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In a recent unpublished decision in a legal malpractice claim, Ridge v. Lark, No. 51A01-0906-CV-300, Jan. 27, 2010), the Court of Appeals affirmed a judgment against a plaintiff who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. ( 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. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.