Court of Appeals of Indiana | Opinion No. 49A02-1409-CT-605 | July 16, 2015 Page 1 of 15

ATTORNEY FOR APPELLANT

Ian L. Stewart

Stephenson Morow & Semler

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

David L. Byers

Andrew J. Noone

Holwager, Byers, & Caughey

Beech Grove, Indiana

IN THE

COURT OF APPEALS OF INDIANA

City of Beech Grove,

Appellant-Defendant,

v.

Cathy J. Beloat,

Appellee-Plaintiff

July 16, 2015

Court of Appeals Case No.

49A02-1409-CT-605

Appeal from the Marion Superior 

Court

The Honorable Patrick L. McCarty,

Judge

Cause No. 49D03-1302-CT-5276

Mathias, Judge.

[1] The City of Beech Grove, Indiana (“the City”), appeals the order of the Marion 

Superior Court denying the City’s motion for summary judgment in the 

negligence claim brought against the City by Cathy J. Beloat (“Beloat”). The 

City appeals and argues that no genuine issues of material fact exist with regard 

to whether the City was entitled to immunity from suit for performance of a 

“discretionary function” under Indiana Code section 34-13-3-3(7). 
Court of Appeals of Indiana | Opinion No. 49A02-1409-CT-605 | July 16, 2015 Page 2 of 15

[2] We reverse and remand. 

Facts and Procedural History

[3] The facts in the light most favorable to Beloat, as the non-moving party, reveal 

that on June 19, 2012, Beloat was walking across Main Street in Beech Grove, 

Indiana at the intersection of Main Street and 10th Street. As she walked across 

the street at the crosswalk, Beloat had to step outside of the crosswalk area to 

walk around a white pickup truck that had blocked part of the crosswalk. As 

Beloat did this, her foot went into a hole in the pavement and became stuck, 

causing her to trip. Beloat heard her left leg “snap,” and she fell to the ground. 

Two passersby saw Beloat fall and helped her up; one of these passersby took 

her to the hospital, where she was treated for fractures in her left tibia and 

fibula, the two bones in the lower leg.1 

[4] Beloat filed a complaint against the City on February 11, 2013, alleging 

negligence. The City responded on March 28, 2013, and almost a year later, on 

March 10, 2014, the City filed a motion for summary judgment, claiming that 

Beloat was unable to prove proximate cause because she did not know which 

hole had caused her to fall, that the City was entitled to discretionary function 

immunity under Indiana Code section 34-13-3-3(7), and that Beloat’s claim was 

barred due to contributory negligence. Beloat filed a response to the City’s 

motion, and the trial court held a summary judgment hearing on July 21, 2014. 

The trial court issued an order denying the City’s motion for summary 

 1

 See http://www.britannica.com/EBchecked/topic/595018/tibia. 
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judgment on July 24, 2014. The City then requested that the trial court certify 

its order for interlocutory appeal. The trial court did so, and we accepted 

interlocutory jurisdiction on October 3, 2014. 

Summary Judgment Standard of Review

[5] Our standard for reviewing a trial court’s order granting a motion for summary 

judgment is well settled:

When reviewing a grant of summary judgment, our standard of 

review is the same as that of the trial court. Considering only 

those facts that the parties designated to the trial court, we must 

determine whether there is a genuine issue as to any material fact 

and whether the moving party is entitled to a judgment as a 

matter of law. In answering these questions, the reviewing court 

construes all factual inferences in the non-moving party's favor

and resolves all doubts as to the existence of a material issue 

against the moving party. The moving party bears the burden of 

making a prima facie showing that there are no genuine issues of 

material fact and that the movant is entitled to judgment as a 

matter of law; and once the movant satisfies the burden, the 

burden then shifts to the non-moving party to designate and 

produce evidence of facts showing the existence of a genuine issue 

of material fact.

The party appealing a summary judgment decision has the burden 

of persuading this court that the grant or denial of summary 

judgment was erroneous. Where the facts are undisputed and the 

issue presented is a pure question of law, we review the matter de 

novo. 

