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Tuesday, January 31, 2006

Ind. Decisions - 7th Circuit issues two, both Indiana-related

In USA v. Belk, Joshua (ND Ind., James T. Moody, Judge) Judge Easterbrook begins:

In 1996 George Rogge hired Joshua Belk as the bookkeeper for his insurance agency. Belk decided that he could multiply his income through embezzlement. Over the years he siphoned more than $675,000 from Rogge’s business, driving it into bankruptcy. Belk has been convicted of mail fraud, see 18 U.S.C. §1341, because several of the devices used to divert funds from Rogge’s accounts to his own entailed mailings. Only the sentence—51 months’ imprisonment plus $678,306.65 in restitution to George C. Rogge Agency, Inc.—is contested on appeal. *** Affirmed.
In Rising-Moore, John v. Red Roof Inns (SD Ind., Sarah Evans Barker, Judge), Judge Easterbrook writes:
John Rising-Moore prefers to litigate this slip-and-fall case in state court. But after his lawyer said that the claim was worth between $180,000 and $200,000, and demanded $160,000 in settlement, the suit was removed to federal court, where summary judgment was granted in defendant’s favor. 368 F. Supp. 2d 867 (S.D. Ind. 2005). Rising-Moore asks us to return the proceedings to Indiana, where he can have a second chance on the merits. Diversity of citizenship is established, but the amount in controversy is disputed. * * *

Only if Rising-Moore were risk-neutral and had more than an 80% chance of winning a favorable verdict would the $60,000 offer imply that the full controversy is under $75,000. Given the district judge’s belief that Rising-Moore has no chance of prevailing before a reasonable jury, that hardly seems likely.

Only brief mention of the merits is required; the district judge has said everything that needs saying on this score. Indiana does not make land owners absolutely liable for falls on their property. See Hammond v. Allegretti, 262 Ind. 82, 88, 311 N.E.2d 821, 826 (1974). With respect to winter storms, in particular, Indiana does not require immediate removal of snow or ice. Hammond, 262 Ind. at 88. Although Rossow v. Jones, 404 N.E.2d 12 (Ind. App. 1980), held that a week is too long to wait, action within shorter times (such as at daybreak during a storm, or soon after a storm ends) has been treated as reasonable diligence. See Orth v. Smedley, 378 N.E.2d 20, 23 (Ind. App. 1978) (dictum). Red Roof Inns did not wait a week, or even overnight. As Rising-Moore tells the tale, the path was clear and dry when he entered and slippery (because of an ongoing ice storm) when he left the motel’s office about 15 minutes later. Only a duty of continuous monitoring and clearing during a winter storm would make an owner liable under these circumstances, and there is no such duty in Indiana.

Posted by Marcia Oddi on January 31, 2006 01:28 PM
Posted to Ind. (7th Cir.) Decisions