IN THE
Court of Appeals of Indiana
FILED
John H. Murphy, Jun 26 2026, 8:34 am
Appellant-Plaintiff CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
v.
The City of South Bend,
Appellee-Defendant
June 26, 2026
Court of Appeals Case No.
26A-CT-94
Appeal from the St. Joseph Circuit Court
The Honorable Jenny Pitts Manier, Special Judge
Trial Court Cause No.
71C01-2406-CT-000324
Opinion by Judge Felix
Judges Weissmann and DeBoer concur.
Court of Appeals of Indiana Opinion 26A-CT-94 June 26, 2026 Page 1 of 21
Felix, Judge
Statement of the Case
[1] While walking in a parade in South Bend, Indiana, John Murphy fell, injuring
his leg. Murphy sued the City of South Bend (the “City”), claiming that a
pothole caused him to fall and therefore the City is liable for negligently
maintaining its roads. In a motion for summary judgment, the City asserted it
was immune from liability for Murphy’s injuries pursuant to Indiana Code
section 34-13-3-3(a)(7), which grants a governmental entity immunity for the
performance of a discretionary function. The trial court agreed that the City’s
road maintenance decisions fell under Section 34-13-3-3(a)(7), so it granted the
City summary judgment on that basis. Murphy presents one issue on appeal:
Whether the trial court erred by granting summary judgment in favor of the
City on its immunity defense.
[2] Because we conclude the City failed to designate sufficient evidence to prove it
is entitled to immunity, we reverse and remand.
Facts and Procedural History
[3] On March 16, 2024, a St. Patrick’s Day Parade was held in the City. The City
owns the streets on which the parade occurred. Murphy, who was in a group
near the end of the procession, walked in the parade. While walking along East
Jefferson Boulevard near St. Louis Boulevard, Murphy claims he stepped in a
“pothole,” fell, and injured his leg. Appellant’s App. Vol. II at 55.
Court of Appeals of Indiana Opinion 26A-CT-94 June 26, 2026 Page 2 of 21
[4] Within 180 days of his fall, Murphy filed a tort claim notice. Thereafter,
Murphy filed a complaint against the City, alleging it had “carelessly and
negligently breached” its duty to “keep its streets and sidewalks, including East
Jefferson Boulevard, in reasonably safe condition for travel.” Appellant’s App.
Vol. II at 22; Appellee’s App. Vol. II at 2.
[5] The City filed a motion for summary judgment, arguing in relevant part that it
was immune from liability for Murphy’s injuries pursuant to Indiana Code
section 34-13-3-3(a)(7). 1 That statute provides in relevant part that a
“governmental entity or an employee acting within the scope of the employee’s
employment is not liable if a loss results from the . . . performance of a
discretionary function.” Ind. Code § 34-13-3-3(a)(7). 2
[6] In support of its immunity defense, the City argued that street maintenance is a
discretionary function and designated statements from two City employees: (1)
two affidavits plus excerpts from a deposition of Thomas Whitaker, the Streets
Manager for the City’s Department of Public Works; and (2) an affidavit from
1
The City also argued it was entitled to summary judgment because (1) it owed no duty to Murphy based on
lack of notice and opportunity to repair the pothole, and (2) Murphy was contributorily negligent. The trial
court denied the City summary judgment on those claims, and the City does not appeal that denial.
2
Section 34-13-3-3 has been amended several times recently. See 2023 Ind. Acts 1370–74, 2023 Ind. Legis.
Serv. P.L. 135-2023 § 1 (West) (adding Subsection (a)(17)(C)—immunity related to a person or property
under supervision of a governmental entity; effective July 1, 2023); 2025 Ind. Acts 2314–17, 2025 Ind. Legis.
Serv. P.L. 186-2025 § 182 (West) (amending cross-reference in Subsection (a)(7); effective July 1, 2025). On
July 1, 2026, yet another amendment will take effect. 2026 Ind. Legis. Serv. P.L. 94-2026 § 3 (West) (adding
Subsection (a)(25)—immunity related to “Indiana civilian cyber corps program deployment”). None of these
amendments have substantively changed Subsection (a)(7). See id.; 2025 Ind. Acts 2314; 2023 Ind. Acts
1371. For clarity and concision, an effective date parenthetical will not be included after any reference to
Section 34-13-3-3(a)(7).
