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Wednesday, September 28, 2016

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 11 NFP memorandum decision(s))

For publication opinions today (3):

In Larry Myers and Loa Myers v. Bremen Casting, Inc., and Mastic Home Exteriors, Inc., a 21-page opinion, Judge Robb writes:

Larry Myers spent the majority of his career working as an electrician in primarily industrial and commercial spaces, and during this time, Larry was exposed to asbestos. In February 2014, doctors diagnosed Larry with mesothelioma. Thereafter, Larry and his wife, Loa, filed a complaint alleging negligence against numerous product manufacturers and premises owners, including Bremen Casting, Inc. (“Bremen”) and Mastic Home Exteriors, Inc. (“Mastic”) (collectively, the “Defendants”). Specifically, the Myerses allege the Defendants are (1) vicariously liable for the acts of the employees of their independent contractors under the non-delegable duty doctrine, (2) vicariously liable for the acts of their own employees under the doctrine of respondeat superior, and (3) liable as premises owners. The Defendants each moved for summary judgment, and the trial court partially granted each motion. On the motion of all parties, the trial court’s orders were certified for interlocutory appeal and this court accepted jurisdiction and consolidated the appeals under a single cause number, designating the Myerses as Appellants/Cross-Appellees and the Defendants as Appellees/Cross-Appellants.

On appeal, the Myerses argue the trial court erred in granting summary judgment in favor of the Defendants on the Myerses’ vicarious liability claim under the non-delegable duty doctrine and premises liability claim; on crossappeal, the Defendants argue the trial court erred in denying their motions for summary judgment on the Myerses’ respondeat superior claim. Therefore, we consolidate and restate the issues before us as whether the trial court erred in granting in part and denying in part the Defendants’ motions for summary judgment. We conclude: (1) the trial court erred in granting the Defendants summary judgment on the Myerses’ vicarious liability claim pertaining to the negligence of independent contractors, (2) the trial court did not err in denying the Defendants summary judgment on the Myerses’ respondeat superior claim, and (3) the trial court erred in granting the Defendants summary judgment on the Myerses’ premises liability claim. We therefore affirm in part, reverse in part and remand for further proceedings on the Myerses’ claims. * * *

Indiana’s summary judgment standard carries with it a heightened burden for the moving party, and in negligence cases, summary judgment is rarely appropriate. As the moving party, the Defendants were required to designate evidence sufficient to negate the Myerses’ claims. The Defendants did not meet this burden. We conclude there is a genuine issue of material fact as to whether the Defendants can be held liable for the negligent acts of their independent contractors under one of the exceptions to the non-delegable duty doctrine, and the trial court erred in granting summary judgment to Defendants on this vicarious liability claim. In addition, the Defendants can be held liable for the negligent acts of their own employees, and the trial court did not err in denying the Defendants summary judgment on the Myerses’ respondeat superior claim. As to the premises liability claim, there is a genuine issue of material fact as to whether the Defendants can be liable for failure to maintain their premises in a reasonably safe condition, and the trial court erred in granting the Defendants summary judgment on that claim. In sum, Defendants are not entitled to summary judgment on any of the Myerses’ claims, and we accordingly affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

In John W. Thomas v. State of Indiana , a 15-page opinion, Judge Kirsch writes:
Following a jury trial, John W. Thomas (“Thomas”) was convicted of attempted murder, a Level 1 felony, attempted aggravated battery as a Level 3 felony, attempted battery with a deadly weapon as a Level 5 felony, and criminal recklessness as a Level 6 felony. He appeals his conviction for attempted murder and raises the following restated issue: whether the trial court committed fundamental error when it instructed the jury that voluntary intoxication is not a defense to attempted murder. * * *

Thomas argues on appeal that, although a defendant’s voluntary act of becoming intoxicated satisfies the general intent to commit an offense, Indiana law treats attempted murder differently than other intent crimes, as it requires proof of specific intent to kill. Thomas relies on this “special treatment” given to attempted murder, arguing that “this uniqueness affects the constitutionality of Indiana Code section 35-41-2-5, the voluntary intoxication statute, as applied to attempted murder.” Appellant’s Br. at 8. His position is that “[w]hile our Legislature has defined voluntary intoxication as one means of establishing the general intent element of a criminal offense, it has not defined voluntary intoxication as a means of establishing specific intent for crimes such as attempted murder.” Id. at 18 (emphasis added). He contends, then, that the trial court’s Final Instruction No. 28, which prohibited the jury from considering evidence of intoxication when determining whether Thomas possessed an intent to kill Vinson, deprived him of a fair trial and constituted fundamental error such that his conviction for attempted murder should be reversed. * * *

Given that the Indiana legislature has not expressly identified attempted murder as an exception to the law negating voluntary intoxication as a defense, and our Supreme Court has not expressed an indication that any such exception exists, we decline Thomas’s invitation to create one. Final Instruction No. 28 was a correct statement of the law, and Thomas has not established that the trial court committed fundamental error when it instructed the jury. Affirmed.

In Susan E. Sturdivant v. State of Indiana , a 15-page opinion, Chief Judge Vaidik writes:
Charged with possession of methamphetamine and other offenses, Susan Sturdivant told the trial court—at multiple pretrial hearings over the course of fourteen months—that she wanted to waive her right to counsel and represent herself. The court allowed her to do so, and a jury convicted her on all charges. Now represented by an attorney, Sturdivant claims that she is mentally ill and that the trial court should have denied her request for self-representation under Indiana v. Edwards, 554 U.S. 164 (2008), which recognized the authority of trial courts to insist upon representation by counsel for those defendants who “suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” Because the trial court was in the best position to judge Sturdivant’s competency and there is no evidence that Sturdivant was suffering from “severe mental illness,” we affirm the trial court’s decision to allow her to conduct her own defense. * * *

Here, the trial court had numerous opportunities to converse with and observe Sturdivant during more than a year of pretrial hearings. Sturdivant does not direct us to any facts that the trial court knew or could have discovered that would have supported a finding of severe mental illness. Therefore, we cannot say that the trial court’s decision to allow Sturdivant to represent herself was clearly erroneous.

NFP civil decisions today (1):

In re Paternity of Jerry Thomas Leber, Jerry Dillon v. State of Indiana and Laurie Leber (mem. dec.)

NFP criminal decisions today (10):

Leon C. Sieg v. State of Indiana (mem. dec.)

Albert Boyd v. State of Indiana (mem. dec.)

Kevin L. Nicholson v. State of Indiana (mem. dec.)

Kevin Lee Troxtle v. State of Indiana (mem. dec.)

Anthony E. Jeffares v. State of Indiana (mem. dec.)

Michael Pugh v. State of Indiana (mem. dec.)

Rodney Bradford v. State of Indiana (mem. dec.)

Taiwan Lundy v. State of Indiana (mem. dec.)

Rodney Lloyd v. State of Indiana (mem. dec.)

Brent Kraay v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on September 28, 2016 12:49 PM
Posted to Ind. App.Ct. Decisions