*1 affirm these complaint. the We they count of that suggested in the water position Appeals. of the Court water, although the determinations deep treading were 11(B)(8). Rule Appellate three feet only Ind. really about water he that Starkey testified deep. Rich for a new trial on remand this cause We people enter- to the yelling thought about claim. negligence diving in about be careful ing the water to "quick water, doing a after but shallow DeBRULER, DICKSON and everyone that he concluded check" mental KRAHULIK, JJ., concur. swimming there before had been GIVAN, J., opinion. dissents say anything. no reason there was already in people were number of After a in. His water, dived Dan Beresford Dan had quadriplegic. him a rendered dive jumped from dived or
never before immediately in the area swam
dock or it.
around Starkeys for Beresfords sued damages requested They also negligence. O'LAUGHLIN, Marjorie Treasurer a nuisance. the dock was on the basis that Indiana, Appellant the State judgment on rendered
The trial court Below), (Applicant Intervention on their the Beresfords evidence v. a verdict juryA returned nuisance count. BARTON, Appellee Dixie negligence their Beresfords on against the (Plaintiff Below), Appeals affirmed. The Court of count. App., 563 Starkey v. Beresford (Garnishee Keubler, Helen grant transfer. N.E.2d 116. We Below), Defendant appeal is what question on principal A Below). (Defendant Fadli, This Starkeys owed to Beresford. duty the Mohammed when we decided pending here case was No. 82S01-9002-CV-131. 569 N.E.2d v. Meads Burrell Indiana. Supreme Court of guests we that social 637. In Burrell held duty to a and are entitled May30,1991. are invitees as that care from landowners reasonable (Second) of in Restatement
duty is defined onto the Beresford came
Torts § express invita- Starkeys' property at their that Beres- Consequently, we hold
tion. Starkeys, and the invitee of
ford was duty rea- Starkeys him a owed protection of his safe- care for the sonable to instruc- objected Beresfords
ty. The behavior; and willful
tions about wanton on jury be instructed
they asked that entitled care. Beresford was
reasonable duty of rea- reflecting a
jury instructions
sonable care. issue, at
Addressing questions other that the trial court Appeals held
Court of testimony admis- excluding about
erred in Starkey. made Janet sions of fault on court's
also affirmed the nuisance respect
the evidence with
Linley Pearson, Gen., E. Atty. Terry G. Duga, Gen., Deputy Atty. Indianapolis, for appellant. Rode, Evansville,
James E. appellee. GIVAN, Justice.
In January of Mohammed Fadli charged with the battery of Dixie Bar- ton. Fadli $100,000 was released on a cash bond. Thereafter Fadli appear failed to and eventually the bond was forfeited. Barton's attorneys notified the trial court that she had filed a civil suit Fadli and moved the court pend- to hold the bond ing resolution of the civil cause. Fadli's bond was revoked on March order was by reaffirmed the trial court on 1987. No further proceedings were taken on the pending bond the out- come of the case of Barton v. Fadli. Eventually However, Fadli defaulted. a jury was assembled to assess Barton's damages. jury $418,- awarded Barton 000 in damages $500,000 actual puni- in damages. tive Judgment on that verdict was entered October 1987. Barton then proceeded attempt in her to attach the $100,000 cash bond which had been forfeit- ed Fadli. 1, 1987,
On December the trial court judgment entered ordering the cash bond paid to Barton. O'Laughlin ap- pealed eventually Appeals the Court of granted Barton's motion to dismiss the in- terlocutory appeal prejudice. 18, 1990, granted this Court transfer, reversed the decision of the trial court, and remanded the in- cause with ordering structions enter Fad- li's cash bond forfeited and the clerk of the Vanderburgh Circuit Court to transmit resulting funds from said forfeiture to the in place- report ence committee 1990 on Senate of Indiana for Treasurer of the State - merely Bill Enrolled 15. This affidavit school fund. common ment purpose her of the states version v. Barton *3 However, J., bill. there is no mention of ret- dissenting (DeBruler, with N.E.2d 1040 intent. Dickson, J., concurred). roactive in opinion which Notwithstanding the mandate of the Su- pending petition on this case was While decision, preme judge took Court Court, Legislature the rehearing in this
for
position
the
that it was the intent of the
15,
Bill
enrolled as P.L. 36-
passed Senate
Legislature that
the amended statute be
1990,
7 amended Ind.Code
in See.
which
$100,-
retroactively
applied
and ordered the
a
provide
to
criminal
85-33-8-7
§
money paid
000 bond
to Barton.
court,
pending
of a
civil ac-
having notice
judgment
a
tion or an unsatisfied
13, 1990, we issued an order to
On June
arising out of the same
criminal defendant
Matthews, Magis-
the Honorable Robert S.
forming the basis
or occurrence
Court,
transaction
Vanderburgh
trate of the
Cireuit
case,
payment
"shall order
for the criminal
Rode,
Barton,
and
E.
counsel for
to
James
deposit
the
any part of the
to
of all or
2,
July
appear before this Court on
1990 to
action,
necessary to
as is
plaintiff
why they should not
held in
show cause
be
pas-
satisfy
judgment." Following
the
the
18,
contempt
of our order of
statute, this Court denied Bar-
sage of this
1990. The order of the trial court was
petition
rehearing
for
and the case
ton's
2,
stayed by
July
this
and on
ordered
Court
the
certified to the trial court under
Magistrate
we found that
Matthews
decision.
