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City Not Liable For injury Caused By Pothole

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Written by Marilyn Odendahl for www.theindianalawyer.com

The Indiana Court of Appeals split over the extent of governmental immunity after a woman who broke her leg crossing the street sued the city of Beech Grove for negligence.

Cathy Beloat suffered two broken bones in her lower leg when she stepped into a pothole while crossing Main Street in Beech Grove. The city filed a motion for summary judgment, arguing it was entitled discretionary immunity under Indiana Code 34-13-3-3(7).

Marion Superior court denied the motion and the city filed an interlocutory appeal.

Before the Court of Appeals, Beech Grove presented evidence indicating that rather than making “piecemeal repairs,” it was in the process of planning to totally reconstruct a portion of Main Street that included the intersection where Beloat fell. Consequently, the city contended, its decision not to improve the defects on Main Street prior to Beloat’s accident is covered by discretionary function immunity.

The Court of Appeals found the city’s planning decision was subject to immunity as established in Peavler v. Board of Commissioners of Monroe County, 528 N.E.2d 40, 46 (Ind. 1998). In that ruling, the Indiana Supreme Court held government decisions which involve the assessment of competing priorities and weighing of budgetary considerations are planning activities and therefore are immune from liability.

Finding, Beech Grove’s actions fit that criteria, the Court of Appeals reversed the denial of summary judgment in City of Beech Grove v. Cathy J. Beloat, 49A02-1409-CT-605.

“Here, the decision not to make piecemeal repairs to Main Street and instead reconstruct the street is the very sort of policy-oriented decision which we are unwilling to second guess,” Paul Mathias wrote for the majority. “The fact that Beloat frames her claim as simple negligence does not alter the fact that her claim ultimately calls into question the decision of the City to reconstruct the street instead of make smaller repairs.

However in her dissent, Judge Margret Robb asserted the majority’s view of “discretionary function” immunity was too broad.

She held the evidence did not support the proposition that the city either made a conscious policy decision to forego repairs or engaged in an assessment and established a policy regarding repairs that might need to be made pending the start of the reconstruction project.

“In short, simply filling a pothole does not strike me as the kind of ‘piecemeal repair’ that was set aside in favor of the overall improvement project, assuming that the City in fact made the policy decision to eschew repairs of any kind,” Robb wrote. “It is not a matter of repaving several feet of a lane of traffic or realigning an intersection, for example.”

Governor Pence to Announce New Indiana Court of Appeals Judge Tomorrow

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Governor Mike Pence will hold a press conference to announce his appointment to the Indiana Court of Appeals. Later in the morning, the Governor will offer welcoming remarks at the Indiana Black Expo Corporate Lunch in Indianapolis. In the afternoon, Governor Pence will visit with Hoosiers at the Indiana Black and Minority Health Fair at the Indiana Convention Center. In the evening, Governor Pence and First Lady Karen Pence will join Hoosiers at the Hamilton County Fair. Details below.

 

Friday, July 17:

 

10:00 a.m. EDT – Governor Pence to hold press conference to announce new Indiana Court of Appeals judge

Statehouse – Room 206, 200 W. Washington Street, Indianapolis, IN

 

11:00 a.m. EDT – Governor Pence to offer welcoming remarks at the Indiana Black Expo Corporate Lunch

*Media are welcome to attend.

Indiana Convention Center – Hall D & E, 200 South Capitol Street, Indianapolis

 

1:30 p.m. EDT – Governor Pence to visit with Hoosiers at the Indiana Black and Minority Health Fair

*Media are welcome to attend.

Indiana Convention Center – Hall F, 200 South Capitol Street, Indianapolis

 

4:30 p.m. EDT – Governor Pence and First Lady Karen Pence to join Hoosiers at the Hamilton County Fair

*Media are welcome to attend.

Hamilton County Fairgrounds, 2003 Pleasant Street, Noblesville, IN

Let’s Fix That Free Mowing By George Lumley

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Yes, that’s right – FREE MOWING.  One great thing about Evansville is the free mowing of the beautiful green spaces.  That is, if you live in the right neighborhood or on the right street.  If you live in one of the less privileged neighborhoods, some of your green spaces are likely turning brown because no one is mowing them for free or otherwise.

