Goff, J.
Under the Indiana Tort Claims Act, a government entity is “not liable” for a loss or injury resulting from the “temporary condition of a public thoroughfare . . . that results from weather.” In deciding whether immunity applies in these circumstances, is the government’s negligence in the design or maintenance of a public thoroughfare relevant to our inquiry? We conclude that it is and hold that, when the government knows of an existing defect in a public thoroughfare, and when it has ample opportunity to respond, immunity does not apply simply because the defect manifests during recurring inclement weather. In so holding, we expressly modify our rule in Catt v. Board of Commissioners.
Because the evidence designated by the plaintiff here shows that the Indiana Department of Transportation (INDOT) had long known of the defect causing the highway to flood, and because INDOT had more than ample opportunity to remedy that defect but failed in its duty, we hold that summary judgment was inappropriate. So, we reverse the trial court and remand for further proceedings consistent with this opinion.
….
Resolution of this dispute compels us to reconsider our precedent, to determine whether it was properly decided or whether it’s in need of clarification or modification. See App. R. 57(H)(5). To that end, we begin our discussion by examining the common-law origins of sovereign immunity, the doctrine’s substantial abrogation by Indiana courts, and the legislative codification of the common-law rule recognizing government liability for tortious conduct. See Pt. I, infra. With this context in mind, we then turn our analysis to Catt, ultimately concluding that the rule in that case sanctions negligent government conduct at Hoosiers’ expense. See Pt. II.A, infra. We go on to explain why legislative acquiescence and stare decisis present no bar to our modification of the rule in Catt. See Pt. II.B, infra. We then address INDOT’s policy arguments, dispelling unfounded fears that our modified rule threatens the public treasury or opens the floodgate of negligence claims against the state. See Pt. II.C, infra. Finally, we analyze the merits of Ladra’s claim under our modified rule, concluding that she designated sufficient evidence of INDOT’s negligence to withstand summary judgment. See Pt. III, infra.
I. At common law and by statute, government liability for tortious conduct is the rule while immunity is the exception.
….
II. The rule in Catt barring courts from considering the government’s prior negligence calls for reconsideration.
In deciding whether Subsection (3) applies to a particular claim, the “relevant inquiry,” under this Court’s decision in Catt, “is whether the loss suffered by the plaintiff was actually the result of weather or some other factor.” Catt, 779 N.E.2d at 4. This question of causation, however, is separate from the “determination of whether a condition is temporary or permanent.” Id. at 5. And the focus of the temporary-versus-permanent determination “is whether the governmental body has had the time and opportunity to remove the obstruction but failed to do so.” Id. Critical to the issues presented here, the Catt decision characterized the government’s prior negligence in the design or maintenance of a public thoroughfare, and its knowledge of “the frequency with which” a weather-related hazard may have occurred “in the past,” as irrelevant, with “no bearing on whether [a] condition is permanent.” Id. In other words, under Catt, the question of whether a condition is “temporary” encompasses only the particular condition that causes the loss or injury.
….
We agree with Ladra that, by prohibiting courts from considering the government’s prior negligence in the design or maintenance of a public thoroughfare, the Catt rule effectively grants blanket immunity to the state in every circumstance involving inclement weather, leaving injured plaintiffs with virtually no remedy under Subsection (3). We also agree with INDOT on the practical importance of government notice and opportunity to respond. Mindful of these competing interests, we hold that, when the government knows of an existing defect in a public thoroughfare that manifests during recurring weather conditions, and when it has ample opportunity to respond, immunity does not apply simply because the defect manifests during inclement weather.
