Indiana Court Decisions – March 29-April 11, 2017

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7th Circuit Court of Appeals

April 10

Civil – Qualified Immunity

Thom D. Howell v. Shawn Smith


The 7th Circuit Court of Appeals has reversed the denial of summary judgment to a Highland police officer, finding his decision to keep a man in handcuffs while he was investigated as part of a road rage incident did not violate the Fourth Amendment.

In May 2011, Highland Police Department officer Shawn Smith was on patrol when dispatch advised him of a reported road rage incident involving a firearm in nearby Griffith. When Smith located a vehicle matching the description, he initiated a “high-risk traffic stop.”

The driver was Thom Howell, a man in his early 60s who had undergone multiple shoulder surgeries. Smith ordered Howell to step out of the vehicle and kneel while Smith handcuffed him, and Howell complied.

Howell told Smith that he was not involved in the road rage incident and later claimed in court he had told Smith that a recent shoulder surgery prevented him from stretching his arms behind his back to be handcuffed. Smith, however, testified that Howell did not complain of any pain.

The victim was brought to the scene and confirmed Howell’s identity, though officers were unable to find a weapon on him or in his vehicle. The officers decided to release Howell after about 30 minutes. Howell sued, claiming Smith’s actions caused him to have to undergo additional shoulder surgeries.

Smith moved for summary judgment on the grounds of qualified immunity, which was denied.

The 7th Circuit Court of Appeals reversed, with Judge Kenneth Ripple writing that Smith’s actions did not violate the Fourth Amendment because “although Officer Smith had a duty to consider the information that Mr. Howell had given him about his condition, he had very little information to evaluate.”

Although there was evidence in the record of Howell’s earlier shoulder difficulties, Smith likely knew, at most, that Howell had recently had shoulder surgery, Ripple wrote. However, Howell did not say that the handcuffs were causing him active pain, the judge said.

“Ensuring the security of the alleged perpetrator and the safety of the victim in such a circumstance is an obvious consideration in an officer’s decision making,” Ripple wrote. “Indeed, during this show-up, the victim affirmatively identified Mr. Howell as the perpetrator to the police, thus justifying a more prolonged investigation while the officers thoroughly searched Mr. Howell’s vehicle for a firearm.”

The case was remanded for further proceedings, and the 7th Circuit ruled that Smith may recover the costs of his appeal.

Indiana Supreme Court

April 7

Civil Tort – Medical Malpractice

Charles McKeen, M.D. v. Billy Turner


After six years of controversy over the limits, or lack thereof, on what evidence and arguments may be presented to a trial court during a medical malpractice proceeding, the Indiana Supreme Court has denounced a highly disputed medical malpractice case while simultaneously adopting a recent Court of Appeals opinion.

In a per curiam, the Indiana Supreme Court “expressly disapproved” of the Indiana Court of Appeals holding in K.D. v. Chambers, 951 N.E.2d 855 (Ind. Ct. App. 2011). In that case, the Court of Appeals found that “a malpractice plaintiff cannot present one breach of the standard of care to the panel and, after receiving an opinion, proceed to trial and raise claims of additional, separate breaches of the standard of care that were not presented to the panel and addressed in its opinion.”

After the decision in K.D. was handed down, controversy among medical malpractice attorneys arose as they tried to reconcile K.D. with the established precedent in Miller v. Memorial Hospital of South Bend, Inc., 679 N.E.2d 1329 (Ind. 1997), in which the Indiana Supreme Court held that “there is no requirement for … plaintiff to fully explicate and provide the particulars or legal contentions regarding the claim.”

That conflict was the crux of the McKeen case, in which Billy Turner brought a malpractice case against Dr. Charles McKeen, who treated McKeen’s wife, Rowena, before her eventual death. After a medical review panel found in McKeen’s favor, Turner took his case to the Monroe Circuit Court, where he filed a supplemental witness list naming an expert hematologist who would testify to McKeen’s failure “to prescribe the appropriate dosage of anticoagulation medication, leading to Rowena’s death.”

McKeen, however, filed a motion to strike the hematologist’s opinion, arguing that Turner’s submission to the review panel did not allege malpractice related to anticoagulation medication. The trial court denied McKeen’s motion and the Indiana Court of Appeals affirmed, holding that “a plaintiff may raise any theories of alleged malpractice during litigation following the MRP process if (1) the proposed complaint encompasses the theories, and (2) the evidence relating to those theories was before the MRP.”

Both Turner and McKeen took their case to the Indiana Supreme Court last month, urging the justices to grant transfer for the sake of providing clarity to medical malpractice litigators. Counsel for both parties said the dispute between K.D. and Miller had spread beyond the McKeen case, so the judiciary needed guidance on how to proceed in future medical malpractice cases.

Turner’s counsel urged the court to reject K.D. altogether, and the justices did just that in their opinion, granting transfer and adopting and incorporating the Court of Appeals’ McKeen opinion. Additionally, the court found K.D. to be at odds with Miller, and thus “expressly disapproved” of its holding.

Indiana Court of Appeals

March 30

Miscellaneous – Annexation

Certain Tell City Annexation Territory Landowners v. Tell City, Indiana


The Perry Circuit Court imposed too strict of a standard on a group of property owners when it denied their remonstrance petition because some of the signatures did not exactly match the signatures on tax duplicates, the Indiana Court of Appeals decided.

When Tell City adopted an ordinance in April 2014 to annex nearly 1,776 acres of land into its corporate limits, property owners who owned part of the land in question filed a remonstrance petition with the Perry Circuit Court challenging the annexation. The petition included a line for each of the 438 property owners’ signatures and printed names, as well as lines for each of them to date the petition.

