Full Opinion

Pursuant to Ind. Appellate Rule 65(E), the trial court and parties shall not take any action in reliance upon this Opinion until it is certified. IN THE Court of Appeals of Indiana FILED Oct 23 2026, 9:06 am CLERK Tamara Walker and Davida Colquitt, Indiana Supreme Court Court of Appeals and Tax Court Appellants-Plaintiffs v. Robert J. Bates, Oscar Winski Company, Inc., State of Indiana, Indiana State Highway Department, and Indiana Department of Transportation, Appellees-Defendants October 23, 2026 Court of Appeals Case No. 25A-CT-2048 Appeal from the Lake Superior Court The Honorable Rehana Adat-Lopez, Judge Trial Court Cause No. 45D10-2208-CT-798 Opinion by Judge Kenworthy Court of Appeals of Indiana | Opinion 25A-CT-2048 | October 23, 2026 Page 1 of 48 Judges Bradford and Pyle concur. Kenworthy, Judge. Case Summary [1] Tamera Walker 1 and Davida Colquitt (collectively, the “Plaintiffs”) were passengers in a car involved in an accident at the intersection of U.S. 231 and Iowa Street (the “Intersection”) in Lake County, Indiana. The Plaintiffs filed a complaint against the State of Indiana; the Indiana State Highway Department; 2 and the Indiana Department of Transportation (“INDOT”) (collectively, the “State Defendants”). 3 The State Defendants moved for summary judgment and—after the Plaintiffs responded—moved to strike certain exhibits from the Plaintiffs’ designated evidence. The trial court granted both motions. 1 Walker’s first name was mistakenly spelled “Tamara” on the Notice of Appeal and appears so in the caption of this case, but the correct spelling is “Tamera.” Appellants’ Br. at 7 n.1. 2 The Indiana State Highway Department or “department of highways” has been replaced by the Indiana Department of Transportation. Ind. Code § 8-23-2-1 (1989) (establishing the Indiana Department of Transportation); I.C. § 8-23-2-9(3) (1989) (stating any reference to the department of highways after June 30, 1989, “shall be treated as a reference to the Indiana department of transportation”). 3 The Plaintiffs’ complaint also named Robert Bates, the driver of the other vehicle involved in the collision; Oscar Winski Company, Inc. (“OWC”), Bates’ employer for whom he was working at the time of the accident; the Lake County Highway Department; the Lake County Board of Commissioners; and the City of Crown Point. The Lake County defendants and the City of Crown Point were later voluntarily dismissed. Court of Appeals of Indiana | Opinion 25A-CT-2048 | October 23, 2026 Page 2 of 48 [2] The Plaintiffs appeal, raising two issues: (1) Did the trial court abuse its discretion in striking the exhibits from their designated evidence? and (2) Were the State Defendants entitled to summary judgment on the issues of immunity and negligence? We affirm in part, reverse in part, and remand for further proceedings. Facts and Procedural History Facts Surrounding the Intersection [3] INDOT is responsible for “the system of highways and streets that are of general economic importance to Indiana as a whole[.]” I.C. § 8-23-1.1-39 (2026) (replacing I.C. ch. 8-23-1). INDOT’s road territory is divided into six districts. The LaPorte District covers thirteen counties in northwest Indiana, including Lake County, where the Intersection is located. Alan Holderread has been the traffic engineer for the LaPorte District since 2013. [4] Federal safety funding for roadway improvements in Indiana is limited and allocated by INDOT on a statewide basis. The LaPorte District “compete[s] across the state, across tens of thousands of intersections and road segments” for funding. Appellants’ App. Vol. 2 at 176. “[O]f the six districts, it’s possible some years that a district could get zero safety funding allocations and another district get more.” Id. Districts identify potential roadway improvement projects and “bring[] forward locations with a crash trend and a recommended improvement and a cost.” Id. at 152. INDOT then uses a “set of scoring rules” to decide which projects advance for federal funds. Id. The process evaluates Court of Appeals of Indiana | Opinion 25A-CT-2048 | October 23, 2026 Page 3 of 48 several factors, including “motor vehicle traffic volume, collision history, type of proposed improvement, type of roadway, and budgetary restrictions.” Id. at 236. INDOT tries to prioritize projects that “reduce the most amount of crashes for the least amount of money.” Id. at 152. The State Defendants explained in the memorandum supporting their motion for summary judgment that the “federal safety funding is competitive state-wide” and the “process to secure federal funding is long.” Appellants’ App. Vol. 4 at 184. [5] By statute, INDOT must follow the Indiana Manual on Uniform Traffic Control Devices (the “Manual”) with respect to “signing, marking, and erection