ILNews

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. I have dealt with more than a few I-465 moat-protected government attorneys and even judges who just cannot seem to wrap their heads around the core of this 800 year old document. I guess monarchial privileges and powers corrupt still ..... from an academic website on this fantastic "treaty" between the King and the people ... "Enduring Principles of Liberty Magna Carta was written by a group of 13th-century barons to protect their rights and property against a tyrannical king. There are two principles expressed in Magna Carta that resonate to this day: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land." "To no one will We sell, to no one will We deny or delay, right or justice." Inspiration for Americans During the American Revolution, Magna Carta served to inspire and justify action in liberty’s defense. The colonists believed they were entitled to the same rights as Englishmen, rights guaranteed in Magna Carta. They embedded those rights into the laws of their states and later into the Constitution and Bill of Rights. The Fifth Amendment to the Constitution ("no person shall . . . be deprived of life, liberty, or property, without due process of law.") is a direct descendent of Magna Carta's guarantee of proceedings according to the "law of the land." http://www.archives.gov/exhibits/featured_documents/magna_carta/

  2. I'm not sure what's more depressing: the fact that people would pay $35,000 per year to attend an unaccredited law school, or the fact that the same people "are hanging in there and willing to follow the dean’s lead in going forward" after the same school fails to gain accreditation, rendering their $70,000 and counting education worthless. Maybe it's a good thing these people can't sit for the bar.

  3. Such is not uncommon on law school startups. Students and faculty should tap Bruce Green, city attorney of Lufkin, Texas. He led a group of studnets and faculty and sued the ABA as a law student. He knows the ropes, has advised other law school startups. Very astute and principled attorney of unpopular clients, at least in his past, before Lufkin tapped him to run their show.

  4. Not that having the appellate records on Odyssey won't be welcome or useful, but I would rather they first bring in the stray counties that aren't yet connected on the trial court level.

  5. Aristotle said 350 bc: "The most hated sort, and with the greatest reason, is usury, which makes a gain out of money itself, and not from the natural object of it. For money was intended to be used in exchange, but not to increase at interest. And this term interest, which means the birth of money from money, is applied to the breeding of money because the offspring resembles the parent. Wherefore of an modes of getting wealth this is the most unnatural.

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