ILNews

COA affirms $2.3 million damage award

Michael W. Hoskins
January 1, 2007
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An Evansville shopping center owner is entitled to $2.3 million in damages for loss of access to a public thoroughfare resulting from a state highway project, the Indiana Court of Appeals ruled today.

The court's unanimous decision came in State of Indiana v. Kimco of Evansville, Inc., No. 82A01-0607-CV-301, affirming a Vanderburgh Circuit jury award that stems from the road project in 2000 impacting the Plaza East Shopping Center along State Road 66 and Green River Road.

In June 2000, the state took 0.154 acres of Plaza East (owned by Kimco) along Green River Road as part of the construction project to improve access to the state highway. Part of the project involved putting in a concrete median and changing the setup of the shopping center's two entrances, causing traffic backups and a loss of business by the time the trial began early last year.

A four-day trial in February 2006 resulted in a jury verdict of $2.3 million for Kimco, or a total judgment of almost $3.2 million with legal costs and interest. The state appealed, arguing that Kimco cannot be compensated for its loss of access as a matter of law, and that the trial court improperly admitted evidence of damages associated with the loss of access and incorrectly instructed the jury on that issue.

But in its 17-page decision that includes diagrams to map out the area being debated, the appellate judges determined that Kimco was entitled to the damages since the state had taken property and the access and the reconfiguration of the entrances amounted to more than a "mere inconvenience."

The court cited an Indiana Supreme Court ruling from January in Biddle v. BAA Indianapolis LLC, 860 N.E.2d 570, 575 (Ind. 2007), as rationale in making its decision. That decision involving the Indianapolis International Airport clarified when a taking has occurred as a question of law.

In this case, the concrete median and refigured turn and driving lanes in front of the property contributed to the problem, the court said.

"Any one of these changes by itself might not amount to a taking of access rights. When considering all of these changes, however, we conclude that a taking has occurred as a matter of law," the court wrote. "The state's reconfiguration of Green River Road and the changes to the Southern Entrance and Northern Entrance are peculiar to Plaza East and Kimco, and the changes are 'of a degree that exceeds mere inconvenience.'"
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  1. Should be beat this rap, I would not recommend lion hunting in Zimbabwe to celebrate.

  2. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

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  4. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  5. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

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