Court of Appeals of Indiana Opinion 26A-CT-94 June 26, 2026 Page 3 of 21
Eric Horvath, the Executive Director of the City’s Department of Public
Works. 3
[7] Whitaker explained that the Department of Public Works “maintains 1,276
travel lane miles of street” and is responsible for “overall street . . .
maintenance.” Appellant’s App. Vol. II at 45. According to Whitaker, “[t]he
City does not have enough money to perform all needed street repairs at the
same time.” Id.; see also Appellant’s App. Vol. III at 31–32. Horvath similarly
stated that “the City d[id] not have the money to do all needed street repairs at
one time in 2024,” and that in June 2025, it would cost “approximately 123.9
million dollars” to “do all needed street repairs at the same time.” Appellant’s
App. Vol. III at 40. Both Whitaker and Horvath asserted that because of the
budget constraints, the City “uses a deliberative, policy-driven process to
inspect and repair its streets while working to consciously balance current
conditions and budgetary restraints.” Appellant’s App. Vol. II at 45;
Appellant’s App. Vol. III at 40; see also Appellant’s App. Vol. III at 31–32.
Horvath further stated, “Our budgetary goal, subject to Council and
Redevelopment Commission appropriations, is to complete approximately 10
million dollars of street repairs a year.” Appellant’s App. Vol. III at 40.
[8] Whitaker further testified that in 2021, the “Department of Public Works
created a 10-year improvement plan called the ‘Rebuilding Our Streets Plan’ . . .
3
Murphy filed a motion to strike Horvath’s affidavit, and the trial court denied that motion. Murphy does
not challenge that ruling on appeal or otherwise argue that we should not consider Horvath’s affidavit.
Court of Appeals of Indiana Opinion 26A-CT-94 June 26, 2026 Page 4 of 21
for the City” that “laid out short-term (three-year) and long-term (ten-year)
goals to repair and improve the City’s streets.” Appellant’s App. Vol. II at 46.
Since 2023, the City has used “a street asset management software . . . to
analyze the condition of city streets and assign a Pavement Condition Index
(‘PCI’) rating, . . . which rates street conditions from 0 to 100.” Id. Every two
years beginning in 2023, “100% of all City streets are driven . . . by vehicles
equipped with cameras that provide the City with the PCI rating.” Id. The City
uses the software’s analysis and the PCI rating “to determine which street
resurfacing projects to prioritize each year. The results are compiled and then,
based on the PCI rating and according to the Plan, streets are added to the
paving schedule, either in the current year or subsequent years.” Id. “Street
paving generally begins on April 1st of every year and runs until the fall,
depending on the weather.” Id.
[9] According to Whitaker, aside from Rebuilding Our Streets Plan-related repairs,
“[t]he City has a separate process for responding to complaints about individual
potholes.” Appellant’s App. Vol. II at 46. The City “receives the complaints
and someone prepares a work order to send a crew to patch the pothole,” id., or
potholes are patched as part of routine inspections and “pothole repairs
sweeps,” id. at 47. As to the latter, “Streets Division employees [drive] the City
streets every day and are instructed to fill any pothole they see.” Id. Pothole
repairs can generally be done year-round, but the weather typically dictates the
materials used.
Court of Appeals of Indiana Opinion 26A-CT-94 June 26, 2026 Page 5 of 21
[10] Whitaker asserted that the portion of East Jefferson Boulevard on which the
parade occurred “did not have a PCI . . . rating sufficient to warrant street
resurfacing under the City’s plan” at the time of the parade, so it was “repaired
on an as[-]needed basis, pursuant to the City’s process for pothole repairs.”
Appellant’s App. Vol. II at 47. Similarly, Horvath testified that East Jefferson
Boulevard was “scheduled to be resurfaced in 2025” pursuant to the Rebuilding
Our Streets Plan. Appellant’s App. Vol. III at 41.
