Indiana Supreme Court changes 20-year-old precedent after hearing argument of attorney Janette Surrisi
The Indiana Supreme Court changed 20-year-old precedent after hearing the argument of local Attorney Janette E. Surrisi, of Wyland, Humphrey, Clevenger & Surrisi LLP, in the case of Appellant (Plaintiff) Tracy Ladra - v - State of Indiana and Indiana Department of Transportation (INDOT).
“For me personally, this is the kind of law I’ve always dreamed of doing,” said Surrisi.
In January 2017, Ladra was in a head-on collision with a concrete barrier after losing control of her vehicle when it hydroplaned on high water after church on I-94 near the Bass Pro Shop in Portage. Additional vehicles were also impacted by the high water, which was ankle deep for the responding police officer.
Ladra sued INDOT for negligent maintenance for the drainage area. Attorney Jesse R. Harper represented Ladra as her trial lawyer for the case.
INDOT filed for Summary Judgment claiming governmental immunity citing Catt v. Board of Commissioners. Catt v. Board of Commissioners is 20-year-old
Indiana Supreme Court precedent that reads a particular statute under the Indiana Tort Claims Act to bar injured motorists from bringing claims against the government if an accident occurs during an inclement weather event. Harper argued against the State’s Summary Judgment Motion that the accident didn’t result solely from the weather event; rather than the recurring flooding occurred due to the unaddressed drainage issues.
The testimony of just one Indiana State Police (ISP) Officer detailed that he had called INDOT at least 15 times regarding the water drainage issue. Surrisi said we cannot know how many other phone calls were made, or could have been made, by all the officers who patrolled the area.
Despite long term drainage issues at that location and the testimony of more than one patrol officer, Surrisi said Harper was doomed to defeat. “He was destined to lose because binding precedent was going to get in the way of bringing Ladra’s claim. Catt applied but shouldn’t have.”
For situations like these, precedent must be challenged at the Indiana Supreme Court. “This is not a Constitutional question. This is a legal question of interpretation of an Indiana Statute.”
Surrisi and Harper had attended law school together. He knew her passion for arguing tough cases in the appellate courts. After losing the case; he immediately con
tacted Surrisi and asked if she would be interested in taking the appeal to the Indiana Supreme Court.
“I went to law school because I wanted to argue appellate law.” Her goal was to work to change precedent in need of reconsideration. Initially after looking at the case she thought, “We’re sunk. It’s binding precedent.”
“You don’t just get to make up your own test and tell the Indiana Supreme Court how you think a statute ought to be read,” she laughed. “My chances of pulling this off are nil.”
Determined to face the looming challenge, Surrisi strategized writing the brief to focus on how the decision in Catt effectively grants immunity from liability to the State of Indiana; including municipalities, towns, cities in Indiana, regarding any public road in Indiana any time any event happened in weather; however the weakness in that precedent was that it didn’t address prior negligence on the part of the State or a municipality to take care of dangerous road conditions that repeatedly arise in weather. “Prior negligence was never considered even when it was there. If the accident happened in weather, government is immune.”
She provided the following example. “There is an old Court of Appeals case where frequently high waves would wash up on the shores of Lake Michigan in this area and sweep people off to their death. They applied this particular provision of the Statute to mean that immunity was to be conferred when this child was swept to the child’s death because essentially the Plaintiff had to prove the impossible; which was that the government knew of that one wave at that one time.”
Under the weight of the precedent established in Catt, a Plaintiff had to prove that government had notice, and opportunity to remedy the particular wave or puddle or other weather event that resulted in injury or death. It wasn’t enough for an injured person to show that the government knew that the area flooded consistently and that government had failed to try to remedy the situation in any way. “So we were up against it!”
Where Surrisi was able to challenge the precedent was the issue of causation; which was getting overlooked in the previous, longstanding interpretation of the former precedent. “The Statute said that the condition had to result from the temporary condition of a thoroughfare that results from weather; not results from other negligence. The court I argued had expanded the plain meaning of the statute. The statute was really silent on the part of prior negligence and prior knowledge. The court had effectively granted immunity to the State for something that the Statute never intended to confer immunity.”
The interpretation only considered the weather event, not negligence, to confer immunity. “It was considering only as causation the weather, but it needed to look at prior negligence as well.”