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Wednesday, June 06, 2012

Ind. Decisions - Court of Appeals issues 3 today (and 9 NFP)

For publication opinions today (3):

In W.D., a minor by his parents R.D. and S.D., and R.D. and S.D., individually v. City of Nappanee , an 8-page opinion, Judge Mathias writes:

W.D., by his parents S.D. (“Mother”) and R.D. (“Father”), and Mother and Father, individually, filed a complaint in Elkhart Superior Court alleging that the City of Nappanee (“the City”) breached its duty of care to W.D., which proximately caused injuries suffered at the City’s pool. The City filed a motion for summary judgment and argued that it did not breach its duty of care to W.D. as a matter of law. The trial court granted the motion and W.D., Mother, and Father appeal the trial court’s entry of summary judgment in favor of the City and the resulting dismissal of their complaint. We affirm. * * *

Our court has previously stated that a lifeguard owes a duty to help imperiled
swimmers, but the lifeguard “cannot possibly be an absolute insurer of the safety of swimmers.” Plummer v. Bd. of Com’rs of St. Joseph County, 653 N.E.2d 519, 523 (Ind. Ct. App. 1995), trans. denied. The City’s undisputed designated evidence establishes that the lifeguards exercised ordinary and reasonable care under the circumstances, and therefore, they did not breach their duty to W.D. W.D. was briefly imperiled before the lifeguards realized that he needed assistance. The City’s lifeguards then quickly removed W.D. from the pool and saved his life.

Although our courts rarely determine whether a breach of duty occurred as a
matter of law, this case represents one of those rare exceptions. Because the record lacks any designated evidence of disputed factual questions that would preclude the entry of summary judgment in this case, we affirm the trial court’s entry of summary judgment in favor of the City and its dismissal of W.D.’s complaint.

In In the Matter of the Term. of the Parent-Child Rel. of: D.W., K.K., Ke.K., & L.W.; and J.K. v. The Indiana Dept. of Child Services , a 14-page opinion, Judge Riley writes:
Father raises one issue on appeal, which we restate as the following: Whether the trial court properly terminated his parental rights to his four children. * * *

In essence, Father argues that the requirements of I.C. § 31-35-2-4(b)(2)(B)(i) (emphasis added) are disjunctive; a trial court may find that either “[t]here [was] a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents [would] not be remedied,” and a finding of one is independent of a finding of the other. Because the trial court here found that the conditions that resulted in the children’s removal would not be remedied but did not find that the reasons for placement outside the home of the parents would not be remedied, Father asserts that the trial court erred in terminating his parental rights because he is not at fault for the children’s removal from the home. * * *

Father consistently failed to take advantage of services provided and ordered by the trial court and consistently failed to stay clean of drugs. Although Father testified that he has not used drugs in a month, this sobriety is, as the trial court stated, “tenuous” in light of his history. Accordingly, we determine that the trial court’s findings supported its conclusion that the conditions causing the children’s continued removal from Father’s home will not be remedied. As Father does not dispute any of the trial court’s other conclusions of law, we also find that the trial court did not err in terminating Father’s parental rights to his four minor children.

In Keith D. Jackson v. State of Indiana, a 12-page opinion, Judge Riley writes:
Appellant-Defendant, Keith Jackson (Jackson), appeals his sentence for possession of a firearm by a serious violent felon, Ind. Code § 35-47-4-5(c), and the trial court's revocation of his probation and imposition of the balance of his suspended sentence in a separate, earlier Cause. We reverse and remand. * * *

Based on the foregoing, we conclude that (1) the trial court abused its discretion by ordering Jackson to serve community service contrary to his plea agreement; (2) the trial court abused its discretion by ordering Jackson to pay public defender fees; and (3) the trial court abused its discretion by ordering Jackson to serve his suspended sentence as a result of his probation violation.

NFP civil opinions today (2):

Mark Van Eaton and Cynthia Van Eaton Vallimont v. German American Bancorp (NFP)

Faye E. Warfield v. Review Board of the Indiana Department of Workforce Development and IDWD U.I. Claims Adjudication (NFP)

NFP criminal opinions today (7):

Robert Johnson, Jr. v. State of Indiana (NFP)

Teri Woenkhaus v. David Woenkhaus (NFP)

Eric Liscomb v. State of Indiana (NFP)

Robert Johnson, Jr. v. State of Indiana (NFP)

M. Loren Fugate v. State of Indiana (NFP)

Frank E. Puzynski v. State of Indiana (NFP)

Jermaine Young v. State of Indiana (NFP)

Posted by Marcia Oddi on June 6, 2012 04:06 PM
Posted to Ind. App.Ct. Decisions