Court of Appeals of Indiana | Opinion 64A04-1411-CT-544 | June 10, 2015 Page 1 of 15

ATTORNEYS FOR APPELLANT

J. Thomas Vetne

Brian R. Gates

Jones Obenchain, LLP

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Stephen W. Thompson

Vaughn A. Wamsley

Vaughn A. Wamsley, P.C.

Carmel, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Indiana Department of 

Transportation,

Appellant-Defendant,

and

Ricardo Bustos,

Defendant,

v.

Paula Sadler, as the Personal 

Representative of the Estate of 

Roger D. Sadler,

Appellee-Plaintiff

June 10, 2015

Court of Appeals Case No.

64A04-1411-CT-544

Interlocutory Appeal from the Porter 

Superior Court

The Honorable William E. Alexa, 

Judge

Case No. 64D02-1103-CT-2072

Crone, Judge.
Court of Appeals of Indiana | Opinion 64A04-1411-CT-544 | June 10, 2015 Page 2 of 15

Case Summary

[1] Roger D. Sadler was struck by a car and killed as he performed road work on 

an interstate. Paula Sadler, as personal representative of his estate (“the 

Estate”) filed a wrongful death action against Indiana Department of 

Transportation (“INDOT”), alleging that Roger’s death was caused by 

INDOT’s negligence in failing to temporarily close or block a median crossover 

as a safety measure during the road work.1 INDOT filed a summary judgment 

motion, arguing that it was immune from liability pursuant to the Indiana Tort 

Claims Act (“ITCA”). The trial court denied its summary judgment motion.

[2] INDOT now brings this interlocutory appeal challenging the denial of its 

summary judgment motion. INDOT argues that it is entitled to summary 

judgment because Indiana Code Section 34-13-3-3(7) of the ITCA provides 

immunity to a government entity or its employee from losses resulting from the

performance of a discretionary function and INDOT’s decision not to close the 

median crossover was a discretionary function.2 We conclude that INDOT has

failed to carry its burden to show that it is entitled to immunity. Therefore, we 

affirm.

 

1

 Ricardo Bustos was also named as a defendant, but he is not participating in this appeal.

2

 INDOT dedicates five pages of its brief arguing that the ITCA immunized INDOT from vicarious liability 

for an independent contractor’s negligence, an issue it acknowledges that the Estate conceded and the trial 

court did not rule on.
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Facts and Procedural History

[3] The facts most favorable to the Estate, the nonmoving party, are as follows.

3

 

INDOT hired Moonrock, Inc., to seal pavement cracks on I-94. The project 

was a mobile operation, meaning that the workers moved along the road as 

they worked. An INDOT engineer periodically visited the work site to ensure 

that Moonrock was following contract specifications, including proper safety 

precautions. 

[4] Roger was a Moonrock employee. On April 30, 2010, Roger was working in 

the scope of his employment as part of Moonrock’s sealing crew in the left-hand 

(inside) lane of westbound I-94 just west of mile marker 23.1 in Porter County. 

In this area, I-94 is a six-lane divided highway with three westbound and three 

eastbound lanes. Due to the road construction, the left-hand and center lanes of 

westbound I-94 were closed to traffic, while the right-hand (outside) lane was 

open. The westbound lanes were closed both east and west of mile marker 

23.1, with orange and white construction barrels between the closed lanes and 

the right-hand westbound lane. On I-94, the westbound and eastbound lanes 

 

3

 Appellant’s counsel use footnotes rather than citation sentences as required under Indiana Appellate Rule 

22. In City of Elkhart v. SFS, LLC, 968 N.E.2d 812 (Ind. Ct. App. 2012), we explained,

Citation sentences are required under our appellate rules. Ind. Appellate Rule 22 (requiring 

adherence to Bluebook rules); see The Bluebook: A Uniform System of Citation R. B2, at 4 

(Columbia Law Review Ass’n et al. eds., 19th ed. 2010) (“In non-academic legal 

documents, citations appear within the text of the document as full sentences or as clauses

within sentences directly after the propositions they support.”).

Id. at 815 n.1. We have admonished counsel for noncompliance with Appellate Rule 22 before. Lane v. 

