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
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
“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
“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
“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.