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Tort law case tests boundaries of 'duty'

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The Indiana Court of Appeals recently issued an opinion that answered some complicated questions about the point at which one person assumes a “duty” to another. But the panel did not reach a consensus, with one judge writing that the majority opinion could have a negative impact on public policy.

People who ponder tort law say that the question of who owes a duty to whom has been endlessly debated. And while non-lawyers may be unaware of these debates, the actions they take every day are affected by them.
 

bodkin-tom.jpg Bodkin

R. Thomas Bodkin, a partner with Evansville’s Bamberger Foreman Oswald & Hahn, explained tort law’s role in civilized society.

“As we teach them how to drive, the obligation to stop at a stop sign – that kind of thing – we are teaching people about duty,” he said. “We just don’t use the label.”

The case

In Jacob Key, Ted J. Brown and Sally A. Brown v. Dewayne Hamilton, No. 48A02-1007-CT-812, the question the appellate court was asked to review for the first time is whether a driver who signals another driver to proceed onto a roadway is liable for injuries sustained by a third party.

Jacob Key, a truck driver employed by Ted and Sally Brown, was traveling southbound on Indiana State Road 9 when he approached a line of cars stopped due to a stoplight at the next intersection. Key stopped at the Market St. intersection, allowing enough space for John Owens to make a left turn in front of him from a perpendicular street (from Market St. onto State Road 9). For reasons not specified in the opinion, Key got out of his work truck, standing on the doorsill to check behind him for oncoming traffic. He then gave an “all-clear” courtesy wave to Owens, who then pulled out in front of Key to turn left. But Key had not seen motorcyclist Dewayne Hamilton traveling southbound in the adjacent lane. Hamilton, who was traveling above the speed limit, crashed into Owens’ vehicle, and the force of the impact propelled Hamilton over Owens’ vehicle onto the roadway, seriously injuring Hamilton.

At trial, the jury returned a verdict in favor of Hamilton, allocating fault as follows: 5 percent to Hamilton, 45 percent to Key and 50 percent to non-party Owens. Key and his employers appealed that decision.

Betsy Greene, a partner with Bloomington’s Greene & Schultz, said that what distinguishes this case from similar “courtesy wave” cases is that, typically, when a driver simply waves another driver to proceed in front of his car, the waver only guarantees that he will not crash into the driver he signaled. But the fact that Key involves an injured third party adds a new wrinkle to the discussion of duty.courtesy

In the COA opinion, the majority agreed that when Key got out of his truck to look behind him to ensure the road was clear, he assumed a duty to Hamilton, even though he didn’t see Hamilton at the time.

“I also am persuaded by the fact that this person really went to great lengths to determine that there was no traffic, and under those circumstances I think it would be fair for that driver to rely upon that information,” Greene said.

Judge Paul Mathias wrote in his dissent that Key’s behavior in thoroughly checking for traffic was laudatory. “Yet the majority opinion effectively penalizes drivers such as Key, who at least try to discern whether there is any oncoming traffic, by exposing them to liability for any resulting collision,” Mathias wrote.

The majority opinion might result in drivers – wary of being held liable for possible consequences – being less inclined to offer a courtesy wave, which in turn could result in more “road rage” on Indiana’s roadways, he wrote.

“That was an interesting argument the judge used – kind of a parade of the horribles – because you did this, the following things will occur,” Bodkin said.

Application of the law

The Court of Appeals occasionally travels to hear oral arguments, and in October, it took the Key case to Indiana University Maurer School of Law. Don Gjerdingen, professor at the law school, was present for the oral arguments in the case.

While the opinion in Key seems narrow in that it rests largely upon the truck driver’s thorough examination of traffic, Gjerdingen said that the case brought up many important issues that he discusses with students.

“If you decide to help a stranger or just to be the classic good Samaritan, what are the permissible legal consequences? The classic rules will say something like this – at least in the United States – there is no legal obligation to help a stranger, so if you just happen to be walking by on the beach and heard some screams, you don’t have to help that person,” Gjerdingen said. But Indiana and many other states have created good Samaritan statutes that protect do-gooders from legal action.

“You don’t have to stop, but if you do stop, we will make it harder to bring a legal action against you,” he said. For example, Indiana Code 34-30-12 protects people who perform non-compensated emergency first aid from civil liability, and I.C. 16-31-6 provides similar protections for emergency medical technicians.

In the Key case, Gjerdingen said that the issue Mathias presents in his dissent is interesting.

“In a way it’s a narrow point, but arguably, it isn’t,” Gjerdingen said. “As a practical matter, what is it going to do? If every driver in the state of Indiana were to read (the opinion), what would the response be? That’s the issue he was raising – would this lead to safer traffic or not?”

Protection for the injured

Bodkin pointed out that while the Key case may be narrow, it certainly assigns duty where duty previously did not exist.

“Anytime we conclude that we’re going to expand duty, somebody’s going to lose, and somebody’s going to win,” he said. “You have an entity that’s going to have to pay money now that never would’ve had to pay money before.”

As a personal injury defense lawyer, Greene spends a lot of time working with focus groups to determine how they would assign liability in a personal injury case, and those groups almost always tend to assign some fault to the injured party.

In the Key case, the jury awarded Hamilton $2.2 million in damages, with 45 percent of the liability assigned to Key.

“Just from my perspective as a plaintiff’s lawyer, I’m wondering if the dissent is suggesting that Hamilton should go uncompensated for the percentage of fault assigned to Key,” Greene said.

Bodkin can’t discern from reading the case what the insurance limits were of the people involved. Both Bodkin and Greene mentioned that this case will likely influence how insurance companies determine negligence. But Greene said she doubts that the case would have a major effect on Indiana drivers. And Bodkin pointed out that like so many tort law cases, some questions may not be resolved – at least not immediately.

“The debate can go on for a long time depending on which piece of the case you want to pick up and carry,” Bodkin said. “I think most of us would assume there’s no duty here on the part of the guy who waved him through. It appears to me that the fact that the guy got out and looked seemed to be the tipping point. I wonder what would’ve happened if he would’ve just looked in his rearview mirror. But that didn’t happen here. That’ll be the next case.”•

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  1. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  2. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  3. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  4. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  5. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

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