isgrig v. Trs. of Ind. Univ., 256 N.E.3d 1238, 1244 (Ind. 2025). To conduct this review, we must know what evidence the parties properly designated. We therefore first address the Plaintiffs’ contention that the trial court abused its discretion by striking certain exhibits from their designated evidence.

[19] A party supporting or opposing a motion for summary judgment “shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion.” Ind. Trial Rule 56(C). “In ruling on a motion for summary judgment, the trial court will consider only properly designated evidence which would be admissible at trial.” Seth v. Midland Funding, LLC, 997 N.E.2d 1139, 1141 (Ind. Ct. App. 2013). Questions regarding the admissibility of evidence are entrusted to the trial court's discretion. Brown v. Charles Sturdevant Post of Am. Legion, 270 N.E.3d 962, 965 (Ind. Ct. App. 2025). This discretion extends to ruling on motions to strike designated evidence on the grounds it does not comply with summary judgment rules. See Webb v. City of Carmel, 101 N.E.3d 850, 856–57 (Ind. Ct. App. 2018). We reverse a trial court's decision to admit or exclude evidence only if it is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Five Star Roofing Sys., Inc. v. Armored Guard Window & Door Grp., Inc., 191 N.E.3d 224, 234 (Ind. Ct. App. 2022).

[20] On the State Defendants’ motion, the trial court struck the following exhibits and testimony designated by the Plaintiffs on the following grounds:

1․ Exhibit 24B, the USI Engineering Assessment and any testimony of its contents pursuant to 23 U.S.C. § 407 and 23 U.S.C. § 148(h)(4);

2. Evidence of other intersections with the same light configuration and accidents at other intersections pursuant to the Indiana Rules of Evidence;

3. Testimony of [ ] Robert Bates regarding accidents prior to and after the accident at issue pursuant to State v. Fair, 423 N.E.2d 738 (Ind. Ct. App. 1981); and

4. INDOT Deposition Exhibits 3, 4, 5, 7, 22, and 23 pursuant to the Indiana Rules of Evidence.

Appellants’ App. Vol. 2 at 20. The Plaintiffs contend the trial court abused its discretion in striking all four categories of evidence.

A. USI Report

[21] The Plaintiffs introduced the USI Report as an exhibit during Holderread's Trial Rule 30(B)(6) deposition. The trial court struck it—and Holderread's testimony about it—from the Plaintiffs’ designated evidence as privileged under 23 U.S.C. § 407 (“Section 407”).¹⁰

[22] Under Section 407, reports compiled for the purpose of

identifying, evaluating, or planning the safety enhancement of potential accident sites [or] hazardous roadway conditions ․ pursuant to section[ ] ․ 148 of this title [describing highway safety improvement programs] or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports[.]

(Emphasis added.) As the Third Circuit Court of Appeals has explained:

[T]his statutory privilege clearly has two parts. The first part excludes reports ․ if they were compiled or collected to identify, evaluate, or plan “the safety enhancement of potential accident sites [or] hazardous roadway conditions ․” The second part excludes such documents if they were compiled or collected to develop “any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds.”

Zimmerman v. Norfolk S. Corp., 706 F.3d 170, 181 (3d Cir. 2013), cert. denied. The general purpose of this privilege is to foster the free flow of safety-related information by precluding the possibility that such information would be admissible later in civil lawsuits. See Jurich v. Ind. Dep't of Transp., 126 N.E.3d 846, 863–64 (Ind. Ct. App. 2019), trans. denied.

[23] The Plaintiffs contend the USI Report is not privileged under Section 407 because it was not compiled for use in applying for federal funding for a specific project. See Appellants’ Br. at 23 (citing Zimmerman, 706 F.3d at 185). Zimmerman did interpret the second part of Section 407 narrowly, holding it excludes “only those documents that were collected for a particular highway-safety construction project.” 706 F.3d at 185. But we need not decide if the report was prepared with an actual project in mind. The first part of Section 407—which the Plaintiffs do not address—excludes the report because it was compiled for the purpose of identifying, evaluating, or planning the safety enhancement of a potential accident site or hazardous roadway condition. See id. (reasoning the first part of Section 407 “seems to privilege documents that deal with both potential and actual projects, while the second part appears to privilege only those documents that deal with actual projects”). Section 407 excludes the USI Report from consideration.

[24] But the Plaintiffs also contend that even if the USI Report is privileged, the State Defendants have waived that privilege. Appellants’ Br. at 23–24 (citing U.S. v. Mezzanatto, 513 U.S. 196, 200–01 (1995), which notes federal rules, constitutional provisions, and statutes are “presumptively waivable” absent “some affirmative indication” to the contrary).

[25] “[L]egislatures create evidentiary privileges to shield selected information from discovery, and those shields may not be wielded as swords at the will of a party.” Madden v. Ind. Dep't of Transp., 832 N.E.2d 1122, 1128 (Ind. Ct. App. 2005). In other words, “a party may not place an issue before the trier of fact and then assert a privilege to prohibit the introduction of evidence regarding that issue.” Id. The State Defendants asserted discretionary function immunity as a basis for summary judgment. To prove they are entitled to that immunity, the State Defendants must prove they engaged in the required policy-based decision making that will be discussed further below. In their motion for summary judgment, the State Defendants asserted their decision to improve the Intersection satisfied the requirements for discretionary immunity because they “were presented with multiple alternatives and ultimately decided to move forward with the roundabout and begin to pursue securing federal funding for the project.” Appellants’ App. Vol. 4 at 196. In their Statement of Undisputed Material Facts, they cited Holderread's testimony about the report—that USI was hired to assess the various alternatives for improving the intersection and INDOT chose from among the alternatives identified. In short, the State Defendants cannot assert the report is privileged when they are also relying on it to show they are entitled to immunity. The trial court erred in striking the USI Report and we will consider it as appropriate in reviewing summary judgment.

B. Evidence regarding other intersections

[26] The State has a general duty to exercise reasonable care in designing, constructing, and maintaining its highways for the safety of the traveling public. Chandradat v. State, Ind. Dep't of Transp., 830 N.E.2d 904, 909 (Ind. Ct. App. 2005), trans. denied. Before liability can be imposed for a breach of that duty, however, the complaining party must prove not only that an alleged dangerous condition existed, but that the governmental entity “had knowledge thereof, actual or constructive, long enough before the accident to repair the defect, and failed to do so.” Brown v. City of Indianapolis, 113 N.E.3d 244, 250 (Ind. Ct. App. 2018) (citation omitted).