of traffic control devices on streets and highways within Indiana[.]” See I.C. § 9-21-4-1 (1991). “One of the primary purposes of [the Manual] is to promote uniformity in the type of devices used throughout the State.” Manual Introduction at I-1 (2011) [https://perma.cc/Q3LW-EN3B]. [6] The image below depicts the Intersection near Crown Point in Lake County: Court of Appeals of Indiana | Opinion 25A-CT-2048 | October 23, 2026 Page 4 of 48 Appellants’ App. Vol. 10 at 57. Iowa Street has a north/south orientation and U.S. 231 has a roughly northwest/southeast orientation near the Intersection. They do not intersect at a ninety-degree angle. Both are two-lane roadways. The alignment of U.S. 231 has been the same since at least 1999. 4 Iowa Street—the “minor road”—is stop controlled. Id. at 106. In other words, there are Stop signs for Iowa Street motorists, but none for U.S. 231 motorists. U.S. 231 motorists have the right of way. The speed limit for vehicles on Iowa Street is 40 m.p.h. The speed limit for vehicles on U.S. 231 is 55 m.p.h., although a 40-m.p.h. advisory speed limit sign is posted under an intersection-ahead warning sign on the left side of westbound U.S. 231 approaching the Intersection. 5 [7] An “overhead intersection control beacon” was installed at the Intersection in 2001. Id. at 235. The beacon flashes red in both directions for Iowa Street motorists and yellow in both directions for U.S. 231 motorists. The yellow beacons “provide information to the motorist [on U.S. 231] to proceed with caution.” Id. at 169. [8] In June 2013, Holderread and his direct report Tim Marker field checked various intersections in the LaPorte District to prepare for an upcoming 4 Holderread testified that U.S. 231 “as it’s currently laid out has been that way since 1926[.]” Appellants’ App. Vol. 2 at 141. He did not know, however, if Iowa Street intersected U.S. 231 at that time. 5 There is also an intersection-ahead warning sign on the right side of westbound U.S. 231, with a sign underneath identifying “Iowa St.” as the intersecting roadway. Appellants’ App. Vol. 10 at 70. Court of Appeals of Indiana | Opinion 25A-CT-2048 | October 23, 2026 Page 5 of 48 visibility improvement project. They wrote instructions for traffic design manager Prakash Patel to incorporate into future plans. At that time, Holderread and Marker discussed whether to leave the beacon in place at the Intersection or convert to a different traffic control device 6 plan. They determined “it was more valuable to keep the overhead flashers in place” at the Intersection “because we did not have a crash pattern where drivers were mistaking the flashers for an all-way stop.” Appellants’ App. Vol. 2 at 116. The instructions for the Intersection called for “doubled-up 36 x 36 stop signs with Cross Traffic Does Not Stop plaques” to be installed on Iowa Street in both directions. Appellants’ App. Vol. 9 at 239. [9] In 2014 and 2015, the Intersection was one of several in the LaPorte District that were part of a federally funded “visibility improvements at intersections” project. Id. at 102–03. This project was intended to improve the visibility of traffic control devices for motorists: “[T]he ultimate goal of any sign design or traffic signal layout for any intersection is the safety of the motorist[.]” Appellants’ App. Vol. 2 at 170. As a result of the project: We installed stop bars, doubled up the stop signs on the Iowa approaches, replaced the Cross Traffic Does Not Stop sign, we placed Stop Ahead signs on Iowa, placed intersection ahead signs 6 The Manual defines a “traffic control device” as “a sign, signal, marking, or other device used to regulate, warn, or guide traffic, placed on, over, or adjacent to a street [or] highway . . . by authority of a public agency or official having jurisdiction[.]” Manual Chapter 1A at 22 [https://perma.cc/P7C6-VHVT]. A “traffic control signal” is defined as “any highway traffic signal by which traffic is alternately directed to stop and permitted to proceed.” Id. Court of Appeals of Indiana | Opinion 25A-CT-2048 | October 23, 2026 Page 6 of 48 on U.S. 231 on the left side and the right side for both directions, advisory plaques of . . . Iowa Street, so there’s advance notice to the driver of what street is coming up, is on the right side, and then the speed advisory was on the left side underneath the intersection warning sign. Id. at 105. Under the Manual, a Cross Traffic Does Not Stop sign is an optional sign that may be used in combination with a Stop sign. See id. at 235. The “intended purpose” of the Cross Traffic Does Not Stop sign at the Intersection was to “bring extra awareness to the driver that U.S. 231 does not stop.” Id. at 109. Originally, such a sign was placed only under the Stop sign on the right side of northbound Iowa