ILNews

Law doesn't contain presumption on negligence

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  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

ADVERTISEMENT