[11] In opposition to the City’s summary judgment motion, Murphy argued that
street maintenance is an operational function and designated one of Whitaker’s
affidavits plus an excerpt from Whitaker’s deposition. Specifically, Murphy
relied on Whitaker’s statements regarding (1) the City’s inability to “perform all
needed street repairs at the same time” and its use of “a deliberative, policydriven process . . . to consciously balance current conditions and budgetary
restraints,” Appellant’s App. Vol. II at 45; (2) the City’s practice of having
“Streets Division employees [drive] the City streets every day” to fill potholes,
id. at 47; and (3) Whitaker’s lack of personal knowledge of the City’s budget for
street repairs, id. at 143.
[12] The trial court granted summary judgment in favor of the City, determining it
was entitled to discretionary function immunity. This appeal ensued. 4
4
On June 4, 2026, we held oral argument at the Indiana State Bar Association’s Solo & Small Firm
Conference held at French Lick Resort in French Lick, Indiana. We thank all those in attendance for their
attentiveness and hospitality, and we thank counsel for all parties for the quality of their advocacy.
Court of Appeals of Indiana Opinion 26A-CT-94 June 26, 2026 Page 6 of 21
Discussion and Decision
The Trial Court Erred by Granting Summary Judgment in Favor of the
City on Its Discretionary Function Immunity Defense
[13] Murphy challenges the trial court’s decision to grant summary judgment in
favor of the City. We review summary judgment decisions de novo, Gierek v.
Anonymous 1, 250 N.E.3d 378, 384 (Ind. 2025) (citing Hughley v. State, 15
N.E.3d 1000, 1003 (Ind. 2014)), which means we apply the same standard as
the trial court, Wohlt v. Wohlt, 245 N.E.3d 611, 615 (Ind. 2024) (citing Red
Lobster Rests. LLC v. Fricke, 234 N.E.3d 159, 165 (Ind. 2024)). Summary
judgment is proper only “if the designated evidentiary matter shows that there
is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Ind. Trial Rule 56(C). “A fact is ‘material’ if
its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a
trier of fact is required to resolve the parties’ differing accounts of the truth, or if
the undisputed material facts support conflicting reasonable inferences.” Abbott
v. State, 183 N.E.3d 1074, 1079 (Ind. 2022) (quoting Hughley, 15 N.E.3d at
1003).
[14] We resolve “[a]ll factual inferences and all doubts as to the existence of a
material issue” in favor of the nonmovant. Zaragoza v. Wexford of Ind., LLC, 225
N.E.3d 146, 151 (Ind. 2024) (internal quotation marks omitted) (quoting Reed v.
Reid, 980 N.E.2d 277, 285 (Ind. 2012)). In so doing, “we give careful scrutiny
to make sure the non-movant’s day in court is not improperly denied.” Id.
Court of Appeals of Indiana Opinion 26A-CT-94 June 26, 2026 Page 7 of 21
(internal quotation marks omitted) (quoting Siner v. Kindred Hosp. Ltd. P’ship, 51
N.E.3d 1184, 1187 (Ind. 2016)).
[15] “The party moving for summary judgment bears the burden of making a prima
facie showing that there are no genuine issues of material fact and that it is
entitled to judgment as a matter of law.” Abbott, 183 N.E.3d at 1079 (emphasis
in original) (citing Sargent v. State, 27 N.E.3d 729, 731 (Ind. 2015)). Only if the
movant meets this prima facie burden does the burden then shift to the
nonmovant to “come forward with contrary evidence showing an issue for the
trier of fact.” Abbott, 183 N.E.3d at 1079 (citing Hughley, 15 N.E.3d at 1003).
[16] Here, the City filed a motion for and was granted summary judgment based on
its discretionary function immunity defense. Pursuant to the Indiana Tort
Claims Act, “governmental entities can be subject to liability for tortious
conduct unless the conduct is within an immunity granted by” Indiana Code
section 34-13-3-3. 5 City of Beech Grove v. Beloat, 50 N.E.3d 135, 138 (Ind. 2016)
(quoting Veolia Water Indianapolis, LLC v. Nat’l Tr. Ins. Co., 3 N.E.3d 1, 5 (Ind.),
on reh’g, 12 N.E.3d 240 (Ind. 2014) (mem.)). As relevant here, Indiana Code
section 34-13-3-3(a)(7) provides in pertinent part that a “governmental entity or
an employee acting within the scope of the employee’s employment is not liable
if a loss results from the . . . performance of a discretionary function.”