Street; later, one was placed under the Stop sign on the left side of the road as well. No other changes were made to the traffic control device plan after 2015; although INDOT conducted traffic counts and a traffic-signal warrant analysis for the Intersection in October 2018, it determined a traffic signal was not warranted. [10] In late 2019, a resolution specialist from the LaPorte District forwarded a customer complaint about the Intersection to Holderread and Michael Yacullo, a traffic investigations engineer in the LaPorte District. After investigating the complaint, they “start[ed] scoping a new intersection improvement project” to be funded with federal safety dollars. Id. at 147. In early 2020, Holderread and Yacullo reviewed crash data and discussed the possibility of reconfiguring the Intersection. The Intersection complied with the Manual, but crash data showed “[h]igher than expected crashes” at the Intersection compared to other Court of Appeals of Indiana | Opinion 25A-CT-2048 | October 23, 2026 Page 7 of 48 intersections with similar volume and similar traffic controls. Id. at 163. 7 Crashes occurred more frequently during the day, and the majority were right- angle crashes with vehicles continuing on Iowa Street being struck by vehicles traveling on U.S. 231. [11] Also in early 2020, USI Consultants (“USI”), an engineering firm, was hired to evaluate possible improvements to the Intersection. 8 USI prepared an engineering assessment report (the “USI Report”) for the LaPorte District and delivered it to Holderread and other LaPorte District employees on June 17, 2020—sixty days before the accident at issue. The report examined several alternatives for improving the Intersection. In deciding how to move forward, Holderread explained, “We would have reviewed the report. If we didn’t agree with the alternative analysis or the final recommendation, we would have had a back-and-forth on it.” Appellants’ App. Vol. 2 at 165–66. Although Holderread was unable to remember exact dates, to the best of his knowledge a decision was made before this accident occurred to pursue federal safety funding for improving the Intersection with a roundabout as the preferred alternative. [12] The Federal Highway Administration approved the roundabout project on April 15, 2021. Land had to be acquired because the roundabout would not fit 7 From 2017 to 2019, there were thirty-four recorded crashes at the Intersection. See id. 8 It is unclear from the record who hired USI. When asked when USI was first hired, Holderread testified “[w]e would have begun conversations about this location in early 2020,” but did not say who “we” was. Id. at 162. The USI Report itself says it was prepared for “Indiana Department of Transportation LaPorte District.” Appellants’ App. Vol. 9 at 202. Court of Appeals of Indiana | Opinion 25A-CT-2048 | October 23, 2026 Page 8 of 48 within INDOT’s existing right-of-way; the land acquisition phase began on September 16, 2023, and the engineering report and survey were completed on September 28, 2023. As of May 29, 2024, when the State Defendants filed their motion for summary judgment, the project had not been let for contractor bids. Facts Surrounding the Accident [13] Walker, Colquitt, and Sheila Taylor-Harris worked at Edgewater Behavioral Health as wraparound facilitators for at-risk kids. On August 17, 2020, Taylor- Harris drove them all from their office in Gary to a client’s house in Lowell. They spent several hours with the client and headed back to the office between 1:30 and 2:00 p.m. Taylor-Harris was driving, Walker was the front seat passenger, and Colquitt was behind Walker in the back seat. It was a clear, sunny day as they drove north on Iowa Street. They had not taken this route to the client’s house, but the client gave them directions for a quicker route back. As they approached the intersection with U.S. 231, Taylor-Harris saw a Stop sign for motorists on Iowa Street; she did not recall seeing a traffic signal. Walker saw a Stop sign and overhead red flashing lights at the intersection. Neither Taylor-Harris nor Walker saw a “Cross Traffic Does Not Stop” or a similar “Traffic from the left and right does not stop” warning sign under the Stop sign. Appellants’ App. Vol. 6 at 146; Appellants’ App. Vol. 7 at 207. In March and July 2020, work orders had been issued to replace knocked down or bent signs at the Intersection. See Appellants’ App. Vol. 10 at 54–55. Court of Appeals of Indiana | Opinion 25A-CT-2048 | October 23, 2026 Page 9 of 48 [14] Taylor-Harris stopped at the Stop sign. Although she was unaware vehicles on U.S. 231 had the right of way, she saw no vehicles approaching from either direction. She proceeded into the Intersection to continue north on Iowa Street. [15] At the same time, Bates, in