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COA split over reversing summary judgment in slip-and-fall case

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The Indiana Court of Appeals was divided Wednesday over whether a Merrillville store failed to preserve its issue of prejudice by opposing summary judgment granted to two companies in a negligence lawsuit filed by a woman who fell on ice in front of the northern Indiana Pier 1 Imports store.

Carolyn Harris fell on an ice-covered sidewalk in front of the Pier 1 store as an employee was salting the sidewalk. Pier 1’s lease agreement with Acadia Merrillville Realty requires Acadia keep the sidewalk free from ice and snow. Acadia contracted with Boyd Construction Company to provide that work. Harris and her husband sued the three companies, which all filed for summary judgment. The trial court ruled Acadia and Boyd didn’t breach their respective duties of care and granted summary judgment for them. The court denied Pier 1’s motion, as well as its motion to correct error.

In Pier 1 Imports (U.S.), Inc., v. Acadia Merrillville Realty, L.P. and Boyd Construction Company, Inc., 45A03-1207-CT-318, Acadia and Boyd argued Pier 1 lacks standing to challenge the awards because it failed to preserve the issue of prejudice by objecting to Acadia’s and Boyd’s motions or advising the trial court of an intent to allocate fault to Acadia and Boyd as nonparties.

“Because Pier 1 did not have an opportunity to object to Acadia’s and Boyd’s dismissal prior to the court’s ruling on their motions for summary judgment, we conclude that Pier 1 has standing to appeal,” Judge Cale Bradford wrote for the majority, which included Judge Patricia Riley.

The majority went on to find that whether Acadia was discharged of its duty of care merely by contracting with Boyd is a question for the jury to decide. And, because there is evidence that additional salting was necessary after Boyd had already salted the sidewalk, a jury could reasonably infer that Boyd failed to exercise reasonable care in performing the snow and ice removal services, Bradford wrote.

Judge Elaine Brown dissented, believing Pier 1 had a practical opportunity to object to the motions for summary judgment by Acadia and Boyd prior to their dismissal. She cited U-Haul Intern Inc. v. Nulls Machine and Mfg. Shop, 736 N.E.2d 271, 280 (Ind. Ct. App. 2000), Nationwide Ins. Co. v. Parmer, 958 N.E.2d 802, 807 (Ind. Ct. App. 2011), and the Indiana Supreme Court opinions upon which those decisions rely to support her decision that Pier 1 waived its claim for appeal.

 

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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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