Part II – Getting Medical Care:  Being your own Advocate

In our second edition of “The Anatomy of a Case” series, we’re going to talk about the most important thing after an injury……getting better.  And that has nothing to do with your case, you just want to get yourself back to normal, or as close to normal as the doctors can make you.

But getting medical care is also critical to a personal injury claim.  Here’s why:

  1. To fully understand your case value:  Most people have never gone through a personal injury claim before.  And they often ask what we think their case is worth.  The honest answer, particularly early on, is that we often don’t have the first clue.  It’s impossible to evaluate the full value of a claim without knowing the full extent of the injury and the extent to which the client recovers.
  2. To not sell yourself short:  Building off of the last point, as a general rule, we don’t want clients to settle their case until they reach a level maximum medical improvement.  Why?  Let’s say you’ve been in a moderate crash and you’re having neck pain.  You had an ER visit, the doctors prescribed muscle relaxers, and now you’re going through a round of physical therapy.  Then the insurance adjuster called and offered you $15,000.  A lot of people might take that assuming that they’re going to heal up well and everything will be fine soon.  That’s where an attorney will tell you to tap the brakes and wait and see.  We’ve had clients in this exact position who did NOT get better as expected, kept treating with little effect, and ended up with cervical fusion surgery.  That is indicative of a major injury worth way more than the first offer.  Unfortunately, the person who took that original offer assuming they’d get better, is left with next to no compensation compared with what they’ll live with their entire lives.

So how do you go about being your own advocate when it comes to getting medical care for your injuries?

  1. Seek treatment: Insurance companies (and litigation in general) are paper-trail driven businesses.  If you don’t go to the doctor, there is no record of your injuries to rely on.  That is true when you’re asking an adjuster you’ve never met to place a value on your injuries.  It’s also true for a jury.  No attorney would feel comfortable presenting an injury case to a jury without any evidence to support the claim.  Juries are hard enough on plaintiffs as it is.  Put yourself in the defense attorney’s shoes, you’d obviously argue that if the person was really hurt, they’d have gone to the doctor.  That’s a hard argument to counter and your jury award isn’t likely to be very much without documented treatment.
  2. Be a good patient:  Look, most people don’t like to go to the doctor.  Especially after something like a car accident where this is all forced on you.  It’s critical to tell your doctor how you’re feeling in a complete & honest way.  They can’t fix you if they don’t treat you, and they can’t treat you without knowing how you’re feeling, and they can’t know how you’re feeling if you don’t tell them.  So be a good patient.
  3. Don’t be afraid to get a second opinion:  We naturally want to trust our doctors, but there’s no guarantee that an individual doctor’s plan will be effective for you or that you’ll be comfortable with it.  Not comfortable with surgery?  Get a second opinion.  Don’t to go through another round of physical therapy?  Get a second opinion.  Don’t feel like your doctor is giving your injury the proper attention?  Get a second opinion.

Remember, the number one goal after getting injured is to get better.  At the end of the day, being your own advocate is the best way to make that happen.  It’s good for your health and it makes for a stronger case if you decide to make an injury claim. 

Be safe out there!

This is the first post in a series we’re calling The Anatomy of a Civil Case.  Some of the conventional wisdom about what how a claim and litigation works is correct, lots more is simply wrong.  Every personal injury case is unique to its specific set of facts, but some things are the same no matter the case.  Our first edition is the Three Ways Insurance Companies Will Fight You.

An insurance company is a for-profit business.  Car, homeowners, renters, medical, fire, doesn’t matter.  Their #1 goal, like any for-profit business, is to make money for their owners.  The only way insurance companies make money is bringing in more in premiums than they pay out in claims (and after paying for all those commercials on TV).  Because their incentives are to avoid paying out on claims if they can.

The first way an insurance company can avoid paying is by denying coverage.  Quite simply, if an insurance company doesn’t provide coverage in a specific case, then they don’t pay a dime.  This is one they obviously prefer.  Their dispute is based on the terms of the insurance contract that most of us never read.  This commonly comes up when it comes to lending your vehicle to someone (the policy might exclude coverage, for example, to someone with a suspended license) or when a family member is not listed on the policy but it is their primary vehicle.  If this becomes an issue, you will almost certainly need the help of an attorney to fight about the contract language.

