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Thursday, October 20, 2011
Ind. Decisions - Court of Appeals issues 2 today (and 2 NFP)
For publication opinions today (2):
In Beth Ann Johnson, Mother of: Emily Johnson, Deceased Minor Child v. Lance Jacobs, Steven J. Cummins, Stacy Cummings, Lawrence County Board of Aviation Commissioners, Tony Newbold, Lawrence Co. Comm., a 16-page opinion, Judge Baaker writes:
Eric Johnson and his estranged wife, Beth, were in the midst of a divorce. Eric was taking flight lessons and in March 2007, he took Emily, their eight-year-old daughter, on a solo airplane flight in Lawrence County. Lawrence County consists of 448 square miles with a population of nearly 46,000. Eric crashed the plane into Vivian Pace’s house, killing himself and Emily. Pace is Beth’s mother, and her residence is one of approximately 18,500 in Lawrence County.In Citimortgage, Inc. v. Shannon S. Barabas a/k/a Shannon Sheets Barabas, ReCasa Financial Group, LLC, and Rick A. Sanders , on a petition for rehearing, Judge Riley in a one-page opinion writes in part:
Beth sued the Lawrence County Board of Aviation Commissioners (Aviation Board), Eric’s Flight Instructor, Tony Newbold, and the Lawrence County Commissioners (collectively, the appellees) seeking damages for Emily’s wrongful death. Summary judgment was entered for all defendants. The undisputed designated evidence contained in the record establishes that Eric intentionally flew the airplane he had rented into his mother-in-law’s house. Thus, any negligence that might be attributed to the defendants was superseded by Eric’s intentional acts of flying the airplane into the residence and killing Emily.
Appellant-plaintiff Beth Ann Johnson, the mother of Emily, a minor child, now deceased, appeals the trial court’s grant of summary judgment in favor of the appellees. Beth argues that the designated evidence did not establish, as a matter of law, that Eric committed suicide and intentionally killed Emily when he flew the airplane into the house.
In the alternative, Beth argues that even if it could be assumed that Eric’s acts were intentional, the trial court erred in determining that the misuse of an aircraft was not a foreseeable consequence of the airport’s non-existent security procedures.
Concluding that the trial court properly entered summary judgment for the appellees because Eric’s intentional acts were a superseding intervening cause between any alleged negligence of the appellees and Emily’s death, we affirm.
We grant Citi’s petition for rehearing to clarify our reasoning, but reaffirm our opinion in all respects.CJ Robb concurs, J Brown writes in a concur/dissent:
I concur in that part of the opinion on rehearing in which the majority agrees that the correct interpretation of Ind. Code § 32-29-8-3 is that the one-year redemption periodNFP civil opinions today (1):
begins after the sale of the property, not after Citi first acquired an interest in the property.
For the reasons set forth in my original dissent, I respectfully dissent from the remainder of the opinion on rehearing.
NFP criminal opinions today (1):
Posted by Marcia Oddi on October 20, 2011 01:17 PM
Posted to Ind. App.Ct. Decisions