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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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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