Michael E. REED and Beth E. Reed, Appellants (Plaintiffs below), v. CENTRAL SOYA COMPANY, INC., National By-Products, Inc., and Boyce Turner d/b/a Boyce Turner d/b/a Turner & Sons Ag Service, Appellees (Defendants below).
No. 27S05-9309-CV-1020
Supreme Court of Indiana
Dec. 7, 1994
Finally, Powell asserts that the trial court erred in considering as an aggravating circumstance the charges of attempted murder for an occurrenсe after the Sak killing, charges that were still pending at the time of his sentencing in this case. Criminal history may be established as an aggravating circumstance either through a conviction, through the defеndant‘s admission that he committed other crimes, or through evidence of other crimes presented at trial or at sentencing. Tunstill v. State (1991), Ind., 568 N.E.2d 539.
The State did not present evidence proving he committed the attempted murder, but Powell informed the probation officer who did the pre-sentence report that he had shot the victim in that case. Moreover, this Court has held that criminal charges pending at the time of sentencing may be considered aggravating circumstances. Dillon v. State (1986), Ind., 492 N.E.2d 661; Stark v. State (1986), Ind., 489 N.E.2d 43, 48. Presumably, such aggravators are entitled to modest weight. The trial judge probably saw it that way, mentioning only briefly in his sentеncing order that “the offense pending in Delaware County Superior Court No. 1 occurred subsequent to the current offense.” R. 295. This modest mention among the many other aggravating circumstances is nоt grounds for setting aside Powell‘s sentence.
We affirm the trial court.
DeBRULER, GIVAN, DICKSON and SULLIVAN, JJ., concur.
John R. Burns, III, Jeffrey A. Townsend, Baker & Daniels, Fort Wayne, for Central Soya Company, Inc.
John F. Prescott, Jr. Ice Miller Donadio & Ryan, Indianapolis, S.P. DeVolder, Gamble & Davis, P.C., Des Moines, IA, for National By-Products, Inc.
DICKSON, Justice.
In this case, a strict liability in tort action, plaintiffs-appellants Michael E. and Beth E. Reеd seek rehearing following our decision in Reed v. Central Soya Co., Inc. (1993), Ind., 621 N.E.2d 1069. There, in part, we affirmed the trial court entry of summary judgment in favor of defendants-appellees, a producer and a distributor of animal feed. Thе Reeds challenge the majority holding that defendants were entitled to summary judgment as a matter of law because the nature of the damages, various physical disorders in the Reeds’ dairy herd аllegedly resulting from the ingestion of contaminated feed, was not “sudden, major damage to property.”1
The Reeds contend that because they observed adverse symptoms in the herd within twenty-fоur hours after the initial ingestion of the feed, the resultant immediate reduction in the fair market value of the affected cows established sudden, major damage. The Reeds further assert that evеn though their initial awareness of other bovine disorders did not occur until weeks after ingestion, this does not alter the fact that this damage likewise was sustained upon the first ingestion of the tainted feеd. In their petition for rehearing, the Reeds argue that (a) the dissent is correct in concluding that the determination of whether property damage is sudden and major is a question of fact, and (b) еven if it were a question of law, genuine issues of material fact exist here which preclude granting summary judgment.
Defendants respond that the majority correctly determined that because “the question of whether the damage suffered by a plaintiff is sudden, major damage is a question of law,” Reed, 621 N.E.2d at 1076, summary judgment was properly granted. Defendants claim that the facts suggest that the Reeds’ alleged lossеs occurred gradually and are yet evolving and that such losses do not constitute the statutorily requisite “sudden, major damage.”
While the issue of whether property damage is sudden and major cаn be disposed of as a matter of law in some situations, this is not always the case. At the pleading stage, the court may be able to dispose of the issue as a matter of law, either for thе plaintiff or for the defendant, depending on the pleadings and related matters presented. Conversely, at the summary judgment stage, the court may be faced with a genuine issue of material fact which must necessarily be decided by the fact finder.
However, when the underlying facts of the case—when the damage first
The legislature‘s directions are clear: the property damage must be sudden; it must be majоr; it may not include damages or resulting economic losses that are gradually evolving. Yet, courts must infuse these directions with legal meaning, and the facts of a particular case, when evaluated accordingly, may be sufficient to decide the case as a matter of law. Nevertheless, even when the statutory terms have been infused with meaning, there may be cases in which somе weighing, balancing, or qualitative assessment of the underlying facts will be necessary to determine whether the facts meet those statutory standards. Such assessments should be left for the finder of fact. If the facts enable the court to unequivocally determine whether damage is sudden and major, then the issue is one of law. However, if weighing, balancing, and assessing must take place, the realm of the fact finder has been invaded and summary judgment is inappropriate. See generally Colleen P. Murphy, Integrating the Constitutional Authority of Civil and Criminal Juries, 61 Geo.Wash.L.Rev. 723, 730-31 (1993).2
This case requires such weighing, balancing, and assessing to determine (1) whether the Reeds’ herd becoming sick and showing other adverse side effects within twenty-four hours of consuming the feed is “sudden” damage when the disorders did not become serious until ten days later and breeding problems did not become apparent until some time later still; (2) whether the decrease in fair market value of the herd asserted by the Reeds is “major” damage; and (3) whether milk producing and breeding problems that were arguably induced upon the initial ingestion of the feed but did not become manifest until sometime later constitute “gradually evolving” damage. Under the facts of this case, these determinations should be left for the fact finder.
For the foregoing reasons, rehearing is hereby granted, and our previous opinion is modified to provide that (a) whether рroperty damage was “sudden, major damage” is an issue of fact in this case, precluding summary judgment on the products liability claims; and (b) because defendants are not entitled to summary judgment on the products liability claims, they are not entitled to summary judgment on the related punitive damage claims.
DeBRULER, GIVAN and SULLIVAN, JJ., concur.
SHEPARD, Chief Justice, concurring and dissenting.
This case now goes the other way in the wake of the departure of Justice Jon Krahulik, who wrote the Court‘s opinion. In part, I agree with the point the new majority is making. Whether an injury to property is “sudden and major” under the act does seem susceptible to resolution on summary judgment sоmetimes and sometimes not, depending on the facts before the court. Op. at 85. This seems like sound and traditional summary judgment law.
I diverge with the majority where it declares that the facts support thе inference that the damage to the Reed‘s property which evolved over some five years was “sudden.” For the reasons outlined in Justice Krahulik‘s opinion, I would remain faithful to the legislature‘s 1983 amendments and hold otherwise.