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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowNeighbors to an 8,000-head hog farm are asking the Indiana Supreme Court for relief, arguing Indiana’s Right to Farm Act does not give blanket immunity to all negligence and trespass claims.
Martin Richard and Janet Himsel and Robert and Susan Lannon have filed a petition to transfer their complaint over a concentrated animal feeding operation near their farms in Hendricks County. They claim the smell from the CAFO has caused them health issues and decreased the values of their properties.
The Hendricks Superior Court and Indiana Court of Appeals have ruled against the Himsel and Lannon families. A petition for rehearing was also denied by a split appellate panel. Judge Elizabeth Tavitas dissented to the denial but did not write separately to explain her reasoning.
The case is Martin Richard Himsel, Janet L. Himsel, Robert J. Lannon and Susan M. Lannon v. Samuel Himsel, Cory M. Himsel, Clinton S. Himsel, 4/9 Livestock, LLC, and Co-Alliance, LLP, 18A-PL-645.
In their petition to the Supreme Court, the plaintiffs pointed to the RTFA statute, Indiana Code § 32-30-6-9(a), and highlighted what it did not contain.
“The RTFA has nothing to say about ‘limiting the circumstances’ under which an agricultural operation can be held liable for negligence or trespass,” the plaintiffs’ petition says. “Instead, RTFA states that its protections do not apply to nuisances that are negligently caused.”
Defendants countered the plaintiffs mischaracterized the ruling from the Court of Appeals.
“The Opinion does not, as Plaintiffs claim, provide ‘sweeping immunity’ by concluding the RTFA bars not only nuisance but also negligence and trespass claims,” the defendants’ response opposing transfer says. “The Opinion correctly treats the negligence and trespass claims as relabeled nuisance claims. The Opinion analyzes the substance of Plaintiffs’ claims, not their labels.”
Since the plaintiffs have submitted their reply in support of their transfer petition, the dispute with the defendants has become more heated. The defendants are taking particular issue with the plaintiffs’ assertion that the trial court improperly granted the motion to correct error.
According to the plaintiffs, the trial court initially found genuine fact issues that precluded the defendants’ motion for summary judgment. But after the defendants filed their motion to correct error, which was accompanied by supporting amicus curiae briefs from the Hendricks County Board of Commissioners and the Indiana Farm Bureau, the court suddenly changed course. Neither brief raised any new evidence or argument, which, the plaintiffs contended, “…raises a legitimate question as to whether the trial court’s unexplained reversal was driven by something other than the trial court’s analysis of facts and law.”
The defendants fired back, calling the plaintiffs’ questions of the trial court’s motives “impertinent, scandalous or otherwise inappropriate.” They are asking the Supreme Court to strike that portion from the plaintiffs’ reply.
“Baselessly accusing a trial court judge of deriving his/her ruling from ‘something other than the trial court’s analysis of facts and law’ and the improper insinuations that accompany such an accusation is the type of impertinent, scandalous and inappropriate matter that should be stricken from briefs on appeal.”
As to their core complaint of trespass and negligence, the Himsels and Lannons argued that if the Legislature had wanted to bar tort claims beyond nuisance, it could have done so but did not. They asserted they have provided “credible evidence” that the emissions from the CAFO “are chemical compounds that result in a physical, space-filling invasion into their homes.” In addition, they have presented expert testimony on the applicable standard of care, specific breaches of that standard and of the harm caused by those breaches.
The Court of Appeals concluded that allowing the claims of negligence and trespass to move forward would create an “end run around the protections of RTFA.” However, the plaintiffs argued the appellate court failed to give effect to RTFA’s intent to limit which agricultural operations may be deemed a nuisance.
The defendants countered that the Court of Appeals issued a “thorough, well-reasoned opinion” that correctly applied well-settled precedent. They asserted the ruling does not bar valid nuisance and trespass claims but, rather, it found the plaintiffs’ claims were not valid.
Furthermore, the defendants contended the plaintiffs’ concerns are better addressed by the Indiana General Assembly.
“After the Opinion was handed down, Plaintiffs enlisted like-minded amici to introduce assertions from studies that have not been tested by our adversarial system,” the defendants argued in their opposition brief. “Those assertions, from Indiana Farmers Union’s extreme depictions of CAFOs to Professors’ characterization that RTFA represents a ‘failure of regulations to deter unreasonable behavior,’ should be directed to the General Assembly. They do not shed light on whether the Opinion was well reasoned or a signification departure from precedent and are better reserved for the General Assembly.
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