Rosenquist, No. 43A03-1111-CT-534, slip op. at 3 n.1 (Ind. Ct. App. 2012). A third violation of Appellate 

Rule 22 may be treated more seriously than merely identifying it in a footnote.
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are separated by permanent concrete median barriers. However, at mile marker 

23.1 there was an opening in the median barrier, commonly referred to as a 

median crossover. Median crossovers were created for police, emergency, and 

maintenance vehicles and are not intended for use by the general public. At 

mile marker 23.1, there was a “No U-turn” sign posted. Although the inside

and center lanes running past the median crossover were blocked to traffic, the 

crossover itself was not blocked with any temporary traffic control devices. 

[5] At approximately 3:00 a.m., Ricardo Bustos was traveling eastbound on I-94 

and used the median crossover at mile marker 23.1 to do a U-turn onto 

westbound I-94. He travelled a short distance in the closed lanes and struck 

Roger with his vehicle. After several days of intensive medical care, Roger died 

as a result of the injuries he incurred when Bustos ran into him.

[6] The Estate filed a wrongful death complaint against INDOT and Bustos. 

Relevant to this appeal, the Estate alleged that INDOT was negligent for failing 

to temporarily close or block the median crossover at mile marker 23.1 when 

Moonrock’s road crew was in the vicinity, which resulted in Roger’s death. 

INDOT moved for summary judgment arguing that the ITCA shielded it from 

any claims that it negligently allowed Bustos to enter the I-94 work zone 

through a median crossover placed in accord with INDOT’s departmental 

policy. The trial court denied INDOT’s summary judgment motion. This

interlocutory appeal ensued.
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Discussion and Decision

[7] INDOT appeals the trial court’s denial of its summary judgment motion.

When reviewing a grant or denial of a motion for summary 

judgment our well-settled standard of review is the same as it is for the 

trial court: whether there is a genuine issue of material fact, and 

whether the moving party is entitled to judgment as a matter of law. 

Summary judgment should be granted only if the evidence sanctioned 

by Indiana Trial Rule 56(C) shows that there is no genuine issue of 

material fact and the moving party deserves judgment as a matter of 

law. All factual inferences must be construed in favor of the nonmoving party, and all doubts as to the existence of a material issue 

must be resolved against the moving party.

Kroger Co. v. Plonski, 930 N.E.2d 1, 4-5 (Ind. 2010) (citations omitted). 

[8] “A genuine issue of material fact exists where the facts concerning an issue that 

would dispose of the litigation are in dispute or where the undisputed material 

facts are capable of supporting conflicting inferences on such an issue.” 

Vanderhoek v. Willy, 728 N.E.2d 213, 215 (Ind. Ct. App. 2000). “Where the 

evidence is in conflict, or undisputed facts lead to conflicting inferences, 

summary judgment should not be granted, even if it appears that the 

nonmovant will not succeed at trial.” Dickerson v. Strand, 904 N.E.2d 711, 715 

(Ind. Ct. App. 2009).

[9] INDOT asserts that it is entitled to summary judgment because it has

“discretionary function” immunity pursuant to the ITCA. Government entities 

and their employees are subject to liability for torts committed by them, unless 

one of the ITCA exceptions provides immunity. Peavler v. Bd. of Comm’rs of 
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Monroe Cnty., 528 N.E.2d 40, 42 (Ind. 1988). Indiana Code Section 34-13-3-

3(7) of the ITCA provides that a “governmental entity or an employee acting 

within the scope of the employee’s employment is not liable if a loss results 

from ... [t]he performance of a discretionary function.”

The policy underlying governmental immunity is the fundamental idea 

that certain kinds of executive branch decisions should not be subject 

to judicial review. The separation of powers doctrine forecloses the 

courts from reviewing political, social, and economic actions within 

the province of coordinate branches of government. In this way, the 

discretionary function exception articulates “a policy of preventing tort 

actions from becoming a vehicle for judicial interference with decisionmaking that is properly exercised by other branches of the 

government.” Blessing v. United States, 447 F. Supp. 1160, 1170 (E.D. 

Penn. 1978) (interpreting FTCA discretionary function exception).

....

