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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. 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

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