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Wednesday, September 19, 2007

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

For publication opinions today (2):

In Rick Tucker v. Deborah Duke, a 15-page, 2-1 opinion, Judge Vaidik writes:

Rick Tucker (“Tucker”) appeals from the small claims court’s judgment in favor of Deborah Duke (“Duke”) on her claim for medical expenses stemming from a dog biting incident. Because the evidence shows that Tucker kept the dog—a pit bull—on his property staked to a chain for four months and that the pit bull became loose on the day in question and attacked Duke on her own property, the small claims court’s judgment that Tucker is liable on grounds of negligence is not clearly erroneous. We therefore affirm the small claims court. * * *

BRADFORD, J., concurs.
ROBB, J., dissents with separate opinion: I respectfully dissent. The majority acknowledges that “there was no evidence presented at the small claims trial that Tucker possessed actual knowledge that the pit bull had dangerous propensities.” The majority nonetheless concludes, based on evidence that Hall previously had two pit bull-sharpei mixes put to sleep for exhibiting possible signs of viciousness and evidence that the pit bull was chained to a stake in Tucker’s backyard for four months, that Tucker “knew or should have known that the pit bull was dangerous or vicious.” I disagree. * * *

I agree with the majority that there is no evidence that Tucker had actual knowledge that the dog was dangerous. I also agree with the majority that the law in Indiana is that even where there is no evidence of actual knowledge, there can still be liability if there is evidence that the particular breed to which the dog belongs has dangerous propensities. See Poznanski, 788 N.E.2d at 1259. I part ways with the majority, however, with respect to its conclusion that there was such evidence in this case. * * *

Although I agree it is unfortunate that Duke incurred medical expenses as a result of an injury that was not her fault, and I acknowledge that Duke was representing herself in the small claims trial and was probably unaware of the proof she needed to present to succeed on her claim, we are a court of law and must find as a matter of law that there is evidence to support holding someone else responsible. I do not believe we can do so in this case. I would reverse the judgment of the trial court against Tucker.

Mildred Whiteside v. Indiana Department of Workforce Development, Unemployment Insurance Review Board and Division of Family & Children - "There is no question that Whiteside voluntary left her employment for a cause unrelated to her work and personal to her. She left on her own accord to take care of her son, an admirable decision, yet we conclude the ALJ and the Review Board were correct in their findings of fact and application of the law to deny unemployment benefits to Whiteside pursuant to Indiana Code Section 22-4-15-1(a).

"Whiteside contends that one of the exclusions for physical disability in the statute should have been applied to her to allow receipt of benefits. That section provides: “An individual whose unemployment is the result of medically substantiated physical disability and who is involuntary unemployed after having made reasonable efforts to maintain the employment relationship shall not be subject to disqualification under this section for such separation.” I.C. § 22-4-15-1(c)(2). Whiteside argues that this subsection should be interpreted to excuse employees not only for their own disability, but also for the disability of a family member. We disagree. This subsection does not expressly include any language to indicate disability of anyone other than the claimant should be considered. This subsection is not ambiguous and giving the words their plain and ordinary meaning, it does not include disability of relatives of the claimant. * * *

"Indiana Code Section 22-4-15-1(c)(2) does not include exclusions for disability of a claimant’s relative and therefore does apply to make Whiteside eligible for benefits due to her son’s disability. The Review Board had no reason to apply this statute and its conclusions of law were correct. We affirm."

NFP civil opinions today (0):

NFP criminal opinions today (5):

Tonya Meadors v. State of Indiana (NFP)

George A. Staten v. State of Indiana (NFP)

Eric Pointer v. State of Indiana (NFP)

John Trezza v. State of Indiana (NFP)

Daniel Poe v. State of Indiana (NFP)

Posted by Marcia Oddi on September 19, 2007 12:53 PM
Posted to Ind. App.Ct. Decisions