[27] The Plaintiffs designated Holderread's deposition testimony about accidents at unrelated intersections with the same yellow and red beacon configuration to prove the State Defendants had notice the traffic control devices at the Intersection were confusing and dangerous to motorists. See Appellants’ App. Vol. 5 at 9 (Plaintiffs’ response to State Defendants’ motion for summary judgment asserting “INDOT knew that [o]ther [i]ntersections in the LaPorte District with the same light configuration as U.S. 231 and Iowa Street [c]onfused [d]rivers,” citing Holderread's deposition). The State Defendants moved to strike this testimony, alleging in part it would not be admissible at trial under Indiana Rules of Evidence 401–403. The Plaintiffs argue on appeal the trial court abused its discretion in striking this evidence because it was “highly relevant” in that “it tends to make it more probable that State Defendants knew or should have known that the light configuration at the ․ intersection was confusing and dangerous.” Appellants’ Br. at 25.

[28] Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and is of consequence in determining the action. Ind. Evid. R. 401. Relevant evidence is generally admissible, unless its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. Evid. R. 403. Irrelevant evidence is not admissible. Evid. R. 402.

[29] “Generally, evidence of conditions at a place other than the one in question is not admissible to establish that a condition at the place in question is dangerous, unless there is a showing of some connection between the places.” State v. Willian, 423 N.E.2d 668, 672 (Ind. Ct. App. 1981). Evidence of the condition of the highway and the existence of similar defects at other places may be admissible where the places are so close and the conditions so similar they can be considered substantially the same, but a proper foundation must be laid. Id. “A proper foundation includes the general requirements of similarity of conditions, reasonable proximity in time, and avoidance of confusion of the issues.” Kelly v. GEPA Hotel Owner Indianapolis LLC, 993 N.E.2d 216, 220–21 (Ind. Ct. App. 2013).

[30] Here, Holderread's testimony regarding driver confusion was provided in response to questions about other intersections with the “same type of [beacon] configuration.” Appellants’ App. Vol. 2 at 148. However, there was no showing that the conditions as a whole at those intersections were substantially the same as at this intersection—for instance, there was no testimony describing the angle at which the two roadways intersected or the presence or absence of other traffic control devices at the other intersections. Without such a showing, conditions at other intersections do not make it more or less probable that the conditions at this intersection were confusing and dangerous, or that the State Defendants had notice of dangerous conditions at this intersection. As noted above, admissibility rests within the trial court's discretion. The trial court did not abuse its discretion in striking this testimony.

C. Evidence regarding other accidents at this intersection

[31] The Plaintiffs also designated evidence that the other driver, Bates, “knew US 231 and Iowa Street was [d]angerous” as he had seen accidents at the Intersection both before and after this accident. Appellants’ App. Vol. 5 at 9. The State Defendants moved to strike this testimony, alleging Bates’ testimony was not admissible under the standard set by State v. Fair, 428 N.E.2d 738 (Ind. Ct. App. 1981).

[32] Similar to evidence of conditions at other intersections discussed above, evidence of other accidents at the same site is admissible if the plaintiff shows “sufficient similarity of circumstances and conditions” between the prior accidents and the one at issue. Id. at 740. Such evidence is admissible to show the existence of a dangerous condition and notice thereof. Id.

[33] Here, Bates testified he had seen the aftermath of three or four crashes at the intersection and had personally witnessed one crash prior to this accident. Because Bates came across most of these wrecks after they happened and could not speak to the conditions or circumstances of the accidents,¹¹ the Plaintiffs did not show sufficient similarity between those wrecks and this one. Bates described the one wreck he witnessed as occurring when a vehicle traveling on U.S. 231 in front of him turned onto Iowa Street in front of an oncoming car—a circumstance different than the one at issue. And finally, to the extent the Plaintiffs argue on appeal the evidence was offered to prove “Bates had knowledge and was on notice of the dangers associated with the intersection”— Bates’ knowledge is not relevant to the State Defendants’ knowledge. Appellants’ Br. at 28. The trial court did not abuse its discretion in striking this testimony.

D. Evidence of customer complaints

1. Exhibits 3, 4, 5, and 7

The Plaintiffs designated several complaints made to LaPorte District customer service about the intersection. The State Defendants moved to strike four exhibits in part as irrelevant because they were all inquiries opened after this accident occurred.¹²

[34] The Plaintiffs argue this evidence is relevant “to State Defendants’ notice of the confusion, crashes, and dangerousness of the subject intersection, as well as whether the State Defendants reasonably maintained the intersection to prevent future confusion and collisions.” Id. at 27. Post-accident inquiries or complaints do not make the State Defendants’ knowledge of a dangerous condition prior to the accident more or less likely. The trial court did not abuse its discretion in striking these four exhibits.

2. Exhibits 22 and 23

[35] The Plaintiffs also designated two email exchanges detailing customer complaints about the intersection from prior to this accident. The State Defendants moved to strike these exhibits because they contained inadmissible hearsay.

[36] Hearsay is an out of court statement offered for the truth of the matter asserted. Evid. R. 801(c). A hearsay statement is not admissible unless it falls under one of the enumerated exceptions or another law. Evid. R. 802. However, a statement offered not for the truth of the matter but for some other relevant purpose is admissible. Evid. R. 402; see Utley v. Healy, 663 N.E.2d 229, 232 (Ind. Ct. App. 1996), trans. denied. The Plaintiffs assert this evidence is not hearsay because it was offered to prove the State Defendants’ notice of a dangerous condition at this Intersection.

[37] Exhibit 22 is a December 2019 email from an INDOT employee to Holderread and Yacullo asking for an update to a customer complaint seeking “assistance with reducing crashes at this location” where there are “frequent accidents and issues[.]” Appellants’ App. Vol. 10 at 42. The customer notes traffic on Iowa Street often confuses the overhead beacon for a four-way stop and suggests removing the beacon “would probably clear up the confusion, but not entirely fix the problem” and requests a traffic signal be investigated for the Intersection. Id.

[38] Exhibit 23 begins with an email dated September 2018 from a resident on Iowa Street to LaPorte District describing factors she believes contribute to crashes at the Intersection and offering suggestions for fixes. Amy Stanley, LaPorte District customer service manager, forwarded the email to Holderread and Yacullo; Yacullo's response states they performed a traffic count and were conducting a traffic signal warrant analysis at the Intersection. See id. at 40–41.

