ILNews

Supreme Court grants 3 transfers

Jennifer Nelson
January 1, 2007
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The Indiana Supreme Court has granted transfer in three cases - David Michael Green v. State of Indiana; Beth Palmer Kopczynski and Alisha Palmer v. David B. and Peggy L. Barger; and Richard U. and Delores J. Pflanz v. Merrill Foster, et al.

In Green v. State, 45A05-0612-CR-708, Green appealed his conviction and sentence for two counts of felony murder, claiming his victim's death was out of self-defense and an accident. The Court of Appeals affirmed the state presented sufficient evidence to prove Green did not murder his victim, who was pregnant, out of self-defense and accident.

Green also appealed the admission of his pretrial statement to police and argued the imposition of consecutive sentences was inappropriate. The Court of Appeals affirmed the trial court finding that Green's statement to police would be admissible because he had not been charged with a crime at the time of the statement nor was he engaged in plea negotiations. The Court of Appeals also ruled Green's consecutive sentence was appropriate because of the nature of the crime and multiple victims.

In Beth Palmer Kopczynski and Alisha Palmer v. David B. and Peggy L. Barger, 88A05-0612-CV-703, Kopczynski and her minor daughter, Alisha, appealed the trial court grant of summary judgment in favor of the Bargers on their claims for negligence and premises liability, which the Court of Appeals affirmed. The Palmers claimed there was a genuine issue of material fact as to whether the Bargers were negligent in letting Alisha play unsupervised on their trampoline, as well as the Bargers should be liable for Alisha's knee injury while on the trampoline because it was an attractive nuisance.

The Court of Appeals affirmed the summary judgment because Alisha was invited to play on the trampoline by the Bargers' young son, who lacked the authority to invite her to play on it. Alisha was determined to be trespassing when she came on the Bargers' property to play on the trampoline, and there is no evidence of willful or wanton conduct by the Bargers.

On their attractive nuisance claim, the Court of Appeals ruled the Palmers failed to show any evidence establishing the trampoline was particularly dangerous to children and that they would not comprehend the danger, nor did they show any evidence that the Bargers knew children may trespass on their property and be injured by the trampoline.

In Richard U. and Delores J. Pflanz v. Merrill Foster, et al., 36A01-0412-CT-36, the Court of Appeals affirmed the trial court decision to dismiss the Pflanzes' action for failure to state a claim upon which relief may be granted. The Pflanzes appealed, claiming the trial court erred in determining they did not bring their claim within the applicable statute of limitations.

The Pflanzes purchased Foster's property, where he used to own a Sunoco gas station, and ran a Big O Tires of Seymour on the site. The Pflanzes claim they never knew there were any environmental issues with the site when the Indiana Department of Environmental Management discovered underground storage tanks were causing contamination. The Pflanzes brought a suit against Foster, alleging waste and negligence and sought contribution, attorney fees, and cost for environmental liability; the Pflanzes spent more than $100,000 to clean the site.

The Pflanzes purchased the property in 1978 and the contamination was not discovered until 2001. They argue that the applicable 10-year statute of limitations did not begin until the discovery of contamination or payment of remediation. The Indiana Supreme Court previously ruled that Indiana Code 13-23-13-8, which allows a plaintiff to receive contribution from a previous owner or operator of underground storage tanks if a release occurred during that individual's ownership or operation, has a 10-year statute of limitations. The Supreme Court also held the statute of limitations is discovery based and begins to run once the claimant knew or, through the exercise of reasonable diligence, should have known of the damage.

The trial court found that the Pflanzes knew or through exercise of reasonable diligence should have known about the onsite contamination by 1991, when amendments were made to the 1987 Indiana legislation enacted concerning underground storage tanks. The Pflanzes took no action to discover if the tanks on the property were leaking.
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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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