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Tort law case tests boundaries of 'duty'

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The Indiana Court of Appeals recently issued an opinion that answered some complicated questions about the point at which one person assumes a “duty” to another. But the panel did not reach a consensus, with one judge writing that the majority opinion could have a negative impact on public policy.

People who ponder tort law say that the question of who owes a duty to whom has been endlessly debated. And while non-lawyers may be unaware of these debates, the actions they take every day are affected by them.
 

bodkin-tom.jpg Bodkin

R. Thomas Bodkin, a partner with Evansville’s Bamberger Foreman Oswald & Hahn, explained tort law’s role in civilized society.

“As we teach them how to drive, the obligation to stop at a stop sign – that kind of thing – we are teaching people about duty,” he said. “We just don’t use the label.”

The case

In Jacob Key, Ted J. Brown and Sally A. Brown v. Dewayne Hamilton, No. 48A02-1007-CT-812, the question the appellate court was asked to review for the first time is whether a driver who signals another driver to proceed onto a roadway is liable for injuries sustained by a third party.

Jacob Key, a truck driver employed by Ted and Sally Brown, was traveling southbound on Indiana State Road 9 when he approached a line of cars stopped due to a stoplight at the next intersection. Key stopped at the Market St. intersection, allowing enough space for John Owens to make a left turn in front of him from a perpendicular street (from Market St. onto State Road 9). For reasons not specified in the opinion, Key got out of his work truck, standing on the doorsill to check behind him for oncoming traffic. He then gave an “all-clear” courtesy wave to Owens, who then pulled out in front of Key to turn left. But Key had not seen motorcyclist Dewayne Hamilton traveling southbound in the adjacent lane. Hamilton, who was traveling above the speed limit, crashed into Owens’ vehicle, and the force of the impact propelled Hamilton over Owens’ vehicle onto the roadway, seriously injuring Hamilton.

At trial, the jury returned a verdict in favor of Hamilton, allocating fault as follows: 5 percent to Hamilton, 45 percent to Key and 50 percent to non-party Owens. Key and his employers appealed that decision.

Betsy Greene, a partner with Bloomington’s Greene & Schultz, said that what distinguishes this case from similar “courtesy wave” cases is that, typically, when a driver simply waves another driver to proceed in front of his car, the waver only guarantees that he will not crash into the driver he signaled. But the fact that Key involves an injured third party adds a new wrinkle to the discussion of duty.courtesy

In the COA opinion, the majority agreed that when Key got out of his truck to look behind him to ensure the road was clear, he assumed a duty to Hamilton, even though he didn’t see Hamilton at the time.

“I also am persuaded by the fact that this person really went to great lengths to determine that there was no traffic, and under those circumstances I think it would be fair for that driver to rely upon that information,” Greene said.

Judge Paul Mathias wrote in his dissent that Key’s behavior in thoroughly checking for traffic was laudatory. “Yet the majority opinion effectively penalizes drivers such as Key, who at least try to discern whether there is any oncoming traffic, by exposing them to liability for any resulting collision,” Mathias wrote.

The majority opinion might result in drivers – wary of being held liable for possible consequences – being less inclined to offer a courtesy wave, which in turn could result in more “road rage” on Indiana’s roadways, he wrote.

“That was an interesting argument the judge used – kind of a parade of the horribles – because you did this, the following things will occur,” Bodkin said.

Application of the law

The Court of Appeals occasionally travels to hear oral arguments, and in October, it took the Key case to Indiana University Maurer School of Law. Don Gjerdingen, professor at the law school, was present for the oral arguments in the case.

While the opinion in Key seems narrow in that it rests largely upon the truck driver’s thorough examination of traffic, Gjerdingen said that the case brought up many important issues that he discusses with students.

“If you decide to help a stranger or just to be the classic good Samaritan, what are the permissible legal consequences? The classic rules will say something like this – at least in the United States – there is no legal obligation to help a stranger, so if you just happen to be walking by on the beach and heard some screams, you don’t have to help that person,” Gjerdingen said. But Indiana and many other states have created good Samaritan statutes that protect do-gooders from legal action.

“You don’t have to stop, but if you do stop, we will make it harder to bring a legal action against you,” he said. For example, Indiana Code 34-30-12 protects people who perform non-compensated emergency first aid from civil liability, and I.C. 16-31-6 provides similar protections for emergency medical technicians.

In the Key case, Gjerdingen said that the issue Mathias presents in his dissent is interesting.

“In a way it’s a narrow point, but arguably, it isn’t,” Gjerdingen said. “As a practical matter, what is it going to do? If every driver in the state of Indiana were to read (the opinion), what would the response be? That’s the issue he was raising – would this lead to safer traffic or not?”

Protection for the injured

Bodkin pointed out that while the Key case may be narrow, it certainly assigns duty where duty previously did not exist.

“Anytime we conclude that we’re going to expand duty, somebody’s going to lose, and somebody’s going to win,” he said. “You have an entity that’s going to have to pay money now that never would’ve had to pay money before.”

As a personal injury defense lawyer, Greene spends a lot of time working with focus groups to determine how they would assign liability in a personal injury case, and those groups almost always tend to assign some fault to the injured party.

In the Key case, the jury awarded Hamilton $2.2 million in damages, with 45 percent of the liability assigned to Key.

“Just from my perspective as a plaintiff’s lawyer, I’m wondering if the dissent is suggesting that Hamilton should go uncompensated for the percentage of fault assigned to Key,” Greene said.

Bodkin can’t discern from reading the case what the insurance limits were of the people involved. Both Bodkin and Greene mentioned that this case will likely influence how insurance companies determine negligence. But Greene said she doubts that the case would have a major effect on Indiana drivers. And Bodkin pointed out that like so many tort law cases, some questions may not be resolved – at least not immediately.

“The debate can go on for a long time depending on which piece of the case you want to pick up and carry,” Bodkin said. “I think most of us would assume there’s no duty here on the part of the guy who waved him through. It appears to me that the fact that the guy got out and looked seemed to be the tipping point. I wonder what would’ve happened if he would’ve just looked in his rearview mirror. But that didn’t happen here. That’ll be the next case.”•

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  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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