Importantly for this case, summary judgment is rarely appropriate 

in negligence actions, since negligence cases are particularly fact 

sensitive and are governed by a standard of the objective 

reasonable person. This standard is best applied by a jury after 

hearing all of the evidence.
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M.S.D. of Martinsville v. Jackson, 9 N.E.3d 230, 235 (Ind. Ct. App. 2014), trans. 

denied (citations and internal quotations omitted). 

Discretionary Function Immunity

[6] The City claims that it was entitled to summary judgment because it was 

entitled to immunity from Beloat’s claim under Indiana Code section 34-13-3-

3(7). As we explained in Jackson:

The Indiana Tort Claims Act (“ITCA”), Indiana Code section 

34-13-2-1 et seq., was enacted after our supreme court abrogated 

the common law sovereign immunity of governmental units from 

tort liability. The ITCA governs tort claims against governmental

entities and public employees. Pursuant to the ITCA, 

governmental entities can be subjected to liability for tortious 

conduct unless the conduct is within an immunity granted by 

Section 3 of [the] ITCA. The party seeking immunity bears the 

burden of establishing that its conduct comes within the ITCA. 

The ITCA provides that a governmental entity or governmental 

employee who acts within the scope of that employee's duty will 

not be liable if a loss results from “[t]he performance of a 

discretionary function[.]” Ind. Code § 34-13-3-3(7). The party 

who seeks immunity bears the burden of establishing that its 

conduct falls within the discretionary function exception.

Id. at 235-36 (some citations and internal quotations omitted). 

[7] Prior to our supreme court’s decision in Peavler v. Board of Commissioners of 

Monroe County, 528 N.E.2d 40, 46 (Ind. 1988), this court distinguished between 

“ministerial” and “discretionary” acts to determine if certain conduct was

included within the immunity exception. Discretionary acts were immune; 

ministerial acts were not. See Jackson, 9 N.E.3d at 236 (citing Harvey v. Bd. of 
Court of Appeals of Indiana | Opinion No. 49A02-1409-CT-605 | July 16, 2015 Page 5 of 15

Comm'rs of Wabash County, 416 N.E.2d 1296 (Ind. Ct. App. 1981)). We defined

a “ministerial” act as “one which a person performs in a given state of facts in a 

prescribed manner, in obedience to the mandate of legal authority without 

regard to, or the exercise of, his own judgment upon the propriety of the act 

being done.” Id. (citing Dep’t of Mental Health v. Allen, 427 N.E.2d 2, 4 (Ind. Ct.

App. 1981)). We classified conduct as discretionary if it involved discretion “on 

the part of the officer to determine whether or not he should perform a certain 

act, and, if so, in what particular way[.]” Id. (citing Adams v. Schneider, 71 Ind.

App. 249, 124 N.E. 718, 720 (1919)). 

[8] However, in Peavler, our supreme court expressly rejected the ministerialdiscretionary distinction analysis and held that discretionary judgments are not 

immune from legal challenge under the ITCA unless they can be properly 

characterized as “policy” decisions that have resulted from a conscious 

balancing of risks and benefits and/or weighing of priorities. Id. (citing Peavler, 

528 N.E.2d at 45-46). In rejecting the old ministerial/discretionary distinction, 

the Peavler court noted: 

The ministerial/discretionary test does not advance the public 

policy of government immunity because it does not consider the 

type of decision protected by immunity. Rather, it considers only 

the resulting conduct and attempts to label that conduct. The 

ministerial/discretionary test defines “discretionary” in the 

negative: anything which is non-ministerial is discretionary. The 

test does not require an affirmative finding that the governmental 

action arose from the type of policy-making decision protected by 

governmental immunity.

Id. 
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[9] In place of the ministerial/discretionary test, the Peavler court instead adopted a 

“planning/operational” test, defining “planning activities” as those that 

“include acts or omissions in the exercise of a legislative, judicial, executive or 

planning function which involves formulation of basic policy decisions 

characterized by official judgment or discretion in weighing alternatives and 

choosing public policy” as well as “[g]overnment decisions about policy 

formation which involve assessment of competing priorities and a weighing of 

budgetary considerations or the allocation of scarce resources are also planning 

activities.” Id. at 45.