5
“Immunity assumes negligence but denies liability,” so “the issues of duty, breach[,] and causation are not
before the court in deciding whether the government entity is immune.” Peavler v. Bd. Comm’rs Monroe Cnty.,
528 N.E.2d 40, 46 (Ind. 1988).
Court of Appeals of Indiana Opinion 26A-CT-94 June 26, 2026 Page 8 of 21 [17] The entity seeking immunity has the burden of demonstrating that “the
challenged act or omission was a policy decision made by consciously
balancing risks and benefits.” Beloat, 50 N.E.3d at 138 (quoting Peavler v. Bd.
Comm’rs Monroe Cnty., 528 N.E.2d 40, 46 (Ind. 1988)). Importantly, our
Supreme Court “has cautioned that ‘discretionary immunity must be narrowly
construed because it is an exception to the general rule of liability.’” Id.
(alteration omitted) (quoting Peavler, 528 N.E.2d at 46).
[18] Indiana uses the “planning/operational test” for addressing discretionary
function immunity claims. Beloat, 50 N.E.3d at 138 (quoting Peavler, 528
N.E.2d at 46). “[P]lanning functions are discretionary and thus shielded by
immunity, whereas operational functions are not.” Jurich v. Ind. Dep’t Transp.,
126 N.E.3d 846, 856 (Ind. Ct. App. 2019) (quoting Lee ex rel. Estes v.
Bartholomew Consol. Sch. Corp., 75 N.E.3d 518, 526 (Ind. Ct. App. 2017)), trans.
denied. “Planning activities include acts or omissions ‘in the exercise of a
legislative, judicial, or executive or planning function which involves
formulation of basic policy decisions characterized by official judgment or
discretion in weighing alternatives and choosing public policy.’” Beloat, 50
N.E.3d at 138 (quoting Peavler, 528 N.E.2d at 45). “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 (citing Indus. Indem. Co. v.
State, 669 P.2d 561, 564–65 (Alaska 1983)). However, a government
employee’s or contractor’s exercise of “professional judgment, without more, is
Court of Appeals of Indiana Opinion 26A-CT-94 June 26, 2026 Page 9 of 21
not equivalent to the formulation of basic policy.” Ind. Dep’t Transp. v. Sadler,
33 N.E.3d 1187, 1194 (Ind. Ct. App. 2015) (quoting Greathouse v. Armstrong, 616
N.E.2d 364, 368 (Ind. 1993)); see also Peavler, 528 N.E.2d at 47.
[19] The planning/operational test “insulate[s] only those significant policy and
political decisions which cannot be assessed by customary tort standards.”
Beloat, 50 N.E.3d at 138 (quoting Peavler, 528 N.E.2d at 45). “Labeling an
action as planning or operational, without more, is insufficient to determine
whether immunity exists.” Id. (citing Peavler, 528 N.E.2d at 45). Courts
“close[ly] consider[]” (1) “the nature of the governmental actions and the
decision-making process that was involved,” id. (citing Peavler, 528 N.E.2d at
45); (2) “whether the action is one that was intended to be immune,” id. (citing
Peavler, 528 N.E.2d at 46); and (3) whether the purposes of immunity “would be
furthered by extending immunity to the act in question,” id. (quoting Peavler,
528 N.E.2d at 46). Factors that typically point toward immunity include the
following:
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;
Court of Appeals of Indiana Opinion 26A-CT-94 June 26, 2026 Page 10 of 21
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.
Peavler, 528 N.E.2d at 46. These factors (the “Peavler Factors”) “are not
determinative” and may not be “applicable to every set of facts that may arise.”
Beloat, 50 N.E.3d at 138 n.1.
