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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. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

  2. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

  3. Indiana up holds this behavior. the state police know they got it made.

  4. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

  5. Agreed on 4th Amendment call - that was just bad policing that resulted in dismissal for repeat offender. What kind of parent names their boy "Kriston"?

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