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. Can I get this form on line,if not where can I obtain one. I am eligible.

  2. What a fine example of the best of the Hoosier tradition! How sad that the AP has to include partisan snark in the obit for this great American patriot and adventurer.

  3. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  4. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

  5. Could be his email did something especially heinous, really over the top like questioning Ind S.Ct. officials or accusing JLAP of being the political correctness police.

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