A. By requiring injured parties to prove the impossible, the Catt rule sanctions negligent government conduct
The Catt Court noted that “a governmental entity is not entitled to immunity every time an accident occurs during bad weather.” 779 N.E.2d at 4. “[I]f the hazardous condition of a roadway is due to poor inspection, design or maintenance,” the Court added, “then the governmental entity may be held liable for injuries caused thereby.” Id. But Catt made clear that government liability may attach only when the plaintiff shows that negligence alone caused the injury. Id. at 5. See, e.g., Roach-Walker, 917 N.E.2d at 1225, 1228 (holding, in a claim asserting negligent maintenance of a walkway, that immunity did not apply where the state failed to prove its case due to an “inconclusive” record of weather conditions). So long as the state offers sufficient evidence of inclement weather, immunity inevitably applies, rendering the government’s prior negligence entirely irrelevant. As the Court in Catt put it, “[i]mmunity assumes negligence but denies liability.” 779 N.E.2d at 5.
This standard essentially requires an injured party to prove the impossible..
….
…Granting immunity for injuries resulting from the government’s negligent conduct, simply because that conduct manifests during inclement weather, permits the state and its employees “carte blanche to act without the reasonable care required under the circumstances,” ultimately imposing substantial hardship on those injured by the government’s negligence. And this same reasoning applies when the government negligently fails to remedy a known defect that only manifests during a temporary, but recurring, weather condition.
B. Legislative acquiescence and stare decisis present no bar to our reconsideration of Catt.
….
1. Interpreting Subsection (3) to encompass losses resulting from the government’s prior negligence along with a temporary weather condition expands immunity beyond its statutory scope.
….
2. The common-law basis of Subsection (3) recognizes government liability for negligence that manifests through inclement weather.
….
C. Properly applied, our modified standard conforms with the public policies underlying the ITCA.
….
III. Because the designated evidence shows that INDOT had long known of the clogged drain, summary judgment was inappropriate.
Under our modified rule, when the government knows of an existing defect in a public thoroughfare, and when it has ample opportunity to respond, immunity does not apply simply because the defect manifests during inclement weather.
Here, Ladra designated evidence that INDOT had received numerous reports that the drains in that area consistently clogged. According to testimony from one of the responding officers, the area floods so consistently that he’s had to call highway maintenance crews to “clear th[e] drains” at least ten to fifteen times during his six years on the force. Appellant’s App. Vol. 2, p. 63. And the second responding officer testified that, when this section of the interstate floods, police dispatch contacts INDOT “to come out and clear those drains.” Id. at 128. But INDOT never fixed the underlying problem, ultimately leaving Hoosier drivers like Ladra at significant risk of injury or even death. To be sure, a maintenance foreman for the Gary Subdistrict of INDOT filed an affidavit stating that INDOT didn’t know that the area was flooded the night of the accident. But no one testified or averred that INDOT was unaware that this part of I-94 was prone to flooding. A finder of fact might credit INDOT’s testimony and find that INDOT didn’t have proper notice of the issue. But testimony from the responding officers is sufficient to survive summary judgment. [Footnote omitted.]
Because the evidence, taken in the light most favorable to Ladra as the nonmoving party, demonstrates the condition resulted from INDOT’s failure to rectify a known problem—a problem that manifested only during inclement weather—and because the evidence shows that INDOT had ample opportunity to address that problem, we find that INDOT did not meet its burden of showing that it was entitled to immunity under Subsection (3). [Footnote omitted.]
Conclusion
By emphasizing that government immunity for tortious conduct is the exception to the rule of liability, our decision today reaffirms longstanding principles of democratic accountability—principles embodied in our common law and codified in the ITCA. For the reasons above, we hold the trial court erred in granting summary judgment in favor of INDOT on the issue of immunity. We, therefore, remand the case to the trial court for further proceedings consistent with this opinion.
Rush, C.J., and David, J., concur.
Massa, J., dissents with separate opinion in which Slaughter, J., joins
Massa, J., dissenting.
I respectfully dissent. The Court today resuscitates a clearly sympathetic plaintiff’s lawsuit because the Indiana Department of Transportation (INDOT) may have been negligent. It seems only fair that question now be put to a jury. But a plain reading of the Indiana Tort Claims Act (ITCA) leads to an opposite conclusion—the question of negligence should not reach a jury, because INDOT is immune per the judgment of the General Assembly.
….
Slaughter, J., joins.