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Law doesn't contain presumption on negligence

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The Indiana Court of Appeals found a trial court committed a reversible error when it instructed a jury that Indiana law has a rebuttable presumption that children ages 7 through 14 can't be found contributorily negligent. The ruling came in a suit against a school for the death of a student.

Ronna Timberman and John Pipes II sued Clay City Consolidated School Corporation after their 13-year-old son Kodi died during a basketball practice. Days earlier, Kodi blacked out and fell at a practice and Timberman wanted Kodi to see a doctor before participating in strenuous activities at practice. The day he fainted, Kodi hadn't eaten much, so his family and coaches made sure he ate before participating at practice. Two days later, Kodi attended basketball practice and collapsed during a running drill. His death was attributed to ventricular fibrillation.

His parents sued under Indiana's Child Wrongful Death Statute and received $300,000 following an order on remittitur from the court reducing their damages.

In Clay City Consolidated School Corp.v. Ronna Timberman and John Pipes II, No. 11A04-0802-CV-96, Clay City appealed the denial of its motion to correct error and the order on remittitur. Clay City contends the trial court abused its discretion in its jury instruction No. 20, which said that a 13-year-old boy is presumed to be incapable of contributory negligence.

Noting that the trial court "reopened the proverbial can of worms" with this issue, the appellate court examined Indiana caselaw to conclude that state law doesn't conclusively contain a presumption either in favor or against 7- to 14-year-olds with respect to whether they can be found liable for negligent acts, wrote Judge Patricia Riley. The trial court misstated Indiana law when it informed the jury that state law contains a rebuttable presumption that children between the ages of 7 and 14 can't be found contributorily negligent.

Indiana law focuses on when a child in that age range can be held liable for negligence for their acts, which is primarily determined by inquiry into whether the child exercised the level of care that should be expected of a child of like age, knowledge, judgment, and experience, the judge wrote. There is no pattern jury instruction on a presumption for this age group, nor has the Indiana Supreme Court mentioned whether an instruction should be given regarding any presumption.

"Thus, we conclude that any jury instruction on the contributory negligence of a child between the age of seven and fourteen should focus on the standard of care for children of that age group-not on any presumption either in favor of or against finding them liable for their acts," Judge Riley wrote.

As a result, the appellate court reversed the trial court and remanded for a new trial because it can't say the verdict would have been the same despite the erroneous instruction.

The Court of Appeals also addressed other issues that may come up in the new trial regarding other jury instructions given by the trial court.

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  1. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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