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Thursday, January 20, 2005

Ind. Decisions - Five today from the Court of Appeals

Delta Airlines, Atlantic Coast Airlines, Globe Security Services, Inc. v. Bryan & Jennifer Cook (1/20/05 IndCtApp) [Torts]
Najam, Judge

Atlantic Coast Airlines (“ACA”) has filed a petition for rehearing asking that we “clarify or alter” our analysis of the modified impact rule in our opinion in this matter. See Delta Airlines v. Cook, 816 N.E.2d 448, 458-60 (Ind. Ct. App. 2004). Specifically, ACA contends that “this Court’s published decision abrogates the Modified Impact Rule and conflates two distinct rules (the Modified Impact Rule and the Bystander Rule) into an unprecedented rule of ‘direct involvement.’” Petition for Rehearing at 3. We grant ACA’s petition for rehearing for the limited purpose of addressing this issue, but we reaffirm our opinion.

ACA asserts that “this Court’s published decision does not attempt to distinguish in any way between the Indiana Supreme Court’s clear and consistent application of the Modified Impact Rule in [Alexander v. Scheid, 726 N.E.2d 272 (Ind. 2000)] and [Bader v. Johnson, 732 N.E.2d 1212 (Ind. 2000)] and the Supreme Court’s equally clear creation of a separate Bystander Rule in [Groves v. Taylor, 729 N.E.2d 569 (Ind. 2000)], which the Bader Court juxtaposed and plainly distinguished.” * * *

For the foregoing reasons, we reaffirm our opinion.
SULLIVAN, J., and BARNES, J., concur.

Macs Y. Bell v. State of Indiana (1/20/05 IndCtApp) [Criminal Law & Procedure]
Ratliff, Senior Judge

Defendant-Appellant Macs Y. Bell (“Defendant”) appeals from his convictions after a jury trial of two counts of child molesting, Class A felonies, Ind. Code §35-42-4-3, and one count of child molesting, a Class C felony, Ind. Code §35-42-4-3.We affirm. * * *

The trial court did not err by limiting the Defendant’s attempt to introduce direct evidence of specific instances of conduct on the part of the victim. Second, the trial court did not err by giving the instruction regarding the videotaped statement of the victim. The instruction, which is required by statute to be given, does not invade the province of the jury as did the instruction in Ludy. Affirmed.

ROBB, J., and BAKER, J., concur.
______
Although Defendant does not raise a Blakely argument regarding his sentencing, we have examined his sentence in that regard. Blakely v. Washington, 124 S.Ct. 2531,159 L.Ed.2d 403 (2004), reh’g denied. Blakely is not implicated because Defendant received the presumptive sentence for each of the felonies for which he was convicted. See Ruiz v. State, 818 N.E.2d 927, 928 (Ind. 2004); Williams v. State, 818 N.E.2d 970, 975 (Ind. Ct. App. 2004). Further, we have held that the holding in Blakely is not implicated in situations involving consecutive sentences. See Cowens v. State, 817 N.E.2d 255 (Ind. Ct. App. 2004).

F.A.C.E. Trading, Inc. v. Attorney General and Hoosier Lottery (1/20/05 IndCtApp) [Statutory Construction]
Riley, Judge

Appellant-Plaintiff, F.A.C.E. Trading Inc., d/b/a Face Card Promotions, a Wisconsin Corporation (FACE), appeals the grant of summary judgment in favor of Appellees-Defendants, the Indiana Attorney General (Attorney General); the Prosecutor of the Alcohol & Tobacco Commission; the Commissioner of the Alcohol & Tobacco Commission; and, the Director of the Hoosier Lottery (Hoosier Lottery), (collectively, the Appellees), concluding that Ad-Tabs are an illegal gambling device pursuant to Indiana Code § 35-45-5-1. We affirm.

I. Gampling Device. * * * Because Ad-Tabs satisfy both subsections of the gambling device statute, we find that the trial court did not err in holding that Ad-Tabs are merely a subterfuge for a gambling device. Therefore, we conclude that no genuine issue of material fact exists regarding whether Ad-Tabs is a gambling device. Fort Wayne Lodge, LLC., 805 N.E.2d at 882. We thus affirm the trial court’s grant of summary judgment in favor of the Appellees.

II. Motion to Strike. * * * Although the trial court provided no reason in its order as to why it struck the affidavits, our review clearly reveals that Michigan and Indiana gambling statutes are quite different See footnote . Even if the expert opinions might have included special knowledge, here, their opinions clearly would not have assisted the trier of fact. Because the trial court’s actions were neither clearly erroneous nor against the logic and effect of the facts and circumstances before the court, we find that the trial court did not abuse its discretion.

CONCLUSION. Based on the foregoing, we find that no genuine issue of material fact exists that Ad-Tabs are gambling devices, and therefore affirm the trial court’s grant of summary judgment in favor of the Appellees. Additionally, we find that the trial court did not abuse its discretion in striking FACE’s expert affidavits Affirmed.

CRONE, J., and ROBB, J., concur

Robert Cavens, M.D. v. Tim Zaberdac, et al (1/2005 IndCtApp) [Medical Malpractice]
Barnes, Judge

Dr. Robert Cavens appeals the entry of judgment against him in the amount of $750,000 in a medical malpractice action brought by Tim Zaberdac, individually and as administrator of the estate of Peggy Miller. We reverse and remand.

Issue. The issue we address today is whether the trial court erred in granting Zaberdac’s motion for judgment on the evidence with respect to Dr. Cavens’ claim of contributory negligence on Miller’s part. * * *

Conclusion. The trial court should have permitted Dr. Cavens to present his contributory negligence defense to the jury and its refusal to do so prejudiced Dr. Cavens. We reverse the judgment against Dr. Cavens and remand for further proceedings consistent with this opinion. Reversed and remanded.

NAJAM, J., and SULLIVAN, J., concur

Ruth Morrison, et al v. Doris Ann Sadler, et al (1/20/05 IndCtApp) [Constitutional Law]

(Already posted. Scroll down three.)

Posted by Marcia Oddi on January 20, 2005 08:47 PM
Posted to Ind. App.Ct. Decisions