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Tuesday, April 11, 2017

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 4 NFP memorandum decision(s))

For publication opinions today (3):

In Indiana Bureau of Motor Vehicles, et al. v. Daniel N. Newlin , a 6-page opinion, Judge Bradford writes:

On January 25, 2016, as the result of a case out of Kosciusko County, Daniel Newlin’s driving privileges were suspended by Appellant-Respondent the Indiana Bureau of Motor Vehicles (“BMV”) for two years due to his refusal to submit to a chemical test. On June 24, 2016, Newlin filed a verified petition for specialized driving privileges in Lake County. The trial court granted his motion. The BMV filed a motion to correct error arguing that Newlin was ineligible for specialized driving privileges pursuant to Indiana Code subsection 9-30-16-1(a)(2). The trial court denied the BMV’s motion.

The BMV argues that the trial court’s grant of specialized driving privileges to Newlin with respect to this two-year suspension for refusing to submit to a chemical test was not supported by sufficient evidence and was contrary to law. We agree that the grant of specialize driving privileges to Newlin was contrary to law and not supported by the evidence. Consequently, we reverse and remand with instructions.

In Jalen Lee, A Minor Child, by and through his Next Friend, Crystal Estes and Crystal Estes, Individually v. Bartholomew Consolidated School Corporation, City of Columbus, et al., a 37-page, 2-1 opinion, Judge Riley writes:
Appellants-Plaintiffs, Jalen Lee (Lee)—by his next friend, Crystal Estes—and Crystal Estes individually, appeal the trial court’s summary judgment in favor of Appellee-Defendant, City of Columbus (City). We reverse and remand.

Lee raises four issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court erred in granting the City’s motion for summary judgment. * * *

Conclusion. Based on the foregoing, we conclude that the trial court erred in granting summary judgment on the basis of contributory negligence. We further conclude that the City is entitled to statutory immunity with respect to its plans for improvements to the crosswalk and its decision to enact a certain speed limit and to not erect a stop sign or station crossing guards at the crosswalk. Nevertheless, we conclude that summary judgment is improper because there are genuine issues of material fact as to whether the City breached its duty of reasonable care by installing conflicting speed limit signs and whether such a breach, if any, proximately caused the accident. Therefore, we remand this case for further proceedings.

Altice, J. concurs
Crone, J. dissents with separate opinion [which begins, at p. 35] I respectfully dissent. If a plaintiff who files a tort claim against a governmental entity, such as the City, “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.” Hill, 54 N.E.3d at 406. Although generally a question of fact, contributory negligence may be “a question of law appropriate for summary judgment if the facts are undisputed and only a single inference can be drawn therefrom.” Id. at 406-07. The relevant facts here are undisputed, and I believe that the only inference that can be drawn from them is that Lee was contributorily negligent and therefore the City is entitled to summary judgment as a matter of law. * * *

I would also affirm on the basis that any negligence on the City’s part with respect to the speed limit signs did not proximately cause Lee’s injuries as a matter of law. The majority acknowledges that “McLeod did not see Lee until after the impact; thus, this is not a situation where the speed limit affected McLeod’s ability to apply his brakes fast enough.” Id. at 32. McLeod did not know precisely how fast he was going when he hit Lee, and the notion that he would have driven more slowly and not hit Lee if the posted speed limit had been twenty miles per hour is mere speculation, which cannot create a question of fact on summary judgment. Beatty v. LaFountaine, 896 N.E.2d 16, 20 (Ind. Ct. App. 2008), trans. denied (2009).

In C.J. v. State of Indiana , a 10-page opinion, Judge Najam writes:
C.J. appeals from the juvenile court’s order modifying a dispositional decree following his adjudication as a delinquent child for battery, as a Class A misdemeanor when committed by an adult. C.J. presents a single issue for our review, namely, whether the juvenile court abused its discretion when it placed him with the Department of Correction (“DOC”). However, because C.J. has been released from the DOC since he initiated this appeal, we dismiss the appeal as moot. * * *

C.J. has been released from the DOC, and, were we to review the merits of this appeal, we would be unable to grant C.J. the relief he requests if we agreed with his arguments. As such, his appeal is moot, and C.J. does not allege that this appeal presents a question of great public interest to justify consideration of the merits of his appeal. We reject C.J.’s contentions that his appeal is not moot in light of possible negative collateral consequences. We dismiss his appeal as moot.

NFP civil decisions today (1):

Maria Linstrom v. Golden Living Center - Woodlands (mem. dec.)

NFP juvenile and criminal decisions today (3):

David Howard v. State of Indiana (mem. dec.)

Alacia Johnson v. State of Indiana (mem. dec.)

Dusty R. Owens v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on April 11, 2017 12:06 PM
Posted to Ind. App.Ct. Decisions