« Ind. Courts - What’s Unfortunately Missing in the Now-National Rape Sentence Story: A Sentencing Order | Main | Ind. Courts - "Colts owner Jim Irsay charged with 2 counts of impaired driving" »

Friday, May 23, 2014

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

For publication opinions today (3):

In Andrew J. Rogers v. Sigma Chi International Fraternity, Theta Pi of Sigma Chi, Ancil Jackson, Brian Mifflin, Jr., and Joshua Kearby , a 17-page opinion, Judge May writes:

Andrew J. Rogers appeals summary judgment for Sigma Chi International fraternity (“the International”), its Terre Haute chapter (“the Chapter”) (collectively, Sigma Chi”), and three individuals: Ancil Jackson, Brian Mifflin, Jr., and Joshua Kearby, (the “Individual Defendants”). Rogers alleges the defendants should have protected him from being assaulted at a party. He argues on appeal:
1) Sigma Chi had a duty to protect him under premises liability principles because the Chapter had possession of the premises where he was injured;
2) the defendants had a duty to protect him under negligence principles because the assault was foreseeable or because the defendants assumed such a duty; and
3) the International was vicariously liable for the acts of the persons at the premises because it had apparent authority over them as Sigma Chi’s agents.
We affirm.

In August 2008, Rogers was injured when he was attacked at a party hosted by Daniel Johnson, who was renting a house in Terre Haute (“the Premises”) with the Individual Defendants and Bladen Nading. The Premises was owned by R2r Properties, LLC, which the record does not reflect was in any way related to Sigma Chi. The lease provided the tenants would pay all utilities and could not use the Premises for any purpose other than a private dwelling.

The Individual Defendants were all members of Sigma Chi, but the Chapter’s president did not live there and Sigma Chi mail was not delivered there. Sigma Chi did not pay rent on the Premises. There were Greek letters in individual bedrooms, but not on the outside of the house or in the yard. The tenants paid the expenses for the gatherings they held there.

The Chapter had a house until spring of 2008, when it was repossessed and its residents were evicted. Thereafter, students who were Sigma Chi members had to live in university housing or private dwellings. * * *

Rogers was a student at Northwestern University. He and three other friends of Johnson drove to Terre Haute to attend the party. While Rogers was intoxicated, another guest, Dana Scifres, punched him in the eye while Rogers sat on the floor. Scifres was not a member of Sigma Chi. * * *

[T]here was “not substantial evidence in this case to support a finding defendant had the control necessary to be considered a ‘possessor of the land.’” Nor was there substantial evidence in the case before us to permit a finding Sigma Chi had the control necessary to be considered a ‘possessor” of the Premises where Rogers was injured. * * *

There was no evidence the International knew Scifres would be there or that he was violent. Summary judgment on the ground the attack was not foreseeable was appropriate. * * * Nor did the defendants assume a duty to protect Rogers against an attack. * * *

We decline to hold the presence of fraternity materials in a private residence amounts to a manifestation by an international fraternity that the tenants of that residence are acting as the fraternity’s agents. Summary judgment for the defendants on that ground was not error. * * *

Conclusion. Sigma Chi did not have possession of the premises where Rogers was injured, the defendants had no duty to protect him from the assault, and the International was not vicariously liable for the acts of the persons at the premises because it had no actual or apparent authority over them. We therefore affirm.

ILB: As noted in this post from May 8th, two other national fraternity cases currently are pending before the Indiana Supreme Court.

In In the Matter of the Civil Commitment of C.P., C.P. v. Community Hospital North/Gallahue Mental Health, a 7-page opinion, Judge May writes:

C.P. appeals her 90-day involuntary commitment to Community North Hospital (“the Hospital”). She acknowledges she is mentally ill but asserts the hospital did not prove she was gravely disabled or dangerous to herself. Because a psychiatrist’s testimony provided clear and convincing evidence that C.P. was gravely disabled, we affirm.
In Kenneth Griesemer v. State of Indiana, a 17-page, 2-1 opinion, Judge May writes:
Kenneth Griesemer appeals his conviction of Class A misdemeanor patronizing a prostitute. He argues he was entrapped. * * *

Because the evidence most favorable to the State permits an inference only that the police induced Griesemer’s criminal behavior, but does not contain any evidence permitting an inference that Griesemer was predisposed to commit patronizing a prostitute, entrapment was established as a matter of law, and we must reverse Griesemer’s conviction. Reversed.

BAKER, J., concurs.
VAIDIK, C.J., dissents with separate opinion. [[which begins, at p. 12]I respectfully disagree with the majority’s view that there was not sufficient evidence to rebut Griesemer’s entrapment defense. Specifically, I believe that the State proved that Griesemer was predisposed to commit the offense because the State established that Griesemer was not reluctant to commit the offense. Therefore, I would affirm Griesemer’s conviction for Class A misdemeanor patronizing a prostitute.

NFP civil opinions today (6):

Agav Properties, Avrohem Tkatch, and Elisheva Tkatch v. The City of South Bend and The South Bend Fire Department (NFP)

Town of New Pekin, Indiana v. Gail Stewart and Kermit Stewart (NFP)

R & M Construction, Inc., and Lake County Trust Company, as Trustee Under a Trust Agreement Dated May 17, 1989 and Known as Trust No. 1901 v. Twin Lakes Utilities, Inc. (NFP)

Michael Nero v. Citimortgage, Inc. (NFP)

In re the Marriage of: Carla Weiler v. Kevin P. Weiler (NFP)

EMR Consulting, Inc. v. Review Board of the Indiana Department of Workforce Development and Laura Shipp (NFP)

NFP criminal opinions today (3):

Christopher Bell v. State of Indiana (NFP)

Adrian Walton v. State of Indiana (NFP)

Ronald DeWayne Thompson v. State of Indiana (NFP)

Posted by Marcia Oddi on May 23, 2014 02:56 PM
Posted to Ind. App.Ct. Decisions