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Mom may be liable for daughter's accident

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The Indiana Court of Appeals judges agreed that a mother may possibly be liable for her daughter’s accident in which she struck a pedestrian with her car after drinking and talking on her cell phone at the time of the accident. The judges didn’t completely agree as to why the mother may be liable.

In Jerry Coleman Buchanan, by his father and guardian, Odell Buchanan v. Candice L. Vowell, Shannon Vowell, et al., No. 49A02-0909-CV-873, Jerry Buchanan sued Shannon Vowell for damages after her daughter, Candice, hit him while driving under the influence and while talking on her cell phone to her mother. Candice and Shannon left work at Brad’s Gold Club, where Candice drank the alcohol. Shannon followed Candice home in her own car and called Candice on the phone before the accident.

Buchanan suffered permanent brain damage and fractures from the accident. He alleged that Shannon knew Candice was intoxicated and should have known talking to her on the cell phone would further impair or distract Candice. He claimed she was liable under Restatement (Second) of Torts Sections 324A and 319. The trial court granted Shannon’s motion to dismiss for failure to state a claim for which relief could be granted.

On interlocutory appeal, the Court of Appeals reversed the dismissal, but disagreed as to which Restatement (Second) of Torts applied. Senior Judge Betty Barteau and Judge Patricia Riley found Restatement (Second) of Torts Sections 324A, 315, and 876 to be relevant. The Court of Appeals has held as a general rule that under the gratuitous undertaking concept defined in Section 324A, someone other than a driver isn’t liable for damages caused by the negligent acts of the driver unless that person has a special relationship that gives him the right to control the vehicle. In this case, Shannon didn’t try to stop her daughter from driving but assisted her by letting her drive and then trying to give her directions over the phone, noted Senior Judge Barteau. In addition, other jurisdictions have held that gratuitous undertakings concerning drivers may result in liability to someone other than the person who injured the party.

The majority also cited Illinois cases that addressed this issue under Section 876, which provides a person is liable for tortious conduct if he or she does a tortious act in concert with the other person. The judges ruled that Shannon agreed to enter into a concerted activity whereby she would follow her drunken daughter and distract or direct her by talking to her on the phone.

“Furthermore, we note that Shannon owed a duty of reasonable care to those that shared the road with her, both motorists and pedestrians,” wrote Senior Judge Barteau. “Shannon, as an individual, may have breached this duty by calling and distracting a person she knew was operating a vehicle while under the influence of alcohol.”

Judge Nancy Vaidik, in a separate concurring-in-result opinion, believed that only Section 876 applied.

“Given our duty to review a ruling on a motion to dismiss by looking at the pleadings in the light most favorable to the non-movant with every reasonable inference construed in the non-movant’s favor, I believe that under these allegations, Shannon could conceivably be liable for aiding or encouraging Candice’s driving while intoxicated and leaving the scene of an accident,” she wrote.

Judge Vaidik also disagreed with the majority’s comments about the cell phone conversation. She didn’t believe merely calling someone on the phone knowing the person is driving and intoxicated constitutes a tortious act on its own.
 

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  1. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  2. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  3. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

  4. The fee increase would be livable except for the 11% increase in spending at the Disciplinary Commission. The Commission should be focused on true public harm rather than going on witch hunts against lawyers who dare to criticize judges.

  5. Marijuana is safer than alcohol. AT the time the 1937 Marijuana Tax Act was enacted all major pharmaceutical companies in the US sold marijuana products. 11 Presidents of the US have smoked marijuana. Smoking it does not increase the likelihood that you will get lung cancer. There are numerous reports of canabis oil killing many kinds of incurable cancer. (See Rick Simpson's Oil on the internet or facebook).

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