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High court reverses $2.3 million jury award

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The Indiana Supreme Court reduced a $2.3 million jury award in favor of an Evansville shopping center owner, affirming a previous ruling that shopping center owners aren't entitled to consequential damages from street reconfigurations that affect traffic flow to the shops and prevent expansion of existing exit and entrance points.

The high court was split 3-2 in its decision in State of Indiana v. Kimco of Evansville, Inc., et al., No. 82S01-0806-CV-308, in which the majority reaffirmed its decision in State v. Ensley, 240 Ind. 472, 164 N.E.2d 342 (1960).

Kimco owns the Plaza East Shopping Center, which has two main entrances and exits on Green River Road in Evansville. The state acquired a 0.1540-acre strip of land along the western border of the shopping center to widen Green River Road and improve traffic flow to and from the Lloyd Expressway. Because of the construction, Plaza East couldn't add new entrances on Green River Road or widen its existing access points. The construction also modified the original traffic flow in and out of the center, but kept the existing entrances and exits.

After construction was complete, Kimco filed suit for damages, claiming the construction affected traffic flow to and from the complex and the shopping center had depreciated in value. The jury awarded Kimco $2.3 million, finding the company suffered a particular, private injury resulting from interference of Kimco's rights of ingress and egress. The Indiana Court of Appeals affirmed the admittance of Kimco's loss-of-access evidence and the jury award.

Citing its previous ruling in Ensley, the Supreme Court found Kimco is only entitled to $100,700, the value of the physical taking of the strip of land and temporary construction easement. Although an elimination of rights of ingress and egress constitutes a compensable taking, the mere reduction in or reduction of traffic flow to a commercial property isn't a compensable taking of a property right, wrote Justice Theodore Boehm.

As in Ensley, Plaza East Shopping Center's existing access points hadn't been eliminated or narrowed as a result of the construction, nor did the reconfigurations deprive the owners of their right to ingress or egress.

"The only substantive allegation is that traffic flow to the shopping complex has been encumbered. Under Ensley and its progeny, these consequences from the State's roadway improvements are not compensable because no property right has been taken," he wrote.

While the instant case has a merge lane and entrance congestion that wasn't present in Ensley, neither affects the fundamental point that they aren't attributable to the deprivation of any property right.

The majority reversed the judgment and remanded for proceedings consistent with the opinion. Justices Brent Dickson and Robert Rucker dissented, believing the Court of Appeals correctly decided the case.

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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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