[20] Discretionary function immunity has typically come to Indiana’s appellate
courts on summary judgment rulings. Governmental entities have often
struggled with meeting their burden of proving the allegedly negligent conduct
Court of Appeals of Indiana Opinion 26A-CT-94 June 26, 2026 Page 11 of 21
was “a policy decision made by consciously balancing risks and benefits,”
Peavler, 528 N.E.2d at 46 (citing Little v. Wimmer, 739 P.2d 564 (Or. 1987);
Johnson v. State, 447 P.2d 352, 361 n.8 (Cal. 1968)). For example, in Peavler v.
Board of Commissioners of Monroe County, 6 citizens of Steuben County sued their
Board of Commissioners for allegedly negligently failing to place traffic control
devices warning motorists of a “T” intersection. 528 N.E.2d at 41, 47. Steuben
County filed a motion for summary judgment, asserting a decision to place a
warning sign is a discretionary function, thereby making the county “immune
from any liability arising from a failure to place a warning sign.” Id. at 47. In
support, Steuben County designated the complaint and answer as well as the
parties’ interrogatories. Id. at 48. The trial court denied Steuben County’s
motion. Id. at 41.
[21] Chief Justice Randall T. Shepard, writing for a 4–1 majority of the Indiana
Supreme Court, affirmed the trial court’s denial, concluding that Steuben
County failed to present “evidence to show that its decision regarding the
warning signs was the result of” a policy decision, that is, a conscious balancing
of risks and benefits. Id. at 47–48. Chief Justice Shepard specifically noted the
following evidentiary failures in Steuben County’s summary judgment motion:
6
Peavler v. Board of Commissioners of Monroe County disposed of two cases concerning discretionary function
immunity and traffic control devices: one out of Monroe County and one out of Steuben County. 528
N.E.2d at 41. The Monroe County case was tried to a jury, and the Indiana Supreme Court reversed the
jury’s verdict because of an erroneous jury instruction regarding the county’s duty to post warning signs. Id.
at 48.
Court of Appeals of Indiana Opinion 26A-CT-94 June 26, 2026 Page 12 of 21
The county did not present evidence that the “T” intersection
had been considered by the board of commissioners or that i[t]
was part of a policy process in which elected officials played a
key role. It did not introduce minutes of board meetings where
the need for a warning sign was rejected or present testimony of
commissioners regarding the decision-making process involved.
It did not introduce a comprehensive ordinance, studies or
surveys of the area in question which showed that this area had
been evaluated and a warning sign had been deemed
unnecessary.
Id. at 48. In other words, Steuben County “presented no evidence from which
[a reviewing court could] evaluate the nature of the board’s conduct in failing to
erect a warning sign, the potential effect of liability on county operations, or the
capacity of the court to judge the county’s action.” Id. The Peavler majority
could thus not determine “whether the failure to erect a warning sign arose
from a judgment based on policy considerations.” Id.
[22] Since Peavler, determining whether a governmental entity is entitled to
discretionary immunity and thus summary judgment has resulted in close—and
sometimes disputed—calls. In City of Terre Haute v. Pairsh, Annette Pairsh was
injured after tripping and falling on a damaged area of sidewalk in Terre Haute,
so she sued the city for negligently failing to repair the sidewalk. 883 N.E.2d
1203, 1204–05 (Ind. Ct. App. 2008), trans. denied. In support of its immunitybased summary judgment motion, Terre Haute designated an affidavit from its
Transportation Infrastructure Manager. Id. at 1205. The Manager averred that
(1) Terre Haute “has limited funds to make repairs to sidewalks,” (2) he had
been assigned the responsibility of prioritizing sidewalk repairs based on
Court of Appeals of Indiana Opinion 26A-CT-94 June 26, 2026 Page 13 of 21
inspections and a cost-benefit analysis, (3) he had determined the sidewalk that
Pairsh tripped on “did not constitute an immediate hazard to pedestrians
warranting immediate reconstruction and repair,” and (4) he had determined
“there were other sidewalks that should be repaired” first. Id. at 1205–06. The
trial court denied Terre Haute’s summary judgment motion, Pairsh, 883 N.E.2d
at 1206, and a majority of this court reversed, id. at 1208.