[10] Thus, under Peavler, the discretionary function exception of the ITCA insulates 

from liability only planning activity, characterized as “only those significant 

policy and political decisions which cannot be assessed by customary tort 

standards” and as “the exercise of political power which is held accountable 

only to the Constitution or the political process.” Id. at 45. The supreme court 

was unambiguous in its declaration that it did not intend all decisions that 

involve “judgment or discernment” to be immune from liability, since “[i]t 

would be difficult to conceive of any official act, no matter how directly 

ministerial, that did not admit of some discretion in the manner of its 

performance.” Id. at 43, 45; see also Veolia Water Indianapolis, LLC v. Nat'l Trust 

Ins. Co., 3 N.E.3d 1 (Ind. 2014) (holding that the City’s failure to require forprofit water company to follow terms of management agreement by properly 

maintaining water supply to fire hydrants was not a discretionary function, and 

thus, statutory immunity under the ITCA did not protect the city from liability 
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for damages that resulted from a fire that destroyed a restaurant when 

firefighters’ efforts were delayed due to a frozen fire hydrant and when the city 

made no deliberate policy decision to fail to require company to follow the 

terms of a management agreement by properly maintaining fire hydrants' water 

supply, or make a conscious decision about policy formation which involved 

assessment of competing priorities and a weighing of budgetary considerations 

or the allocation of scarce resources); Jackson, 9 N.E.3d at 241-42 (holding that 

school corporation was not entitled to discretionary function immunity in claim 

against it in connection with the shooting of a student where school’s safety 

plan was developed by the school’s principal with no involvement from the 

school board or its committees and principal’s development of the safety plan 

was not an exercise of political power). 

[11] Here, the City designated evidence indicating that it was in the process of 

making a decision on improving Main Street. Specifically, the City was 

planning to totally reconstruct that portion of Main Street at the intersection of 

10th Street, where Beloat’s fall occurred, as opposed to performing piecemeal 

repairs. The City Council was in the process of approving the financing 

necessary to begin the complete reconstruction of Main Street at the time of 

Beloat’s fall. In fact, the day before Beloat’s fall, the City Council held the 

second of the three votes necessary to issue the bonds to fund the reconstruction 

project. This, the City argues, means that its decision not to improve the defects

in Main Street prior to Beloat’s fall is subject to discretionary function 

immunity. 
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In support of its position, the City cites Lee v. State, 682 N.E.2d 576, 577 (Ind. 

Ct. App. 1997). In Lee, the decedent was killed in an automobile accident that 

occurred on a series of curves on State Road 7 (“S.R. 7”). The decedent’s 

mother filed suit against the State and the Indiana Department of 

Transportation (“INDOT”), claiming that INDOT negligently designed and 

constructed S.R. 7, failed to properly warn motorists of the unreasonably 

dangerous nature of S.R. 7, failed to maintain S.R. 7 so as to prevent injury to 

motorists, and failed to eliminate the known dangerous condition of S.R. 7. The 

trial court granted summary judgment in favor of the State on grounds that the 

State was immune to suit under the ITCA. 

[12] On appeal, we affirmed the trial court, noting that the designated evidence 

indicated that INDOT had engaged in decision making regarding the specific 

improvement alleged in Lee's complaint, and improvement of the curves was in 

the planning phase at the time of the decedent’s accident. Id. at 578. This, the 

Lee court held, was the exact sort of policy-based decision that the ITCA 

intended to shield from judicial review. Id. at 579. 

[13] The City also cites City of Indianapolis v. Duffitt, 929 N.E.2d 231 (Ind. Ct. App. 

2010), in which the plaintiff sued the city after tripping and falling on a city 

sidewalk. There, as here, at issue was whether the city was entitled to 

discretionary function immunity under the ITCA. After discussing the relevant 

case law, the Duffitt court held that the city was entitled to immunity, noting 

that the designated evidence revealed that the city had limited funds for 

sidewalk repair, that many projects competed for these funds, and therefore the 
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city had a policy regarding sidewalk repair prioritization in which sidewalks 

with the same level of priority were repaired in the order in which they were 

entered into the system. However, the Department of Public Works could have 

further prioritized or de-prioritized sidewalk repairs by conducting a cost-benefit 

analysis with due consideration for budgetary concerns and competing projects. 

