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Supreme Court grants 6 transfers

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The Indiana Supreme Court granted six transfers Sept. 11, including a case of first impression involving a suit filed by a pathological gambler against a riverboat casino.

In Caesars Riverboat Casino LLC v. Genevieve M. Kephart, No. 31A01-0711-CV-530, a split Indiana Court of Appeals ruled that casinos don't have a common law duty to protect compulsive gamblers from themselves, and aren't required to refrain from trying to entice those people into their establishments. The majority decided Genevieve Kephart couldn't recover from a private negligence action against the riverboat casino; she argued the casino enticed her with a free hotel room, drinks, and meals, and took advantage of her condition as a pathological gambler.

Judge Terry Crone dissented because he believed common law duty should be imposed because of the casino's conduct in luring her to the casino with freebies and it should have excluded her from its marketing materials because it likely knew of her condition.

In Indiana Patient's Compensation Fund v. Gary Patrick, No. 49A02-0807-CV-614, the Court of Appeals examined previous caselaw to clarify claims for emotional distress brought as part of the Wrongful Death Statute or part of the Medical Malpractice Act. The Indiana Patient's Compensation fund had appealed the trial court's judgment in favor of Gary Patrick in his independent claim for emotional distress damages in conjunction with the Adult Wrongful Death Statute following the death of his adult son.

The appellate court ruled Patrick's assertion for damages as a bystander was pursuant to Groves v. Taylor, 729 N.E.2d 569 (Ind. 2000), and because he dealt with the aftermath of the malpractice, he was able to bring an independent claim for damages for emotional distress in conjunction with his claim under the Adult Wrongful Death Statute.

In Ford Motor Co. and TRW Vehicle Safety Systems, Inc. v. Sally Moore, personal representative of the estate of Daniel A. Moore, No. 73A05-0710-CV-552, the majority of Court of Appeals' judges reversed a jury verdict in favor of Sally Moore in the estate's product negligence claim because it ruled the estate didn't present sufficient evidence to establish its claim.

Judge Patricia Riley dissented because she thought the estate presented sufficient evidence from which a reasonable jury could have concluded a safer and feasible alternative to the conventional seatbelt was available that would have cost-effectively improved aggregate safety in all types of crashes.

Sally Moore brought the suit following the death of Daniel Moore in which he was ejected from his Ford Explorer after his car blew a tire, even though he was wearing a properly fastened seatbelt made by TRW.

In Gabino Gonzalez v. State of Indiana, No. 82A01-0809-CR-406, the Court of Appeals reversed Gabino Gonzalez's criminal mischief and operating while intoxicated convictions and remanded for a new trial because the court ruled a letter he wrote while trying to negotiate a plea agreement shouldn't have been admitted at trial. The appellate court determined the letter was a privileged communication that should not have been admitted based on Indiana Code Section 35-35-3-4 and Ind. Evidence Rule 410.

In Kevin S. Varner v. Indiana Parole Board, No. 45A04-0812-CR-693, the appellate court reversed the trial court's dismissal of Kevin Varner's pro se action for mandate requiring the Indiana Parole Board to determine his eligibility based on a vote of all five board members. Only four of the five board members voted on whether Varner should be granted parole and the vote resulted in a tie. The trial court dismissed his action believing it had no jurisdiction over the parole board.

Under the prescreening statutes, the appellate court ruled based on previous caselaw that his mandate action states a claim upon which relief can be granted. His action is based on a clear, statutory requirement and his relief can be granted by having the full, five-member board vote on his eligibility for parole. The Court of Appeals issued a mandate that all five members cast their vote on Varner's parole eligibility.

In Stephan M. Gallagher v. State of Indiana, No. 15A04-0806-CR-326, the Court of Appeals reversed Stephan Gallagher's felony conviction of dealing in a schedule II substance and remanded for re-sentencing as a Class B felony. The appellate court ordered the reduced sentence because no children were present at 3 a.m., and as a matter of law, the drug transaction that was within 1,000 feet of a school was brief. The state also failed to rebut Gallagher's defense. The Court of Appeals also affirmed the admittance as evidence an audio recording of the drug transaction.

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  1. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  2. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

  3. So this firebrand GOP Gov was set free by a "unanimous Supreme Court" , a court which is divided, even bitterly, on every culture war issue. WHAT A RESOUNDING SLAP in the Virginia Court's face! How bad must it have been. And all the journalists, lap dogs of the status quo they are, can do is howl that others cannot be railroaded like McDonald now??? Cannot reflect upon the ruining of Winston and Julia's life and love? (Oh I forget, the fiction at this Ministry of Truth is that courts can never err, and when they do, and do greatly, as here, why then it must be ignored, since it does not compute.)

  4. My daughter is a addict and my grandson was taken by DCS and while in hospital for overdose my daughter was told to sign papers from DCS giving up her parental rights of my grandson to the biological father's mom and step-dad. These people are not the best to care for him and I was never called or even given the chance to take him, but my daughter had given me guardianship but we never went to court to finalize the papers. Please I have lost my daughter and I dont want to lose my grandson as well. I hope and look forward to speaking with you God Bless and Thank You for all of your help

  5. To Bob- Goooooood, I'm glad you feel that way! He's alive and happy and thriving and out and I'm his woman and we live in West Palm Beach Florida, where his parents have a sprawling estate on an exclusive golf course......scum bag

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