[39] In Utley, a panel of this Court held a city work order regarding possible obstruction of a Stop sign at an intersection was admissible for the nonhearsay purpose of establishing the city had notice of a dangerous condition. 663 N.E.2d at 233. Similarly, we agree with the Plaintiffs that these exhibits are relevant evidence offered for the nonhearsay purpose of proving the State Defendants had notice of the possibly dangerous condition of the Intersection before the Plaintiffs’ accident.¹³ Accordingly, the trial court erred in striking these two exhibits, and we will consider them to the extent necessary in reviewing summary judgment.

The trial court erred in granting the State Defendants’ motion for summary judgment on all bases except for claims regarding the overhead intersection control beacon.

[40] We review a summary judgment decision de novo. U.S. Automatic Sprinkler Corp. v. Erie Ins. Exch., 204 N.E.3d 215, 220 (Ind. 2023). We consider only the admissible evidence designated to the trial court and draw all reasonable inferences in the nonmovant's favor. Ebert v. Ill. Cas. Co., 188 N.E.3d 858, 863 (Ind. 2022).

[41] The party seeking summary judgment must establish that the designated evidence shows “there is no genuine issue as to any material fact and ․ the moving party is entitled to a judgment as a matter of law[.]” T.R. 56(C). It is not enough for the moving party to merely show the party carrying the burden of proof lacks evidence on a necessary element; instead, the moving party must affirmatively negate an opponent's claim. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014); see also Isgrig, 256 N.E.3d at 1244 (“A defendant is entitled to summary judgment by demonstrating that the undisputed material facts negate at least one of the elements of the plaintiff's claim.”) (citation omitted). If the movant meets its initial burden of demonstrating the absence of any genuine issue of fact as to a determinative issue, the burden shifts to the nonmovant to come forward with contrary evidence showing an issue for the trier of fact. Hughley, 15 N.E.3d at 1003.

[42] The non-moving party has the burden on appeal of persuading us that the grant of summary judgment was erroneous, but “we carefully assess the trial court's decision to ensure that he was not improperly denied his day in court.” Id. (quoting McSwane v. Bloomington Hosp. & Healthcare Sys., 916 N.E.2d 906, 909–10 (Ind. 2009)).

A. Immunity

[43] Under Indiana common law, governmental entities are subject to liability under traditional tort theories unless the Indiana Tort Claims Act (“ITCA”) grants the conduct immunity. I.C. § 34-13-3-3(a) (2016); City of Beech Grove v. Beloat, 50 N.E.3d 135, 138 (Ind. 2016). A “governmental entity” is defined for purposes of the Indiana Tort Claims Act as “the state or a political subdivision of the state.” I.C. § 34-6-2-49 (2013) (repealed and replaced without substantive change by I.C. § 34-6-2.1-77 (2025)). INDOT is a governmental entity responsible for, among other activities, “identification, development, coordination, and implementation of the state's transportation policies”; “approval of applications for federal transportation grants”; and “construction, reconstruction, improvement, maintenance, and repair of ․ state highways[.]” I.C. § 8-23-2-4.1 (2019).

[44] Immunity is a question of law for the court to decide, and the party seeking immunity bears the burden of demonstrating its conduct is within the protection of the ITCA. Schon v. Frantz, 156 N.E.3d 692, 699 (Ind. Ct. App. 2020). The ITCA is in derogation of the common law and must be strictly construed against limitations on a claimant's right to bring suit. Schoettmer v. Wright, 992 N.E.2d 702, 706 (Ind. 2013). Indeed, our Supreme Court has emphasized that “[a]t common law and by statute, government liability for tortious conduct is the rule while immunity is the exception.” Ladra v. State, 177 N.E.3d 412, 416 (Ind. 2021) (emphasis omitted).

[45] Immunity assumes negligence but denies liability. Peavler v. Bd. of Comm'rs of Monroe Cnty., 528 N.E.2d 40, 46 (Ind. 1988). The underlying purposes of immunity are “to protect the public treasury from excessive lawsuits and to ensure that public employees can exercise discretion in carrying out their official duties without fear of litigation.” Ladra, 177 N.E.3d at 424. “[T]he purpose and policy underlying governmental immunity must be the cornerstone for evaluating any claim of governmental immunity.” Peavler, 528 N.E.2d at 42.

[46] The Plaintiffs asserted in their complaint that the State Defendants were negligent in: (1) failing to safely design the roadway and intersection; (2) failing to install adequate signage and traffic control devices; (3) failing to maintain proper signage and traffic control devices at the intersection; (4) installing and allowing to remain traffic control devices that were confusing and dangerous; (5) failing to appropriately regulate vehicle speed approaching the intersection; (6) failing to address and remedy known hazards and design defects; (7) permitting inadequate signage and confusing traffic control devices to remain at the intersection despite high crash volume; (8) failing to investigate and remedy conditions leading to abnormally high crash volume at the intersection; and (9) otherwise failing to act reasonably and prudently under the circumstances. See Appellants’ App. Vol. 2 at 46–47.

[47] The State Defendants asserted governmental immunity as an affirmative defense and later moved for summary judgment on the Plaintiffs’ claims. The State Defendants alleged they were immune as a matter of law under various provisions of the ITCA, they did not breach a duty to the Plaintiffs, and Taylor-Harris’ acts or omissions were a superseding, intervening cause of the Plaintiffs’ damages. See Appellants’ App. Vol. 4 at 189–216. As for immunity, the State Defendants first asserted they were not liable for failing to regulate speed at the Intersection per Indiana Code Section 34-13-3-3(a)(8) granting immunity for the failure to adopt or enforce laws. Next, they claimed they were not liable for any loss attributable to the roadway's design because the Intersection was designed or redesigned over twenty years prior to the accident per Indiana Code Section 34-13-3-3(a)(18). And finally, they argued they were not liable per Indiana Code Section 34-13-3-3(a)(7) because at the time of the accident, they were exercising a discretionary function in planning improvements to the Intersection—specifically, converting it to a roundabout.

[48] Following a hearing, the trial court entered summary judgment for the State Defendants. In ruling on the motion, the trial court entered findings and conclusions. Special findings are neither required in summary judgment proceedings nor binding on appeal. Vestal v. Est. of Duszynski, 278 N.E.3d 1266, 1273 (Ind. Ct. App. 2026). However, such findings offer valuable insight into the rationale for the trial court's decision and help facilitate our review. Id.