Evansville has a lot of green space with the State Hospital grounds, Wesselmans, Garvin, Bayard, Aiken and many other areas, but most importantly almost every house has a yard. In many neighborhoods, there is even a green lot where a house used to set.  For most residents the green space is up close and personal. This green space with proper maintenance brings neighborhoods together with soothing aesthetics that improve the quality of life in many ways.  Without proper maintenance, the aesthetically appealing green turns brown and frightening.  Snakes, rodents, bugs and crime take over to promote fear, anxiety, and depression.

People want to live in and own property in good looking neighborhoods because they can relax and not worry about perceived criminal activity that might be going on in vacant unkempt properties.  The blighted un-groomed lawns in Evansville have a human cost in lowering the quality of life for those living around it.

If you live in the arts district around Haney’s corner that nice landscaped lot next door or across the street is likely owned by the Evansville Brownfields Corp. (EBC) and being mowed every week at the cities expense.  Most of the approximately 120, once blighted, properties owned by EBC are in the “chosen” arts district area.  In an Aug 2 2014 Courier and Press article by Mark Wilson, the Director of the Evansville Department of Metropolitan Development (DMD), Kelly Coures, indicates that the city is paying an estimated $120,000 annually to mow these properties.  The city has the money to do this.

Now if you lived in the Jacobsville area it’s a different story. The city has a different approach that I have not yet figured out. No weekly mowing with city funds here.  There is supposed to be a weed ordinance with code enforcement based on complaints but I don’t see that working.  Some properties like the one on Mary Street, were flagged in May but still have not been cut the first time.  The grass has reached its mature height, produced seed, and is now turning brown.  If we get a week without rain these yards will be ideal for a simple lit cigarette to take out a couple of homes.  The city does not have the money for code enforcement to prevent this.

Not every lot in Jacobsville is overgrown.  The code enforcement program has mowed sporadically here and there and somebody is mowing lots like the one at 210 W Maryland on a regular basis.  Who is mowing in Jacobsville? Talking with Naomi Frymire who, along with her husband, owns her home at 212 W Maryland, I learned that not only does the city not mow the vacant lot, 210, next to her for free; but, she pays the cost of mowing and also pays the city for the privilege.  To protect her green space she bought the lot next door for $1000 when the house was torn down and now pays to have the lot mowed and pays taxes on the additional property.  Now if she could just get rid of the zombie house on the other side at 214 W Maryland. Like many residents she has taken on the burden of one empty lot and willing to take another.  She would be glad to pay the taxes and mow the property if the city could just haul off the garbage first.  But the city does not have the funds to haul off the garbage in this area.

Funding on the horizon?  The Mayor and his DMD have a new initiative.  I read with interest Council Member Stephanie Brinkerhoff-Riley’s Sunday special to the Courier and Press titled “Brownfields initiative would improve quality of life”.  With the exception of the very confusing title and facts that it is not an “Evansville Brownfields Corp” (EBC) initiative and making the EBC a city funded Land Bank would be the continuation and expansion of something that is not working.  I agree that funding for demolition and code enforcement needs to be increased.  I don’t agree that “it is imperative that vacant lots be gathered by one entity”.  I think with the EBC’s history of secrecy and the city spending about a thousand dollars each on mowing EBC land banked lots, we certainly do not need to expand their program tenfold.

We do need some initiatives implemented, but making the EBC a tax funded land bank is the wrong priority. Residents in the neighborhoods are willing to pay to mow these lots – let’s help them do that.  In March, I attended a DMD sponsored meeting with a city hired consultant: Center for Community Progress.  The last paragraph on the handout about LAND Banking states:  “A land bank is not a panacea for all problems, or even a necessary entity in many cities”

The consultant is right.  We do not need a LAND Bank as a priority.

Please take time and vote in today’s “Readers Poll”. Don’t miss reading today’s Feature articles because they are always an interesting read. New addition to the CCO is the Cause of Death reports generated by the Vanderburgh County Health Department.

