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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. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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