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Products Liability Cases – Feb. 25

The Indiana Product Liability Act is the exclusive mechanism to evaluate claims of personal injury and property damage allegedly caused by products. The Act’s unique statutory regime selectively borrows concepts from the Restatement (Second) of Torts, § 402A, and the Restatement (Third) of Torts: Products Liability, and it rejects strict liability concepts for claims of design and warning defects. The Act also significantly alters prior Indiana common law governing product liability actions. This seminar will explore these features of the Act, and will address opportunities and procedural mechanisms for early resolution of product liability actions, including the narrowing of issues through motion practice, tailored case management orders, and efficient discovery practices designed to control and reduce costs.

Dean T. BarnhardBarnes & Thornburg, Indianapolis
Joseph R. AlbertsDow AgroSciences, Indianapolis
Mathew Scott Winings, Cummins, Inc., Indianapolis


3 CLE – Wednesday, February 25, 2015   1:15 P.M. – 4:30 P.M.

Live In-Person Seminar
– ICLEF Conference Facility, Indianapolis

Live Individual Webcast
– From Your Home or Office Computer

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN


Posted in Highlighted Seminars0 Comments

ICLEF Contributes $2500 to the Indianapolis Bar Foundation

ICLEF is pleased to announce a contribution of $2500 to the Indianapolis Bar Foundation in support of the Neil E. Shook Scholarship Fund.  The Indianapolis Bar Foundation website lists the Neil E. Shook Scholarship as being available to 2nd year Robert H. McKinney School of Law students who exhibit the following characteristics: 1. academic proficiency; 2. interest in creditors’ rights and bankruptcy law; 3. financial need; 4. exceptional leader­ship skills; 5. demonstrated commitment to excellence; 6. proponent of civility in the legal profession.

We are delighted to be able to provide financial support to this important scholarship fund.

Click here if you would like to make a donation to the Indianapolis Bar Foundation.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Family Law Case Review 2/25/11

Case: Stephanie L. Cotton v. Charles C. Cotton

Case Summary by Mike Kohlhaas, Bingham McHale LLP

HELD: To comply with the Indiana Trial Rules and Due Process, the summons served with a petition for dissolution of marriage must include a clear statement to the Respondent of the risk of default for failure to appear or otherwise respond.


Husband and Wife married in 2002. In March 2009, Husband filed a petition for dissolution of marriage. Wife was served with a summons and copy of the petition, but she did not appear personally or by counsel, nor did she respond to the petition. Husband continued to live in the marital residence for five months after filing, leading Wife to believe that the parties were working on reconciliation and that Husband was not pushing finalization of the dissolution.

However, in September 2009, Husband and his counsel attended a final hearing. Wife had not appeared personally or by counsel, and she received no notice of the final hearing. In Wife’s absence, and following only Husband’s testimony, the trial court defaulted Wife and entered a final dissolution decree that included an award of joint legal and physical custody of the parties’ son, and divided the marital estate. Wife subsequently learned of the Decree, hired counsel, and filed a T.R. 60 motion to set aside the Decree, which was denied. Wife appealed.

On appeal, Wife contended that the Decree was void because it was entered without personal jurisdiction over her, due to insufficiency of process; specifically, the summons used by Husband included language to Wife that she “may personally appear” and that “[y]ou must appear before the Court if directed to do so pursuant to a Notice, Order of the Court, or Subpoena,” but no language articulating a risk of default for doing nothing. In reviewing the summons, the Court of Appeals summarized the applicable law of insufficiency of process, and concluded: “We hold that due process requires that, at a minimum, a respondent in a dissolution proceeding be notified of the risk of default for failure to appear or otherwise respond.”

In this instance, the subject summons presented Wife with the option of appearing or responding to the petition, but did not provide notice to her that the trial court could take further and final action without further notice to her. The Court of Appeals added, “the command of Trial Rule 4(C)(5), grounded in due process, is that the respondent in a dissolution proceeding must be given notice in a ‘clear statement’ of the risk of default for failure to appear or other respond . . . ” Concluding that the subject summons did not comply with Trial Rule 4(C)(5), or the Due Process Clause, the dissolution decree was reversed and remanded for further proceedings.