Copyright 2015 City County Observer. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

TRUMP’S LAUGHING AT US

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By Peter Funt

Give Donald Trump this much: he knows how to play the media like a violin. If I had half his business brain I’d send him a bill for this column, because every time a serious journalist treats his campaign seriously it feeds his coffers.

Call Trump a bona fide political threat, and he’s laughing all the way to the next campaign appearance. Call him a clown, and he’s laughing all the way to the bank.

Few in media are fooled by Trump — even his admirers at Fox News. They all know he has zero chance to win the Republican nomination let alone be elected president. Yet, the higher he climbs in early, irrelevant polls the more ink he gets.

It can be argued that even those voters who tell pollsters they prefer Trump are playing along — for now. Many are frustrated by the sheer size of the GOP roster, by the tedious length of modern presidential campaigns, and by the seeming inevitability of Hillary Clinton’s nomination on the Democrat’s side. What better way to goose the process than by saying, “I’m for Donald Trump!”

A CNN poll ranked Trump second, behind Jeb Bush, among Republicans and Republican-leaning independents nationwide.

This happens in high schools when a unpopular kid with few friends inexplicably shows up as a favorite for prom king or queen. It’s the students’ way of pushing back against a process they never really liked.

In Trump’s case, it’s win-win. The other day The New York Times ran not one but two op-ed columns about Trump’s candidacy. In one, GOP veteran Peter Wehner noted, “…the press are only too happy to highlight Mr. Trump’s stream of invective and outrageous utterances…”

And why not? In mid-summer, nothing sizzles more than news of a bombastic billionaire stating flatly that Mexico is intentionally sending drug dealers and rapists our way.

Actually, for comedians like Jon Stewart and Jimmy Fallon, it’s almost too easy — like shooting elephants in a barrel. But for news reporters and columnists the Trump phenomenon is not so simple to deal with. Eugene Robinson of the Washington Post artfully called him “a farce to be reckoned with.” That’s precisely what Trump is counting on.

Here’s the thing about Trump’s campaign. He’s scoring with some ultra-frustrated conservatives at this preliminary stage by appearing to boldly speak his mind without the calculated caution practiced by conventional politicians. In fact, Trump’s boldness comes from knowing he has no chance and therefore can’t be hurt by speaking out irresponsibly.

The Trump campaign is modern, social-media driven political theater.

Maybe this is what the public and its media deserve for allowing presidential campaigns to begin so early. The first GOP “debate” is less than a month away. And thanks to Donald Trump’s presence, the Fox News Channel telecast might actually draw a sizable audience.

Will Trump walk on stage naked? Wearing a Mexican sombrero? Holding a gun? He’ll think of something, because he doesn’t really care. Nor should we.

Vanderburgh County Recent Booking Records

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SPONSORED BY DEFENSE ATTORNEY IVAN ARNAEZ. 
DON’T GO TO COURT ALONE. CALL IVAN ARNAEZ @ 812-424-6671.

EPD Activity Report

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SPONSORED BY DEFENSE ATTORNEY IVAN ARNAEZ. 
DON’T GO TO COURT ALONE. CALL IVAN ARNAEZ @ 812-424-6671.

Indiana State Police Arrest Two for Residential Entry

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SPONSORED BY DEFENSE ATTORNEY IVAN ARNAEZ. 
DON’T GO TO COURT ALONE. CALL IVAN ARNAEZ @ 812-424-6671.

 Yesterday afternoon at approximately 4:16, Indiana State Police and Posey County Sheriff’s Department responded to 2750 John Avenue in New Harmony after receiving information a male and female had been seen breaking into an apartment.  When officers arrived they found one of the apartment windows had been damaged.  After gaining entry into the apartment, officers found Tricia Knowles, 35, of Poseyville and David Basham, 31, of Evansville. Further investigation revealed they had forced their way into the apartment and neither one of them had permission to be in the apartment.  Officers also revealed Basham had an outstanding felony warrant out of Vanderburgh County.  They were both arrested and taken to the Posey County Jail. Knowles is being held on bond.  Basham is currently being held without bond.

