*1 juana present person’s blood commits Douglas Briar, Thus, BRIAR and the statute. at trial the Debbie
a violation of child, present on Behalf of their minor required was evidence State Appellants-Plaintiffs, marijuana in at the time Moore had his blood operated he the vehicle. ELDER-BEERMAN DEPARTMENT Moore, given test was Because no blood STORE, Mind, Design INC.
the State instead offered the results of Inc., Appellees-Defendants. marijua- urine that he had test which showed argues na in his urine. The State No. 89A01-9403-CV-97. marijuana presence of metabolites Moore’s Indiana, Appeals Court of urine constitutes evidence from which the First District. jury could infer that the same metabolites present in Moore’s blood. Dec. April Transfer Denied recognize The fails to that the clear State unambiguous language of the statute marijuana requires present in the
person’s legislature Had the intended blood. in an
for controlled substances individual’s statute, to constitute a violation of the
urine provided
it could have for such. See GA. 40—6—39(a)(5) § (Georgia legis- ANN.
CODE provided person that a not drive
lature shall moving any vehicle while there is amount marijuana pres- or a controlled substance both). person’s or urine or
ent blood
Further, we refuse to assume that because urine,
marijuana was detected Moore’s present
was also in his at the time he blood he
operated the vehicle. Moore testified that marijuana days prior
had smoked three marijuana may
his arrest. no blood, yet
longer have been in his still have pre-
been detectable his urine. State supporting
sented no evidence an inference urine, marijuana
that if is in one’s it is also in
one’s blood. Because the State failed to offer marijuana in his
evidence Moore had
blood, § Moore’s conviction under I.C. 9-30-
5—1(b)must be reversed.
Reversed. BARTEAU, JJ.,
NAJAM and concur. *2 Newhouse, Rushville, Tracy appel- J.
n lants. Weddle, Mulvaney, Karl L. Robert G. Summers, Bingham, Spilman, Welsh & India- napolis, appellees.
OPINION BAKER, Judge. appeal,
In this we examine what is neces- sary summary judgment in a to survive Appellant-plaintiffs case. Deb- Briar, Douglas bie and on behalf of their (the Briars), challenge the trial minor child court’s favor appellee-defendant De- Elder-Beerman Store, (Elder-Beerman), partment Inc. personal action.
FACTS On December the Briars were Amy, shopping daughter, minor with their Department Store the Elder-Beerman Richmond, allege that Indiana. The Briars store, Amy a Plasma F- while touched Lamp an electric display X and suffered against The Briars filed suit Elder- shock. damages for medical Beerman to recover expenses as a result of the shock.1 Yes. incurred ANSWER: complaint, In their amended the Briars ad- R. at 122. recovery:
vanced
theories for
three
hearing,
granted
After
the trial court
loquitur,
liability.
negligence, and strict
To
summary judgment in
favor
Elder-Beer-
claims,
hired an
*3
finding
man
admission that
Briars’
expert
lamp.
the
to examine
the
they
identify
instrumentality
not
could
the
expert’s report indicated that
was no
there
injuries
Amy’s
that caused
was fatal to their
operation
lamp
causal link
the
the
between
of
ipsa loquitur
res
cause of action. The court
Amy’s injury.
and
Record at 70-71.
stated:
Thereafter,
36,
pursuant to
Rule
Ind.Trial
carefully
The Court has
read and consid-
request
Elder-Beerman served a
for admis-
pleadings properly
ered all
before it. The
asking
“[a]dmit
sions on
Briars
them to
by
has been
informed
[the
Court
further
deny
identify
or
Briars]
that
cannot
[the
theory
that
Briars]
their sole
of relief is
[they]
instrumentality which
claim to have
upon
proposed
a
application
based
[Amy’s] injuries.”
caused
R. at
The
93-94.
ipsa loquitur.
doctrine of res
Briars answered: “ADMIT.
'is a res
This
advised,
duly
Being
finds that
Court
as
response
R.
case.”
at 94. In
response
a
of [the
result
Briars’]
[Eld-
admission,
Briars’
Elder-Beerman filed
Trial
36
er-Beerman’s]
Rule
summary judgment alleging
motion for
that
admission,
conclusively
it has been
estab-
not
the Briars could
demonstrate
neces-
trial
lished
of
that “[the
sary
to invoke
of
elements
the doctrine
res
identify
Briars] cannot
ipsa loquitur.
support
In
of its motion Eld-
[they]
[Amy’s]
claim
to have caused
er-Beerman relied on the
admission
injuries.” The Court therefore finds that
they
did not know the cause of the
genuine
is no
there
issue of material fact
expert’s report opining
and the
required
regarding this
element
the doc-
lamp
could
have caused the shock.
