Reed v. City of Evansville
956 N.E.2d 684
| Ind. Ct. App. | 2011Background
- Reeds purchased a home within the City of Evansville and its sewer utility service area in 2003.
- Investigations in 2007 confirmed a sewer line beneath the Reeds' home and mold in the crawlspace.
- City repaired the sewer line, repaired a defective lateral, added a new lateral, and re-sodded the yard in 2007; mold remediation occurred thereafter.
- SWAT reported mold and a malfunctioning sump pump in April 2007; Happe later estimated demolition costs and discussed a possible causal link to the sewer line.
- Reeds provided ITCA tort claims notice on June 7, 2008; they filed suit starting July 2008, amended through 2010.
- City moved for summary judgment in April 2010, arguing lack of timely ITCA notice; trial court granted summary judgment in November 2010.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May supplemental designated evidence be stricken? | Reeds contend designation should be struck due to timing. | City argues Rule 56(E) permits supplemental designations with reply. | Supplemental evidence not stricken; within court's discretion. |
| Did Reeds provide timely ITCA notice? | Discovery rule accrual supports late notice due to reasonable possibility of causation. | Notice was untimely under 180-day ITCA requirement. | Genuine issue of material fact remains as to timely notice; not resolved as a matter of law. |
| Is City entitled to judgment as a matter of law on the Reeds' claims? | City bears burden to show no genuine issues; defenses were improper. | City asserts immunity, duty, breach, proximate cause, and contributory negligence issues warrant judgment. | Not entitled to judgment as a matter of law; issues remain for trial. |
Key Cases Cited
- Spudich v. N. Indiana Pub. Serv. Co., 745 N.E.2d 281 (Ind. Ct. App. 2001) (supplemental designation permissible under Rule 56(E))
- Wehling v. Citizens Nat'l Bank, 586 N.E.2d 840 (Ind. 1992) (discovery rule for ITCA accrual)
- Allied Resin Corp. v. Waltz, 574 N.E.2d 913 (Ind. 1991) (discovery rule and sufficiency of early notice; fact-sensitive)
- Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970 (Ind. 2001) (immunity framework and vicarious liability limits)
- Brown v. Alexander, 876 N.E.2d 376 (Ind. Ct. App. 2007) (ITCA notice and discovery-rule considerations)
- Kroger Co. v. Plonski, 930 N.E.2d 1 (Ind. 2010) (affidavits may be contradicted but dispute precludes summary judgment)