ILNews

DTCI: Decisons encourage comparative fault arguments

Back to TopCommentsE-mailPrintBookmark and Share

DTCI-TyraAs Jerry Padgett and I discussed in our commentary, “Causation as a case-dispositive issue” (Indiana Lawyer, Oct. 14, 2009), the Indiana Court of Appeals has held in favor of summary judgment for defendants in instances in which the plaintiff’s negligence clearly intervened whatever fault may have been assigned to the defendant. See, e.g., Carter v. Indianapolis Power & Light Co., 837 N.E.2d 509 (Ind.App. 2005), reh’g denied, trans. denied; and Witmat Development Corp. v. Dickison, 907 N.E.2d 170 (Ind.App. 2009).

Two recent decisions by the Court of Appeals demonstrate what we hope is a continuing trend of expecting plaintiffs to exercise personal responsibility. In each case, the court absolved the defendant of responsibility for harm to the plaintiff that was clearly the result of the plaintiff’s poor choices.

In Caesars Riverboat Casino, LLC v. Kephart, 903 N.E.2d 117 (Ind.App. 2009), transfer granted Sept. 11, 2009, Caesars brought a collection action against Genevieve Kephart, who signed six counter checks totaling $125,000, which was the amount she lost while gambling at Caesars in one night. Kephart counterclaimed, alleging Caesars knew she was a compulsive gambler, marketed specifically to her, and enticed her to come to its casino to gamble.

Caesars moved to dismiss Kephart’s counterclaim for failure to state a claim. The trial court denied Caesars’ motion. The Court of Appeals reversed, holding that Indiana’s common law does not recognize a private right of action for negligently allowing or enticing a compulsive gambler to engage in lawful gambling.

Judge Paul D. Mathias’ opinion commented that a retailer has no duty to refuse to sell merchandise to a compulsive shopper, and that this case is “more akin to that of a participant injured during a sporting activity, than to that of a traditional negligence plaintiff.” The opinion also observed that Kephart had not sought help for her compulsion until after this incident.

In a recent unpublished decision in a legal malpractice claim, Ridge v. Lark, No. 51A01-0906-CV-300, Jan. 27, 2010), the Court of Appeals affirmed a judgment against a plaintiff who persistently ignored his attorney’s advice.

Attorney Matthew Lark represented Ridge in a claim for the death of Ridge’s wife in a motor vehicle accident. Lark obtained a $650,000 settlement for Ridge in mediation. Lark and co-counsel repeatedly recommended a structured settlement to Ridge and also introduced Ridge to investment advisors who could assist in the use of a settlement. In addition, the defendant trucking company brought a structured settlement specialist to the mediation. Ridge rejected all of this advice and instead insisted on receiving his $400,000 portion of the settlement in a lump sum. The same day he received the disbursement, Ridge gave $282,108.45 of the proceeds to his employer, Robert Melton of Melton’s Tree Service.

Thereafter, Ridge sued Lark for legal malpractice. Ridge claimed that he was an incapacitated person, and therefore Lark was negligent in relation to the distribution of the settlement proceeds. After a four-day trial, the trial court found that Ridge was not “incapacitated” and entered judgment against Ridge. The Court of Appeals affirmed.

Among other things, the trial court had found that Ridge had a broad range of computer- and Internet-related skills, that he had successfully represented himself in the past in a marital dissolution and in negotiating a plea on criminal charges, and that he had long maintained employment, including as a supervisor.

Also, the trial judge concluded from observing Ridge on the witness stand that he was “street smart.” Favorable opinions about Ridge’s competence were shared by other witnesses at trial who knew Ridge.

Trial defense counsel should take these decisions as further encouragement to forcefully argue comparative fault not only at trial but also through dispositive motions, where appropriate.•

__________

Kevin C. Tyra focuses his practice in insurance defense and insurance coverage at The Tyra Law Firm, P.C. (www.tyralaw.net) in Indianapolis. He is a member of the board of directors of DTCI. The views expressed are those of the author.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. State Farm is sad and filled with woe Edward Rust is no longer CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go All American Girl starred Margaret Cho The Miami Heat coach is nicknamed Spo I hate to paddle but don’t like to row Edward Rust is no longer CEO The Board said it was time for him to go The word souffler is French for blow I love the rain but dislike the snow Ten tosses for a nickel or a penny a throw State Farm is sad and filled with woe Edward Rust is no longer CEO Bambi’s mom was a fawn who became a doe You can’t line up if you don’t get in a row My car isn’t running, “Give me a tow” He had knowledge but wasn’t in the know The Board said it was time for him to go Plant a seed and water it to make it grow Phases of the tide are ebb and flow If you head isn’t hairy you don’t have a fro You can buff your bald head to make it glow State Farm is sad and filled with woe Edward Rust is no longer CEO I like Mike Tyson more than Riddick Bowe A mug of coffee is a cup of joe Call me brother, don’t call me bro When I sing scat I sound like Al Jarreau State Farm is sad and filled with woe The Board said it was time for him to go A former Tigers pitcher was Lerrin LaGrow Ursula Andress was a Bond girl in Dr. No Brian Benben is married to Madeline Stowe Betsy Ross couldn’t knit but she sure could sew He had knowledge but wasn’t in the know Edward Rust is no longer CEO Grand Funk toured with David Allan Coe I said to Shoeless Joe, “Say it ain’t so” Brandon Lee died during the filming of The Crow In 1992 I didn’t vote for Ross Perot State Farm is sad and filled with woe The Board said it was time for him to go A hare is fast and a tortoise is slow The overhead compartment is for luggage to stow Beware from above but look out below I’m gaining momentum, I’ve got big mo He had knowledge but wasn’t in the know Edward Rust is no longer CEO I’ve travelled far but have miles to go My insurance company thinks I’m their ho I’m not their friend but I am their foe Robin Hood had arrows, a quiver and a bow State Farm has a lame duck CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go State Farm is sad and filled with woe

  2. The ADA acts as a tax upon all for the benefit of a few. And, most importantly, the many have no individual say in whether they pay the tax. Those with handicaps suffered in military service should get a pass, but those who are handicapped by accident or birth do NOT deserve that pass. The drivel about "equal access" is spurious because the handicapped HAVE equal access, they just can't effectively use it. That is their problem, not society's. The burden to remediate should be that of those who seek the benefit of some social, constructional, or dimensional change, NOT society generally. Everybody wants to socialize the costs and concentrate the benefits of government intrusion so that they benefit and largely avoid the costs. This simply maintains the constant push to the slop trough, and explains, in part, why the nation is 20 trillion dollars in the hole.

  3. Hey 2 psychs is never enough, since it is statistically unlikely that three will ever agree on anything! New study admits this pseudo science is about as scientifically valid as astrology ... done by via fortune cookie ....John Ioannidis, professor of health research and policy at Stanford University, said the study was impressive and that its results had been eagerly awaited by the scientific community. “Sadly, the picture it paints - a 64% failure rate even among papers published in the best journals in the field - is not very nice about the current status of psychological science in general, and for fields like social psychology it is just devastating,” he said. http://www.theguardian.com/science/2015/aug/27/study-delivers-bleak-verdict-on-validity-of-psychology-experiment-results

  4. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  5. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

ADVERTISEMENT