Indiana Court Decisions – Aug. 13-26, 2020

Keywords Court opinions

Indiana Supreme Court

Aug. 18

Criminal — Leaving the Scene of an Accident, OWI/Double Jeopardy

Jordan B. Wadle v. State of Indiana


Overruling a constitutional test for resolving claims of substantive double jeopardy and adopting a new test in its place, the Indiana Supreme Court has partially reversed a man’s drunken driving convictions on double jeopardy grounds. His 16-year sentence, however, will remain.

Justice Christopher Goff wrote for the unanimous court in Jordan B. Wadle v. State of Indiana, 19S-CR-340.

The case began at a bar in Connersville, where Jordan Wadle was involved in a fight. Once he returned to his car, Wadle struck his victim, Charles Woodward, from behind and then again, this time pinning Woodward under a guardrail. Woodward survived the attack but spent almost two months in the intensive care unit.

When police caught up with Wadle, his blood-alcohol level was nearly twice the legal limit. He was ultimately convicted of four felonies: Level 3 felony leaving the scene of an accident, Level 5 felony operating a vehicle while intoxicated causing serious bodily injury, and Level 6 felony counts of OWI endangering a person and OWI with a blood-alcohol concentration of 0.08 or more.

The Fayette Superior Court sentenced Wadle to 16 years, with two years suspended to probation.

A panel of the Indiana Court of Appeals partially reversed Wadle’s convictions last year under the “actual evidence” test in Richardson v. State, 717 N.E.2d 232 (Ind. 1999). The lower appellate panel remanded for the trial court to vacate all but Wadle’s conviction of leaving the scene of an accident.

The Supreme Court likewise remanded for the trial court to vacate all but the leaving-the-scene conviction, enacting a new double jeopardy test in its decision. The application of Richardson – which Goff described as a “comprehensive framework” consisting of a statutory elements test and an actual evidence test – left the state with “a patchwork of conflicting precedent, a jurisprudence of ‘double jeopardy double talk.’”

“For these reasons, we expressly overrule the constitutional tests formulated in Richardson as they apply to claims of substantive double jeopardy,” he wrote. The justices said the Indiana Double Jeopardy Clause “should focus its protective scope exclusively on successive prosecutions for the ‘same offense.’”

But when double jeopardy concerns arise from multiple punishments for one offense, the analysis should focus on the statutory offenses charged as well as the facts underlying those offenses, the court held. It noted, however, that substantive double jeopardy does not completely fall “beyond the constitutional pale,” as “(t)he Indiana Bill of Rights offers a larger framework of constitutional guarantees designed to protect Hoosiers ‘from the excesses of government.’”

Under the statutory question of a substantive double jeopardy inquiry, if the language of a statute permits multiple punishment, then there is no violation. But if the language is not clear, courts must apply the included-offense statutes.

“If neither offense is an included offense of the other (either inherently or as charged), there is no violation of double jeopardy,” Goff wrote. “If, however, one offense is included in the other (either inherently or as charged), the court must then look at the facts of the two crimes to determine whether the offenses are the same.

“… If the facts show two separate and distinct crimes, there’s no violation of substantive double jeopardy, even if one offense is, by definition, ‘included’ in the other,” he continued. “But if the facts show only a single continuous crime, and one statutory offense is included in the other, then the prosecutor may charge these offenses only as alternative (rather than as cumulative) sanctions. The State can rebut this presumption only by showing that the statute — either in express terms or by unmistakable implication — clearly permits multiple punishment.”

Applying the new test to the merits of Wadle’s case, the high court determined the statutory offenses charged indicated alternative, rather than multiple, punishments, creating double jeopardy violations.

On the Level 6 felony convictions — OWI endangering a person and OWI with a BAC of 0.08 or more — the state conceded and the court agreed that “(n)either statute clearly permits cumulative punishment and the latter offense is an included offense of the former.”

Likewise as to Wadle’s convictions of leaving the scene and OWI causing serious bodily injury, “(n)either statute clearly permits multiple punishments … .” The court also determined the OWI conviction is included in the leaving-the-scene conviction.

“Having determined that one offense is included in the other, we must now look at the facts to determine whether the two offenses are the same,” Goff wrote. “… Because Wadle’s actions were ‘so compressed in terms of time, place, singleness of purpose, and continuity of action,’ we consider them ‘one continuous transaction.’”

