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District judge asks court to answer certified question

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The U.S. District Court in the Southern District of Indiana is asking the state’s Supreme Court to accept a certified question in litigation involving the Indiana Products Liability Act.

U.S. District Judge Larry J. McKinney granted plaintiff Nicholas Green’s motion to certify a question of Indiana law June 30. The question is, “Whether, in a crashworthiness case alleging enhanced injuries under the Indiana Products Liability Act, the finder of fact shall apportion fault to the person suffering physical harm when that alleged fault relates to the cause of the underlying accident.”

Green was driving a 1999 Ford Explorer Sport in Indianapolis in January 2006 when his vehicle left the road, hit a guard rail, rolled down an embankment, and came to rest upside down in a ditch. Green is now a quadriplegic because of the accident.

He sued Ford Motor Company in federal court under the state’s Product Liability Act, claiming the design of the car was defective and unreasonably dangerous, and Ford was negligent in its design of the car’s restraint system.

Ford intends to assert an affirmative defense based upon Green’s alleged negligence in causing the underlying accident. Green argues his alleged negligence is irrelevant because only a product’s defective design can cause “enhanced injuries.”

“…the critical question is whether a plaintiff who negligently causes the underlying accident in a crashworthiness or enhanced injury case also ‘causes’ the enhanced injuries that, by law, the plaintiff is required to prove were caused by the defective design,” wrote Judge McKinney. “Indiana Code section 34-20-8-1 does not answer that question ….”

Judge McKinney noted that the law is uncertain, no Indiana court has written on the issue, there is a split of authority in other states, and the issue is a matter of vital public concern. Until the issue is resolved, the judge administratively closed the case out of the Indianapolis Division, Nicholas A. Green v. Ford Motor Co., No. 1:08-CV-0163, pending a resolution by the Supreme Court.
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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