Wednesday, May 08, 2013
Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)
For publication opinions today (2):
In Stacy Smith and Robert Smith, Individually and as Co-Personal Representatives of the Estate of Johnny Dupree Smith, Deceased v. Delta Tau Delta, Beta Psi Chapter of Delta Tau Delta, Wabash Col., et al, a 28-page opinion with a separate concurring opinion, Judge Riley writes:
[The Smiths appeal the trial court’s summary judgment in favor of Delta Tau Delta] with respect to claims arising from the wrongful death of Johnny Dupree Smith (Johnny), a Wabash College freshman, following acute alcohol intoxication. We affirm in part, reverse in part, and remand for further proceedings.In Michael E. Lyons, Denita L. Lyons, as Co-Personal Representatives of the Estate of Megan Renee Lyons, Deceased v. Richmond Community School Corp. d/b/a Richmond High School; Joe Spicer; et al, a 33-page, 2-1 opinion, Judge Bradford writes:
The Smiths raise two issues on appeal, which we restate as follows: (1) Whether the trial court abused its discretion by denying the Smiths’ motion to strike certain designated evidence purporting to contain unsworn, unverified, and uncertified statements; and (2) Whether the trial court erred in granting Delta Tau Delta’s motion for summary judgment, finding that there is no genuine issue of material fact that an agency relationship existed between the national fraternity and its local chapter and that the national fraternity did not assume a duty to protect its freshmen pledges. * * *
Based on the foregoing, we hold that the trial court abused its discretion by admitting certain paragraphs of Russell’s affidavit and by admitting two unsworn, unverified, and uncertified statements. Additionally, we find that the trial court erred in granting Delta Tau Delta’s motion for summary judgment as there is a genuine issue of material fact that (1) an agency relationship existed between the national fraternity and its local chapter and (2) the national fraternity assumed a duty to protect its freshmen pledges.
Affirmed in part, reversed in part, and remanded for further proceedings in accordance with this opinion.
BARNES, J. concurs
BAKER, J. concurs in part and in result with separate opinion [which is on p. 28, and begins] While I concur in the result reached by the majority and in most of its analysis, I write separately to detach myself from a conclusion reached by the majority pertaining to the motion to strike.
Appellees/Plaintiffs Michael and Denita Lyons appeal the trial court’s grant of summary judgment in favor of Appellees/Defendants Richmond Community School Corporation and certain school administrators (“RCSC”). The Lyonses’ daughter, Megan, was a Richmond High School student with Down syndrome, a medical condition that rendered her “Severely Mentally Disabled.” Tragically, Megan choked on a sandwich in the school cafeteria, was deprived of oxygen for fifteen to twenty minutes, and ultimately died at a hospital two days later. The Lyonses sued RCSC under the Indiana Tort Claims Act (“ITCA”) and 42 U.S.C. § 1983, alleging RCSC’s acts or omissions caused Megan’s death. The trial court granted RCSC summary judgment on the issues of compliance with the ITCA’s notice provision and contributory negligence as well as on the Lyonses’ § 1983 claims.NFP civil opinions today (3):
We conclude that summary judgment was inappropriate on the Lyonses’ ITCA claims by virtue of the discovery rule: when the Lyonses’ cause of action accrued remains a question of fact for the jury to decide. The issue of contributory negligence also should not have been judged as a matter of law. We agree with the trial court, however, that there remains no genuine issue of material fact as to the Lyonses’ claims of fraudulent concealment and substantial compliance with the ITCA’s notice provision; summary judgment would have been proper on these grounds. We further conclude that summary judgment was appropriate on the Lyonses’ § 1983 claims: RCSC did not owe Megan a duty of protection under the special relationship or state-created danger doctrine, and it did not deprive the Lyonses of their due process right of judicial access.
The trial court also granted a motion to quash the Lyonses’ third-party discovery requests against Appellee/Non-Party-Respondent Indiana Insurance, RCSC’s insurer, and subsequently denied the Lyonses’ motion for leave to add Indiana Insurance as a defendant. We conclude that the Lyonses cannot assert a third-party spoliation claim against Indiana Insurance, and therefore, that the trial court did not abuse its discretion in denying the Lyonses’ motions. The judgment of the trial court is affirmed in part and reversed in part. * * *
BAKER, J., concurs.
ROBB, C.J., concurs in part, concurs in result in part, and dissents with opinion [which begins on p. 27 of 33, with] I concur with the majority’s decision that the trial court improperly granted summary judgment on the Lyonses’ ITCA claims because a genuine issue of material fact remains as to when the Lyonses could have learned of RCSC’s alleged acts or omissions and whether that was within 180 days of filing their notice of claim. I, however, would also hold that the Lyonses have made a case for tolling the time period in which they could file their notice of claim because of fraudulent concealment. I also respectfully dissent from the majority’s decision that that trial court properly granted summary judgment to RCSC on the Lyonses’ Section 1983 claims. As to all other aspects of the majority opinion, I concur.
NFP criminal opinions today (3):
Posted by Marcia Oddi on May 8, 2013 11:11 AM
Posted to Ind. App.Ct. Decisions