Though the high court remanded the case to vacate all but the leaving-the-scene conviction, it let stand Wadle’s sentence, finding that the Level 3 felony alone justified the maximum 16-year term that was imposed.


Aug. 25

Civil Tort — Negligence/Timeliness

Benjamin S. Smith v. Franklin Township Community School Corporation


A man who waited two months to seek reinstatement of a dismissed negligence claim against an Indianapolis school corporation will not be able to pursue his claim further after the Indiana Supreme Court determined his reinstatement bid was actually a collateral attack on a trial court order.

The case of Benjamin S. Smith v. Franklin Township Community School Corporation, 20S-CT-98, traces back to January 2016, when then-17-year-old Benjamin Smith suffered injuries after the vehicle he was driving was rear-ended by a Franklin Township Community Schools bus. Smith told the school district that he intended to sue, though he did not follow through for more than two years.

Meanwhile, the Indiana General Assembly in 2018 enacted the Claims Against Public Schools Act, requiring a party to satisfy notice requirements before suing a school. If the notice requirements aren’t met, a trial court must dismiss the case with prejudice.

Finally in October 2018 — four months after CAPSA took effect — Smith filed his negligence suit, avoiding the statute of limitations by only nine days. Franklin Township moved to dismiss under CAPSA, arguing Smith did not provide the required notice. Rather than responding to the CAPSA claim, Smith sent a letter demanding $500,000 from the schools to settle the claim.

Following a subsequent conference, the Marion Superior Court dismissed Smith’s claim based on the school district’s assertion that his “later-filed notice was not sufficient.” Then, after two months of inaction, Smith filed three documents in a six-week period, all seeking reinstatement under Trial Rule 41(F).

The trial court denied Smith’s reinstatement efforts, but the Indiana Court of Appeals reversed, agreeing with Smith that applying CAPSA to his lawsuit would be an “impermissible retroactive application.” The Supreme Court, however, upheld the dismissal Aug. 25.

“Reinstatement is extraordinary relief,” Chief Justice Loretta Rush wrote for a unanimous court. “… To that end, a motion for reinstatement is not a substitute for a direct appeal, nor is it intended to address the legal basis of a judgment. … In other words, a party cannot delay raising available arguments and later rely on Trial Rule 41(F) to lodge a collateral attack against the merits of a trial court’s decision.

“… Yet that is precisely what Smith attempted when – in his third and final request for reinstatement – he challenged the propriety of the court’s dismissal,” Rush continued. “This means that, regardless of the merits of Smith’s claims, they are not properly before us.”

The justices noted that the trial court’s dismissal was a final, appealable order that Smith chose not to appeal. And in his three motions for reinstatement, it wasn’t until the third attempt the Smith challenged the merits of the dismissal.

“Specifically, Smith disputed the legal basis underlying the trial court’s order, which he argued constituted ‘good cause’ for reinstatement. Yet each of the claims of error was based on grounds that were known or knowable at the time of the dismissal,” Rush wrote. “In other words, Smith used a Rule 41(F) filing to collaterally attack the trial court’s order. This is impermissible.

“… In sum, Trial Rule 41(F) requires, when a case is dismissed without prejudice, that a reinstatement request is made ‘within a reasonable time’ and for ‘good cause,’” the court concluded. “Given the timing and substance of Smith’s ultimate Rule 41(F) filing, he cannot meet either requirement. Rather, Smith’s request was actually an impermissible collateral attack on the trial court’s dismissal order, and so the court did not abuse its discretion in denying Smith’s motion.”

The case attracted amicus briefs from the Indiana School Boards Association and the Indiana Council of School Attorneys.


IndianaCourt of Appeals

Aug. 13

Criminal — Driving While Suspended/Expiration Date

Tyson Daishan Lamonte King v. State of Indiana


In deciding an issue of first impression, the Indiana Court of Appeals reversed a man’s conviction after ruling that his driver’s license suspension had already expired at the start of the day before he was pulled over a few hours later.

On October 24, 2018, Tyson King was pulled over for speeding at 11:30 a.m. when a state police trooper received a report that King’s license was suspended for failure to pay child support. King, who claimed he had no knowledge of the suspension, was ultimately issued a summons to appear in court.

