ILNews

High court reverses $2.3 million jury award

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

  2. My situation was hopeless me and my husband was on the verge of divorce. I was in a awful state and felt that I was not able to cope with life any longer. I found out about this great spell caster drlawrencespelltemple@hotmail.com and tried him. Well, he did return and now we are doing well again, more than ever before. Thank you so much Drlawrencespelltemple@hotmail.comi will forever be grateful to you Drlawrencespelltemple@hotmail.com

  3. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  4. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

  5. Hemp has very little THC which is needed to kill cancer cells! Growing cannabis plants for THC inside a hemp field will not work...where is the fear? From not really knowing about Cannabis and Hemp or just not listening to the people teaching you through testimonies and packets of info over the last few years! Wake up Hoosier law makers!

ADVERTISEMENT