ipsa
trine
and that [the
upon
prevail
are]
Briars
unable to
this
opposi-
filed a
memorandum
theory and that [Elder-Beerman]
is enti-
tion to Elder-Beerman’s motion for
summary judgment as a
tled to
matter of
judgment arguing
had satisfied
law.
ipsa loquitur. They
elements of res
did not
parties
It
is understood
all
and the
summary judgment
contest
that [the
Court
case will rise or
Briars’]
liability
and strict
claims.
ability
fall
invoke
the doc-
loquitur claim,
ipsa
their res
the Briars relied
ipsa loquitur.
appeal*
trine of res
It would
on two of
to inter-
Elder-Beerman’s answers
pre-requisite
self evident that as a
to es-
rogatories. These answers are as follows:
tablishing
[the
exclusive control
Briars]
injuries
Are
shocks
common
electrical
must,
necessity,
establish
at [Elder-Beerman]?
the actual
which caused
objects
injury.
ANSWER:
[Elder-Beerman]
broad,
interrogatory in
this
that it is over
R. at 149-51.
vague,
not reasonably
calculated to
discovery
lead to the
of admissible evi-
DISCUSSION AND DECISION
objection,
Notwithstanding
dence.
this
The Briars
the trial
contend
electrical shocks are not “common” at the
granting summary judgment
court erred
question.
store in
Elder-Beerman
requirements
satisfied
because
product,
building
loquitur.
applying
Was the
shelves or
under
doctrine of
A
summary judgment
or
[Elder-Beerman]
control
its
trial court’s
ar
agents
employees during
appeal
time in
presumptive
rives on
clothed with
va
question?
lidity.
Corp.
Rosi v.
Furniture
Business
ly
1. The Briars also sued the
the trial
and is not a
manufacturer
dismissed
court
Mind, Inc.,
lamp, Design
subsequent-
appeal.
who was
to this
2)
Ind.,
servants;
and,
434. A court on
its
the accident is of the
appeal
position
in the same
as the
type
ordinarily
stands
happen
that does not
if those
reviewing
summary judg
trial court when
management
who have the
and control exer-
Thompson
ment motion.
proper
cise
care.2 Id.
Wolf
argue
The Briars
satisfied these
Summary judgment
granted if
shall be
and,
thus,
elements
designated evidence shows that there is no
granted
should not have been
in favor of
genuine
of material fact and that
issue
rely
Elder-Beerman. The Briars
on Elder-
moving party
is entitled
as a
Beerman’s answers
56(C).
matter of
Ind.Trial Rule
When
law.
lamp,
which the store admitted
motion,
reviewing the
the court
all
considers
shelves,
building
were under the exclu-
*4
affidavits,
pleadings,
depositions,
designated
Elder-Beerman,
sive control of
and that elec-
interrogatories, drawing
and answers to
all
normally
trical shocks do not
occur Elder-
reasonable inferences therefrom in favor of
negligence.
Beerman’s store
the absence of
Rosi,
non-moving party.
at
615 N.E.2d
Elder-Beerman asserts that their answers
there is no evidence on one
Where
interrogatories
to
cannot be used to establish
claim, summary judgment
element of a
is
ipsa loquitur
of res
elements
because the
proper.
Indianapolis Newspapers
v.
Chester
Briars failed to file the
the trial
answers with
(1990),
137, 141,
Ind.App., 553 N.E.2d
trans.
and, instead, only designated
court
them
denied.
opposition
their memorandum in
to
ipsa loquitur
The doctrine of res
is
judgment by providing
copy
a
thereof. Eld-
whereby
a
an inference
rule
evidence
posits
er-Beerman
the trial court can
negligence can be drawn under certain factu
only
pleadings,
consider those
answers to
Brinegar
al circumstances.
v. Robertson
interrogatories,
depositions
and
that have
812, 814,
Ind.App., 550 N.E.2d
formally
Appel-
been
filed in the trial court.
question
denied. The central
involved
trans.
disagree.
at
lee’s Brief
3. We
in the use of the res
doctrine is
5(D)(2)(b) specifically
Ind.Trial Rule
probably
whether the incident more
resulted
precludes
interrogatories
answers to
from a
negligence
from
than
the defendant’s
rather
filing requirement,
party
requests
unless a
so
Corp. Gipson
some other cause. K-Mart
court, in
667, 669,
response,
filing.
and the
orders the
56(C)3
Further,
may
Ind.Trial Rule
does not re
applied
denied. The doctrine
be
when
1)
quire
supporting
that documents
plaintiff
injuring
motions
establishes:
responses
summary judgment
to motions for
was within the exclusive
Rather,
only
management
requires
and control of the defendant or be filed.4
it
that a
interrogatories,
requires,
2. We note that some case law
as a third
admissions and affidavits filed
5(D)”
application
ipsa loquitur,
pursuant
element for the
of res
to Ind.Trial Rule
However,
plaintiff's negligence.
