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DTCI: Decisons encourage comparative fault arguments

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In a recent unpublished decision in a legal malpractice claim, Ridge v. Lark, No. 51A01-0906-CV-300, Jan. 27, 2010), the Court of Appeals affirmed a judgment against a plaintiff who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

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  1. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

  3. Ok attorney Straw ... if that be a good idea ... And I am not saying it is ... but if it were ... would that be ripe prior to her suffering an embarrassing remand from the Seventh? Seems more than a tad premature here soldier. One putting on the armor should not boast liked one taking it off.

  4. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

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