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Supreme Court grants 6 transfers

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The Indiana Supreme Court granted six transfers Sept. 11, including a case of first impression involving a suit filed by a pathological gambler against a riverboat casino.

In Caesars Riverboat Casino LLC v. Genevieve M. Kephart, No. 31A01-0711-CV-530, a split Indiana Court of Appeals ruled that casinos don't have a common law duty to protect compulsive gamblers from themselves, and aren't required to refrain from trying to entice those people into their establishments. The majority decided Genevieve Kephart couldn't recover from a private negligence action against the riverboat casino; she argued the casino enticed her with a free hotel room, drinks, and meals, and took advantage of her condition as a pathological gambler.

Judge Terry Crone dissented because he believed common law duty should be imposed because of the casino's conduct in luring her to the casino with freebies and it should have excluded her from its marketing materials because it likely knew of her condition.

In Indiana Patient's Compensation Fund v. Gary Patrick, No. 49A02-0807-CV-614, the Court of Appeals examined previous caselaw to clarify claims for emotional distress brought as part of the Wrongful Death Statute or part of the Medical Malpractice Act. The Indiana Patient's Compensation fund had appealed the trial court's judgment in favor of Gary Patrick in his independent claim for emotional distress damages in conjunction with the Adult Wrongful Death Statute following the death of his adult son.

The appellate court ruled Patrick's assertion for damages as a bystander was pursuant to Groves v. Taylor, 729 N.E.2d 569 (Ind. 2000), and because he dealt with the aftermath of the malpractice, he was able to bring an independent claim for damages for emotional distress in conjunction with his claim under the Adult Wrongful Death Statute.

In Ford Motor Co. and TRW Vehicle Safety Systems, Inc. v. Sally Moore, personal representative of the estate of Daniel A. Moore, No. 73A05-0710-CV-552, the majority of Court of Appeals' judges reversed a jury verdict in favor of Sally Moore in the estate's product negligence claim because it ruled the estate didn't present sufficient evidence to establish its claim.

Judge Patricia Riley dissented because she thought the estate presented sufficient evidence from which a reasonable jury could have concluded a safer and feasible alternative to the conventional seatbelt was available that would have cost-effectively improved aggregate safety in all types of crashes.

Sally Moore brought the suit following the death of Daniel Moore in which he was ejected from his Ford Explorer after his car blew a tire, even though he was wearing a properly fastened seatbelt made by TRW.

In Gabino Gonzalez v. State of Indiana, No. 82A01-0809-CR-406, the Court of Appeals reversed Gabino Gonzalez's criminal mischief and operating while intoxicated convictions and remanded for a new trial because the court ruled a letter he wrote while trying to negotiate a plea agreement shouldn't have been admitted at trial. The appellate court determined the letter was a privileged communication that should not have been admitted based on Indiana Code Section 35-35-3-4 and Ind. Evidence Rule 410.

In Kevin S. Varner v. Indiana Parole Board, No. 45A04-0812-CR-693, the appellate court reversed the trial court's dismissal of Kevin Varner's pro se action for mandate requiring the Indiana Parole Board to determine his eligibility based on a vote of all five board members. Only four of the five board members voted on whether Varner should be granted parole and the vote resulted in a tie. The trial court dismissed his action believing it had no jurisdiction over the parole board.

Under the prescreening statutes, the appellate court ruled based on previous caselaw that his mandate action states a claim upon which relief can be granted. His action is based on a clear, statutory requirement and his relief can be granted by having the full, five-member board vote on his eligibility for parole. The Court of Appeals issued a mandate that all five members cast their vote on Varner's parole eligibility.

In Stephan M. Gallagher v. State of Indiana, No. 15A04-0806-CR-326, the Court of Appeals reversed Stephan Gallagher's felony conviction of dealing in a schedule II substance and remanded for re-sentencing as a Class B felony. The appellate court ordered the reduced sentence because no children were present at 3 a.m., and as a matter of law, the drug transaction that was within 1,000 feet of a school was brief. The state also failed to rebut Gallagher's defense. The Court of Appeals also affirmed the admittance as evidence an audio recording of the drug transaction.

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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