determination. The current rule does not in-
absence of
language
pursuant
the court noted this difference and
clude the
"filed
to Trial Rule
in K-Mart
fault,
5(D)
5(D)”;
comparative
applicable.
that with the
T.R.
is still
held
advent
analysis
plaintiff
under the new and
rule
unless the
was more than
at fault in
our
old
is
50%
incident,
5(D) applies
prevent
T.R.
will not
the same since
to both versions
require filing
requested
application
it
of the doctrine. 563 N.E.2d at
and does not
unless
is
by
reveals no other cases dis-
and ordered
the court.
n. 3. Our research
cussing
requiring
element
the absence
this third
compar-
plaintiff's negligence
in the context of
4.We note that motions
However,
ative fault.
since Elder-Beerman
responses
filed with the trial
and
thereto must be
allege
it does not
incurred
states in its brief that
5(E)(1) provides
filing
court.
Ind.Trial Rule
contributory negligence
part
risk or
by delivering
achieved
documents to the
can be
Briars,
only
require-
we
the first two
consider
copy
Inasmuch as a
of Elder-
clerk of the court.
determining
the doctrine of res
ments in
whether
interrogatories
were in-
Beerman's answers
loquitur applies.
in the Briars' memorandum in
cluded
summary judgment and delivered to the clerk
court,
56(C)
properly filed
January
the memorandum was
3. Prior to
the former T.R.
adequately designated pur-
grant summary
provided
shall
and the answers
the court
56(C).
pleadings, depositions,
T.R.
"if the
answers
suant to
fair-
parts
App.,
428 N.E.2d
party designate
the court all
interroga-
admis-
pleadings, depositions, answers
that when a
ness demands
notice,
tories, admissions,
judicial
matters of
fact which
propounds a statement of
sion
any
matters
relies
other
ambiguous,
other-
clarity, is
or which
lacks
of the motion.
answering party,
might
wise
mislead
any
requesting party must bear
error made
Here,
the Briars nor Elder-
neither
light
response.
Id. Viewed
sought
requiring
Beerman
court order
Briars,
find that the
to the
we
most favorable
Thus, filing was not
answers
filed.
show that the Briars misinter-
circumstances
necessary
designation
of the answer
request. The re-
preted Elder-Beerman’s
in the Briars’ memorandum was sufficient
deny
Briars to admit or
quest asked the
trial court to- consider these an
permit the
ipsa loquitur purposes.
could not
swers for res
Were
requests
injury,
they responded,
causing
we to hold as Elder-Beerman
to which
filing
all
require the
ipsa loquitur case.”
“ADMIT. This is a res
thereto, our trial courts’ files would
answers
However, the record shows that
R. at 93-94.
spir
overburdensome and violate the
become
allege
lamp display
the Briars did
T.R, 5(D).
observe, though, that the
it of
We
instrumentality causing Amy’s inju-
was the
5(D)
practice anticipated
T.R.
is
better
Amy
ry.
complaint alleged that
The Briars’
*5
party
going
rely
answers to
that if a
is
to
on
shock from a “Plasma
suffered an electrical
interrogatories
support
to
or defeat a motion
(sic) Lamp
device
Fix
or other electrical
summary judgment,
party
file
the
should
R.
[Elder-Beerman].”
within the control of
upon
separately
it relies
the answers
which
Additionally,
at
in the Briars’ memoran-
38.
in
its memorandum in
of or
from
judgment,
in
to
dum
Then,
summary judgment.
in
opposition to
that,
they
touching
a result of
the
“[a]s
assert
memorandum,
specifical
its
the
should
[Amy]
Lamp Display,
F-X
suffered
Plasma
interrogatory
ly designate the number of the
Further,
in
an
R. at 120.
electrical shock.”
supports
that
its contention.
answer
specif-
one of their
the Briars
Although the answers to inter
ically
control not
ask if Elder-Beerman had
satisfy
rogatories appear to
the elements of only
lamp
the
but over the shelves of
argues,
ipsa loquitur, Elder-Beerman
res
Moreover,
building.
display and the
Debbie
held, that the Briars failed
and the trial court
Amy opine, in
attached to
their affidavits
instrumentality that caused
to establish the
memorandum,
lamp display
that
the
the
injury
requisite element of
the
which is also a
injury.
uses these to show an inference of an issue.
I would affirm the trial court. MILLSPAUGH,
David H.
Appellant-Plaintiff, ROSS, Jr., Ross, Sr.,
Donald Donald Extra Services, Inc.,
dition and United Farm Co., Appel
Bureau Mutual Insurance
lees-Defendants.
No. 10A05-9401-CV-25. Indiana, Appeals
Court of
Fifth District.
Dec.