an OWC dump truck, was traveling northwest on U.S. 231 approaching the Intersection. Bates drove this road regularly and was familiar with the Intersection. The overhead beacon facing him flashed yellow and there were intersection-ahead warning signs posted on both sides of the road—the signpost to the right of the road had a sign identifying “Iowa St.” below the warning sign and the signpost to the left of the road had an advisory 40-m.p.h. speed limit sign below the warning sign. As Taylor-Harris crossed U.S. 231, Bates collided with the rear passenger side of her car. Walker and Colquitt were injured. [16] The Plaintiffs filed a complaint stating a claim for negligence, alleging the State Defendants contributed to cause the collision including by negligently designing the roadway and intersection involved, failing to install adequate signage and traffic control devices, installing and allowing to remain traffic control devices that were confusing and dangerous, failing to appropriately regulate vehicle speeds approaching the intersection at issue, failing to address and remedy known hazards and design defects at the intersection and other negligent design, layout and configuration of the intersection, approach and traffic control measures. Appellants’ App. Vol. 2 at 36; see also id. at 46–47 (alleging the State Defendants each had a “duty to behave reasonably and not to endanger the lives and Court of Appeals of Indiana | Opinion 25A-CT-2048 | October 23, 2026 Page 10 of 48 welfare of [the Plaintiffs] and the motoring public” and further alleging they had breached those duties in the specific ways described above). The State Defendants answered and asserted affirmative defenses including governmental immunity. [17] The State Defendants moved for summary judgment on several grounds. The Plaintiffs responded and designated evidence in opposition to summary judgment. The State Defendants replied and moved to strike some of the Plaintiffs’ designated exhibits. Following a hearing, the trial court issued an order striking the Plaintiffs’ exhibits and granting summary judgment for the State Defendants. 9 Additional facts will be provided as necessary. The trial court erred in striking some of the Plaintiffs’ designated evidence. [18] “[T]he trial court’s decision to admit or strike evidence at the summary- judgment stage is reviewed for an abuse of discretion.” Pennington v. Mem’l Hosp. of S. Bend, Inc., 223 N.E.3d 1086, 1093 (Ind. 2024). We review a summary judgment decision de novo, applying the same standard as the trial court. Isgrig v. Trs. of Ind. Univ., 256 N.E.3d 1238, 1244 (Ind. 2025). To conduct this review, we must know what evidence the parties properly designated. We therefore first address the Plaintiffs’ contention that the trial 9 As this order did not dispose of all claims as to all parties, the trial court issued a second order two months later finding there is no just reason for delay and directing entry of judgment for the State Defendants. See id. at 34. Court of Appeals of Indiana | Opinion 25A-CT-2048 | October 23, 2026 Page 11 of 48 court abused its discretion by striking certain exhibits from their designated evidence. [19] A party supporting or opposing a motion for summary judgment “shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion.” Ind. Trial Rule 56(C). “In ruling on a motion for summary judgment, the trial court will consider only properly designated evidence which would be admissible at trial.” Seth v. Midland Funding, LLC, 997 N.E.2d 1139, 1141 (Ind. Ct. App. 2013). Questions regarding the admissibility of evidence are entrusted to the trial court’s discretion. Brown v. Charles Sturdevant Post of Am. Legion, 270 N.E.3d 962, 965 (Ind. Ct. App. 2025). This discretion extends to ruling on motions to strike designated evidence on the grounds it does not comply with summary judgment rules. See Webb v. City of Carmel, 101 N.E.3d 850, 856–57 (Ind. Ct. App. 2018). We reverse a trial court’s decision to admit or exclude evidence only if it is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Five Star Roofing Sys., Inc. v. Armored Guard Window & Door Grp., Inc., 191 N.E.3d 224, 234 (Ind. Ct. App. 2022). [20] On the State Defendants’ motion, the trial court struck the following exhibits and testimony designated by the Plaintiffs on the following grounds: Court of Appeals of Indiana | Opinion 25A-CT-2048 | October 23, 2026 Page 12 of 48 1. . . . Exhibit 24B, the USI Engineering Assessment and any testimony of its contents pursuant to 23 U.S.C. § 407 and 23 U.S.C. § 148(h)(4); 2. Evidence of other intersections with the same light configuration and accidents at other intersections pursuant to the Indiana Rules of Evidence; 3. Testimony of [] Robert Bates regarding accidents prior to and after the accident at issue pursuant to State v. Fair, 423 N.E.2d 738 (Ind. Ct. App. 1981); and 4. INDOT Deposition Exhibits 3, 4, 5, 7, 22, and 23 pursuant to the Indiana Rules of Evidence. Appellants’ App. Vol. 2 at 20. The Plaintiffs contend the trial court abused its discretion in striking all four categories of evidence. A. USI Report [21] The Plaintiffs introduced the USI Report as an exhibit during Holderread’s Trial Rule 30(B)(6) deposition. The trial court struck it—and Holderread’s testimony about it—from the Plaintiffs’ designated evidence as privileged under 23 U.S.C. § 407 (“Section 407”). 