1. Adoption of Laws Immunity

[49] The Plaintiffs claim the State Defendants failed to appropriately regulate vehicle speed approaching the Intersection. On this claim, the trial court found the

State Defendants were immune under Indiana Code Section 34-13-3-3(a)(8). This subsection provides:

A governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from[:]

* * *

(8) The adoption and enforcement of or failure to adopt or enforce: (A) a law (including rules and regulations) ․ unless the act of enforcement constitutes false arrest or false imprisonment.

[50] The General Assembly has established the maximum speed limit on a highway as 55 m.p.h. I.C. § 9-21-5-2(a)(2) (2018). INDOT, however, has statutory authority to alter the maximum speed limit whenever it determines based on an engineering and traffic investigation that the maximum speed is greater than is reasonable or safe under the conditions found to exist at any place in the state highway system. I.C. § 9-21-5-12(a) (2018); see also I.C. § 9-21-5-3(2) (2006).

[51] Accordingly, a decision to set the speed limit for a roadway is shielded from liability under the ITCA as a legislative function. Joseph v. LaPorte Cnty., 651 N.E.2d 1180, 1183 n.3 (Ind. Ct. App. 1995), trans. denied; see Cranfill v. Dep't of Transp., 209 N.E.3d 450, 456 (Ind. Ct. App. 2023) (holding INDOT was entitled to adoption-of-laws immunity for a claim that it was negligent for failing to lower the speed limit on a state road). It is this principle upon which the trial court found immunity for this claim. See Appellants’ App. Vol. 2 at 27 (“[T]he establishment of the speed limit by the State Defendants is the action of adopting a rule or regulation within the plain meaning of the statute.”).

[52] A distinction exists between a decision to change a legislatively enacted speed limit and a decision to place a warning sign, however. See Holiday Rambler Corp. v. Gessinger, 541 N.E.2d 559, 563 (Ind. Ct. App. 1989), trans. denied. And here, the Plaintiffs’ claim is not that the State Defendants failed to reduce the speed limit on U.S. 231 as allowed by statute; it is that the State Defendants did not have redundant advisory speed limit signs approaching the intersection and did not maintain the signs that were there. See Tr. Vol. 2 at 42 (the Plaintiffs’ attorney explaining, “[W]ith respect to the adoption of the 55 mile per hour speed limit, we don't contend that there's negligence from that[;] it was in the failure to have the signs, the advisory speed limit signs, present for them to not be singular but redundant.”); see also Appellants’ App. Vol. 5 at 46 (the Plaintiffs’ response to motion for summary judgment stating the Plaintiffs’ claims do not arise from the adoption or failure to adopt a speed limit but “are primarily focused on the ways in which that adopted speed can be further managed and regulated”).

[53] Accordingly, the State Defendants were not entitled to immunity under this subsection for the Plaintiffs’ claim of failure to place and maintain advisory speed limit signs, and the trial court erred in granting them summary judgment on this basis.

2. Design Immunity

[54] As to the Plaintiffs’ claim that the State Defendants failed to safely design the roadway and intersection, the trial court found the State Defendants were immune under Section 34-13-3-3(a)(18):

A governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from[:]

(18) Design of a highway (as defined in IC 9-13-2-73[14]) ․ if the claimed loss occurs at least twenty (20) years after the public highway ․ was designed or substantially redesigned; except that this subdivision shall not be construed to relieve a responsible governmental entity from the continuing duty to provide and maintain public highways in a reasonably safe condition.

(Emphasis added.)

[55] The State Defendants provided evidence—and the Plaintiffs do not dispute— that the alignment of U.S. 231 has been the same at least since 1999 and possibly since 1926. The Plaintiffs’ accident occurred in 2020, more than twenty years after the road was designed or redesigned. Design immunity would insulate the State Defendants from liability for allegations of negligence regarding the original design of the highway.

[56] The Plaintiffs, though, do not allege negligence in the original design of U.S. 231. Instead, they allege the State Defendants have failed to provide and maintain the road in a reasonably safe condition because “warning signs were not present ․ as designed, the advisory speed limit sign for US 231 may not have been present, there was no redundancy in the design of warning and advisory signs, [and] the overhead signals were ․ confusing to motorists[.]” Appellants’ App. Vol. 5 at 35 (Plaintiffs’ Response to Motion for Summary Judgment).

[57] In Jacobs v. Board of Commissioners of Morgan County, the plaintiff alleged the county should have added signage at a “treacherous turn” on a road that was designed before the late 1800s. 652 N.E.2d 94, 98 (Ind. Ct. App. 1995), trans. denied. The county successfully asserted design immunity in the trial court. A panel of this Court reversed, holding that because the plaintiff did not allege defects in the original design of the road but alleged the county should have added warning signs, “this is not a matter susceptible to treatment under” design immunity. Id. The Court further noted the definition of “highway” as encompassing “the entire width between the boundary lines” does not include “signage” and therefore “we cannot say as a matter of law that signage is design within the meaning” of the immunity provision. Id.; see also Harkness v. Hall, 684 N.E.2d 1156, 1159–60 (Ind. Ct. App. 1997) (agreeing with plaintiffs that design immunity does not automatically bar a claim whenever a loss occurs involving a highway that was designed twenty years prior to the loss and reversing summary judgment against plaintiffs on their claim alleging defective maintenance and signage), trans. denied.

[58] The government is not required to provide the safest roads, but it is required to provide reasonably safe roads. Hiland v. State, 879 N.E.2d 621, 627 (Ind. Ct. App. 2008). “[W]hether a particular road was in a reasonably safe condition at the time of a particular accident is a question of fact best decided by a factfinder[.]” Id. The State Defendants were not entitled to design immunity for the Plaintiffs’ claims regarding signage and maintenance of traffic control devices. The trial court erred in granting summary judgment on this basis.

3. Discretionary Function Immunity

[59] The trial court found the Plaintiffs’ claims regarding the presence of the overhead beacon and the decision to improve the intersection to a roundabout were subject to discretionary function immunity. Indiana Code Section 34-13-3-3(a)(7) provides:

A governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from[:]

(7) The performance of a discretionary function[.]

