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In a recent unpublished decision in a legal malpractice claim, Ridge v. Lark, No. 51A01-0906-CV-300, Jan. 27, 2010), the Court of Appeals affirmed a judgment against a plaintiff who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

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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. 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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