Thursday, July 19, 2012
Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)
For publication opinions today (2):
In David Daniel Johnson, Jr., by Next Friend, Indiana Dept. of Child Services v. The Marion County Coroner's Office and City of Indianapolis, a 22-page opinion, Judge Riley writes:
D.J. raises three issues on appeal, which we restate as:In Bobby A. Harlan v. State of Indiana , a 14-page opinion, Sr. Judge Sullivan writes:
(1) Whether the trial court correctly held, as a matter of law, that the Coroner’s Office is entitled to the law enforcement immunity pursuant to the Indiana Tort Claims Act;
(2) Whether summary judgment was appropriate with respect to D.J.’s claim for damages for negligent infliction of emotional distress arising out of the removal of his deceased mother’s remains; and
(3) Whether summary judgment was appropriate with respect to D.J.’s claim for damages for intentional infliction of emotional distress because the Appellees’ conduct was extreme and outrageous. * * *
[II. The Indiana Tort Claims Act] D.J. contends that the trial court improperly granted summary judgment to Appellees as it incorrectly determined that the Coroner’s Office is immune to suit under the Indiana Tort Claims Act (ITCA).2 D.J. maintains that because the transportation of Smith’s remains did not amount to an enforcement of the statutory requirement that the Coroner’s Office must investigate the cause of death of a person who has been found dead, the governmental agency’s immunity did not come into play. * * *
In order to pursue the directives of the statute and to complete a medical investigation into the cause of Smith’s death after she was found dead at home, Kelly had to transport her remains to the Coroner’s Office. To that end, a tow truck was summoned and her remains were winched onto the flat bed of the truck. By transporting the decedent to the Coroner’s Office, Kelly was not compelling enforcement of the law against another person, he was merely following the law to enable a more detailed investigation. The Coroner’s office conduct in following its own rules does not fall within the definition of enforcement for purposes of immunity under ITCA. Consequently, we reverse the trial court’s grant of immunity to the Coroner’s Office.
[III. Negligent Infliction of Emotional Distress] * * * Although the designated facts of this case may paint an egregious picture of an ill-advised transport of a decedent’s remains by the Coroner’s Office, the evidence does not show that D.J. was sufficiently and directly involved in the removal of his mother’s body to justify a claim for negligent infliction of emotional distress. Therefore, we conclude that the trial court did not err when it granted summary judgment for the Appellees.
[IV. Intentional Infliction of Emotional Distress] * * * The Coroner’s Office conduct may have been reckless, disrespectful, and offensive but reasonable persons may differ on whether this conduct reaches the level of extreme and outrageous necessary to satisfy the tort. Accordingly, as there is a genuine issue of material fact, Appellees were not entitled to summary judgment on D.J.’s claim for intentional infliction of emotional distress. We reverse the trial court and remand for further proceedings.
CONCLUSION. Based on the foregoing, we conclude that (1) the Coroner’s Office is not entitled to immunity under the ITCA; (2) summary judgment was appropriate with respect to D.J.’s claim for damages for negligent infliction of emotional distress; and (3) a genuine issue of material fact exists whether the Coroner’s Office conduct amounted to intentional infliction of emotional distress.
Bobby A. Harlan appeals the sentence imposed upon his two convictions of child molesting, both Class B felonies. Ind. Code § 35-42-4-3 (1981). Harlan also appeals the trial court’s order that he register as a sexually violent predator (SVP). We affirm. * * *NFP civil opinions today (3):
Harlan argues that the trial court should not have required him to register as a SVP because the statutes defining sex offenders and requiring them to register had not yet been enacted when he committed his crimes. He concludes that the SVP requirement, as applied to him, violates Article 1, Section 24 of the Indiana Constitution, also known as the ex post facto clause. * * *
Although in Healey v. State, 969 N.E.2d 607 (Ind. Ct. App. 2012), a different panel of this Court very recently adopted the rationale followed in Lemmon and in Jensen v. State, 905 N.E.2d 384 (Ind. 2009), a reasonable view might understand the merits of the contrary position. One might legitimately question whether the extended period for registration was not, in fact, an increase in the punitive impact of the registration for life requirement. See Jensen, 905 N.E.2d at 396 (Boehm, J., dissenting, with then-Justice Dickson); Lemmon, 949 N.E.2d at 816 (Dickson, J., dissenting). However, we are bound by the cases as decided by our Supreme Court.
The current case resembles Lemmon in that Harlan is, by statute, a sex offender and would be subject to registration requirements even if he were not a SVP. Consequently, application of the seven factors results indicates the same outcome as in Lemmon. While several of the factors lean toward treating SVP status as punitive as applied to Harlan, our determination must be governed by the majority opinions in Lemmon and Jensen.
Harlan asserts that his designation as a SVP contravenes our Supreme Court’s holding in Wallace. That case is factually distinguishable. In Wallace, our Supreme Court determined that requiring Wallace to register as a sex offender violated Indiana’s ex post facto clause because he “was charged, convicted, and served the sentence for his crime before the statutes collectively referred to as the Indiana Sex Offender Registration Act were enacted.” 905 N.E.2d at 384. In this case, Harlan committed one of his crimes after the sex offender registration requirements took effect. Therefore, Wallace does not compel reversal of the trial court’s judgment. For these reasons, Harlan’s claim under the Indiana ex post facto clause is to be rejected.
NFP criminal opinions today (1):
Posted by Marcia Oddi on July 19, 2012 11:21 AM
Posted to Ind. App.Ct. Decisions