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State v. Alvarez

Court of Appeals of Indiana

June 10, 2020, Decided; June 10, 2020, Filed

Court of Appeals Case No. 19A-CT-587


May, Judge.

P1 The State of Indiana, the Indiana Department of Environmental Management ("IDEM"), and the Indiana State Department of Health ("ISDH") (collectively, "State Defendants") appeal the trial court's order denying their motion for judgment on the pleadings. State Defendants raise four issues for our review, which we restate as the following three issues:

i. Whether the Indiana Tort Claims Act immunizes the State Defendants;

ii. Whether Plaintiffs' claims are barred by the statute of limitations; and

iii. Whether Plaintiffs pled facts sufficient to state a claim for intentional infliction of emotional distress.

We affirm.

Facts and Procedural History1

P2 In the late-1960s, the City of East Chicago decided to build a large-scale [*2]  public housing complex that became the West Calumet Housing Complex ("Complex"). The City built the Complex in an industrial area. The land was formerly occupied by the Anaconda Lead Products Company and surrounded by other lead smelting operations. Carrie Gosch Elementary School, which the City built in 1958 on land formerly occupied by U.S. Smelter and Lead Refinery, Inc., was located near the Complex. In the late 1990s, the City constructed a new building for Carrie Gosch Elementary on land behind the site of the original building.

P3 In 1985, IDEM found lead contaminated soil near the Complex, and ISDH learned that children who lived at the Complex had high levels of lead in their blood. ISDH and IDEM performed further testing and sampling in 1997, which also revealed lead contaminated soil around the Complex and elevated levels of lead in the blood of children living in the Complex. However, none of the State Defendants notified the residents of the Complex or the parents of students at Carrie Gosch Elementary of the elevated lead levels.

P4 In 1985, the Environmental Protection Agency ("EPA") began testing the land on which the Complex and Carrie Gosch Elementary were built and [*3]  addressing contamination. In 1993, the EPA entered into an administrative order of consent with U.S. Smelter and Lead Refinery, Inc, designating the area as a Superfund site2 in need of environmental remediation. On September 3, 2014, the United States and the State of Indiana filed a complaint against the Atlantic Richfield Company ("Richfield") and the E.I. Du Pont De Nemours and Company ("Du Pont"), two entities that either operated or were successors in interest to companies that operated on or around the land where the Complex was built. The government filed a proposed consent decree on the same day it filed the lawsuit. On or about October 28, 2014, the EPA reached a $26 million settlement with the companies to provide cleanup costs.

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2020 Ind. App. LEXIS 246 *; 150 N.E.3d 206

State of Indiana, Indiana Department of Environmental Management, Indiana State Department of Health, et al., Appellants-Defendants, v. Cristobal Alvarez, C.A. by next friend Cristobal Alvarez, et. al., Appellees-Plaintiffs

Prior History:  [*1] Court of Appeals Case No. 19A-CT-587. Appeal from the Lake Superior Court. The Honorable Nanette K. Raduenz, Special Judge. Trial Court Cause No. 45D05-1803-CT-3.


discretionary, emotional, distress, contaminated, entity, infliction, outrageous, preclusion, lawsuit, exposure, soil, Environmental, intervene, accrue, hazardous

Civil Procedure, Appeals, Standards of Review, De Novo Review, Judgments, Pretrial Judgments, Judgment on Pleadings, Torts, Liability, State Tort Claims Acts, Exclusions From Liability, Public Entity Liability, Vicarious Liability, Procedural Matters, Statute of Limitations, Begins to Run, Preclusion of Judgments, Res Judicata, Estoppel, Collateral Estoppel, Intentional Torts, Intentional Infliction of Emotional Distress, Elements