Opinion
Rehearing Denied Dec. 15, 1971.
William A. Freihofer, James A. Schmidt, Indianapolis, for appellant; Freihofers&sBrown, Indianapolis, of counsel.
Theodore L. Sendak, Atty. Gen., Robert A. Smith, Deputy Atty. Gen., for appellee.
ROBERTSON, Judge.
Plaintiff filed a complaint in Marion County Superior Court No. 6, against the City of Indianapolis seeking $100,000 in damages as a result of personal injuries suffered in a fall on a crosswalk in the City of Indianapolis. The complaint alleged that plaintiff's fall and injuries were the result of the negligent state of repair of the crosswalk. Thereafter plaintiff filed an amended complaint joining the State of Indiana, the appellee in this appeal, as an additional party-defendant. Pursuant to Rule TR. 12(B), Indiana Rules of Trial Procedure (1970), the state filed its motion to dismiss, asserting that the trial court lacked jurisdiction over the person of the State of Indiana, that the court lacked subject matter jurisdiction, and that plaintiff's complaint failed to state a claim upon which relief could be granted. The court overruled the first two counts of the motion to dismiss, but sustained the third, and thereby dismissed the complaint as to both defendants. Subsequently, plaintiff filed a motion to reinstate the City of Indianapolis as a party-defendant, which was granted. Plaintiff then timely filed his motion to correct errors, alleging that the trial court's action in dismissing the complaint as to the State of Indiana was contrary to law. Said motion was overruled.
The record reveals that plaintiff's fall occurred on a crosswalk at the intersection of Market Street and Monument Circle, in Indianapolis. As plaintiff correctly states, Monument Circle, (or Governor's Circle, as it is designated in the Constitution), is a part of the state highway system, and as such the State of Indiana is responsible for its repair and maintenance. IC 1971, 8-12-11-1, Ind.Ann.Stat. § 36-2941 (Burns 1970).
Assuming the facts as stated in plaintiff's complaint to be true, the sole question presented by this appeal is whether or not the state enjoys immunity from liability for personal injuries suffered as the result of its negligence in maintaining and repairing state highways. This court was recently confronted with precisely the same question of law in Campbell v. State (1971), Ind.App., 269 N.E.2d 765. In Campbell, supra, it was held that while state immunity for proprietary functions has been abrogated, the state still enjoys immunity while in the performance of its governmental functions. In applying the governmental-proprietary distinction to the facts of the Campbell case, it was concluded that the repair and maintenance of state highways is a governmental function, and, thus, the state enjoys immunity from suit brought by reason of its negligence in failing to repair and maintain state highways.
This writer dissented in the Campbell case, but is bound by its pronouncement of law.
In view of the substantial similarity in the facts and issues of Campbell, supra, and those of the instant case, we are compelled to reach a similar result. Accordingly, because the state remains immune from liability for injuries suffered as a result of its negligence in failing to repair and maintain state highways, the trial court did not err in dismissing the complaint against the State of Indiana.
Plaintiff, in his reply brief, has sought to distinguish the case at bar from that of Campbell, supra, by contending that the state's failure to paint yellow line and post "No Passing" signs constituted nonfeasance, whereas in the present cause of action the state's negligence was misfeasance. Plaintiff has failed to support this contention by citing any cases which indicate what effect such a distinction has upon liability of the state.
Finding no reversible error, the judgment of the trial court is affirmed.
SULLIVAN, P.J., BUCHANAN and LOWDERMILK, JJ., concur.