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Friday, May 06, 2016

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (2):

In Barbara Hill, individually and as guardian of Charles Hill, incapacitated, and as next friend of Alexandra Hill, a minor,et al. v. Erich E. Gephart, City of Indianapolis, et al., a 12-page, 2-1 opinion, Judge Mathias writes:

[The complaint alleged that] Defendants were negligent when a Marion County Sheriff jail transport vehicle driven by Deputy Gephart struck and severely injured Charles. Defendants moved for summary judgment, arguing that Deputy Gephart was not negligent and that Charles was contributorily negligent which was the proximate cause of his own injuries. The trial court granted Defendants’ motion for summary judgment. * * * We reverse and remand for proceedings consistent with this opinion. * * *

When a tort claim is brought against a governmental entity, such as the City of
Indianapolis, the common law defense of contributory negligence remains applicable under Indiana Code section 34-51-2-2. Whitmore v. South Bend Public Transp. Corp., 7 N.E.3d 994, 997 (Ind. Ct. App. 2014). Thus, if a plaintiff is negligent to even a small degree and that negligence proximately contributes to his claimed damages, contributory negligence will operate as a complete bar to his action. Funston v. School Town of Munster, 849 N.E.2d 595, 598 (Ind. 2006). * * *

The rights and duties of pedestrians and motorists to use highways are reciprocal and should be exercised by each so as not to injure the other, and motorist owes pedestrians walking along a highway duty to exercise reasonable care to avoid injury. American Carloading Corp. v. Gary Trust & Sav. Bank, 25 N.E.2d 777, 781 (Ind. 1940). * * *

The Hills argue that Charles’s violation was justifiably reasonable because by remaining on the right side of Fox Hill Drive, Charles and Macey did not have to cross the busy street. This was arguably a safer option for the father-daughter duo because no cross-walk existed. At his deposition, Charles also testified that the left side of the road did not have a sidewalk and in some places no shoulder to walk along because it was blocked by vegetation. Further, the Hills submitted an affidavit from an expert investigator to establish the speed limit and that vegetation was present along Fox Hill Drive. Defendants filed a motion to strike the affidavit as inadmissible, but the court never issued an order on the motion.

Because the purpose of Indiana Code section 9-21-17-14 is to promote safety, it is counterintuitive to bar the Hills’s claim without allowing Charles to explain why he was walking on the right side instead of the left side of the road. It is up to the jury to determine whether that act was reasonable or if Charles contributed to his injuries. For all of these reasons, a genuine issue of material fact exists as to whether Charles was contributorily negligent, and the trial court erred by disposing the Hills’ claim on summary judgment. We therefore reverse and remand with instructions for the trial court to hold a jury trial on the matter. Reversed and remanded for proceedings consistent with this opinion.

Kirsch, J., concurs.
Brown, J., dissents with opinion. [which begins, at p.11]I respectfully dissent from the majority’s conclusion that a genuine issue of material fact exists as to whether Charles was contributorily negligent and its decision to reverse and remand on the trial court’s entry of summary judgment in favor of the Defendants. Charles walked along Fox Hill Drive in a manner which violated Ind. Code § 9-21-17-14, and there is nothing in the designated evidence to demonstrate he “desired to comply with the law,” which is required in order to rebut the presumption of negligence.

In Demetre Brown v. State of Indiana , a 19-page opinion, Judge Barnes writes:
Brown raises four issues, which we restate as:
I. whether the trial court properly admitted testimony from Brown’s former attorney, testimony from other witnesses regarding information obtained from Brown’s former attorney, and physical evidence that Brown’s former attorney provided to the State;
II. whether Brown’s three convictions for robbery and three convictions for carjacking violate the single larceny rule;
III. whether Brown’s convictions for Class A felony robbery and Class A felony burglary violate the prohibition against double jeopardy; and
IV. whether Brown’s 248-year sentence is inappropriate in light of the nature of the offenses and his character. * * *

We conclude that any error in the admission of Barton’s testimony, the laptop, and Brown’s fingerprint on the laptop was harmless. Brown’s single larceny rule argument fails, but based on the prohibition against double jeopardy, we reduce his Class A felony robbery conviction to a Class B felony and adjust his sentence for that conviction from fifty years to twenty years. Additionally, we find that his adjusted 218-year sentence is not inappropriate. We affirm in part and reverse in part.

NFP civil decisions today (4):

Erika Jagger DeHeer v. Ray's Trash Service, Inc. (mem. dec.)

Daniel E. Norris v. The Supervised Estate of Martha A. Norris, Deceased (mem. dec.)

Stephen W. Marvel and Debria Marvel v. Jason Althoff, Erin Althoff and Gene O. Dorsey (mem. dec.)

In the Matter of the Termination of the Parent-Child Relationship of B.W. (Child) and J.W. (Father); J.W. (Father) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (1):

Dennis Talboom v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on May 6, 2016 11:04 AM
Posted to Ind. App.Ct. Decisions