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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. 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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