10 [22] Under Section 407, reports compiled for the purpose of 10 Until November 14, 2021, Section 407 was codified at 23 U.S.C. § 409. The content of the two sections is the same, however, so we will use the current designation. Court of Appeals of Indiana | Opinion 25A-CT-2048 | October 23, 2026 Page 13 of 48 identifying, evaluating, or planning the safety enhancement of potential accident sites [or] hazardous roadway conditions . . . pursuant to section[] . . . 148 of this title [describing highway safety improvement programs] or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports[.] (Emphasis added.) As the Third Circuit Court of Appeals has explained: [T]his statutory privilege clearly has two parts. The first part excludes reports . . . if they were compiled or collected to identify, evaluate, or plan “the safety enhancement of potential accident sites [or] hazardous roadway conditions . . . .” The second part excludes such documents if they were compiled or collected to develop “any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds.” Zimmerman v. Norfolk S. Corp., 706 F.3d 170, 181 (3d Cir. 2013), cert. denied. The general purpose of this privilege is to foster the free flow of safety-related information by precluding the possibility that such information would be admissible later in civil lawsuits. See Jurich v. Ind. Dep’t of Transp., 126 N.E.3d 846, 863–64 (Ind. Ct. App. 2019), trans. denied. [23] The Plaintiffs contend the USI Report is not privileged under Section 407 because it was not compiled for use in applying for federal funding for a specific project. See Appellants’ Br. at 23 (citing Zimmerman, 706 F.3d at 185). Court of Appeals of Indiana | Opinion 25A-CT-2048 | October 23, 2026 Page 14 of 48 Zimmerman did interpret the second part of Section 407 narrowly, holding it excludes “only those documents that were collected for a particular highway- safety construction project.” 706 F.3d at 185. But we need not decide if the report was prepared with an actual project in mind. The first part of Section 407—which the Plaintiffs do not address—excludes the report because it was compiled for the purpose of identifying, evaluating, or planning the safety enhancement of a potential accident site or hazardous roadway condition. See id. (reasoning the first part of Section 407 “seems to privilege documents that deal with both potential and actual projects, while the second part appears to privilege only those documents that deal with actual projects”). Section 407 excludes the USI Report from consideration. [24] But the Plaintiffs also contend that even if the USI Report is privileged, the State Defendants have waived that privilege. Appellants’ Br. at 23–24 (citing U.S. v. Mezzanatto, 513 U.S. 196, 200–01 (1995), which notes federal rules, constitutional provisions, and statutes are “presumptively waivable” absent “some affirmative indication” to the contrary). [25] “[L]egislatures create evidentiary privileges to shield selected information from discovery, and those shields may not be wielded as swords at the will of a party.” Madden v. Ind. Dep’t of Transp., 832 N.E.2d 1122, 1128 (Ind. Ct. App. 2005). In other words, “a party may not place an issue before the trier of fact and then assert a privilege to prohibit the introduction of evidence regarding that issue.” Id. The State Defendants asserted discretionary function immunity as a basis for summary judgment. To prove they are entitled to that immunity, Court of Appeals of Indiana | Opinion 25A-CT-2048 | October 23, 2026 Page 15 of 48 the State Defendants must prove they engaged in the required policy-based decision making that will be discussed further below. In their motion for summary judgment, the State Defendants asserted their decision to improve the Intersection satisfied the requirements for discretionary immunity because they “were presented with multiple alternatives and ultimately decided to move forward with the roundabout and begin to pursue securing federal funding for the project.” Appellants’ App. Vol. 4 at 196. In their Statement of Undisputed Material Facts, they cited Holderread’s testimony about the report—that USI was hired to assess the various alternatives for