King was charged with Class A misdemeanor driving while suspended and Class C infraction speeding, and the state subsequently presented evidence during a bench trial that the BMV had notified King of the suspension by sending a notice to his last known address on July 31, 2018.

Additionally, the state presented evidence from King’s driving record that he was suspended effective “8/30/2018” with an expiration date of “10/24/2018.” Marshall Superior Court entered convictions on both counts, but in an amended order referenced the BMV manual, which defines the meaning of expiration as “the date the suspension ends.”

The trial court ultimately ruled that King was still suspended through Oct. 24, 2018, because the expiration date listed on the certified BMV record was the last day of the suspension. It therefore imposed a $20 fine for the infraction and a driver’s license suspension of 90 days, a $25 fine, and court costs of $185.50 for the Class A misdemeanor.

But the Indiana Court of Appeals reversed, clarifying in an issue of first impression “when a suspension of a driver’s license ends if there is an absence of guiding language included in the certified BMV driving record apart from the word ‘expiration’ and when there is no reference to an administrative order outlining the specific length of a suspension period.”

“Based on the BMV manual’s statement, which is not sufficiently instructive, the holding of the Vogel v. State ex rel. Laud, 107 Ind. 374, 8 N.E. 164 (1886) decision, our understanding of the general rule for computation of days in various legal contexts, and the persuasive guidance of the cited out-of-state case, we hold that King’s suspension expired at 12:00 a.m. on October 24, 2018. Based thereon, we conclude King’s driver’s license suspension was expired when Officer (Jonathan) Hart initiated the traffic stop on October 24, 2018, and thus we reverse King’s conviction of Class A misdemeanor driving while suspended,” Judge Melissa May wrote for the appellate court.

The case is Tyson Daishan Lamonte King v. State of Indiana, 20A-CR-00006.


Aug. 17

Civil Tort — Insurance/Scooter Coverage Reversal

Progressive Southeastern Insurance Company v. Robert Chastain


A scooter driver who won a trial court ruling when he sued to obtain insurance coverage after a crash lost on appeal when judgment in his favor was reversed and an appellate court instead found for his insurer.

The Indiana Court of Appeals overturned a Marion Superior Court ruling in the scooter driver’s favor in Progressive Southeastern Insurance Company v. Robert Chastain, 20A-CT-876.

Robert Chastain was driving a moped in Indianapolis on Nov. 9, 2018, when he was involved in a crash with a vehicle driven by Rafael Zuniga. Zuniga’s insurer informed Chastain’s counsel that it would tender the policy limit of $25,000, but Progressive denied underinsured bodily injury coverage.

The appellate panel noted Chastain had coverage for three vehicles under his Progressive policy, but not for the scooter. Chastain sued Progressive seeking a declaratory judgment regarding benefits of the policy’s underinsured motorist coverage, and Progressive filed a counterclaim seeking a declaratory judgment that it owed no coverage under the policy.

The Marion Superior Court granted summary judgment to Chastain, finding among other things that the terms “vehicle” and “motor vehicle” in the UIM portion of his policy were ambiguous and Progressive was obligated to cover Chastain and compensate him for his injuries.

The COA reversed. “We conclude that the term ‘motor vehicle’ under the Policy is unambiguous,” Judge Elaine Brown wrote for the panel. “The designated evidence reveals that the 2017 Bashan Scooter was a motor vehicle owned by or available for Chastain’s regular use. Accordingly, underinsured motorist coverage was excluded under Part III of the Policy which states that “[c]overage under this Part III will not apply: 1. to bodily injury sustained by any person while using or occupying … a motor vehicle that is owned by or available for the regular use of you, a relative or a rated resident.

“For the foregoing reasons, we reverse the trial court’s denial of Progressive’s motion for summary judgment and grant of Chastain’s motion for summary judgment,” the COA concluded.


Aug. 18

Criminal — Community Corrections Revocation/Right to Counsel

Victoria V. Arrowood v. State of Indiana


The Indiana Court of Appeals has affirmed the revocation of a woman’s home detention in favor of incarceration, declining to make the “profound statement” that the Indiana constitutional right to counsel extends to revocation hearings.

Victoria Arrowood, a passenger in a vehicle stopped for a traffic infraction in Shelby County, was charged with Level 6 felony unlawful possession of a syringe and Level 6 felony possession of methamphetamine after law enforcement found the drugs and paraphernalia in her possession during the stop. After agreeing to plead guilty to the meth charge, the Shelby Superior Court sentenced Arrowood to 545 days in community corrections to be served on home detention.

