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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. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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