Accordingly, the Duffitt court held that, “[g]iven the budgetary considerations 

and cost-benefit analyses which produced the City’s prioritization scheme, the 

City’s designated evidence demonstrates that its decisions are discretionary 

under the “planning-operational” test[.]” Id. at 238. 

[14] The same is true in the present case. Here, the designated evidence reveals that 

the City Council was in the planning phase of an improvement project that 

would reconstruct Main Street at the location where Beloat’s fall occurred. In 

making this decision, the City had to balance budgetary concerns with the need 

to repair the street. Instead of performing piecemeal repairs, the City decided to 

wholly reconstruct the street and was in the process of approving the bonding 

required to fund the repairs at the time of Beloat’s accident. This sort of policy 

decision is the sort of planning decision that is afforded immunity under the 

ITCA’s discretionary function immunity. 

[15] We find Beloat’s reliance on Jackson and Scott v. City of Seymour, 659 N.E.2d 585 

(Ind. Ct. App. 1995), to be unavailing. In Jackson, we held that the school 

district was not entitled to discretionary function immunity because the school 

safety plan was developed by the school principal, who was not a public official 

or a public-policy maker. Id. at 240-41. Only the elected school board could 
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create a policy that would be subject to such immunity. Id. Because the school 

principal was not a public official and was not granted any statutory authority 

to develop a safety plan, we held that the principal’s development of the safety 

plan was not an exercise of political power that would be immune from suit. Id. 

at 242. Similarly, in Scott, we held that the city was not entitled to discretionary 

function immunity because the decision to repair city streets was not made by 

the city board of public works but was instead the decision of one man—the 

city engineer and director of public works. 659 N.E.2d at 590. We held: 

[T]he fundamental concept underlying governmental immunity is 

the notion that certain kinds of executive or legislative branch 

policy decisions should not be subject to judicial review. Peavler,

528 N.E.2d at 44. Discretionary immunity, however, was not 

intended to protect a policy decision made by one Board 

member. Public policy decisions committed to a board or commission 

and entitled to discretionary immunity must be made in public in the 

manner provided by law, not on an informal basis outside of the public 

record. Without any minutes of a duly constituted Board meeting, 

we cannot conclude that the City, acting through its Board of 

Public Works, exercised official judgment or engaged in the 

necessary policy oriented decision-making process.

Id. at 591 (emphasis added). 

[16] In contrast here, the decision regarding repaving and reconstructing Main Street 

was not made by one individual acting outside the normal policy-making 

procedures. Instead, it was made by the City’s Board of Works and Safety and 

the City Counsel, as shown in the designated meetings of these bodies. 
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[17] Beloat also cites Scott for the proposition that the City is not shielded from her 

claim because her claim can be addressed under traditional tort standards. We

think this reads too much into that case. In Scott, the court wrote: 

[T]he discretionary function exception is not absolute but 

insulates only those significant policy and political decisions 

which cannot be assessed by customary tort standards. It is not 

the province of the court to second-guess the wisdom of those executive or 

legislative decisions which were the result of a policy oriented decisionmaking process. Rather, that exercise of power is held accountable 

only to the Constitution or the political process. 

Id. at 589. Here, the decision not to make piecemeal repairs to Main Street and 

instead reconstruct the street is the very sort of policy-oriented decision which 

we are unwilling to second guess. The fact that Beloat frames her claim as 

simple negligence does not alter the fact that her claim ultimately calls into 

question the decision of the City to reconstruct the street instead of make 

smaller repairs. 

Conclusion

[18] The designated evidence establishes that the policy decision to reconstruct Main 

Street was made by the elected policy makers, and the reconstruction of Main 

Street was in the planning stages when Beloat fell. Accordingly, we hold that 

the City is entitled to discretionary function immunity under section 34-13-3-

3(7) of the ITCA. The trial court therefore erred in denying the City’s motion 

for summary judgment, and we accordingly reverse the order of the trial court 

and remand with instructions to enter summary judgment in favor of the City. 
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[19] Reversed and remanded. 

