FORT WAYNE, Ind. (AP) — The private company leasing the Indiana Toll Road is arguing it has governmental immunity from a lawsuit filed by a driver hurt in a crash that she claims happened when the highway was dangerous for travel.

The lawsuit was filed in federal court against ITR Concession Co., which operates the toll road for a Spanish-Australian consortium that paid $3.8 billion to the state in 2006 for a 75-year lease of the highway.

While saying in court filings that it properly maintained the road after a winter storm in December 2008, ITR Concession also claims it should have governmental immunity since its operation and maintenance of the road constitute “governmental functions undertaken for the public purpose.”

Norman Barry, an attorney for the company, said this is not a new legal theory.

“Other quasi-governmental entities have been afforded immunity under Indiana law,” he told The Journal Gazette. “We are asking the same.”

According to the lawsuit, Aimee Campbell of Chicago was driving in northeastern Indiana’s LaGrange County when she lost control of her car on ice and snow, rolled three times and ended up at the bottom of a 40-foot embankment. She suffered a broken arm, cuts and bruises.

Campbell said in the lawsuit that she had been driving eastbound on the highway for more than two hours and saw no plows or salt trucks despite there being multiple cars and semitrailers on the side of the road because of crashes.

“They had the opportunity to close the road,” said Campbell’s attorney, Michael Ely. “If it’s open, they are saying it’s good to go.”

The federal judge in Chicago overseeing the case 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 contract between ITR Concession and the state, said state 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.”

State Rep. Jeff Espich, the top Republican on the House Ways and Means Committee, said he didn’t remember the issue of immunity coming up in the Legislature’s debate over the toll road lease proposed by Gov. Mitch Daniels.

“If they are subject to a level of liability that government doesn’t experience, why would anyone ever agree to run the road?” Espich said.

Posted 7/26/2010