[23] Judge May dissented and would have affirmed the trial court’s denial. Pairsh,
883 N.E.2d at 1208–11 (May, J., dissenting). Judge May specifically took issue
with the reliance on the Manager’s affidavit. Id. at 1209.
Boards and commissions speak or act officially only through the
minutes and records made at duly organized meetings. The
public policy decisions that are entitled to discretionary function
immunity must have been made by the governmental entity in its
official capacity. Unless the government entity submits minutes
of meetings, a trial court cannot conclude the entity is entitled to
immunity based on the exercise of its official judgment.
Id. (internal citations omitted) (citing Scott v. City of Seymour, 659 N.E.2d 585,
588 (Ind. Ct. App. 1995)). Judge May believed the Manager’s affidavit did “not
evidence official action.” Id. at 1210.
[24] In City of Beech Grove v. Beloat, Cathy Beloat was injured after stepping into a
hole while crossing Main Street, so she sued the City of Beech Grove for
negligently failing to maintain it. 50 N.E.3d at 136–37. In support of its
immunity-based summary judgment motion, Beech Grove designated an
affidavit from its mayor and minutes from meetings of the City Council and the
Court of Appeals of Indiana Opinion 26A-CT-94 June 26, 2026 Page 14 of 21
Board of Works and Safety. Id. at 140. This evidence demonstrated that Beech
Grove had developed a plan to completely reconstruct Main Street, necessary
funding had been approved, and a timeline had been discussed. Id. at 140–42.
The trial court denied Beech Grove’s motion.
[25] A unanimous Indiana Supreme Court affirmed that denial. Beloat, 50 N.E.3d at
143. As a preliminary matter, the Beloat court concluded “the Mayor’s affidavit
cannot be solely relied upon to demonstrate that [Beech Grove] engaged in a
policy determination.” Id. at 140. It is well-settled that “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,” id. (alteration omitted)
(quoting Scott, 659 N.E.2d at 591), so “the actions of individual members of a
board or commission outside a meeting cannot be substituted for the actions at
a duly constituted meeting or for the minutes thereof,” id. (alteration omitted)
(quoting Scott, 659 N.E.2d at 590). Accordingly, although Beech Grove’s
mayor “served as the presiding officer over the City Council, . . . his comments
and actions alone are not actions of the board itself, as he only serves as an
individual member on that board.” Id. Furthermore, “nothing in the record
indicate[d] that the Mayor had been delegated individual authority to weigh the
cost and benefits of road repairs and make an independent policy decision
regarding whether certain repairs should be made over others.” 7 Id. at 140–41.
7
Because Beech Grove “ma[d]e no claim that the Mayor was delegated an independent policy-making role,”
the Beloat court chose not to resolve this court’s split regarding “whether an individual who has been
Court of Appeals of Indiana Opinion 26A-CT-94 June 26, 2026 Page 15 of 21 [26] Turning to the designated meeting minutes, the Beloat court concluded they
failed to reflect “any discussion about how the area encompassed within the
Project 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.” Beloat, 50 N.E.3d at 142. The designated evidence
established only “the steps taken to fund a project that had already been
discussed, planned, and approved,” which, without more, did not demonstrate
that Beech Grove “had in fact engaged in a policy-oriented decision[-]making
process.” Id. The Beloat court reasoned that although Beech Grove “did not
need to demonstrate that it considered whether it should fill the specific hole
that was alleged to have caused Beloat’s injuries, it did have to make some
showing that the Main Street Project was implemented instead of general road
repairs, such as filling pot holes, and that the costs and benefits of this decision
were weighed.” Id. at 142–43 (emphasis added).
delegated policy-making powers can constitute ‘official action’ for purposes of immunity.” City of Beech Grove
v. Beloat, 50 N.E.3d 135, 140 n.3 (Ind. 2016) (acknowledging Judge May’s dissent in City of Terre Haute v.
