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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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. 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.

  3. 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

  4. 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

  5. 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

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