Supreme Court grants transfer to condo dispute, South Shore Line negligence claim

The Indiana Supreme Court has agreed to consider cases involving allegations of faulty construction at a South Bend condo complex and a negligence claim against the operator of the northern Indiana South Shore Line.

The high court last week granted transfer to The Residences at Ivy Quad Unit Owners Association, Inc. v. Ivy Quad Development, LLC, et al. and Clarence Lowe v. Northern Indiana Commuter Transportation District.

In Ivy Quad, 21S-PL-294, condominium owners in the South Bend Ivy Quad 10-building, 68-unit condo complex alleged their building was shoddily constructed when they began to notice crumbling concrete and water infiltration, among other problems. The residents sued and the St. Joseph Superior Court granted the defendants’ motion to dismiss, but the Indiana Court of Appeals reversed and remanded. It found that dismissal of the implied warranty and negligence claims against the defendants was improper.

In taking Lowe, 21S-CT-295, the high court agreed to hear a case that was issued as a memorandum decision from the Indiana Court of Appeals. In that case, the COA affirmed summary judgment granted to Northern Indiana Commuter Transportation District — which operates the South Shore Line between Chicago and South Bend— on a negligence claim brought by Clarence Lowe after he was allegedly injured as a result of negligence while working as a railroad employee.

Appellate judges in that case found that Lowe’s Federal Employers’ Liability Act claim was subject to the Indiana Tort Claims Act and that he failed to comply with the ITCA’s requirement that the governing body of a political subdivision be provided notice within 180 days of a loss.

Oral arguments in those cases have not yet been scheduled.

Lastly, the justices granted transfer in State of Indiana v. Axel Domingo Diego, 21S-CR-285, handing down a decision June 9. In it, the Indiana Supreme Court split and reversed the suppression of a man’s statements made during a police interrogation, finding that the limited curtailment of his freedom of movement wasn’t akin to formal arrest. But Justice Christopher Goff dissented, arguing that the suspect’s language barrier could have kept him from knowing he was free to leave.

The justices also disagreed about denying transfer in two cases, starting with Albanese Confectionery Group, Inc. v. Bernadette Cwik, 20A-CT-1436. There, the Court of Appeals ruled that a northern Indiana sweets shop whose relationship with former employee Bernadette Cwik turned sour was entitled to summary judgment in her lawsuit filed after her smartphone was wiped clean by the company. Indiana Chief Justice Loretta Rush voted to grant only the petition to transfer in that case.

The court also split in denying transfer in a case involving Lake County juvenile whose house arrest was extended without a hearing. Justice Steven David penned a dissent to the denial of transfer in K.P. v. State of Indiana, 20A-JV-1431, and Rush joined the dissent.

David argued that under Indiana Code § 31-37-22- 3(b), if the motion seeking modification of the dispositional decree is not an emergency, the “probation officer shall give notice to the persons affected and the juvenile court shall hold a hearing on the question.”

The full list of transfer decisions for the week ending June 11 is available online.

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