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Published: July 18, 2010 3:00 a.m.
Sued over crash, Toll Road firm claims immunity
Niki Kelly
The Journal Gazette
INDIANAPOLIS – An accident on an icy Indiana Toll Road almost two years ago is at the heart of a legal battle over whether the company operating the road under a 75-year lease enjoys governmental immunity.
Chicago resident Aimee Campbell has sued ITR Concession Co. for not closing or adequately maintaining the road, which was allegedly dangerous for travel on Dec. 22, 2008.
A Spanish-Australian consortium paid $3.8 billion to the state in 2006 to rent the Indiana Toll Road for the next 75 years. That group formed ITR Concession Co. to operate and manage the road.
According to the court file, Campbell was driving east on the road about 10:30 a.m. when she lost control of her car on the ice and snow, rolled three times and ended up at the bottom of a 40-foot embankment in LaGrange County.
She suffered a broken arm, cuts and bruises.
According to Campbell’s amended complaint, she had been driving on the road for more than two hours and saw no plows, salt trucks or other ice- or snow-removal equipment.
She also saw multiple cars and tractor-trailer rigs on the side of the road as the result of crashes.
“They had the opportunity to close the road,” said Michael Ely, attorney for Campbell. “If it’s open, they are saying it’s good to go.”
A major ice storm, along with blustery winter conditions, gripped the northern part of the state just days before Campbell’s crash.
ITR Concession responded in court filings that the road surrounding the crash spot received 33 tons of salt and 74 gallons of anti-icing solution the day before the crash and had been plowed and received anti-icing solution Dec. 22.
But a key argument in the case is that ITR Concession is claiming a type of legal immunity usually reserved for governments.
State law, for instance, says governmental entities or employees cannot be held liable if a loss results from the “temporary condition of a public thoroughfare … that results from weather.” The court filing claims the operation and maintenance of the road constitute “governmental functions undertaken for the public purpose” and that governmental tort immunity should extend to ITR Concession.
A tort is a civil wrong that could be cause for liability.
Norman Barry, attorney for the Toll Road company, said this is not a new legal theory.
“Other quasi-governmental entities have been afforded immunity under Indiana law,” he said. “We are asking the same.”
A federal judge in Illinois, where the case was filed, initially declined to dismiss the case but hasn’t definitively ruled on the issue.
“Traditionally, common law is that governments can’t be sued for weather-related issues,” Ely said. “I have no problem when the government claims immunity. I have a serious problem when a private company does.”
Such immunity is not provided for in the exhaustive contract between ITR Concession and the state, said Rep. Win Moses Jr., D-Fort Wayne.
“But nothing about (this deal) surprises me anymore,” he said. “If they negligently cared for the road, then it’s a legitimate question for the woman to pursue. It will be settled in the courts.”
Rep. Jeff Espich, R-Uniondale, didn’t remember the issue of immunity coming up in the debate but said it makes sense that the private company would be afforded the same protection for performing the same function as the state.
“If they are subject to a level of liability that government doesn’t experience,” he said, “why would anyone ever agree to run the road?”
Professor Andrew Klein, a tort law expert from the Indiana University School of Law in Indianapolis, said he has seen similar theories used for military contractors engaging in activity on behalf of the government.
“I wouldn’t immediately dismiss the argument as implausible. On the other hand, I’m not aware of any precedent that makes it a definitive winner,” he said. “It’s an interesting issue. Then again, I’m a torts professor.”