[60] In determining whether discretionary function immunity is applicable, we apply the planning/operational test adopted in Peavler. Planning functions—which involve the formulation of basic policy characterized by official judgment, discretion, weighing of alternatives, and public policy choices—are discretionary and shielded by immunity. Lee v. Bartholomew Consol. Sch. Corp., 75 N.E.3d 518, 526 (Ind. Ct. App. 2017). Operational functions—which involve the execution or implementation of already formulated policy—are not. Id. Whether an act is discretionary is a question of law. Beloat, 50 N.E.3d at 138. The governmental entity bears the burden of proving the “challenged act or omission was a policy decision made by consciously balancing risks and benefits.” Peavler, 528 N.E.2d at 46.

[61] Although not determinative, factors (the “Peavler factors”) that typically point toward immunity include:

1. The nature of the conduct—

a) Whether the conduct has a regulatory objective;

b) Whether the conduct involved the balancing of factors without reliance on a readily ascertainable rule or standard;

c) Whether the conduct requires a judgment based on policy decisions;

d) Whether the decision involved adopting general principles or only applying them;

e) Whether the conduct involved establishment of plans, specifications and schedule; and

f) Whether the decision involved assessing priorities, weighing of budgetary considerations or allocation of resources.

2. The effect on governmental operations—

a) Whether the decision affects the feasibility or practicability of a government program; and

b) Whether liability will affect the effective administration of the function in question.

3. The capacity of the court to evaluate the propriety of the government's action—

Whether tort standards offer an insufficient evaluation of the plaintiff's claim.

Id. The distinction between planning and operational functions is a standard, not a precise rule; the ultimate consideration is whether the action is one intended to be immune, and “the court should look to the purposes of immunity to determine whether those purposes would be furthered by extending immunity to the act in question.” Id. at 45. “This assessment requires close consideration of the nature of the governmental actions and the decision-making process that was involved.” Beloat, 50 N.E.3d at 138.

a. Overhead Intersection Control Beacon

[62] As to the overhead beacon, the trial court found the State Defendants presented undisputed evidence that their conduct satisfied the Peavler factors in favor of immunity. We agree.

[63] In regard to the placement of warning signs on highways, the Supreme Court wrote in Peavler:

The counties argue that, while failure to maintain a previously posted traffic sign is non-discretionary, the original decision to install one is discretionary. Clearly, there are cases on either end of the spectrum which will fall automatically into the category of discretionary or non-discretionary functions. Such is the case of the failure to properly maintain a warning sign. It does not follow, however, that the decision to post such a sign is automatically discretionary.

* * *

The discretionary nature of a decision to place a warning sign must be determined case by case. Immunity may be established by governmental defendants who can show that the challenged decision was discretionary because it resulted from a policy oriented decision-making process. If the [governmental entity] engaged in this decision-making process, the courts may not judge the wisdom of their decisions. That judgment is left to the political process.

528 N.E.2d at 47 (citation omitted).

[64] The Plaintiffs challenge the State Defendants’ decision to leave the overhead beacon in place, claiming it was confusing and dangerous. See Appellants’ App. Vol. 2 at 36. To show it has engaged in the type of policy-oriented decision making for which immunity is available, a governmental entity must present evidence that the particular act or omission was the result of a conscious balancing of risks and benefits. Voit v. Allen Cnty., 634 N.E.2d 767, 770 (Ind. Ct. App. 1994), trans. denied. In the case of omissions, “a conscious balancing may be demonstrated by evidence showing that the governmental entity considered improvements of the general type alleged in plaintiffs’ complaint.” Id.

[65] The State Defendants base their immunity defense primarily on Holderread's testimony and Patel's affidavit. The overhead beacon was installed at the Intersection in 2001. In 2013, Holderread and his direct report, Marker, field checked the Intersection while preparing for the upcoming visibility improvement project for several intersections in the LaPorte District. They discussed whether to leave the beacon in place or convert to a different traffic control device. Because the crash pattern did not indicate drivers were mistaking the beacon for an all-way stop, they determined it was better to keep it in place because it is “more visible.” Appellants’ App. Vol. 2 at 117. During the visibility improvement project, Patel used his “engineering judgment” to design the removal, replacement, or installation of new warning signs at the Intersection, but his design made no changes regarding the beacon. Id. at 235. Then, in 2018, the LaPorte District pulled crash data and conducted traffic counts and a traffic-signal warrant analysis at the Intersection. The LaPorte District determined a traffic signal was not warranted and chose to keep the overhead beacon in place.

[66] Based on this evidence, the State Defendants are shielded by immunity from the claim concerning the overhead beacon. The challenged decision—the decision not to remove or replace an existing traffic control device—was the result of a conscious balancing of risks and benefits, as removing the beacon or replacing it with a traffic control signal was considered. See Peavler, 528 N.E.2d at 47 (concluding discretionary function immunity is appropriate in those cases in which the governmental entity engaged in a policy-oriented deliberation process to determine the appropriate use of traffic control devices).

b. Intersection Improvement Project

[67] The trial court found the State Defendants were also entitled to discretionary function immunity as to the decision to improve the Intersection to a roundabout because they showed “they engaged in an evaluative process regarding improvements to be made at the at-issue intersection prior to the August 17, 2020, incident.” Appellants’ App. Vol. 2 at 30. After reviewing the State Defendants’ designated evidence, we conclude they have not met their initial burden of demonstrating the absence of any genuine issue of fact as to immunity for this project.

[68] In support of their motion for summary judgment, the State Defendants designated: (1) Holderread's Trial Rule 30(B)(6) deposition; (2) Patel's affidavit; (3) Sheila Taylor-Harris’ deposition; (4) an accident reconstruction report; (5) one page of Joshua Dineen's Trial Rule 30(B)(6) deposition;¹⁵ (6) Bates’ deposition; (7) one page of OWC's designee's Trial Rule 30(B)(6) deposition; and (8) the affidavit of Glenn Handzlik, project manager for INDOT. They claim they are entitled to discretionary function immunity because INDOT was “well into the planning phase of a federally funded roundabout project.” Appellees’ Br. at 48. They argue:

At a minimum, INDOT's planning began six months before the accident, when Engineer Holderread, who was responsible for designing and selecting the improvements at the Intersection, reviewed the Intersection's 2018 and 2019 crash data, discussed the possibility of realigning the Intersection with INDOT employee Yacullo, hired USI consultants to prepare an engineer report evaluating alternatives to improve the Intersection, reviewed USI's report, and made the decision to improve the Intersection with federal dollars.

Id.