Immunity for discretionary functions, however, does not protect all 

mistakes of judgment. The discretionary function exception insulates 

only those significant policy and political decisions which cannot be 

assessed by customary tort standards. In this sense, the word 

discretionary does not mean mere judgment or discernment. Rather, it 

refers to the exercise of political power which is held accountable only 

to the Constitution or the political process.

....

Immunity assumes negligence but denies liability. Thus, the issues of 

duty, breach and causation are not before the court in deciding 

whether the government entity is immune. If the court finds the 

government is not immune, the case may yet be decided on the basis of 

failure of any element of negligence. This should not be confused with 

the threshold determination of immunity.

Peavler, 528 N.E.2d at 44-47 (citations omitted).
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[10] Whether a government entity is immune from liability is a question of law, 

which we review de novo. E. Chicago Police Dep’t v. Bynum, 826 N.E.2d 22, 26 

(Ind. Ct. App. 2005), trans. denied (2006). Because the ITCA is in derogation of 

the common law, we construe it narrowly against the grant of immunity. Lee v. 

State, 682 N.E.2d 576, 578 (Ind. Ct. App. 1997), trans. denied (1998). The party 

seeking immunity has the burden of establishing that its conduct falls within 

one of the exceptions provided by the ITCA. Id. 

[11] To determine whether a government entity has engaged in a discretionary 

function and is thereby shielded from tort liability, we use the “planningoperational test.” Peavler, 528 N.E.2d at 46. Under that test, “a governmental 

entity will not be held liable for negligence arising from decisions which are 

made at a planning level, as opposed to an operational level.” Lee, 682 N.E.2d 

at 578. A decision is considered a “planning” action where it involves “the 

formulation of basic policy characterized by official judgment, discretion, 

weighing of alternatives, and public policy choices.” Voit v. Allen Cnty., 634 

N.E.2d 767, 770 (Ind. Ct. App. 1994). “Government decisions about policy 

formation which involve assessment of competing priorities, a weighing of 

budgetary considerations, or the allocation of scarce resources are also planning 

activities.” Id. In contrast, a decision is an “operational” action where it 

involves only the execution or implementation of already formulated policy. 

Id. “‘The governmental entity seeking to establish immunity bears the burden 

of proving that the challenged act or omission was a policy decision made by 
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the conscious balancing of risks and benefits.’” Id. (quoting Greathouse v. 

Armstrong, 616 N.E.2d 364, 367 (Ind. 1993)).

[12] Here, the basis of the Estate’s claim is that INDOT caused Roger’s death by 

negligently failing to temporarily close or block the median crossover while 

workers were in the vicinity. INDOT contends that it performed a 

discretionary function when it installed the median crossovers. Specifically, 

INDOT asserts, 

INDOT formed a committee decades ago to consider whether 

crossovers are appropriate in light of roadway function, public safety, 

and the safety of workers who periodically perform roadway 

maintenance. In particular, the committee had to balance the need to 

accommodate emergency, maintenance, and traffic-service vehicles 

against the danger created when authorized or unauthorized vehicles 

use crossovers.

The result of that committee’s deliberations is Departmental Policy 7-

6. That policy created specific crossovers along I-94.

....

INDOT should not face liability for how it weighed competing public 

policy concerns when it formulated Policy 7-6.

Appellant’s Br. at 14-15.

[13] Our review of Policy 7-6 shows that its purpose was to establish median 

crossovers and guide INDOT in deciding where median crossovers should be 

placed. For example, Policy 7-6 provides that median crossovers should be 

kept to a minimum and should not be located in urban areas and specifies the 

appropriate distance between them. Appellant’s App. at 171. Policy 7-6 also 

lists the location of permitted median crossovers, including the one at mile 
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marker 23.1. Id. at 195. We agree with INDOT’s statement that “[e]stablishing

a median crossover at the 23.1 mile-marker on I-94 involved the very type of 

policy-driven judgment that I.C. § 34-13-3-3(7) protects.” Id. at 14 (emphasis 

added). See City of Crown Point v. Rutherford, 640 N.E.2d 750, 754-55 (Ind. Ct. 

App. 1994) (concluding that city’s decision to repair certain areas of sidewalk 

and not others was based on formulation of basic policy and balancing of risks 

and benefits and thus was shielded with discretionary function immunity), trans. 

denied (1995); Voit, 634 N.E.2d at 770-71 (concluding that highway department 

engaged in systematic process for determining what improvements would be 

made to highways, a policy-making decision that would receive discretionary 

function immunity).

