ILNews

Tort law case tests boundaries of 'duty'

Back to TopCommentsE-mailPrintBookmark and Share

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.”•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  2. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  3. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  4. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  5. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

ADVERTISEMENT