Monday, September 14, 2009
Ind. Decisions - Supreme Court grants a number of transfers
The ILB has received notice that the following cases were granted transfer on Friday, September 11, 2009 (more details to follow):
- Indiana Patient's Compensation Fund v. Gary Patrick -- 49A02-0807-CV-614 -- see May 18th ILB summary here (3rd case). The COA concluded:
Based on these facts, it is clear that Patrick witnessed the death of a loved one, a death caused by the negligent conduct of health care providers. As a result, we find that the trial court properly concluded that Patrick, as a bystander pursuant to Groves, could bring an independent claim for the negligent infliction of his emotional distress upon Christopher's death.
- Caesars Riverboat Casino, LLC v. Genevieve M. Kephart -- 31A01-0711-CV-530 -- see March 20th ILB summary here - 2nd case. From the dissent:
In this appeal, we consider as a matter of first impression for this Court whether a casino—a gambling enterprise that owes its existence to, is regulated by, and is a source of revenue for the State of Indiana—has a common law duty to refrain from enticing to its premises a known pathological gambler who has not requested that she be removed from the casino's direct marketing list or excluded from the casino. The majority concludes that no such duty exists. I respectfully disagree.
- TRW Vehicle Safety Systems, Inc. and Ford Motor Company v. Sally J. Moore -- 73A05-0710-CV-552 - this March 13th 2-1 opinion was originally a NFP, but was reclassified May 1st. From the ILB summary:
"In light of the foregoing, the Estate failed to present sufficient evidence that Ford or TRW breached a duty of reasonable care. Accordingly, the negligence claim must fail and the jury verdict is reversed. Reversed." The dissent, beginning on p. 24, concludes: "In sum, based upon the standard of review and the evidence before me, I find that the Estate presented sufficient evidence from which the jury could reasonably conclude that a safer and feasible alternative to the conventional seatbelt was available that would have cost-effectively improved aggregate safety in all types of crashes."
- Stephen M. Gallagher v. State of Indiana -- 15A04-0806-CR-326 -- this May 22nd opinion turns on the definition of "briefly" - from the COA opinion:
Indiana Code § 35-48-4-1(b)(3)(B) elevates dealing in cocaine or narcotics to a class A felony if the transaction occurs within 1,000 feet of, among other things, school property. The purpose of this statute is to protect children. Similarly, the General Assembly sought fit to provide a defense that the defendant was only briefly within 1,000 feet of school property and no children were present when the transaction took place, thereby lowering the offense to a class B felony, because the reason for the harsher penalty – presence of children or a significant risk thereof – did not exist.
- Gabino Gonzalez v. State -- 82A01-0809-CR-406 - from the COA opinion:
Gabino Gonzalez drove his pickup truck into a school bus while intoxicated. A jury found him guilty of criminal mischief and operating while intoxicated. Before his trial, while he was attempting to negotiate a guilty plea, Gonzalez wrote a letter to the school corporation in which he apologized for the accident and admitted he had been drinking that day. The trial court allowed the State to enter that letter into evidence. Gonzalez argues on appeal that was error because the letter was hearsay and because a letter written as part of guilty plea negotiations is inadmissible at a trial. The letter should not have been admitted and the error was not harmless. We accordingly reverse and remand for a new trial.
- Indiana Parole Board v. Kevin S. Varner -- 45A04-0812-CR-693 - see the ILB summary of the May 4th COA opinion here. From the COA opinion:
Kevin Varner, an inmate at Plainfield Correctional Facility, filed a pro se action for mandate requiring the Indiana Parole Board (the “Board”) to determine his parole eligibility based on a vote of all five Board members. The trial court summarily dismissed that action, either for lack of subject matter jurisdiction or pursuant to Indiana Code section 34-58-1-2(a), a statute requiring trial courts to prescreen the legal sufficiency of claims filed by pro se prisoners such as Varner. On appeal, Varner contends the trial court’s summary dismissal was improper because the relief he seeks – a five-member vote to determine his parole eligibility – is mandated by Indiana Code section 11-13-3-3(b).
Posted by Marcia Oddi on September 14, 2009 10:06 AM
Posted to Indiana Transfer Lists