Case links for July 22, 2005
Three more from the Indiana Court of Appeals today:
A sad case. Power line damaged in a storm. Homeowners call fire department and power company. Power company tells the fire department the line is live, stay away from it. Fire department leaves the scene. Power company sends someone to look at the line, but no repairs are made and the power is still on. The next day a kid mowing the lawn is electrocuted. Parents sue fire department (presumable the power company as well), and Court says the department never assumed a any duty to protect the child from the power line.
Sloppy business purchase gone wrong. It started off pretty good, with the parties executing a written agreement for the transfer of assets and accounts, but then the parties entered a series of oral agreement that complicated the transaction, to say the least.
July 22nd, 2005 22:28
I think the City of Muncie case reached the right result, but I think the Court was obligated to answer the immunity question before it reached the duty consideration.
I’m pretty sure caselaw suggests that an immunity defense is a preliminary issue — sort of like a jurisdictional defense. If someone got sued in the wrong court, it wouldn’t be appropriate for the court to decide the case on the basis of duty without first concluding that it had jurisdiction.
It’s been a couple of years since it came up for me: http://www.in.gov/judiciary/opinions/archive/11070201.jgb.html
(In that case, the Court of Appeals didn’t bring up the issue of which issue to address first, but I seem to remember arguing about priority in my brief.)