improving the intersection and INDOT chose from among the alternatives identified. In short, the State Defendants cannot assert the report is privileged when they are also relying on it to show they are entitled to immunity. The trial court erred in striking the USI Report and we will consider it as appropriate in reviewing summary judgment. B. Evidence regarding other intersections [26] The State has a general duty to exercise reasonable care in designing, constructing, and maintaining its highways for the safety of the traveling public. Chandradat v. State, Ind. Dep’t of Transp., 830 N.E.2d 904, 909 (Ind. Ct. App. 2005), trans. denied. Before liability can be imposed for a breach of that duty, however, the complaining party must prove not only that an alleged dangerous condition existed, but that the governmental entity “had knowledge thereof, actual or constructive, long enough before the accident to repair the defect, and Court of Appeals of Indiana | Opinion 25A-CT-2048 | October 23, 2026 Page 16 of 48 failed to do so.” Brown v. City of Indianapolis, 113 N.E.3d 244, 250 (Ind. Ct. App. 2018) (citation omitted). [27] The Plaintiffs designated Holderread’s deposition testimony about accidents at unrelated intersections with the same yellow and red beacon configuration to prove the State Defendants had notice the traffic control devices at the Intersection were confusing and dangerous to motorists. See Appellants’ App. Vol. 5 at 9 (Plaintiffs’ response to State Defendants’ motion for summary judgment asserting “INDOT knew that [o]ther [i]ntersections in the LaPorte District with the same light configuration as U.S. 231 and Iowa Street [c]onfused [d]rivers,” citing Holderread’s deposition). The State Defendants moved to strike this testimony, alleging in part it would not be admissible at trial under Indiana Rules of Evidence 401–403. The Plaintiffs argue on appeal the trial court abused its discretion in striking this evidence because it was “highly relevant” in that “it tends to make it more probable that State Defendants knew or should have known that the light configuration at the . . . intersection was confusing and dangerous.” Appellants’ Br. at 25. [28] Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and is of consequence in determining the action. Ind. Evid. R. 401. Relevant evidence is generally admissible, unless its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. Evid. R. 403. Irrelevant evidence is not admissible. Evid. R. 402. Court of Appeals of Indiana | Opinion 25A-CT-2048 | October 23, 2026 Page 17 of 48 [29] “Generally, evidence of conditions at a place other than the one in question is not admissible to establish that a condition at the place in question is dangerous, unless there is a showing of some connection between the places.” State v. Willian, 423 N.E.2d 668, 672 (Ind. Ct. App. 1981). Evidence of the condition of the highway and the existence of similar defects at other places may be admissible where the places are so close and the conditions so similar they can be considered substantially the same, but a proper foundation must be laid. Id. “A proper foundation includes the general requirements of similarity of conditions, reasonable proximity in time, and avoidance of confusion of the issues.” Kelly v. GEPA Hotel Owner Indianapolis LLC, 993 N.E.2d 216, 220–21 (Ind. Ct. App. 2013). [30] Here, Holderread’s testimony regarding driver confusion was provided in response to questions about other intersections with the “same type of [beacon] configuration.” Appellants’ App. Vol. 2 at 148. However, there was no showing that the conditions as a whole at those intersections were substantially the same as at this intersection—for instance, there was no testimony describing the angle at which the two roadways intersected or the presence or absence of other traffic control devices at the other intersections. Without such a showing, conditions at other intersections do not make it more or less probable that the conditions at this intersection were confusing and dangerous, or that the State Defendants had notice of dangerous conditions at this intersection. As noted above, admissibility rests within the trial court’s discretion. The trial court did not abuse its discretion in striking this testimony. Court of Appeals of Indiana | Opinion 25A-CT-2048 | October 23, 2026 Page 18 of 48 C. Evidence regarding other accidents at this intersection [31] The Plaintiffs also designated evidence that the other driver, Bates, “knew US 231 and Iowa Street was [d]angerous” as he had seen accidents at the Intersection both before and after this accident. Appellants’ App. Vol. 5 at 9. The State Defendants moved to strike this testimony, alleging Bates’ testimony was not admissible under the standard set by State v. Fair, 428 N.E.2d 