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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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