The Indiana Law Blog: Ind. Decisions - Court of Appeals issues 3 today (and 15 NFP)

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Friday, July 27, 2007

Ind. Decisions - Court of Appeals issues 3 today (and 15 NFP)

For publication opinions today (3):

David Michael Green v. State of Indiana - "The State presented sufficient evidence to negate Green’s defenses of self-defense and accident. Green has established no reversible error in the admission of evidence. Finally, he has failed to persuade us that his consecutive sentences are inappropriate. Affirmed."

Stephen M. Hay v. Ronald and Gloria Baumgartner - "[W]e conclude that the trial court properly determined that the use of the shared Driveway between both Properties resulted in a revocable license."

In Estate of Matthew Dyer, Betty and Jerry Dyer v. Thomas Doyle, individually, and as an Employee of Orkin Exterminating Co., a 23-page, 2-1 opinion, Judge Crone writes:

The Estate of Matthew Dyer (“Dyer”), Betty Dyer, and Jerry Dyer (collectively, “the Estate”) appeal the negative judgment on their wrongful death claim against Thomas Doyle, individually, and as an employee of Orkin Exterminating Co., Inc. (“Orkin”), and its parent corporation, Rollins, Inc. (“Rollins”) (collectively, “Defendants”). We reverse and remand for a new trial. * * *

Here, the jury was erroneously instructed on sudden emergency, and the parties offered conflicting evidence as to whether Dyer’s speed caused his death. Given the undisputed evidence that Doyle’s vehicle was traveling in Dyer’s lane when the collision occurred, it is difficult to imagine that the verdict might not have been different if the faked left syndrome and the sudden emergency doctrine had not been improperly injected into the case. Consequently, we cannot say that the verdict could not have differed even had the jury been properly instructed.

As mentioned above, a party seeking a new trial on the basis of an improper jury instruction must show a reasonable probability that its substantial rights have been adversely affected. Elmer Buchta Trucking, 744 N.E.2d at 944. We believe that the Estate has met that threshold here. We therefore reverse and remand for a new trial. Reversed and remanded.

SULLIVAN, J., concurs. SHARPNACK, J., concurring and dissenting in part with separate opinion. [which begins] I respectfully concur in part and dissent in part. I agree with the majority’s conclusions in Issues I, II, III, and IV; however, I disagree with the majority’s ultimate conclusion that the judgment should be reversed and remanded for a new trial.

NFP civil opinions today (1):

Inland Steel Company v. Armondo Martinez (NFP) - "The Worker’s Compensation Board (“the Board”) ordered Inland Steel to pay permanent total disability benefits to Martinez. Inland Steel appeals and argues that pursuant to Indiana Code section 22-3-3-13(b), the Second Injury Fund is responsible for payment of Martinez’s permanent total disability benefits. Concluding that Martinez does not qualify for Second Injury Fund benefits, we affirm."

NFP criminal opinions today (14):

Robert Webb v. State of Indiana (NFP)

Otis R. Jones v. State of Indiana (NFP)

Santonio Johnson v. State of Indiana (NFP)

Christopher C. Barnett v. State of Indiana (NFP)

Charlie Herbst v. State of Indiana (NFP)

Matthew Poisel v. State of Indiana (NFP)

John D. Wickersham v. State of Indiana (NFP)

Thurston McKelvey v. State of Indiana (NFP)

Olen Goins v. State of Indiana (NFP)

William Joseph Zapfe v. State of Indiana (NFP)

Randy Bolin, Jr. v. State of Indiana (NFP)