[69] Our decision is guided by our Supreme Court's opinion in Beloat. The plaintiff there sued the City of Beech Grove after she stepped into a hole on a city street and injured her leg. 50 N.E.3d at 137. The City claimed it was entitled to discretionary function immunity because it was in the planning stages of a complete reconstruction of the street, as opposed to piecemeal repairs. In support, the City designated an affidavit from its mayor and minutes from City Council and Board of Works and Safety meetings.

[70] The Court determined the mayor's affidavit was insufficient to demonstrate an official policy decision as to why certain repairs should be made over others because the mayor's “comments and actions alone are not actions of the [governing] board itself.” Further, there was no indication the mayor had been delegated individual authority to make an independent policy decision about road repairs. Id. at 140–41. The Court also noted the meeting minutes only discussed the financial aspects of the reconstruction project and did not reflect “any discussion about how the area encompassed within the [p]roject was decided upon, why specific repairs were selected over others, what would be done about road damage in the meantime, why total reconstruction was necessary, or the costs of total reconstruction compared to conducting other individual repairs.” Id. at 142. Accordingly, the Court held the City was not entitled to summary judgment based on discretionary function immunity. Id. at 143; see Murphy v. City of S. Bend, 284 N.E.3d 730, 741 (Ind. Ct. App. 2026) (reversing summary judgment on the issue of discretionary function immunity because “significant evidentiary gaps” left the panel unable to determine whether “failure to repair a pothole arose from a governmental entity's judgment based on policy considerations”; the evidence did not show, for example, “what, if any, plans, specifications, or schedules might have been chosen in formulating the pothole repair process”; “if any factors were balanced, if any priorities were assessed, or if any budgets were considered when choosing the as-needed approach”; or whether city employees were “delegated independent policy-making powers regarding the pothole repair process”).

[71] The State Defendants contend they are immune because they “engaged in a policy-driven discretionary process for identifying and prioritizing traffic-control improvements across the State of Indiana.” Appellees’ Br. at 43. Indeed, the designated materials reveal there is such a process. Each of INDOT's six districts submits proposed improvement projects on an annual basis. INDOT then reviews proposed projects and selects projects based on a variety of factors, including traffic volume, collision history, type of proposed improvement, type of roadway, and budgetary restrictions. In other words, districts identify potential improvement projects and INDOT applies its scoring rules to determine which projects across all districts will reduce the largest number of crashes for the least amount of money.

[72] The State Defendants’ designated evidence consists of Holderread's testimony that he and other employees of the LaPorte District considered improving the Intersection after receiving numerous customer complaints and engaged an engineering firm in early 2020 to assess the alternatives. After receiving the USI Report shortly before the accident, they decided to submit the District's preferred alternative of a roundabout to INDOT as a proposed improvement project.¹⁶ Even assuming that decision was made before the accident,¹⁷ however, the record contains no evidence documenting the actual weighing of options, discussion of alternatives, or cost-benefit analysis showing why the District chose to propose this Intersection and this specific improvement for funding. Nor does the record contain evidence that by the time of the accident, INDOT had engaged in its scoring and prioritization process among proposed statewide improvements and determined federal funds should be awarded to the LaPorte District to improve the Intersection. Essentially, as in Beloat, there is no evidence of official action regarding analysis, planning, or approval regarding the Intersection in this record. With this lack of evidence, we cannot determine that the State Defendants have in fact engaged in the policy-oriented decision-making process necessary for discretionary function immunity.

[73] Although the State Defendants’ assertion that INDOT was in the planning phase of its improvement project when the accident occurred may be true,¹⁸ we cannot reach that conclusion on this record without drawing inferences against the Plaintiff. Our standard of review forbids such inferences: on summary judgment, all facts and reasonable inferences must be drawn in favor of the non-moving party. See Ebert, 188 N.E.3d at 863. Further, we must construe the ITCA against the grant of immunity. See Schoettmer, 992 N.E.2d at 706. The designated evidence does not demonstrate the prioritization or cost-benefit analysis that went into the development and approval of the Intersection improvement project, and the State Defendants simply stating they are in the planning stages is insufficient. See Beloat, 50 N.E.3d at 140 n.2 (“Merely labeling an action as planning or operational, without more, cannot pass for analysis.”) (quoting Peavler, 528 N.E.2d at 45).

[74] The State Defendants are not entitled to discretionary function immunity under the ITCA on summary judgment. But see Murphy, 284 N.E.3d at 741 n.9 (noting that just because the city had not shown it was immune on summary judgment did not mean it was not immune).

B. Negligence

[75] Immunity is a threshold issue, and the issues of duty, breach, and causation are not before the court in deciding whether the government entity is immune. Peavler, 528 N.E.2d at 46. If the court finds no immunity, however, “the case may yet be decided on the basis of failure of any element of negligence.” Id. at 46–47.

[76] The State Defendants sought summary judgment on the Plaintiffs’ negligence claims, alleging they did not breach a duty to the Plaintiffs and were not the proximate cause of the Plaintiffs’ damages. “A traditional formulation of tort liability requires the plaintiff to establish a duty, breach of that duty, proximate cause, and damages.” Jones v. Hancock Cnty. Bd. of Comm'rs, 55 N.E.3d 311, 316 (Ind. Ct. App. 2016). Summary judgment is appropriate in a negligence action if the defendant designates undisputed facts that negate at least one element of the plaintiff's claim. Jurich, 126 N.E.3d at 859. But negligence cases are particularly fact sensitive and are governed by the objective reasonable person standard, a standard that is best applied by a jury after hearing all the evidence. Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004).

1. Duty

[77] Duty is not disputed in this case: The government “has a common law duty to exercise reasonable care and diligence to keep its streets and sidewalks in a reasonably safe condition for travel.” Catt v. Bd. of Comm'rs of Knox Cnty., 779 N.E.2d 1, 3–4 (Ind. 2002). The trial court recognized this duty but granted summary judgment to the State Defendants because “it is undisputed that the intersection complied with the [Manual]” and therefore, they did not breach their duty of reasonable care. Appellants’ App. Vol. 2 at 31.

2. Breach

[78] In deciding the State Defendants did not breach their duty, the trial court focused on the Cross Traffic Does Not Stop warning signs at the Intersection, finding: (1) they are not required by the Manual, so even if they had never been placed, the Intersection would have been in compliance; (2) if the signs had been placed but were missing on the day of the accident, there was no evidence the State Defendants had notice of a dangerous condition at the Intersection; and (3) even if they had been present, they would have made no difference because Taylor-Harris testified she did not see any vehicles on U.S. 231 before entering the Intersection.