But Arrowood’s placement was revoked a few months later when she was alleged by the state to have violated her placement by testing positive for meth, morphine, fentanyl and cannabinoids. The trial court ordered her to serve the balance of her sentence in incarceration.

Arrowood appealed the revocation, arguing that pursuant to Article 1, Section 13 of the Indiana Constitution, she had a right to the effective assistance of counsel at the revocation hearing. An appellate panel disagreed with that assertion, instead finding that because revocation hearings are civil in nature, the right to counsel in criminal proceedings guaranteed by the Indiana Constitution “simply does not apply.”

“We do not read (Vicory v. State, 802 N.E.2d 426 (Ind. 2004)) as holding that Article 1, Section 13 extends to revocation hearings. Had the Vicory court intended to make such a profound statement, we believe it would have done so clearly, not by mere implication,” Judge Paul Mathias wrote for the panel. “Indeed, the Supreme Court later noted that its holding in Vicory was merely ‘informed’ by the right to be heard by oneself under Article 1, Section 13; it did not hold that the right to allocution was guaranteed by Article 1, Section 13. It certainly did not hold that the right to counsel extended to revocation hearings.

“… Accordingly, we decline to hold that the right to counsel at all criminal prosecutions, as guaranteed by Article 1, Section 13, extends to revocation hearings, which are civil, not criminal, in nature. Instead, revocation proceedings, like post-conviction proceedings, are governed by principles of due process,” Mathias concluded.

Under the more lenient due-process standard set forth in Jordan v. State, 60 N.E.3d 1062, 1068 (Ind. Ct. App. 2016), and Baum v. State, 533 N.E.2d 1200, 1201 (Ind.1989), the panel held that “it is apparent that Arrowood was not denied her right to counsel.”

The case is Victoria V. Arrowood v. State of Indiana, 20A-CR-667.


Aug. 19

Civil Tort — Product Liability/Partial Reversal

Bayer Corporation, et al. v. Rene Leach, et al.


A panel of the Indiana Court of Appeals narrowed the claims of women who sued pharmaceutical giant Bayer claiming alleged defects in the permanent birth control device Essure. The ruling came after the Indiana Supreme Court remanded the case for the appeals court to address the viability of plaintiffs’ claims.

In Bayer Corporation, et al. v. Rene Leach, et al., 19A-CT-625, Rene Leach and more than 30 other women sued Bayer Corporation and other entities involved in manufacturing Essure. The women claimed they experienced injuries following the implantation of the device.

The women alleged that Bayer violated Indiana’s Product Liability Act and other state and federal laws by covering up adverse information and by misleading federal regulators, the public and the plaintiffs. They also claimed that Bayer failed to meet certain regulatory obligations, including failing to timely and properly update warnings and labels, failing to report and respond to adverse events, failing to report negative clinical studies, and failing to perform post-market studies and surveillance.

Previously, Bayer was denied its motion for judgment on the pleadings after it argued that the women failed to adequately plead their claims and that their claims were preempted by the Medical Device Amendments to the Federal Food, Drug, and Cosmetic Act.

The trial court certified its interlocutory order at Bayer’s request and the COA affirmed, holding that the women’s manufacturing defect claim was sufficiently pleaded and not preempted by federal law. The COA concluded that it didn’t need to address the other factual allegations and legal theories, however, because it had identified a claim upon which relief could be granted.

But the Indiana Supreme Court in a per curiam order remanded to the appellate court to consider the viability of each of the plaintiffs’ claims, finding it had failed to do so.

Thus, the COA affirmed in part, reversed in part, and remanded to the Marion Superior County after taking a look at each of the nine claims. It ultimately reversed the denial of Bayer’s 12(C) motion, first finding the pharmaceutical company was entitled to judgment on the pleadings on all tort claims premised on the failure to strengthen label warnings because federal law did not require it to do so.

“As the Seventh Circuit explained: ‘Where a federal requirement permits a course of conduct and the state makes it obligatory, the state’s requirement is in addition to the federal requirement and thus is preempted.’ … We conclude that federal law expressly preempts a manufacturing-defect claim based on failing to proactively strengthen warnings on the Essure label,” Judge L. Mark Bailey wrote for the unanimous appellate panel.

