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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. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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