We have quite a few court decisions in the hopper, and as 2015 draws down we're going to post them with only minimal analysis, hoping to clear the queue before January.
Here's the first, a recent opinion from the Indiana Court of Appeals, in which Mr. Kerr objected after noxious odors from a city owned and maintained sewage line entered his house. He brought claims for both tort (for injuries to his health), and for inverse condemnation (the gases eventually forced him to leave the home).
The court of appeals concluded that his tort claim would have been viable, except that he had not instituted it within the time allowed by the statute of limitations. Kerr admitted he knew of his potential health problems as early as 2005, but didn't bring the claim for more than 7 years.
However, the court allowed at least part of the inverse condemnation claim -- a claim for compensation for loss of the use and enjoyment of property -- to go forward, because the harm in that case was "continual," and, "as such, trigger new limitations periods each time they damage or interfere with the use and enjoyment of his property." Slip op. at 12.
One potential problem: the court concluded (assumed?) that inverse condemnation claims are tort claims, subject to Indiana's requirement that bars tort claims unless notice is given to a municipality within 180 days. Consequently, Kerr's inverse damages were limited to those which he incurred 180 days before he filed notice. The court did not cite any authority for applying the tort notice requirement to inverse condemnation claims, so we're wondering whether there is authority for the proposition that inverse condemnation are tort claims under Indiana law, or maybe there isn't.
Any Indiana practitioners out there who know the answer on this one?
Kerr v. City of South Bend, No. 71A03-1502-CT-49 (Ind. App. Dec. 23, 2015)