Pairsh, 883 N.E.2d 1203, 1209–11 (Ind. Ct. App. 2008) (May, J., dissenting)). We note, however, that the
Indiana Supreme Court stated in Peavler that “a county’s considered decision to entrust placement of traffic
control devices to a traffic engineer is not reviewable under tort standards, while the engineer’s subsequent
decisions as to warning signs are reviewable under tort standards of professional negligence.” 528 N.E.2d at
47 (citing Driscoll v. United States, 525 F.2d 136 (9th Cir. 1975)); see also Ind. Dep’t Transp. v. Sadler, 33 N.E.3d
1187, 1194–95 (Ind. Ct. App. 2015) (explaining a government employee’s or contractor’s exercise of
discretion in implementing policy “does not equate to the level of executive judgments that should be afforded
protection under the governmental immunity doctrine”). Regardless, like the Beloat court, we need not
decide this issue to resolve this case.
Court of Appeals of Indiana Opinion 26A-CT-94 June 26, 2026 Page 16 of 21 [27] This court has continued to split on what evidence is sufficient to establish
discretionary function immunity. Several years after Beloat, this court decided
Johnson v. City of Michigan City, 172 N.E.3d 355 (Ind. Ct. App.), trans. granted,
opinion vacated, 173 N.E.3d 1024 (Ind. 2021), trans. denied, opinion reinstated, 178
N.E.3d 1198 (Ind. 2022) (mem.). There, Laura Johnson was injured when she
struck a pothole while riding her bike on a Michigan City street. Id. at 357.
Johnson sued Michigan City for negligently maintaining the road. Id. at 358.
In support of its immunity-based summary judgment motion, Michigan City
designated evidence demonstrating that (1) it “does not have enough money to
perform all needed repairs at the same time”; (2) the City Engineer sets street
repair priorities based on rating system scores, inspections, and citizen
complaints concerning street conditions; (3) it “has a separate process for
responding to complaints about individual potholes”; (4) the City Engineer was
in the process of soliciting bids to resurface the street when Johnson’s accident
occurred; and (5) in response to complaints about the street’s potholes, the City
Engineer indicated it would be resurfaced soon. Id. at 357. The trial court
granted summary judgment in favor of Michigan City on its immunity defense,
and a majority of this court affirmed. Johnson, 172 N.E.3d at 356.
[28] Judge Brown dissented and would have reversed the trial court’s grant.
Johnson, 172 N.E.3d at 360–61 (Brown, J., dissenting). Judge Brown focused
on Johnson’s designated evidence, which showed that (1) if there was “a
‘pothole in existence that was a hazard,’” Michigan City’s Street Director
“would have addressed the problem and asphalted the pothole”; and (2)
Court of Appeals of Indiana Opinion 26A-CT-94 June 26, 2026 Page 17 of 21
“sealing the cracks would have taken place before resurfacing and was not
connected with resurfacing.” Id. at 360. Michigan City also “point[ed] only to
[its City Engineer]’s deposition in its memorandum of support of summary
judgment.” Id. at 361. Based on this evidence, Judge Brown concluded that
Michigan City had “failed to designate evidence that a decision to fill a pothole
which poses a dangerous condition is a deliberative, policy-driven process, or
that this process was entirely a planning function rather than an operational
function.” Id. at 360 (citing Beloat, 50 N.E.3d at 138). “[T]he fact [Michigan]
City made a decision to repave the entire [street Johnson wrecked on] does not
mean that filling identified, dangerous potholes of which [Michigan] City had
actual knowledge was not an operational function.” Id. at 361.
[29] We agree with Judge Brown’s dissent in Johnson. Assuming arguendo that the
Rebuilding Our Streets Plan was the result of a governmental entity’s policyoriented decision-making process, 8 there is nothing in the record demonstrating
that the Department of Public Works’s pothole repair process is part of that
plan. In fact, pothole repair is “a separate process.” Appellant’s App. Vol. II at
8
Whitaker averred that “the Department of Public Works created . . . the ‘Rebuilding Our Streets Plan’ . . . for
the City.” Appellant’s App. Vol. II at 46 (emphasis added). However, the Department of Public Works is
likely not a “governmental entity” as that term is used in Indiana Code section 34-13-3-3(a)(7). A
“governmental entity” is “the state or a political subdivision of the state,” Ind. Code § 34-6-2.1-77(a), the
latter of which includes, among other things, a county, township, city, town, separate municipal corporation,
or a board or commission of the aforementioned entities, id. § 34-6-2.1-155(1)–(5), (10). Accordingly, the
City or one of its boards or commissions would have had to (1) delegate to the Department of Public Works
the independent policy-making power to create and enact the Rebuilding Our Streets Plan, see Beloat, 50
N.E.3d at 140–41; Pairsh, 883 N.E.2d at 1208–11 (May, J., dissenting); or (2) consider and approve the
Rebuilding Our Streets Plan as part of a policy process, see Beloat, 50 N.E.3d at 138 (quoting Peavler, 528
N.E.2d at 45). There is no evidence in the record that such delegation or approval occurred.
