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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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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