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Child's disability has no bearing on wrongful death suit filed by adult

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A woman who filed a belated wrongful death suit as personal representative for her son’s estate is bound by the two-year statute of limitations, regardless of the fact that her grandchild has a disability.

In Natalia Robertson, Personal Rep. of the Estate of John Lee Cunningham, III v. Gene B. Glick Co., Inc., The Woods of Eagle Creek, Briarwood Apartments, LP, and Briarwood Apartments II, LP, No. 49A05-1104-CT-158, Natalia Robertson filed suit against The Woods of Eagle Creek apartment complex and its parent companies more than two years after her son, John Cunningham, was shot and killed at the complex. Cunningham was survived by his 11-year-old daughter, J.C., who has autism.

Robertson argued that the general tolling statute applicable to statutes of limitation, Indiana Code 34-11-6-1, applies because the primary beneficiary of the action, J.C., has a disability. The defendants responded that the two-year time period is a condition precedent that cannot be altered by the tolling statute, and that, even if it could be altered by the tolling statute, the disability of a beneficiary is not relevant where the claim must be brought by a personal representative. The Indiana Court of Appeals agreed with the defendants.

Robertson also argued that Indiana’s wrongful death statutes violate the Indiana Constitution’s Privileges and Immunities Clause, Article 1, Section 23; and the Due Course of Law Clause, Article 1, Section 12. Concluding I.C. 34-11-6-1 does not apply to the General Wrongful Death Act and that Indiana’s wrongful death statutes do not violate the Privileges and Immunities Clause or Due Course of Law Clause of the Indiana Constitution, the COA affirmed the trial court’s dismissal of Robertson’s claim as untimely.

 

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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