ILNews

Supreme Court grants 6 transfers

Back to TopE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

ADVERTISEMENT