May, J., concurs.

Robb, J., dissents with opinion.
Court of Appeals of Indiana | Opinion 49A02-1409-CT-605 | July 16, 2015 Page 13 of 15

IN THE

COURT OF APPEALS OF INDIANA

City of Beech Grove,

Appellant-Defendant,

v.

Cathy J. Beloat,

Appellee-Plaintiff.

Court of Appeals Case No.

49A02-1409-CT-605

Robb, Judge, dissenting.

[1] I respectfully dissent from my colleagues’ determination that summary 

judgment was improperly denied because the City is entitled to “discretionary 

function” immunity from Beloat’s suit. See Ind. Code § 34-13-3-3(7), slip op. at 

¶ 18. I believe that the decision takes too broad a view of the discretionary 

function exception.

[2] As the majority notes, Peavler adopted the “planning/operation” test for 

determining whether a particular governmental act is discretionary and 

therefore entitled to immunity. See slip op. at ¶ 9. “Essentially, the test provides 

that a governmental entity is immune from liability when the alleged negligence 

arises from decisions which are made at the planning level, as opposed to the 

operational level.” Scott, 659 N.E.2d at 588-89. 
Court of Appeals of Indiana | Opinion 49A02-1409-CT-605 | July 16, 2015 Page 14 of 15

Planning activities include acts or omissions in the exercise of a 

legislative, executive or planning function which involves formulation 

of basic policy decisions characterized by official judgment or 

discretion in weighing alternatives and choosing public policy. 

Government decisions about policy formation which involve 

assessment of competing priorities and a weighing of budgetary 

considerations or the allocation of scarce resources are also planning 

activities.

Peavler, 528 N.E.2d at 45 (internal citations omitted). Discretionary function 

immunity “must be narrowly construed because it is an exception to the general 

rule of liability.” Id. at 46. The City must therefore show “that the challenged 

act or omission was a policy decision made by consciously balancing risks and 

benefits.” Id.

[3] Here, the City’s mayor stated the following in an affidavit designated on 

summary judgment: 

For a number of years, [the City] was in the planning and then 

execution process of a road reconstruction project of Main Street from 

its intersection with Emerson Avenue to its intersection with 13th Street 

. . . . Rather than doing piecemeal repairs on Main Street, [the City] 

chose to perform a complete road reconstruction of the street. The 

Main Street Project consisted of pavement replacement, enclosed 

storm drainage system, parking lanes, bike lane, curb and gutter, 

sidewalks and other improvements to the Main Street pedestrian and 

vehicular corridor.

Appendix of Appellant at 32. Attached to the affidavit are minutes from Board 

of Works and Safety meetings at which the project design and funding was 

discussed, beginning in March of 2012. The “physical road reconstruction of 

the Main Street Project began in March 2013 with the entire reconstruction 

project concluding in November 2013.” Id. I find no support in the designated 
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evidence for the proposition that the City made a conscious policy decision to 

perform no repairs—no matter how obvious the defect or serious the danger—to 

several blocks of Main Street beginning in March 2012 because a reconstruction 

project was being discussed. Nor do I find support for the proposition that the 

City engaged in an assessment of repairs that might need to be made pending 

the start of the reconstruction project and established a policy based upon that 

assessment. See Duffitt, 929 N.E.2d at 242 (“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 the 

plaintiff’s complaint. Where this is shown, there is no need for the entity to 

demonstrate that it considered and rejected the specific improvements 

alleged.”).

[4] In short, simply filling a pothole does not strike me as the kind of “piecemeal 

repair” that was set aside in favor of the overall improvement project, assuming 

that the City in fact made the policy decision to eschew repairs of any kind. It is 

not a matter of repaving several feet of a lane of traffic or realigning an 

intersection, for example. Although there are certainly claims surrounding this 

time and place for which the City would have discretionary function immunity 

due to the reconstruction project, I do not believe this is one of them. 

[5] I would affirm the trial court’s denial of summary judgment.