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COA: negligence claim should go to trial

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The Marion Superior Court was wrong to grant summary judgment for a company in a home builder’s claims of negligence following the discovery of contaminants on lots in a subdivision, the Indiana Court of Appeals ruled.

KB Home Indiana filed suit against Rockville TBD Corp. for damages for negligence, nuisance, and trespass after KB discovered Rockville’s plant years earlier had discharged pollutants into the land that subsequently became a subdivision.

The land used to build the subdivision was farmland owned by George and Patricia Kopetsky. They purchased land next to the predecessor of Rockville, which manufactured airplane parts. The company used chemical solvents, including trichloroethylene, which eventually leached into the ground and surrounding farmland. Use of TCE ended sometime in 1993.

The Kopetskys sold some of their land to Dura Builder to create the Cedar Park residential subdivision. Neither party did an environmental or chemical assessment of the land at that time. In 2001, George Kopetsky learned of the contamination, but didn’t tell Dura or KB, which purchased Dura in 2004, about contamination. After KB learned of the contamination in 2005, it stopped building homes on the land. It then filed its suit in 2007 against Rockville, Kopetsky, and others.

The trial court granted summary judgment to Rockville on all of KB’s claims.

In KB Home Indiana Inc. v. Rockville TBD Corp., No. 49A02-0909-CV-881, the Court of Appeals concluded that the trial court erred in finding the economic loss doctrine precludes KB from pursuing its negligence claim.

Under the economic loss doctrine, a contract is the sole remedy for the failure of a product or service to perform as expected, wrote Chief Judge John Baker. If the plaintiff isn’t seeking damages involving the benefit of the bargain or other matters governed by contract, the economic loss doctrine does not bar a negligence action.

KB didn’t have a contract with Rockville to buy the property, nor did it assert any product liability or comparable claim. Koptesky’s breach of warrant that the land was free of contaminants doesn’t absolve Rockville of responsibility for its negligent conduct that may have caused the contamination, wrote the chief judge.

The appellate court upheld summary judgment for Rockville on KB’s claims of nuisance and trespass. Rockville’s contamination ended in 1993 and it the sold property to a subsequent buyer. Under these circumstance, KB didn’t show that a nuisance existed or was ongoing that could be abated or enjoined. KB also failed to show a departure from the “long-established principle” that a party must possess the land at the time of the activity that causes the alleged trespass, wrote Chief Judge Baker.

The Court of Appeals remanded the cause for trial on KB’s negligence claim.
 

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  1. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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