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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. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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