mandate of that
contempt
in
and James Rode were not
found that
the
court.
this Court
petition
have
again
Barton
filed her
signifi-
raised were of constitutional
issues
$100,000 paid
the
to her
forfeited bond
appeal.
cance and should be decided on
partial
judgment
in
of the
ren-
satisfaction
stayed
proceedings
The lower court
were
cited as her
dered in the civil case. She
appeal
further until this
could be deter-
statutory
authority
amendment
set
mined.
position
took the
that it
forth above. She
Legislature that the
was the intent of the
O'Laughlin claims the trial court
applied
should
retroac-
amended statute
be
considering
in
erred
the affidavits
position
in-
tively.
support
To
her
on the
Server, Becker,
Young,
and Brown.
is
Legislature, she
tent of the
submitted
susceptible
legislation
true that when
1
persons.
of four
Exhibit was
constructions,
affidavits
widely different
several
Young,
the affidavit of
Dick
who
Senator
may
journals
of the two
Court
look to
Bill
stated that he was the author of Senate
legislative intent.
legislative bodies to infer
that he consented to the amendment
15 and
County Dept.
Pub.
v. Potthoff
Welfare
described above. His affidavit states
considering the four submitted affidavits.
DeBRULER,
J., dissents with separate
opinion in
DICKSON, J.,
concurs.
claims the trial court erred in
holding that Barton was entitled to the
DeBRULER,
Justice, dissenting.
bond.
points
She
out that
in Indiana a
the trial court
statute,
specific
absent
expression to the
issued its order
that the cash
contrary, cannot have
applica
retroactive
bail not be forfeited
paid
to the State
tion, citing Chadwick, Treasurer v. City of Treasurer, but that
it
paid
be
in partial
*4
(1940),
216 Ind.
Crawfordsville
satisfaction of the judgment of Barton
N.E.2d
937.
points
further
out
against Fadli.
that to follow
argument
Barton's
and use
1990, this Court
ren-
the affidavits referred to above renders the
dered its opinion and decision which re-
amendment unconstitutional. O'Laughlin versed the
1, 1987,
judgment and
further contends it is a violation of the
ordered the trial court in lieu thereof to
separation
powers
granted by the
order that the cash bail be forfeited and
Indiana Constitution for the Legislature to paid to the State Treasurer. Due to the
pass a statute that annuls the decision of
filing and pendency
petition
of a
for rehear-
particular
courts in a
case, citing State
ing, this decision did
final,
not become
so as
ex rel. M.T.A. v. Ind.
Rev. Bd.
to require the trial court
comply,
until
Ind.App. 63,
ture.
accept
Thus we
the clear language
court shall
deposited
order the
funds held
|
presume
statute and
for the sake of by the clerk."
question
constitutional
Legisla
that the
outline,
From this
it may be seen that on
ture did not intend the
applica
retroactive
day
the new amendment became effec-
tion of the statute to defeat this Court's
tive,
there had been no actual order or
prior decision in the O'ZLaughlin case.
judgment of forfeiture made the trial court
finally
or
required by order of this Court.
Barton contends our decision was
general
rule is that a law shall be
not final because there
petition
was a
prospective only in the absence of an ex
rehearing pending and therefore
the stat
press
statement
it be retroactive.
ute
applied
should be
because the case was
Chadwick City
v.
of Crawfordsville
yet
not
certified back to the trial court.
216 Ind.
yet vested. WATKINS, Appellant upon the reversed cannot now be Arthur court (Defendant Below), incorrectly accorded it basis Surely the force. retroactive amendment v. apply this for courts legislature intended Indiana, Appellee STATE of whenever, the effec- after procedure new Below). (Plaintiff creating that amendment date of the tive to do decide what procedure, courts new 79A02-8909-CR-457 1. No. money. revoked bail with Indiana, Appeals of Court of here, separate from that of An issue First District. retroactivity, is whether statutory May21, is unconstitution the statute amendment to Constitution, Article Indiana al under the 28; This is and Article 8. 22 and
Sections legislation. pre It is special not void as v. St. Vin constitutional. Johnson sumed *5 Hospital, Inc. cent provides a true that it
N.E.2d 585. It is Barton, at plaintiff but
great benefit and will the statute does
the same time the class victims within other crime
benefit representative, and she is broad
of which is in scope application,
general legislation recognizing spirit of recent oft-forgotten crime victim. need of the
Furthermore, apply I not refuse to would separation
this amendment because amendment, By powers
of doctrine. govern the state
the other two branches that, effective immediate
ment announced receipt
ly, interest the State's by the source is exceeded
money from this injured citizens of
interest of the class representative. Under Barton is I unique circumstances
these somewhat of their not refuse enforcement
would In re the Mat
judgment in this case. See No. Public Law ter 154-1990 De- (opinion 561 N.E.2d
Bruler, J., dissenting). concurring and
DICKSON, J., concurs. reassigned April to this office on case was
1. This