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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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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