ILNews

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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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