To view the text of this opinion in its entirety, click here: Stephanie L. Cotton v. Charles C. Cotton

Posted in Family Law Case Review0 Comments

Law Tips: Drones – What are the Civil Liability Issues and Questions on the Horizon? Part 2

Welcome back to our Law Tips exploration into Invasion of the Drones with Chris Stevenson, Wilson Kehoe Winingham, Indianapolis, Indiana. Chris raised the following alert last week: “The increase of drone activity in the United States will also lead to the potential for various types of civil liability for personal injuries and property damage/property rights claims.” You’ll find the first part of his discussion on the developments surrounding drone activity below. So what’s next? Let’s hear from Chris on property rights and damage:

Property Rights and Damage Related to Drones
Drones also have the potential to impact property law. Two legal theories which potentially could be argued to apply to drone use are nuisance law and trespass law. A nuisance can be either public or private. “A public nuisance is one which affects an entire neighborhood or community, while a private nuisance affects only a single person or a determinate number of people. The essence of a private nuisance is the use of property to the detriment of the use and enjoyment of another’s property.” Wernke v. Halas, 600 N.E.2d 117, 120 (Ind. Ct. App.1992).

From public/private nuisances, Indiana law further breaks it down to nuisance per se and nuisance per accidens. Id. “A nuisance per se, as the term implies, is that which is a nuisance in itself, and which, therefore, cannot be so conducted or maintained as to be lawfully carried on or permitted to exist.” Windfall Manufacturing Co. v. Patterson (1897), 148 Ind. 414, 420, 47 N.E. 2, 4. A nuisance per accidens is an activity that is otherwise

lawful, but “produces such a condition as in the judgment of reasonable persons is naturally productive of actual physical discomfort to persons of ordinary sensibility, tastes, and habits.” Wendtv. Kerkhof594 N.E.2d 795,797 (Ind. Ct. App. 1992).

Nuisance law has been applied to aircraft in prior cases. In Biddle v. BAA Indianapolis, LLC, 860 N.E.2d 570 (Ind. 2007) homeowners near the Indianapolis International Airport brought suit against the Indianapolis Airport Authority raising claims of nuisance related to low flying aircraft and noise. While the nuisance claim was dropped in exchange for a “takings” claim under eminent domain law, Biddle shows that nuisance law principles can be asserted in claims regarding aircraft. Due to potential nuisance issues involving wildlife, the National Parks System has recently passed a ban on the use of drones inside Park property. Thus, drone use is ripe for property nuisance and trespass claims.

One of the key questions related to low flying drone operation is who owns the airspace over one’s property. In United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946), the U.S. Sup. Ct found that: “[t]he airplane is part of the modern environment of life, and the inconveniences which it causes are normally not compensable under the Fifth Amendment. The airspace, apart from the immediate reaches above the land, is part of the public domain …. Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land.” The Fed. Claims Court later added the following presumption concerning the property rights associated with airspace. In Aaron v. United States, 160 Ct.Cl. 295, 311 F.2d 798 (1963), the court articulated a presumption based on navigable airspace boundaries. “When an aircraft flies within the navigable airspace directly above private property, the court presumes there is no taking unless the effect on private property is ‘so severe as to amount to a practical destruction or a substantial impairment of it.” Id. at 801. Indiana follows the Aaron presumption. Biddle, 860 N.E.2d at 580.

The problem with Aaron’s test is that it relies on “navigable airspace” to determine property rights. Currently navigable airspace is defined as airspace above the minimum altitudes of flight … including airspace needed to ensure safety in the takeoff and landing of aircraft. 49 U.S.C. § 40102(a)(32). In most areas the minimum altitude for flight is 500 feet above the ground. Thus, what happens when a drone is hovering only 100 feet above your house, or cuts across your yard at 50 feet to land at a neighbor’s house? Obviously, the current test provided by Aaron is not going to work for drones. What test will evolve to address property right claims of nuisance or trespass of drones will likely depend on what the FAA does to realign “navigable airspace.”

While there are many uncertainties about drones and property rights, one thing is certain, new law will be created to deal with the ever increasing use of drones. As one can see, there are many more questions than answers in trying to envision how the law will adapt to the use of drones in the coming years.


Thanks again to Chris Stevenson for his insights on this milestone topic. I’m sure we’ll want to ask him back to share his expertise as the law develops further around drones

If you would like to take advantage of the CLE program including Mr. Stevenson’s complete presentation, sign up for ICLEF’s Invasion of the Drones Video Replay seminars or On Demand Seminar.


About our Law Tips faculty participant:
Chris Stevenson is an attorney with Wilson Kehoe Winingham, Indianapolis, Indiana. He graduated from the IU Robert H. McKinney School of Law in 2003 and has focused his legal career on helping injured clients. Chris, a graduate of the Purdue University Aviation Flight Technology program, uses his technical and engineering background to focus on the firm’s product liability, aviation, and construction accident caseload.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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