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Tuesday, February 28, 2012

Ind. Decisions - Court of Appeals issues 1 today (and 10 NFP)

For publication opinions today (1):

In Jacob Key, Ted J. Brown and Sally A. Brown v. Dewayne Hamilton, a 33-page 2-1 opinion including a 12-page dissent, Judge Vaidik writes:

Jacob Key, Ted J. Brown, and Sally A. Brown (collectively “the Defendants”) appeal the jury’s verdict and trial court’s judgment of $990,000 against them. They argue that the trial court erred in denying their motion for summary judgment, motion for judgment on the evidence, and motion for a directed verdict. They also argue that the trial court erred in instructing the jury on assumption of duty using the Restatement (Second) of Torts. Finding that a signaling driver may owe a duty of care to a third party motorist as a matter of law when his actions result in the reasonable reliance by the signaled driver that traffic is clear, we hold that the trial court did not err in denying the motions. We also hold that although the jury instruction for assumption of duty was given in error, it was harmless because it properly encapsulates Indiana’s negligence law. We therefore affirm. * * *

BAKER, J., concurs.
MATHIAS, J., dissents with separate opinion. [that begins, at p. 21] I respectfully dissent.

At issue in this case is whether a motorist who halts his own lane of traffic and signals to another driver to proceed across his lane can be liable to a third party who collides with the signaled driver in an adjacent lane beyond. This is a question of first impression in Indiana. While the majority and I analyze these facts under the rubric set forth in Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991), the majority concludes that, under the circumstances of this case, Key assumed a duty to Hamilton by signaling Owens to proceed. I disagree.

ILB: The dissent has 3 footnotes referencing recently retired Justice Boehm's criticism of the three-part Webb test. See notes on p. 23, 29 and 31.

NFP civil opinions today (3):

Gary Hazelwood v. Melissa Hazelwood n/k/a Melissa Butler (NFP)

James E. Lonaker v. Cambridge Investment, Inc., Dolgencorp Inc., d/b/a Dollar General Stores, Dean Foods Company, d/b/a Louis Trauth Dairy, et al. (NFP)

Miranda Herbert v. Steven Herbert (NFP)

NFP criminal opinions today (7):

J.F. v. State of Indiana (NFP)

Xavier Morton v. State of Indiana (NFP)

Antwan Rush v. State of Indiana (NFP)

Rafael Del Rio v. State of Indiana (NFP)

Jessica Deaton v. State of Indiana (NFP)

Dwayne K. Allen v. State of Indiana (NFP)

Michael D. Thorning v. State of Indiana (NFP)

Posted by Marcia Oddi on February 28, 2012 10:07 AM
Posted to Ind. App.Ct. Decisions