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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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