The panel additionally found that Bayer is also entitled to judgment on the pleadings on all tort claims that do not involve a defect recognized by the IPLA.

“Further, as to the claim that Bayer is liable for a failure to warn, because the IPLA contemplates a defect only where labeling or packaging is inadequate — and because the Women have not alleged that Bayer deviated from the FDA-approved labeling or packaging — Bayer is entitled to judgment on the pleadings on that claim,” the appellate court wrote.

However, the appellate court affirmed in all other respects when it concluded that Bayer had otherwise not demonstrated it was entitled to judgment on the pleadings.


Aug. 21

Miscellaneous — Officeholder Removal/Felony Conviction

John P. Hampton v. Audie Barber


A Muncie city councilman could not persuade the Indiana Court of Appeals to determine that he is still eligible for the office after another candidate revealed that the councilman has a felony record.

After John Hampton was selected by the Delaware County Democratic Caucus to replace an at-large councilman on the Muncie City Council in 2019, losing candidate Audie Barber discovered that Hampton has a felony record.

Barber, who placed third in the councilman race, learned that Hampton had been convicted of two prior felony convictions for dealing marijuana and possession of a controlled substance, which were later reduced to misdemeanors. Barber subsequently filed a verified complaint and information for ouster of an unlawful office holder and for a permanent injunction, alleging that Indiana Code Section 3-8-1-5(d) and (e) made Hampton ineligible for the councilman position.

Barber also asserted that he was authorized to file the complaint against Hampton because he had an interest in the office, alleging that he had been an unsuccessful candidate for the same council seat and that he would again attempt to hold that office if a vacancy were to occur as a result of his complaint against Hampton.

The Delaware Circuit Court granted Barber’s motion, finding that Barber had standing to file the complaint against Hampton and that Hampton “is not eligible to hold any seat” on the city council pursuant to the statute.

In affirming the decision, the appellate court first noted that the undisputed evidence demonstrates that Barber had a personal interest in the office beyond that of the general public.

“We are not persuaded by Hampton’s bald assertion that Barber lacked a personal interest in the office simply because he placed third in the caucus election,” Judge Edward Najam wrote for appellate court. “Rather, we hold that the evidence supports the trial court’s finding that Barber had a special interest in the office, and that finding supports the court’s conclusion that Barber had standing to file the complaint against Hampton.”

Additionally, because Hampton did not challenge the constitutionality of Indiana Code Section 3-8-1- 5(e)(3) under Article 1, Section 23 of the Indiana Constitution before the trial court, the appellate panel concluded that the issue was therefore waived for review.

The case is John Hampton v. Audie Barber, 20A-MI-00143.


Criminal — Domestic Battery/Remand for New Trial

Zackery A. Hurt v. State of Indiana


A man convicted of domestic battery and disorderly conduct successfully secured a new trial from the Indiana Court of Appeals after it found the admission of his wife’s hearsay statements were in error.

Following a night of drinking in 2019, husband and wife Zackery and Katherine Hurt took an Uber back to the Hendricks County residence where they were dog sitting. Meanwhile, Sgt. Anthony Goodpaster of the Hendricks County Sheriff’s Department responded to an incomplete 911 call at the same residence, where the couple’s Uber driver was still parked.

While responding to the call, Goodpaster heard a loud noise come from inside the residence where the Hurts were located and later discovered that both husband and wife were intoxicated and had bleeding injuries on their faces.

Goodpaster’s investigation at the home was recorded on his body camera, and Zackery told Goodpaster that Katherine had hit him, but that he didn’t want to press charges. Katherine gave Goodpaster several explanations for her injuries, but eventually stated Zackery had deliberately hit her face with his elbow.

Zackery was charged and convicted of Class A misdemeanor domestic battery and Class B misdemeanor disorderly conduct. During a bench trial, the judge admitted over Zackery’s hearsay objections Goodpaster’s testimony that Katherine stated that Zackery hit her with his elbow and the body camera recording of Goodpaster’s interview with Katherine.

Hurt was sentenced to concurrent terms of 180 days with 172 days suspended to probation, which Zackery successfully appealed on contentions that the trial court abused its discretion in admitting Goodpaster’s testimony recounting Katherine’s hearsay statements.

