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Tuesday, October 02, 2012

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In Brian Yost v. Wabash College, Phi Kappa Psi Fraternity, Inc., Phi Kappa Psi Fraternity - Indiana Gamma Chapter at Wabash College, and Nathan Cravens , a 42-page, 2-1 opinion, Judge Crone writes:

Who is responsible when fraternity boys engage in impromptu activities that escalate to the point where one of them is seriously injured? In this case, eighteen-year-old Wabash College freshman Brian Yost and his fraternity pledge brothers decided to throw an upperclassman brother in a nearby creek to celebrate his twenty-first birthday. Afterwards, they tried to do the same thing to two other upperclassman brothers, but they were unsuccessful. Shortly thereafter, four upperclassman brothers decided to carry Yost to the shower and run water on him. On the way to the bathroom, upperclassman Nathan Cravens joined the group and placed Yost in a chokehold. Yost went limp, and the brothers dropped him on the floor. He suffered physical and mental injuries and had to withdraw from school.

Yost filed a personal injury action against Phi Kappa Psi National Fraternity (“Phi Psi National”) and Phi Kappa Psi - Indiana Gamma Chapter (“Phi Psi”) (collectively, “Phi Psi Defendants”), Wabash College (“Wabash”), and Cravens, seeking compensatory and punitive damages. Wabash and the Phi Psi Defendants filed motions for summary judgment, claiming that they owed no duty to Yost as a matter of law, and the trial court granted both motions.

Yost now appeals, claiming that the trial court erred in granting summary judgment in favor of Wabash and the Phi Psi Defendants (collectively, “Appellees”). Specifically, he contends that the trial court erred in concluding as a matter of law that (1) Appellees were not negligent because they owed him no duty to protect him from the activities that led to his injuries; (2) Appellees did not assume a duty to Yost; (3) Appellees are not vicariously liable; and (4) Appellees are not liable for punitive damages. Finding that the designated evidence supports summary judgment in favor of the Appellees, we affirm. * * *

BRADFORD, J., concurs.
VAIDIK, J., concurs in part and dissents in part with separate opinion. [which begins on p. 38] Based on the designated evidence, I agree with the majority’s decision to affirm summary judgment in favor of Phi Psi National, but I respectfully dissent from the majority’s decision that Yost failed to establish a genuine issue of material fact regarding whether Wabash and Phi Psi owed him a duty of care under the circumstances. I find that there is an issue of fact concerning whether the events of that night constituted criminal hazing and whether they were reasonably foreseeable to Wabash. I also find that there is an issue of fact over whether Phi Psi assumed a duty of care toward Yost. I therefore believe that the trial court erred by granting summary judgment in favor of both Wabash and Phi Psi. * * *

All said, I believe that the designated facts could reasonably lead a trier of fact to conclude that hazing occurred here—hazing that both Phi Psi and Wabash had a duty to stop yet ignored. Because of this, I believe that this is a jury’s call and not ours.

In Moise Joseph v. State of Indiana , a 15-page opinion, Judge Bradford writes:
In the instant matter we are faced with the troublesome situation of reviewing an individual’s convictions relating to an unspeakable crime in light of an apparent violation of the convicted individual’s Fourth Amendment rights. In reviewing this matter, we must consider to what extent certain statements made by the convicted individual must be suppressed following an episode of police misconduct. * * *

Joseph contends that the trial court abused its discretion in admitting the statements that he made to Detective Brown following the warrantless entry into and search of his apartment by Officers Winters and Hoehn. Specifically, Joseph argues that his statements to Detective Brown constitute “fruit of the poisonous tree” and, therefore, were inadmissible at trial. * * *

The record indicates that while Joseph was given his Miranda advisements at least two times and was transported to the police station prior to making his statements to Detective Brown, it also indicates that Joseph was in constant police custody from the time that Officers Winters and Hoehn initiated the illegal search of his apartment and was aware that their search had resulted in the discovery of potentially relevant evidence. Joseph was questioned about this evidence by both the officers at the scene and Detective Brown at the police station. In addition, nothing in the record indicates that Joseph had any way of knowing that the potential evidence found in his apartment and his statements to Officers Winters and Hoehn would later be suppressed from trial when he spoke to Detective Brown. Based on these facts, especially the fact that Joseph was in constant police custody from the time of their illegal entry into and search of his apartment, knew what potential evidence had been discovered in his apartment, and had made prior potentially incriminating statements to Officers Winters and Hoehn, we cannot conclude that Joseph’s comments to Detective Brown were sufficiently attenuated from the illegal search of his apartment to dissipate any taint of the illegal police conduct. As such, we conclude that the trial court abused its discretion in admitting Joseph’s statements to Detective Brown at trial. The judgment of the trial court is reversed.

In Willie Bigsbee v. State of Indiana , a 9-page opinion, Sr. Judge Barteau writes:
Willie Bigsbee appeals his two convictions of dealing in cocaine, both as Class A felonies. Ind. Code § 35-48-4-1 (2006). We affirm.

Bigsbee raises two issues, which we restate as:
I. Whether the trial court erred in overruling his objection under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), to the State’s peremptory strikes of two prospective jurors.
II. Whether the evidence is sufficient to sustain his convictions. * * *

For the reasons stated above, we affirm the judgment of the trial court.

NFP civil opinions today (1):

Raymond C. Tisdale v. Christine M. (Tisdale) Bolick (NFP)

NFP criminal opinions today (7):

Douglas Thompson v. State of Indiana (NFP)

Lora L. Karr v. State of Indiana (NFP)

Scott J. Welton v. State of Indiana (NFP)

Garrett Andrew Plumlee v. State of Indiana (NFP)

Herbert Preasha v. State of Indiana (NFP)

Tracy A. Lawrence v. State of Indiana (NFP)

Arthur J. Bryant v. State of Indiana (NFP)

Posted by Marcia Oddi on October 2, 2012 10:41 AM
Posted to Ind. App.Ct. Decisions