738 (Ind. Ct. App. 1981). [32] Similar to evidence of conditions at other intersections discussed above, evidence of other accidents at the same site is admissible if the plaintiff shows “sufficient similarity of circumstances and conditions” between the prior accidents and the one at issue. Id. at 740. Such evidence is admissible to show the existence of a dangerous condition and notice thereof. Id. [33] Here, Bates testified he had seen the aftermath of three or four crashes at the intersection and had personally witnessed one crash prior to this accident. Because Bates came across most of these wrecks after they happened and could not speak to the conditions or circumstances of the accidents, 11 the Plaintiffs did not show sufficient similarity between those wrecks and this one. Bates described the one wreck he witnessed as occurring when a vehicle traveling on U.S. 231 in front of him turned onto Iowa Street in front of an oncoming car—a 11 Bates testified he “assumed” the wrecks occurred when vehicles were crossing U.S. 231 on Iowa Street “judging from . . . what the aftermath of it looked like.” Appellants’ App. Vol. 8 at 110. Court of Appeals of Indiana | Opinion 25A-CT-2048 | October 23, 2026 Page 19 of 48 circumstance different than the one at issue. And finally, to the extent the Plaintiffs argue on appeal the evidence was offered to prove “Bates had knowledge and was on notice of the dangers associated with the intersection”— Bates’ knowledge is not relevant to the State Defendants’ knowledge. Appellants’ Br. at 28. The trial court did not abuse its discretion in striking this testimony. D. Evidence of customer complaints 1. Exhibits 3, 4, 5, and 7 The Plaintiffs designated several complaints made to LaPorte District customer service about the intersection. The State Defendants moved to strike four exhibits in part as irrelevant because they were all inquiries opened after this accident occurred. 12 [34] The Plaintiffs argue this evidence is relevant “to State Defendants’ notice of the confusion, crashes, and dangerousness of the subject intersection, as well as whether the State Defendants reasonably maintained the intersection to prevent future confusion and collisions.” Id. at 27. Post-accident inquiries or complaints do not make the State Defendants’ knowledge of a dangerous condition prior to the accident more or less likely. The trial court did not abuse its discretion in striking these four exhibits. 2. Exhibits 22 and 23 12 All four inquiries were made in 2021. Court of Appeals of Indiana | Opinion 25A-CT-2048 | October 23, 2026 Page 20 of 48 [35] The Plaintiffs also designated two email exchanges detailing customer complaints about the intersection from prior to this accident. The State Defendants moved to strike these exhibits because they contained inadmissible hearsay. [36] Hearsay is an out of court statement offered for the truth of the matter asserted. Evid. R. 801(c). A hearsay statement is not admissible unless it falls under one of the enumerated exceptions or another law. Evid. R. 802. However, a statement offered not for the truth of the matter but for some other relevant purpose is admissible. Evid. R. 402; see Utley v. Healy, 663 N.E.2d 229, 232 (Ind. Ct. App. 1996), trans. denied. The Plaintiffs assert this evidence is not hearsay because it was offered to prove the State Defendants’ notice of a dangerous condition at this Intersection. [37] Exhibit 22 is a December 2019 email from an INDOT employee to Holderread and Yacullo asking for an update to a customer complaint seeking “assistance with reducing crashes at this location” where there are “frequent accidents and issues[.]” Appellants’ App. Vol. 10 at 42. The customer notes traffic on Iowa Street often confuses the overhead beacon for a four-way stop and suggests removing the beacon “would probably clear up the confusion, but not entirely fix the problem” and requests a traffic signal be investigated for the Intersection. Id. [38] Exhibit 23 begins with an email dated September 2018 from a resident on Iowa Street to LaPorte District describing factors she believes contribute to crashes at Court of Appeals of Indiana | Opinion 25A-CT-2048 | October 23, 2026 Page 21 of 48 the Intersection and offering suggestions for fixes. Amy Stanley, LaPorte District customer service manager, forwarded the email to Holderread and Yacullo; Yacullo’s response states they performed a traffic count and were conducting a traffic signal warrant analysis at the Intersection. See id. at 40–41. [39] In Utley, a panel of this Court held a city work order regarding possible obstruction of a Stop sign at an intersection was admissible for the nonhearsay purpose of establishing the city had notice of a dangerous condition. 663 N.E.2d at 233. Similarly, we agree with the Plaintif