State v. Kimco

902 N.E. 2d 206 (Ind. 2009)


Kimco owns an outdoor shopping center. The state filed a complaint to acquire a strip of land along the western border of the property to improve traffic flow to and from the expressway. The state also sought “permanent extinguishment of all rights and easements of ingress and egress to, from and across – which would keep the owner from adding additional entrances or widening existing entrances. During a 4 year construction period the central entrance was blocked. Kimco also claimed that store visitation had dropped nearly 40% since construction began. Kimco took filed a complaint with regard to consequential damages.

Procedural History

At trial the state moved for summary judgment on “the evidence at the close of Kimco’s case on the ground that impaired access to Plaza East was not compensable.” The jury award $2.3M to Kimco.
● The jury was instructed to find damages that – “Kimco must have suffered a particular, private injury resulting from a substantial and material interference with Kimco’s right of ingress and egress which are special and peculiar to this property and when no other reasonable means of access are available.”
The Court of Appeals affirmed in favor of Kimco, holding that the interference was more than inconvenience “and that Kimco suffered a taking of its access rights as a matter of law.” The state appealed to the State Supreme Court, arguing that the damages were excessive.


Federal court reviews economic takings as whether “it deprives an owner of all or substantially all economic or productive use of his or her property.”
IN Code says eminent domain takings entitle to – (1) fair market value of land taken; (2) fair market value of all improvements pertaining to property (3) damages to residue of property of the owner caused by taking (4)other damages “that will result to any persons from the construction of the improvements in the manner proposed by the plaintiff.


Whether “shopping center owners are entitled to consequential damages from street reconfigurations that affect traffic flow through the center and prevent expansion of existing points of ingress or egress, but leave existing points in place.”


No. The damages are excessive and the case is remanded. Kimco’s complaint does not meet economic taking under federal law at all. The court follows the federal evaluative standard. In Ensly the court held that the construction of a median did not entitle a P to economic damages under IN code – the injury was “remote and inconsequential.” The court had formerly held that there is a difference between right of access to roadways and right to ingress or egress. Property owners may have rights to access, by convenient inflow and outflow is not a right. In order to be compensated, there must be a property right first – the court here is holding there is no property right.

• Here, Ps access points are kept from being widened. Nothing has narrowed or eliminated in terms of access points. Even if traffic is more congested, the right of access is in no way entirely deprived.

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