“At trial, Katherine did not vouch for the accuracy of her statement to Sergeant Goodpaster. She was heavily intoxicated when she gave the statement and could not recall speaking to the officer. For these reasons, the admission of Katherine’s statement was not permissible under the recorded recollection exception,” Judge Paul D. Mathias wrote for the appellate court.

Additionally, the appellate court concluded that because Katherine was not under the stress of the event at the time she made her statement to Goodpaster, her statement was therefore not admissible as an excited utterance.

On a final note, the panel concluded that given her multiple explanations for how she suffered the injuries to her nose and mouth, Katherine had time to deliberate before she spoke to Goodpaster. The appellate court noted that although her ability to deliberate was hindered by her state of intoxication, the record established that she was still able to consider her responses to the officer’s questions.

Thus, the appellate court found that Katherine’s statement to Goodpaster was not admissible as a present sense impression.

“The State presented photographic evidence and testimony from Sergeant Goodpaster documenting Katherine’s injuries. But Katherine’s inadmissible hearsay statement was evidence admitted to prove that Hurt engaged in fighting or tumultuous conduct or that he struck her and caused the injuries to her face. Therefore, we agree with Hurt that the challenged evidence contributed to the guilty verdict and affected his substantial rights. Hurt does not claim that the remaining evidence is insufficient for a new trial and specifically requests a new trial in his prayer for relief,” the appellate court wrote.

The COA therefore reversed and remanded for a new trial in Zackery A. Hurt v. State of Indiana, 20A-CR-30.


Aug. 24

Civil Tort — Workplace Injury/Duty to Protect

Shiel Sexton Company, Inc., et al. v. Joshua Towe


A general contractor does not owe a duty of care to a construction worker injured on the job, the Indiana Court of Appeals ruled in an interlocutory appeal, reversing a grant of summary judgment to the worker as to that issue.

Shiel Sexton, hired by Hendricks Commercial Properties to be general contractor for ironwork on some property that it owned, subcontracted with Circle B Construction Systems to build part of the project. Likewise, Circle B contracted with Rose and Walker Supply Indianapolis to deliver materials to the property that Circle B needed to construct its portion of the project.

Three workers were sent from the supply company to deliver metal studs to the site, including two permanent employees and a temporarily assigned employee, Joshua Towe.

As one of the supply company’s workers used a boom crane to lift and unload the 1,000-pound bundles of metal studs, the workers took a break and one of the bundles was left suspended in the air. When Towe and another worker took their break directly beneath the hoisted load, the bundle tipped and poured metal studs down onto the workers, injuring both men.

Towe sued, and Shiel Sexton, Circle B, and Towe eventually filed competing motions for summary judgment. Shiel Sexton alleged that it did not owe a duty of care to Towe and was not the proximate cause of his injuries.

For its part, Circle B argued it was entitled to summary judgment because it could not have a duty of care to Towe when the contract between Hendricks and Shiel Sexton “imposes a non-delegable duty upon Shiel Sexton which cannot be modified by any subsequent agreement with Circle B.”

But the Marion Superior Court denied summary judgment to both Shiel Sexton and Circle B and granted partial summary judgment to Towe on the issue, prompting an interlocutory appeal.

The Indiana Court of Appeals reversed in part, affirmed in part and remanded in Shiel Sexton Company, Inc., et al. v. Joshua Towe, 18A-CT-01446.

The appellate court first found that while Circle B did assume a duty to protect Towe, the trial court erred in finding that Shiel Sexton did as well.

It further noted that neither Circle B nor Towe directed the appellate court to language in the master contract whereby Shiel Sexton was charged with the duty to designate a “safety representative to perform inspections and hold safety meetings with contractors[.]”

“We decline to cobble together language from various portions of the Master Contract to change the meaning of the language provided in the provision about Safety. None of the other language cited by Towe or Circle B demonstrates Shiel Sexton intended to assume a duty toward the employee of a third-party delivery service bringing supplies to a subcontractor. For these reasons, we conclude the Master Contract between Hendricks and Shiel Sexton did not contain language by which Shiel Sexton assumed a non-delegable duty to protect Towe,” it concluded.

The appellate court therefore remanded for the trial court to enter summary judgment for Shiel Sexton after finding that it had no duty to protect Towe. It also remanded for further proceedings as to breach, causation, and damages as to Circle B’s assumption of a duty to protect Towe.•

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