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Friday, May 20, 2016

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 12 NFP memorandum decision(s))

For publication opinions today (3):

In Nikki Jones, as Personal Representative of the Estate of Phillip Matthew Jones v. Hancock County Board of Commissioners, a 20-page opinion, Judge Brown writes:

Nikki Jones as Personal Representative of the Estate of Phillip Matthew Jones (the “Estate”) appeals from the order of the trial court entering summary judgment in favor of the Hancock County Board of Commissioners (the “Board” or the “County”). The Estate raises one issue which we revise and restate as whether the court erred in entering summary judgment in favor of the Board. We affirm in part, reverse in part, and remand. * * *

The Estate contends that the Board was not entitled to legislative immunity because the alleged negligence did not arise from a failure to pass or enforce an ordinance, but rather arose from a failure to monitor and maintain the county’s roadways in a reasonably safe condition, a duty that is not subject to legislative decision-making. The Estate’s argument is that the Board failed to exercise reasonable care in installing proper traffic control devices, that such devices include non-regulatory signs such as warning signs, and that monitoring traffic accident frequency, conducting engineering studies of dangerous intersections, and erecting or modifying non-regulatory signs do not require ordinances or other legislative action in order to be commenced. It also argues that the entry of summary judgment is an incentive for counties to neglect their duty to follow the Manual, and that the Board chose to remain ignorant of the peril posed by the intersection.

The Board maintains that, irrespective of how the Estate attempts to characterize its claim, tort liability is predicated upon whether or not the intersection was reasonably safe due to the two-way and not four-way stop, and that the Estate’s claim is barred under Ind. Code § 34-13-3-3(8). It contends that any failure to monitor the number of traffic accidents at the intersection relates to whether the intersection should have been converted to a four-way stop prior to the accident and is not an independent basis for tort liability. The Board further maintains that stop signs and other regulatory signs may be installed by the adoption of an ordinance, and that whether it complied with the Manual is irrelevant where legislative immunity defeats the Estate’s claim as a threshold determination. * * *

Based upon the designated evidence, we conclude that the Board is immune under Ind. Code § 34-13-3-3(8) from liability for any loss resulting from the adoption of Hancock County Ordinance 1992-12F or any failure to adopt an ordinance, in response to the frequency of traffic accidents discovered by monitoring or for any other reason, or take other legislative action related to the intersection of CR 400W or CR 200N. * * *

Having found that the Board is immune from liability for any loss resulting from the adoption of Hancock County Ordinance 1992-12F or for its failure to adopt any traffic control ordinance with respect to the intersection of CR 400W or CR 200N, we turn to whether the County was entitled to summary judgment with respect to its alleged failure to monitor the frequency of accidents at the intersection and to erect appropriate warning signs. * * *

Based upon the summary judgment materials and Lowe, we reverse the entry of summary judgment as to the claim the County failed to erect warning signs, affirm the entry of judgment in all other respects, and remand for further proceedings.

In David L. Kimbrough v. Ramona F. Anderson , a 27-page opinion, Judge Mathias writes:
David Kimbrough (“Kimbrough”) filed a complaint in Monroe Circuit Court against Ramona Anderson (“Anderson”), alleging that Anderson was liable for damages when Kimbrough’s basement flooded on numerous occasions between 2008 and 2011 after Anderson excessively watered her yard. A jury found in favor of Anderson, and Kimbrough now appeals, raising eight issues, which we consolidate and restate as:
1. Whether the trial court abused its discretion in precluding testimony from Anderson’s insurance company regarding instructions given to Kimbrough;
2. Whether the trial court abused its discretion in admitting Kimbrough’s prior home insurance claim file into evidence;
3. Whether the trial court abused its discretion in admitting a hydrogeologist’s expert report into evidence;
4. Whether the trial court abused its discretion in denying Kimbrough’s motion for judgment on the evidence on two of Anderson’s affirmative defenses; and
5. Whether the trial court abused its discretion in instructing the jury on final instruction numbers 8 and 9, concerning Anderson’s affirmative defenses. We affirm. * * *

Conclusion. For all of these reasons, we conclude that the trial court did not abuse its discretion in precluding testimony from Anderson’s insurance company regarding instructions given to Kimbrough, in admitting Kimbrough’s prior home insurance claim file, and in admitting one of Anderson’s expert reports into evidence. Further, the trial court did not abuse its discretion in denying Kimbrough’s motion for judgment on the evidence on two of Anderson’s affirmative defenses or in instructing the jury with final instructions number 8 and number 9.

In Derek Scisney v. State of Indiana , an 8-page opinion, Judge Mathias writes:
Derek Scisney (“Scisney”) was convicted in Marion Superior Court of unlawful possession of a firearm by a serious violent felon (“SVF”) and resisting law enforcement. Scisney appeals his conviction for unlawful possession of a firearm by an SVF and argues that the trial court abused its discretion when it admitted the firearm into evidence. Specifically, he argues that his encounter with the law enforcement officer was not consensual and the officer lacked reasonable suspicion to conduct a Terry stop and the accompanying pat down search. We affirm.
NFP civil decisions today (8):

Jason L. McDonough, as Personal Representative of the Estate of Donna L. Allen, Deceased v. Kentucky Avenue Land Company (mem. dec.)

Ana Milomira Stanisic v. Steven Massa (mem. dec.)

In the Matter of the Term. of the Parent-Child Relationship of C.B., Mother, B.G., Father, and N.W., S.G. and R.B., Minor Children, C.B. and B.G. v. Ind. Dept. of Child Services (mem. dec.)

Carla S. Love v. Mauricio Bellido (mem. dec.)

Victoria H. Rybicki v. U.S. Bank National Assoc., Successor Trustee to BoA, N.A., as Successor to LaSalle Bank, N.A., et al. (mem. dec.)

James H. Calkins and Walnut Hills Development, LLC v. James Leto and Colony Bay Apartments, LLC (mem. dec.)

Olabisi Nard v. Mark Sevier (mem. dec.)

Kirsten L. Nolan v. Matthew A. Huff (mem. dec.)

NFP criminal decisions today (4):

Kurt Hinkle v. State of Indiana (mem. dec.)

Jonathan Wallace v. State of Indiana (mem. dec.)

Bruce McIntyre v. State of Indiana (mem. dec.)

Larisha Lee v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on May 20, 2016 11:59 AM
Posted to Ind. App.Ct. Decisions