[14] However, INDOT’s decision to locate a median crossover at mile marker 23.1

is not the action that the Estate alleges caused Roger’s death. Rather, the Estate 

alleges that INDOT’s failure to decide to temporarily close or block the median 

crossover when workers were near it caused Roger’s death. Although INDOT 

asserts that it has a policy to keep median crossovers open at all times that is 

based on Policy 7-6, Policy 7-6 does not provide any guidance as to whether 

median crossovers should be kept open at all times. INDOT itself concedes 

that “Policy 7-6 [does not] explicitly say that crossovers must remain open at all 

times.” Appellant’s Br. at 20. Therefore, INDOT’s argument that it performed 

a discretionary function in adopting Policy 7-6 does not adequately address the

threshold question of whether INDOT had a policy of never closing median 

crossovers, which INDOT adopted by weighing alternative solutions and
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competing priorities, considering budgetary constraints and the allocation of 

scarce resources, or performing a risk-benefit analysis.

[15] INDOT claims that the testimony of two of its employees establishes that “it 

conducted a risk-benefit analysis as to keeping the crossovers open in the 

vicinity of road-improvement projects.” Id. at 17. First, INDOT directs us to 

the affidavit of Mark Miller, INDOT’s chief engineer, director of construction 

management, and chair of its Highway Construction Specification Committee. 

Miller testified that “Policy 7-6 was guided in its deliberations by three primary 

concerns: ‘roadway function, safety of travelers, and workers who would 

periodically perform maintenance on the roads.’” Id. at 18 (quoting Appellant’s 

App. at 32). However, as we concluded earlier, Policy 7-6 addresses the 

existence and location of median crossovers but does not show that INDOT 

adopted a policy that median crossovers remain open when construction 

workers are present. As such, Miller’s testimony fails to answer the threshold 

question of whether INDOT had a policy that median crossovers remain open 

during road construction, so we do not find it persuasive. Keeping the crossover 

open did not preclude blocking a U-turn directly into the closed lanes where the 

workers were present. The crossover could have stayed open with crossover 

traffic utilizing the open lanes of westbound I-94.

[16] Second, INDOT refers us to the testimony of Nathan Butts, an INDOT officearea engineer. Butts did not have statewide responsibilities. INDOT asserts,

“According to Butts, INDOT ‘weighed safety for the public for emergency 

responses with the safety for the workers on the job-site in deciding whether to 
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keep those (crossovers) open or closed.’” Id. at 19 (quoting Appellant’s App. at 

226). Our review of Butts’s testimony reveals that he answered affirmatively 

when asked whether he weighed public safety and worker’s safety in deciding 

whether to keep “those medians open or closed.” Appellant’s App. at 226

(emphasis added). He also answered affirmatively when asked whether it was

“current policy of INDOT that those median cuts should not be closed by 

barrels or any type of device.” Id. 

[17] However, Butts also testified that there is nothing in writing from INDOT that 

requires or specifies that median crossovers always be kept open, but that “it’s

just general practice.” Id. More importantly, he testified that INDOT would 

have been open to either placing a barrel or parking a truck in the median 

crossover as two viable alternatives that would both protect the public by 

permitting police and emergency vehicles access through the median crossover 

while better protecting the workers. Appellee’s App. at 138. Viewed in the 

light most favorable to the Estate, the inference arising from Butts’s testimony is

that INDOT had not consciously adopted a policy that median crossovers 

remain open during all road construction; rather, INDOT might have been 

willing to temporarily close or block a median crossover if circumstances arising 

from road construction warranted it. 

[18] Further, INDOT Standard Specifications, which were incorporated into 

INDOT’s contract with Moonrock, suggest that INDOT did not have a blanket

policy of keeping median crossovers open during road construction. Section 

105.03 provides, “Any deviation from the plans or specifications that may be 
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required by the exigencies of construction will be determined by the Engineer 

and authorized in writing.” Id. at 9. Section 107.12 provides, “All necessary 

precautions shall be taken for the protection of the work and safety of the 

public. ... Sufficient barricades, supplemented by watchers or flaggers when 

necessary, shall be provided continuously to protect any and all parts of the 

work.” Id. at 13-14. Such provisions support the position that the engineer 

assigned to the road construction project had the authority to make decisions 

regarding safety, including temporarily closing or blocking a median crossover 

or taking other safety measures that would allow emergency vehicles access 

through the crossover but blocking access to the closed lanes. Therefore, we 

conclude that INDOT has failed to carry its burden to show that it had a policy 

that median crossovers always remain open regardless of the particular safety 

considerations arising from a given road construction project.