[79] INDOT has general responsibility for the “construction, reconstruction, improvement, maintenance, and repair of ․ state highways.” I.C. § 8-23-2-4.1(4). Indiana Code Section 9-21-4-1 requires INDOT to follow the Manual with respect to traffic control devices. In addition, INDOT is to “place and ․ maintain traffic control devices conforming to the [Manual] and specifications upon all state highways ․ as necessary to indicate and carry out this article or to regulate, warn, or guide traffic.” I.C. § 9-21-4-2(a) (2015).

[80] The Manual as a whole is not “sufficiently specific to impose an absolute duty[,]” so proof of a violation is not a legal basis for a statutory negligence action. Smith v. Cook, 361 N.E.2d 197, 201 (Ind. App. 1977); see Jurich, 126 N.E.3d at 859. Noncompliance with provisions of the Manual is only “evidence bearing upon the general duty to exercise reasonable care.” Chandradat, 830 N.E.2d at 909. Correspondingly, compliance with the Manual should not be used to prove the exercise of reasonable care as a matter of law. See Smith, 361 N.E.2d at 201 (noting the Manual “plainly makes the decision to utilize many such devices discretionary [and] comprehends the use of some measure of independent judgment on the part of those authorized to place those devices”).

[81] The State Defendants’ motion for summary judgment acknowledged the Manual is only evidence relating to reasonable care and not itself determinative of a negligence claim. See Appellants’ App. Vol. 4 at 205–06. Instead, the State Defendants alleged they did not breach their duty because they did not have notice the optional warning sign was missing on the day of the accident. The trial court found there was no evidence in the record to show the State Defendants were on notice of a missing warning sign at the Intersection creating a dangerous condition.

[82] The duty of a governmental entity to maintain and repair roads within its control does not attach unless the entity has actual or constructive notice of a dangerous situation. Brown, 113 N.E.3d at 250. The rule of constructive knowledge applies to defects that might have been discovered by the exercise of ordinary care and diligence. Id. The complaining party must not only prove the alleged defective condition existed, but also that the governmental entity “had knowledge thereof, actual or constructive, long enough before the accident to repair the defect, and failed to do so.” Id. (quoting Bd. of Comm'rs of Del. Cnty. v. Briggs, 337 N.E.2d 852, 868 (Ind. App. 1975)).

[83] Here, there is evidence in the record that the State Defendants knew on the day of the accident this was a dangerous intersection, as they had begun discussing reconfiguring the intersection based on recent customer complaints and crash data. Less than a month before this accident, a work order was issued for replacement of a knocked down Stop sign signpost at the Intersection. Although the work was completed, there is no evidence any signs but the Stop sign were replaced. Neither Taylor-Harris nor Walker recalls seeing a Cross Traffic Does Not Stop or similar sign at the Intersection, and photographs from the day of the accident show no Cross Traffic Does Not Stop signs on the Stop sign signposts. Construing these facts and reasonable inferences in the Plaintiffs’ favor, there are questions of fact for the jury regarding whether the State Defendants had knowledge of the missing signs and whether they failed to exercise reasonable care in light of that knowledge.

[84] Moreover, the trial court only considered whether the State Defendants breached a duty with respect to the Cross Traffic Does Not Stop signs. But the Plaintiffs also alleged negligence in other aspects of the Intersection, including the lack of a redundant advisory speed sign on U.S. 231 and placement of the one advisory speed sign on the left side of the road. There is no question of notice as to these claims, as the State Defendants created this design.

[85] Questions of material fact exist as to whether the State Defendants breached their duty to exercise reasonable care in providing and maintaining roads. The trial court erred in finding otherwise.

3. Proximate Cause

[86] The State Defendants also alleged Taylor-Harris’ conduct was a superseding, intervening cause of the Plaintiffs’ damages. The trial court did not address this claim, having found the State Defendants prevailed on the breach issue.

[87] When determining whether an act or omission is a proximate cause of an injury, we consider whether the injury “was foreseen, or reasonably should have been foreseen, as the natural and probable consequence of the negligent act or omission.” Rhodes, 805 N.E.2d at 388. Our Supreme Court has held that “if harm is a natural, probable, and foreseeable consequence of the first negligent act or omission, the original wrongdoer may be held liable even though other independent agencies intervene between his negligence and the ultimate result.” Est. of Heck ex rel. Heck v. Stoffer, 786 N.E.2d 265, 271 (Ind. 2003) (quoting Hooks SuperX, Inc. v. McLaughlin, 642 N.E.2d 514, 520 (Ind. 1994)). “The policy underlying proximate cause is that we, as a society, only assign legal responsibility to those actors whose acts are closely connected to the resulting injuries, such that imposition of liability is justified.” Arnold v. F.J. Hab, Inc., 745 N.E.2d 912, 917 (Ind. Ct. App. 2001) (citation omitted). There may be more than one proximate cause of an event. Funston v. Sch. Town of Munster, 849 N.E.2d 595, 600 (Ind. 2006).

[88] Reasonably foreseeable intervening acts “do not break the chain of causation and the original wrongful act will be treated as a proximate cause.” Heck, 786 N.E.2d at 271 (internal quotation omitted); see Humphery v. Duke Energy Ind., Inc., 916 N.E.2d 287, 292 (Ind. Ct. App. 2009) (“[T]he negligent act must set in motion the chain of circumstances which contribute to or cause the resulting injury.”). The key to determining whether an intervening act has broken the original chain of causation is to decide whether it was reasonably foreseeable under the circumstances that the actor would intervene in such a way as to cause the resulting injury. Chandradat, 830 N.E.2d at 910. If the intervening cause was not reasonably foreseeable, the original negligent actor is relieved of liability resulting from the original negligent act. Id. “The foreseeability of an intervening cause and, thus, whether the defendant's conduct is the proximate cause of the plaintiff's injuries, is generally a question of fact for the jury to decide.” Peters v. Foster, 804 N.E.2d 736, 743 (Ind. 2004). Only in “plain and indisputable cases,” where only a single inference or conclusion can be drawn, are the questions of proximate cause and intervening cause matters of law to be determined by the court. Id.

