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Appellate court splits on liability of city

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The Indiana Court of Appeals split today in deciding whether the city of South Bend should have known putting heavy machinery on an unstable sidewalk would create an unreasonable risk of harm to a brick restorer.

At issue in City of South Bend v. Charles Dollahan, No. 46A03-0901-CV-17, was whether the city was liable for Charles Dollahan's loss. Dollahan, a brick restorer, needed to repair bricks approximately 30 feet above the ground. His company got a permit to allow a boom lift to be placed on the city sidewalk in front of the building. Dollahan saw the sidewalks were in questionable condition, but figured the sidewalk was safe after he performed stress tests with the boom lift on the sidewalk. After he got in the lift and was in the air, the sidewalk collapsed, sinking the lift into a fissure beneath the sidewalk and injuring Dollahan.

An investigation revealed base material under the sidewalk had eroded and steel reinforcement I-beams had been inserted into the sidewalk, an indication of past problems with the sidewalk.

Dollahan sued the city, alleging it was negligent in issuing the permit and in its failure to warn him about latent defects in the sidewalk under the theory of premises liability. He called on a city engineer to testify, who said the reinforcement indicated there was a void before under the sidewalk and that it likely would have collapsed had any heavy machinery been placed on it. The trial court awarded Dollahan more than $300,000.

The majority agreed that the city failed to maintain its property in a safe condition and to warn of any latent defects in the sidewalk where the lift was to be placed. The city engineer's testimony supported the trial court's conclusion that the city knew or should have known putting the lift on the sidewalk, given the history of the sidewalk's instability, would create an unreasonable risk of harm to Dollahan, and that the city breached its duty to exercise reasonable care when it failed to maintain the sidewalk in a reasonably safe condition. The finding and judgment that the city was liable based upon the theory of premises liability is well supported, wrote Judge Carr Darden.

Judge Margret Robb dissented on this issue, writing the city knew there had been a void under the sidewalk and took steps to reinforce the sidewalk. There was no evidence showing the steel beams and backfill were an insufficient means of reinforcement.

"There is no evidence suggesting the City knew when it issued this permit the sidewalk was no longer adequately reinforced," she wrote. "In short, I believe the evidence shows the City corrected the defect in the sidewalk by placement of the steel beams and did not know and had no reason to know the defect had recurred."

The appellate court also found the trial court erred when it ruled the city had waived the defense of governmental immunity but that the error was harmless.

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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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