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Wednesday, May 21, 2014

Ind. Decisions - Court of Appeals issues 3 today (and 5 NFP)

For publication opinions today (3):

In Tierra Rae Pierson, a Minor, Deceased, by her next friend and parent, Betina Pierson, and Betina Pierson, Individually, and Ryan Pierson, Individually v. Service America Corporation, et al., a 14-page opinion, Judge Bailey writes:

Tierra Rae Pierson, Deceased, by her next friend, Betina Pierson; Ryan Pierson; Betina Pierson, individually; and January Canada, by her next friend, Jennifer Moore, (collectively, “Pierson”) appeal a grant of summary judgment in favor of Service America Corporation d/b/a Centerplate (“Centerplate”) on Pierson’s negligence claim. We reverse.

A single, consolidated issue is presented: whether the trial court improvidently granted summary judgment to Centerplate. More specifically, Pierson claims that genuine issues of material fact preclude summary judgment and the trial court did not view the evidence in the light most favorable to the non-movant as required by the Indiana summary judgment standard.

Trenton Gaff (“Gaff”) was intoxicated2 when his vehicle struck and killed twelve-year-old Tierra Rae Pierson and injured her cousin, twelve-year-old January Canada. Earlier in the day, Gaff had attended a Colts game at Lucas Oil Stadium and had consumed alcoholic beverages at a pre-game tailgate party, during the game, and at a post-game tailgate party. * * *

The discovery process did not yield the identity of the person or persons who had sold alcoholic beverages to Gaff inside Lucas Oil Stadium. Centerplate moved for summary judgment on the negligence claims against it. The trial court granted the motion * * *

Were we to accept Centerplate’s argument that only a single inference arises, that is, no liability can ensue because no particular server to Gaff has been identified, such would circumvent the public policy associated with the Dram Shop Act. In comparison to a neighborhood bar owner employing a few servers, a provider of alcoholic beverages using hundreds of volunteers to sell alcohol to thousands of patrons in a stadium may well seem ideally situated to lessen liability although the potential consequences are greatly increased. We do not believe this to be the intent of our Legislature. It is for the fact-finder, and not the court on summary judgment, to determine whether Centerplate knowingly provided one more alcoholic beverage to a visibly intoxicated patron.

Conclusion. Reasonable inferences to be drawn from the designated materials could permit a fact-finder to conclude that a Centerplate designee served Gaff beer while knowing him to be visibly intoxicated. As Centerplate did not, based upon undisputed facts, negate an element of Pierson’s negligence claim, summary judgment was improvidently granted. Reversed.

In Wayne Hurd v. State of Indiana , an 11-page opinion, Chief Judge Vaidik writes:
Wayne Hurd was convicted of Class B misdemeanor battery following a nighttime incident at an Indianapolis bus stop. At his bench trial, the trial court prohibited him from calling his mother as a witness because she was not disclosed until the day of trial. The trial court sentenced Hurd to probation, which included a condition that prohibited him from going between 48th Street to the north, 28th Street to the south, Fall Creek Parkway to the east, and Martin Luther King Jr. Street to the west.

We find that even if the trial court abused its discretion in excluding Hurd’s mother as a witness, the error was harmless because the offer of proof was not specific as to the substance of Hurd’s mother’s testimony, she was not present at the bus stop, and the trial court found the victim’s testimony credible and Hurd’s testimony to have gaps. However, we find that the trial court abused its discretion in imposing the probation condition because it was not reasonably related to Hurd’s treatment and the protection of the public safety. We therefore affirm in part and reverse and remand in part. * * *

We agree with Hurd that the probation condition was not reasonably related to his treatment and the protection of the public safety. It was reasonable for the trial court to express concern for Hurd’s mental health, and the court did so by ordering Hurd to comply with his treatment regimen at Gallahue. Further, given that Hurd’s conviction was for a crime against a person, it was also reasonable for the court to prohibit contact with Susan. However, prohibiting Hurd from entering a significant area of the central part of Indianapolis is not tailored to his rehabilitation or public safety.

In Jacob Herron v. State of Indiana, a 15-page, 2-1 opinion, Chief Judge Vaidik writes:
Trials should primarily proceed on the basis of in-court testimony, not statements or affidavits obtained before trial. Yet at Jacob Herron’s trial for burglary and receiving stolen property, the State called a witness solely to impeach her with a pretrial statement, and did so by reciting segments of that statement. Because this statement was admitted solely for impeachment, the jury could not use it as substantive evidence. But given the lack of evidence against Herron, we conclude that the jury did rely on this evidence to convict him. For this reason, we reverse Herron’s convictions. * * *

MAY, J., concurs.
RILEY, J., dissents with separate opinion. [which begins, on p. 13] I respectfully concur in part and dissent in part. While I agree with the majority that the State’s procedure for impeaching the witness might have been improper, the error was harmless. Though no direct evidence was presented at trial, I find that there was enough circumstantial evidence to prove Herron committed the offenses.

NFP civil opinions today (1):

In the Matter of: J.J., F.J., J.O., & C.O., Minor Children, and M.O., Mother v. The Indiana Department of Child Services (NFP)

NFP criminal opinions today (4):

Jeremy Lyn Davis v. State of Indiana (NFP)

Brice L. Webb v. State of Indiana (NFP)

Brandan L. Martin v. State of Indiana (NFP)

Tina Cox v. State of Indiana (NFP)

Posted by Marcia Oddi on May 21, 2014 11:54 AM
Posted to Ind. App.Ct. Decisions