ILNews

Supreme Court grants 3 transfers

Jennifer Nelson
January 1, 2007
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The Indiana Supreme Court has granted transfer in three cases - David Michael Green v. State of Indiana; Beth Palmer Kopczynski and Alisha Palmer v. David B. and Peggy L. Barger; and Richard U. and Delores J. Pflanz v. Merrill Foster, et al.

In Green v. State, 45A05-0612-CR-708, Green appealed his conviction and sentence for two counts of felony murder, claiming his victim's death was out of self-defense and an accident. The Court of Appeals affirmed the state presented sufficient evidence to prove Green did not murder his victim, who was pregnant, out of self-defense and accident.

Green also appealed the admission of his pretrial statement to police and argued the imposition of consecutive sentences was inappropriate. The Court of Appeals affirmed the trial court finding that Green's statement to police would be admissible because he had not been charged with a crime at the time of the statement nor was he engaged in plea negotiations. The Court of Appeals also ruled Green's consecutive sentence was appropriate because of the nature of the crime and multiple victims.

In Beth Palmer Kopczynski and Alisha Palmer v. David B. and Peggy L. Barger, 88A05-0612-CV-703, Kopczynski and her minor daughter, Alisha, appealed the trial court grant of summary judgment in favor of the Bargers on their claims for negligence and premises liability, which the Court of Appeals affirmed. The Palmers claimed there was a genuine issue of material fact as to whether the Bargers were negligent in letting Alisha play unsupervised on their trampoline, as well as the Bargers should be liable for Alisha's knee injury while on the trampoline because it was an attractive nuisance.

The Court of Appeals affirmed the summary judgment because Alisha was invited to play on the trampoline by the Bargers' young son, who lacked the authority to invite her to play on it. Alisha was determined to be trespassing when she came on the Bargers' property to play on the trampoline, and there is no evidence of willful or wanton conduct by the Bargers.

On their attractive nuisance claim, the Court of Appeals ruled the Palmers failed to show any evidence establishing the trampoline was particularly dangerous to children and that they would not comprehend the danger, nor did they show any evidence that the Bargers knew children may trespass on their property and be injured by the trampoline.

In Richard U. and Delores J. Pflanz v. Merrill Foster, et al., 36A01-0412-CT-36, the Court of Appeals affirmed the trial court decision to dismiss the Pflanzes' action for failure to state a claim upon which relief may be granted. The Pflanzes appealed, claiming the trial court erred in determining they did not bring their claim within the applicable statute of limitations.

The Pflanzes purchased Foster's property, where he used to own a Sunoco gas station, and ran a Big O Tires of Seymour on the site. The Pflanzes claim they never knew there were any environmental issues with the site when the Indiana Department of Environmental Management discovered underground storage tanks were causing contamination. The Pflanzes brought a suit against Foster, alleging waste and negligence and sought contribution, attorney fees, and cost for environmental liability; the Pflanzes spent more than $100,000 to clean the site.

The Pflanzes purchased the property in 1978 and the contamination was not discovered until 2001. They argue that the applicable 10-year statute of limitations did not begin until the discovery of contamination or payment of remediation. The Indiana Supreme Court previously ruled that Indiana Code 13-23-13-8, which allows a plaintiff to receive contribution from a previous owner or operator of underground storage tanks if a release occurred during that individual's ownership or operation, has a 10-year statute of limitations. The Supreme Court also held the statute of limitations is discovery based and begins to run once the claimant knew or, through the exercise of reasonable diligence, should have known of the damage.

The trial court found that the Pflanzes knew or through exercise of reasonable diligence should have known about the onsite contamination by 1991, when amendments were made to the 1987 Indiana legislation enacted concerning underground storage tanks. The Pflanzes took no action to discover if the tanks on the property were leaking.
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  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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