However, the auditor of Perry County found that 145 of the signatures did not comply with Indiana Code 36-4-3-11(b) because they did not “exactly match any of the names listed on the tax duplicate such that the signatures may not comply with Indiana law.” For example, one person signed the petition as “Joe” rather than “Joseph,” and others added middle initials to their signatures.

The auditor additionally found the total value of the property held by the owners was not more than 75 percent of the total value of the annexation property, as is required for standing under I.C. 36-4-2-11(a). The property owners objected to the auditor’s findings, arguing, among other things, that she had improperly counted state-owned parcels separately rather than as one single parcel, an error that, if corrected, gave the owners standing under Indiana Code.

The Perry Circuit Court ultimately entered findings of facts and conclusions that the petition did not contain the necessary signatures to give the property owners standing to challenge the annexation, but did not decide on the merits whether the state’s parcels should be counted as one. On appeal, the property owners argued that the court erred in its determination of how many signatures were valid.

Judge Rudolph Pyle wrote the assertion each signature had to exactly match the name on the property tax duplicate was too restrictive of a standard and is not supported by statute.

The petition in question contained the property owners’ names in three forms, Pyle said, the documentation of the name as it appeared on the tax duplicate, the printed name and the signature.

“The trial court concluded that the signature had to exactly match the property tax duplicate, but we disagree in light of the language of the statute,” Pyle wrote. “Instead, we conclude that the statute allowed for the tax duplicate to constitute prima facie evidence of ownership if it was the same as the Petition’s statement of the Property Owner’s name in any of these three contexts.”

Pyle said there were at least 416 compliant signatures on the petition, giving the owners a sufficient percentage for standing. The case was remanded.

April 11

Civil Tort – Negligence/Immunity

Jalen Lee, A Minor Child, by and through his Next Friend Crystal Estes and Crystal Estes, Individually v. Bartholomew Consolidated School Corporation, City of Columbus, Columbus City Planning Commission and Columbus Police Department


Although the city of Columbus has immunity from the policy decisions that may have contributed to a 13-year-old’s injuries when he was struck by a vehicle in a city crosswalk, genuine issues of material fact remain that preclude the city from being awarded summary judgment in a lawsuit, a divided Indiana Court of Appeals has held.

As part of his daily walk to his bus stop each morning, 13-year-old Jalen Lee was required to cross Marr Road, a minor artery in Columbus that is marked by high-visibility crosswalk markings, reflective signs and two speed limit signs in either direction. However, the signs offered different guidance – one called for 20 miles per hour, while the other established a speed limit of 30 miles per hour.

One morning in March 2013, a pickup truck driven by Kyle McLeod, who did not see any students attempting to cross Marr Road, drove through the crosswalk and struck Lee, who had believed he had enough time to cross the road before McLeod’s truck came near. Lee sustained multiple injuries, including cracked ribs and a collapsed lung.

In January 2015, Lee filed a complaint against the city of Columbus, alleging that it was negligent in performing its duties to students who utilized school buses for transportation to Central Middle School, where Lee was a student, and that such negligence proximately caused the accident and his injuries. Additionally, Lee argued the city had “negligently failed to take reasonable measures to warn pedestrians utilizing the Crosswalk and drivers on Marr Road of the particular dangers of the Crosswalk so as to reasonably mitigate the known dangers of the Crosswalk,” thus proximately causing his injuries.

The city moved for summary judgment in March 2016, arguing it did not breach its duty of reasonable care or proximately cause the accident or Lee’s injuries. The city also maintained it was entitled to statutory immunity as a governmental entity, and common law immunity, and Lee’s claim was barred by his own contributory negligence.

The Bartholomew Circuit Court entered summary judgment in the city’s favor, finding that Lee, based on his “age, his knowledge, his judgment, and his experience” was contributorily negligent as a matter of law.

The COA reversed, holding that there were genuine issues of material fact that preclude summary judgment on the basis of Lee’s contributory negligence.

Judge Patricia Riley wrote that Lee and his friend both testified that they believed there was enough time for them to cross the road before McLeod’s truck approached, and that McLeod could have been traveling as fast as 35 to 40 miles per hour. Thus, the appellate panel found that Lee “may have acted reasonably in entering the crosswalk.”

However, the Court of Appeals also found that based on precedent in Lee v. State, 682 N.E.2d 576, 577 (Ind. Ct. App. 1997), the city was entitled to discretionary function immunity because the designated evidence demonstrated that the city was in the process of making improvements to the crosswalk, specifically the installation of flashing lights. Additionally, Riley said the city is subject to immunity from its decision not to place a crossing guard at the crosswalk and for “any failure to adopt or enforce a law,” such as a speed limit, under Indiana Code 34-13-3-3(8).

Nevertheless, the speed limit signs posted at the crosswalk conflicted with one another, and “the city offers no basis under the (Indiana Tort Claims Act) that would grant it immunity if it posted an incorrect speed limit sign,” Riley wrote. Thus, the question of whether the city breached its duty to “exercise reasonable care in the maintenance and regulation of public roadways is a question of fact that should be determined by a jury.” If the city did breach its duty, then there remains a question of fact as to whether that breach proximately caused the accident and Lee’s injuries.

Judge Terry Crone dissented, writing that “if a plaintiff who files a tort claim against a governmental entity, such as the city, ‘is negligent to even a small degree and that negligence proximately contributes to his claimed damages, contributory negligence will operate as a complete bar to his action.’” Additionally, Crone would affirm summary judgment to the city “on the basis that any negligence on the City’s part with respect to the speed limit signs did not proximately causes Lee’s injuries as a matter of law.”•

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