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Wednesday, April 11, 2012

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In Anthony Wade v. Terex-Telelect, Inc. , an 18-page, 2-1 opinion with big name attorneys on both sides, Judge Kirsch writes:

This appeal originates from a complaint alleging that Terex-Telelect, Inc. (“Terex”) was negligent under the Indiana Product Liability Act in the design of the liner of an aerial passenger bucket attached to a truck from which Anthony Wade (“Wade”) fell and was rendered a quadriplegic. Wade appeals from a jury verdict in favor of Terex and asserts that the trial court erred when it denied his partial motion for directed verdict and instructed the jury regarding the rebuttable presumption under Indiana Code section 34-20-5-1 that the product was not defective. Wade raises the following restated and consolidated issue: whether the trial court erred in instructing the jury because no evidence was presented to show that the liner was state of the art or in compliance with government standards. We reverse and remand. * * *

At the conclusion of the trial, the jury returned a verdict that allocated zero fault to Terex, zero fault to Dueco, and 100% fault to Wade. Wade now appeals. * * *

We conclude that the trial court erred in instructing the jury as to the rebuttable presumption under Indiana Code section 34-20-5-1. * * *

Here, the instruction in this case was not harmless. By its specific language, the instruction allowed the jury to presume that Terex's product was not defective and that Terex was not negligent if the bucket liner was manufactured in conformity with state of the art or compliance with government regulations. This instruction was erroneous because it was unsupported by relevant evidence and went to the very heart of this case. Wade was prejudiced by instructing the jury as to the rebuttable presumption under Indiana Code section 34-20-5-1. We reverse the trial court's judgment and remand for a new trial. Reversed and remanded.

VAIDIK, J., concurs.
BRADFORD, J., concurs in part and dissents in part with separate opinion. [which begins, at p. 16] Although I agree that Terex was not entitled to a “state of the art” instruction and so would remand for retrial in any event, I cannot agree that the trial court abused its discretion in instructing the jury regarding the rebuttable presumption that a product is non-defective if it conforms to applicable governmental regulations. Consequently, I respectfully dissent in part.

In Robert A. Baker v. State of Indiana, a 14-page opinion, Judge Brown writes:
The State elicited testimony from Officer Kipper that the ETC had “continuing education classes for students who wish to pursue their high school education to get their diplomas.” However, the State does not point to any evidence presented at trial which shows that the ETC was a building or other structure owned or rented by a school corporation or other type of entity or organization described under Ind. Code § 35-41-1-24.7. Moreover, the State does not point to evidence which indicates that the students enrolled in any program at the ETC, including those seeking their high school diplomas, were school-age children and not adults or college-age individuals.

In light of this court’s holdings and observations that the words “school property” do not include a college or university, see Pridgeon, 569 N.E.2d at 724, that we strictly construe criminal statutes defining offenses to avoid the creation of penalties by construction and strictly construe criminal statutes against the State, and that the legislative intent was “to afford special protection to children from the perils of drug trafficking,” we conclude that the evidence presented by the State does not, standing alone, show that the ETC constituted “school property” as contemplated by the Indiana legislature for the purpose of enhancement, or prove beyond a reasonable doubt that Baker committed the possession offenses charged in Counts I and II within 1,000 feet of school property. * * *

Based upon the evidence presented at Baker’s trial and the charging information, we conclude that the evidence is insufficient to permit a trier of fact to conclude beyond a reasonable doubt that Baker committed the enhanced possession offenses charged under Counts I and II within 1,000 feet of school property. Accordingly, we reverse Baker’s convictions under Counts I and II and remand with instructions to reduce Baker’s convictions under those counts to class D felonies and to resentence him accordingly. Reversed and remanded.

NFP civil opinions today (1):

Gloria Hussey, Personal Representative of the Estate of Steven Hussey v. William H. Toedebusch, M.D. (NFP)

NFP criminal opinions today (6):

Marcus Washington v. State of Indiana (NFP)

Foster Mowrey v. State of Indiana (NFP)

Jim A. Edsall v. State of Indiana (NFP)

Larry D. Madden v. State of Indiana (NFP)

Patrick Dewayne Carr, Jr. v. State of Indiana (NFP)

David Butler v. State of Indiana (NFP)

Posted by Marcia Oddi on April 11, 2012 01:35 PM
Posted to Ind. App.Ct. Decisions