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Arrested and Charges:user29376-1437046693-media2_7a8990_240_180_PrsMe_

  • Tricia Knowles, 35, Poseyville, IN
  1. Residential Entry, Level 6 Felony
  2. Assisting a Criminal, Level 6 Felony

 

  • David Basham, 31, Evansville, IN
  1. Residential Entry, Level 6 Felony
  2. Outstanding Felony Warrant (Vanderburgh County)

 

 

Governor Pence, Auditor Crouch to Hold Press Conference on Fiscal Year 2015 Closeout

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Governor Mike Pence and Auditor of State Suzanne Crouch will hold a press conference detailing the results of Fiscal Year 2015 closeout. Details below.

 

Thursday, July 16:

 

10:00 a.m. EDT – Governor Pence, Auditor Crouch to hold press conference on Fiscal Year 2015 closeout

Statehouse – Room 101, 200 W. Washington Street, Indianapolis, IN

IS IT TRUE JULY 16, 2015

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IS IT TRUE we wonder why benches with advertising are located on city bus stop locations and are now being placed throughout city on major high traffic area without city bus service? …we wonder if these bus stop benches are subsidized by City, State or Federal funding? …if so, are RFP sent out to allow competitive bidding on the City Bus stop benches contract?

IS IT TRUE we hear that the Mayor’s political spin doctors are telling the Fireman and City bus drivers that Mayoral candidate Gail Riecken isn’t for giving them a pay raise this year?  ..Mrs. Riecken has nothing to with giving City employees pay raises because this is a function of  the present City Council and the Mayor? …we predict this kind of silly politics will back fire on the Mayor?

IS IT TRUE a couple of the Mayor’s male supporters were overheard saying that Mayoral Candidate Gail Riecken should stay home an bake cookies and let the men run the city? …we heard that a few females the told men at this social event that for 200 hundred years the City of Evansville has had male Mayors and it’s time for the men to bake some cookies? …one of the more outspoken women said she’s for giving Gail a broom and let her sweep City Hall clean?

IS IT TRUE we hear that the City of Evansville Firefighter’s Union shall be making an official announcement whom they are supporting as the next Mayor of Evansville today at 3:30 pm? …all eyes are on todays Firefighters political endorsement announcement? …we say let the drama begin?

IS IT TRUE the Evansville Firefighters L357 PAC  recently voted to endorse  City Council President Dr. Dan Adams for re-election in the the upcoming City election?  …we can’t wait to find out what other City Council candidates that are going to endorse?

IS IT TRUE we had a couple of CCO readers inquire how they can contact the HUD Office of the Inspector General Fraud Hotline? …they may do so by calling – 1-800-347-3735 or email them at: HOTLINE@hudoig.gov or https://www.hudoig.gov/report-fraud?

IS IT TRUE we would like to repeat the post that two of our readers posted in yesterdays CCO article about our free obit offer?

bubbageek
Jul 14, 2015 at 8:50 am
COMPASSION OVER MONEY
C-CO has embarked on a mission of unselfish Public Service
To offer free publication of obituaries and cause of death information sets them apart from the rest.
Without naming names or making this personal – those who would exploit death by charging exorbitant fees for funeral services or blocking free publication of information about the deceased – his family – accomplishments and tribulations – are among the lowest among us.
This reader is hard-pressed to imagine a time frame or circumstance within which compassion and fairness – are more indicated.
Let those who would resist this opportunity to participate in true sympathy and service to the public – be judged and rewarded accordingly.
You know – and we know – who you are – What Would Jesus Do? …

Reply
Crash LaRue
Jul 14, 2015 at 9:37 am
+1 Bubba.
What is revealed here in this article, is Loads of Pious phoneys who worship at the alter of the Almighty Dollar, while greeting the face of the bereaved with shallow smiles of “understanding”.
I hope that families from here forward, consider putting their loved one’s Obituary, in the CCO , or anywhere else for that matter,– at their own Discretion,– and as a statement of Principal.