[89] The original chain of causation alleged by the Plaintiffs began with the State Defendants’ failure to install and maintain proper signage and traffic control devices at the Intersection. The designated evidence shows the traffic control device design at the Intersection could cause a driver on Iowa Street to be confused and fail to yield to traffic on U.S. 231, causing an accident and resulting injuries. The State Defendants were aware of previous accidents at the Intersection and had received customer complaints that the Intersection was dangerous. The designated evidence also shows the traffic control devices may not have been in compliance with the design at the time of this accident. The design included Cross Traffic Does Not Stop signs on Iowa Street to “bring extra awareness to the driver that U.S. 231 does not stop[,]” but no one in Taylor-Harris’ car saw such a sign. Appellants’ App. Vol. 2 at 109. Although Taylor-Harris testified she did not see any oncoming traffic when she stopped at the Intersection, she also said she was unaware traffic on U.S. 231 did not have a Stop sign or a flashing red beacon and instead had the right of way because she “didn't see any signs.” Appellants’ App. Vol. 3 at 24. Viewing the evidence in the light most favorable to the Plaintiffs as the nonmoving party, we conclude there is a genuine issue of material fact as to whether it was reasonably foreseeable to the State Defendants that a motorist would be confused at the Intersection and be involved in an accident, causing injuries to others. The issue of proximate cause is for the jury, and summary judgment for the State Defendants on the Plaintiffs’ negligence claims is not appropriate.

Conclusion

[90] In sum, the trial court erred in striking certain exhibits designated by the Plaintiffs in opposition to summary judgment. The trial court also erred in granting summary judgment to the State Defendants on all claims of immunity except for discretionary immunity for decisions regarding the overhead control beacon, and in granting summary judgment to the State Defendants on the Plaintiffs’ negligence claims.

[91] Affirmed in part, reversed in part, and remanded.

FOOTNOTES

1.   Walker's first name was mistakenly spelled “Tamara” on the Notice of Appeal and appears so in the caption of this case, but the correct spelling is “Tamera.” Appellants’ Br. at 7 n.1.

2.   The Indiana State Highway Department or “department of highways” has been replaced by the Indiana Department of Transportation. Ind. Code § 8-23-2-1 (1989) (establishing the Indiana Department of Transportation); I.C. § 8-23-2-9(3) (1989) (stating any reference to the department of highways after June 30, 1989, “shall be treated as a reference to the Indiana department of transportation”).

3.   The Plaintiffs’ complaint also named Robert Bates, the driver of the other vehicle involved in the collision; Oscar Winski Company, Inc. (“OWC”), Bates’ employer for whom he was working at the time of the accident; the Lake County Highway Department; the Lake County Board of Commissioners; and the City of Crown Point. The Lake County defendants and the City of Crown Point were later voluntarily dismissed.

4.   Holderread testified that U.S. 231 “as it's currently laid out has been that way since 1926[.]” Appellants’ App. Vol. 2 at 141. He did not know, however, if Iowa Street intersected U.S. 231 at that time.

5.   There is also an intersection-ahead warning sign on the right side of westbound U.S. 231, with a sign underneath identifying “Iowa St.” as the intersecting roadway. Appellants’ App. Vol. 10 at 70.

6.   The Manual defines a “traffic control device” as “a sign, signal, marking, or other device used to regulate, warn, or guide traffic, placed on, over, or adjacent to a street [or] highway ․ by authority of a public agency or official having jurisdiction[.]” Manual Chapter 1A at 22 [https://perma.cc/P7C6-VHVT].A “traffic control signal” is defined as “any highway traffic signal by which traffic is alternately directed to stop and permitted to proceed.” Id.

7.   From 2017 to 2019, there were thirty-four recorded crashes at the Intersection. See id.

8.   It is unclear from the record who hired USI. When asked when USI was first hired, Holderread testified “[w]e would have begun conversations about this location in early 2020,” but did not say who “we” was. Id. at 162. The USI Report itself says it was prepared for “Indiana Department of Transportation LaPorte District.” Appellants’ App. Vol. 9 at 202.

9.   As this order did not dispose of all claims as to all parties, the trial court issued a second order two months later finding there is no just reason for delay and directing entry of judgment for the State Defendants. See id. at 34.

10.   Until November 14, 2021, Section 407 was codified at 23 U.S.C. § 409. The content of the two sections is the same, however, so we will use the current designation.

11.   Bates testified he “assumed” the wrecks occurred when vehicles were crossing U.S. 231 on Iowa Street “judging from ․ what the aftermath of it looked like.” Appellants’ App. Vol. 8 at 110.

12.   All four inquiries were made in 2021.

13.   The State Defendants reference Exhibits 22 and 23 in their motion for summary judgment but cite only to Holderread's deposition answers when he was shown the exhibits, not the exhibits themselves. See Appellants’ App. Vol. 4 at 182.

14.   This section defines “highway” as “the entire width between the boundary lines of every publicly maintained way when any part of the way is open to the use of the public for purposes of vehicular travel in Indiana.”

15.   Dineen was a sign supervisor for the LaPorte District from 2017 to 2022. See Appellants’ App. Vol. 9 at 156–57.

16.   The State Defendants assert the designated evidence “shows that INDOT employees responsible for selecting the improvements at the Intersection” analyzed crash data, hired consultants to prepare an engineering report, reviewed the report, and “decided to install a roundabout pursuant to funding.” Id. at 50–51 (emphasis added). The pages of the record to which they cite contain no evidence Holderread or anyone else in the LaPorte District had the ultimate decision-making authority for a project of this nature. And this assertion directly contradicts their designated evidence of how INDOT selects improvement projects.

17.   When asked if he or anyone at INDOT made “any sort of decisions about any of the proposals that were contained in the [USI Report] as of August 17th,” Holderread answered, “Yes. Yeah.” Appellants’ App. Vol. 2 at 165. Later, however, Holderread said they had selected an alternative within sixty days “to the best of my knowledge. I can't remember the dates exactly[.]” Id. at 167.

18.   They contend at the time of the accident, they were “well into a multi-year planning process to improve the Intersection,” dating back to the 2014–15 visibility improvements at intersections project. Appellees’ Br. at 47. There is no evidence to suggest the roundabout project was the latest part of a continuous decade-long assessment of the Intersection, however. The visibility improvements project was focused on improving traffic control devices at twelve intersections in the LaPorte District. The project had a clear end; it was another three years before the District next considered a change to a traffic control device at the Intersection.

Kenworthy, Judge.

Bradford, J., and Pyle, J., concur.