[19] Even if we were to accept INDOT’s assertion that Policy 7-6 included a policy 

that median crossovers always remain open, INDOT concedes that Policy 7-6 

permits a deviation from such a policy if authorized in writing by the 

appropriate INDOT engineer. INDOT asserts that it is nevertheless entitled to 

immunity because its engineers simply followed the policy of keeping median 

crossovers open and “nothing about Moonrock’s project raised any red flags 

that would have required INDOT to conclude that an open crossover posed a 

threat to workers that outweighed the crossover’s proven benefits.” Appellant’s 

Reply Br. at 8; see also Appellant’s Br. at 21 (“There was no need for INDOT to 

reconsider its median crossover policy in the specific context of Moonrock’s 
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work along I-94.”). But INDOT’s assertion that it was not necessary under the 

circumstances to temporarily close the median crossover does not answer the

question of immunity. Rather, the decision whether to close the median 

crossover under the particular circumstances goes to the heart of the alleged 

negligence.

[20] Finally, INDOT contends that any decision by one of its engineers as to 

whether a specific median crossover should be temporarily blocked due to road 

construction is itself a discretionary function immune from liability because by 

“its very nature, any decision to open or close a crossover requires a policyoriented judgment call and a balancing of public interests and safety concerns.” 

Appellant’s Reply Br. at 10. But in determining whether a governmental entity 

or its employee engaged in a discretionary function, the critical inquiry is “not 

merely whether judgment was exercised but whether the nature of the judgment 

called for policy considerations.” Peavler, 528 N.E.2d at 45. We agree that the 

decision whether to temporarily close or block a median crossover due to road 

construction would require the appropriate INDOT engineer to exercise his or 

her professional judgment. But what is the nature of that judgment?

[21] “Exercising professional judgment, without more, is not equivalent to the 

formulation of basic policy. Countless government employees make 

professional judgments every day that do not constitute discretionary 

functions.” Greathouse, 616 N.E.2d at 368. Here, when exercising his or her 

professional judgment to decide whether to temporarily close a specific median 

crossover while road workers were near it, the engineer would have to follow 
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the specific contract provisions governing the road construction project, 

INDOT’s Standard Specifications, and other relevant documents.4 As such, the 

engineer’s determination of the proper safety precautions for a specific road 

project at a specific site is more of an implementation of INDOT policies rather 

than a policy decision in itself; it is performed at an operational level rather than 

a planning level. Although a government employee may be permitted to 

exercise some discretion in how he or she implements policy, such discretion 

does not equate to the level of executive judgments that should be afforded 

protection under the governmental immunity doctrine. Id. at 367. Finally, we 

observe that the designated evidence shows that no engineer exercised any 

judgment in deciding whether to temporarily close the median crossover or 

keep it open while workers were nearby. Butts testified that whether to use 

barrels or vehicles to temporarily close the median crossover was never 

considered. Appellee’s App. at 138. Given the procedural posture of this case, 

the designated evidence does not reveal what other safety measures could have 

been considered and implemented. Leaving a median crossover completely 

open and unguarded or completely closing it are not the only two options. 

Some combination of safety devices could be used to allow access through the 

median crossover to an emergency vehicle while still preventing vehicles from 

doing a U-turn directly into the closed lanes where workers are present.

 

4

 For example, INDOT Standard Specifications include reference to the Manual of Uniform Traffic Control 

Devices.
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[22] We must construe all factual inferences in favor of the Estate. In addition, we 

must construe the ITCA against the grant of immunity. We conclude that 

INDOT has failed to carry its burden to show that it is entitled to discretionary 

function immunity, and therefore the trial court properly denied its summary 

judgment motion.

[23] Affirmed.

Brown, J., and Pyle, J., concur.