Court of Appeals of Indiana Opinion 26A-CT-94 June 26, 2026 Page 18 of 21
46. The City’s designated evidence also shows that when a street such as East
Jefferson Boulevard was “slated for repaving,” the Department of Public Works
“repaired on an as[-]needed basis, pursuant to the City’s process for pothole
repairs.” Id. at 47. Considering the evidence in the light most favorable to
Murphy as the nonmovant, we cannot say the pothole repair process is part of
the Rebuilding Our Streets Plan.
[30] As in Peavler and Beloat, there are significant evidentiary gaps here. We do not
know how and why the decision was made to both respond to citizen
complaints and conduct regular “pothole repairs sweeps,” Appellant’s App.
Vol. II at 47. See Peavler, 528 N.E.2d at 46. We do not know what, if any,
plans, specifications, or schedules might have been chosen in formulating the
pothole repair process. See id. We do not know if any factors were balanced, if
any priorities were assessed, or if any budgets were considered when choosing
the as-needed approach. See id. We do not know to what extent, if any, the
pothole repair process was scaled back or suspended once a street was set for
repaving. We also do not know if Horvath, Whitaker, or anyone else was
delegated independent policy-making powers regarding the pothole repair
process. See supra ¶ 25 n.7. All we do know is that generally, if the Department
of Public Works is notified of or one of its crews observes a pothole, the pothole
is fixed. Thus, there is insufficient evidence for us to determine what Peavler
Factors, if any, may exist in this case. Considering the evidence in the light
most favorable to Murphy as the nonmovant, we cannot say the pothole repair
Court of Appeals of Indiana Opinion 26A-CT-94 June 26, 2026 Page 19 of 21
process was the result of a governmental entity’s policy-oriented decisionmaking process.
[31] In short, the City presented no evidence from which we can evaluate the nature
of its conduct in failing to repair potholes, the potential effect of liability on the
City’s operations, or the capacity of the court to judge the City’s action. We
cannot determine from this record whether the failure to repair a pothole arose
from a governmental entity’s judgment based on policy considerations.
Because the City cannot show that it is entitled to discretionary function
immunity, it cannot establish that it is entitled to judgment as a matter of law
such that summary judgment would be appropriate. The trial court therefore
erred by granting the City’s summary judgment motion on that basis. 9
Conclusion
[32] In sum, the trial court erred by granting summary judgment in favor of the City
on its discretionary function immunity defense. We reverse that decision and
remand for further proceedings not inconsistent with this opinion.
[33] Reversed and remanded.
9
Our conclusion that the City has not shown it is immune from liability for Murphy’s negligence claim should
not be read to mean the City is not immune. If on remand the City can present evidence that it engaged in a
policy-oriented decision-making process regarding pothole repair, the courts will not second-guess that policy
judgment.
Court of Appeals of Indiana Opinion 26A-CT-94 June 26, 2026 Page 20 of 21 Weissmann, J., and DeBoer, J., concur.
ATTORNEYS FOR APPELLANT
Edward J. Chester
Laura L. Ezzell
J. Thomas Vetne
Chester Law Office
Elkhart, Indiana
ATTORNEY FOR APPELLEE
Elizabeth A. Klesmith
THK Law, LLP
South Bend, Indiana
Court of Appeals of Indiana Opinion 26A-CT-94 June 26, 2026 Page 21 of 21