The second way an insurance company can avoid paying is by denying fault.  With the civil court system in Indiana, we use what’s called a “comparative fault” scheme.  When a jury renders its verdict, it determines the plaintiff’s damages, and then allocates fault which determines how much the plaintiff’s award actually is.  If a verdict is for $100,000 and the fault is 100% against the defendant, the plaintiff gets awarded $100,000.  If the allocation is 90-10 in the plaintiff’s favor, the award is $90,000.  It works like this all the way down to 50-50 (or $50,000 in our example).  If the plaintiff is found to be more than 50% at fault, then they get no award.

If an insurance company finds any way to fight liability and lower their risk of paying on a claim they will.  Even if the adjuster tells you they’ve accepted liability in a phone call, if it ends up in litigation and their attorney can find any reason to try and place fault on the plaintiff, they will.  It’s just another way to add risk.  Sometimes, police investigations are not done as thoroughly as we’d like, and the crash report even puts the plaintiff primarily at fault when they know they did nothing to cause the crash.  In cases like that, an attorney has to use all of their investigative tools to “fix” the liability dispute if the insurance company is going to even be willing to make an offer.

The last way an insurance company can avoid paying is to minimize the injury.  In other words, “you’re not hurt as bad as you think you are.”  This is a tough one for people to take.  They’ve been in a crash, been hurt, gone to the doctor and received treatment, missed work, and still struggle day-to-day with their injuries.  But regardless of everything a plaintiff does, the insurance company only has incentive to minimize it.  Did you wait 2 days to see a doctor?  Must not have been hurt that bad.  Miss a physical therapy appointment?  Didn’t care about getting better.  Get a second or third opinion when you weren’t getting better?  You were doctor shopping.  None of these things are even necessarily true, but if an insurance company can get you or a jury to second guess the seriousness of an injury, they can use that as a reason not to pay.

Cases are often very complex where we have to deal with eye-witnesses, doctors, defendants, and expert testimony.  But at the end of the day, the defense will boil down to one of the three broad topics above.  They are the only bullets in the insurance company gun.  It can be overwhelming to be told by someone you’ve never met that a crash was your fault or your injuries aren’t that bad.  If you ever feel like an insurance company is giving you a raw deal, call an Indiana personal injury attorney like Ladendorf Law and see if we can help.

Watch out for next time when we discuss Part II – Getting Medical Care: Being your own Advocate.

 

Be safe out there!

It recently made the news that Vanessa Bryant, the widow of Kobe Bryant, has filed a lawsuit against the company that operated the helicopter that Kobe Bryant, his daughter, and seven others were killed in on January 26, 2020.

The Crash

Kobe Bryant had been known to take helicopters as opposed to driving due to Los Angeles traffic. On this particular day, Kobe was taking the helicopter to his daughter’s game with a few of her teammates, their parents, and coaches. The crash is still under investigation but reports suggest it happened as a result of pilot error while flying in heavy fog. In the midst of it all, most were wondering why the pilot, Ara Zobayan, chose to fly in those conditions.

According to CNN the fog was so dense that the LAPD had decided to ground its helicopters. So, why was Ara Zobayan flying? According to reports, the pilot received Special Visual Flight Rules (SVFR) clearance. SVFR clearance allows a pilot to fly in weather conditions worse than those allowed for regular visual flight rules. The investigation is continuing in efforts to find what mistakes were made that led to nine people losing their lives.

Why Bring a Lawsuit?

There is a conventional wisdom that people make claims or file lawsuits because they’re greedy for money. In our experience, nothing could be further from the truth. Aside from medical bills & lost time at work, people with serious injuries often face a lifetime’s worth of medical challenges. A settlement compensating someone for injuries caused by another’s negligence is their one opportunity to try and help them work through the physical and financial challenges that come with being seriously hurt.

But then you have people like the Bryants. Considering Kobe’s career in the NBA, his family is almost certainly not in need of money in the way that others who have not been so successful are. It’s hard to fathom that she sees this case as a get-rich-quick scheme because, frankly, she’s already there. If I had to guess, she is most likely making this claim to make a difference.

Unsafe Toys

There is a long history of tort cases causing individual businesses, and even whole industries, to make changes to promote consumer safety. For example, in 2005 a 2-year-old boy in Virginia died after eating small magnets that had fallen out of a broken Magnetix toy. His parents thought he had a stomach bug, when he actually had a string of magnets and blocking his intestine, leading to his death. They resorted to the civil justice system after nothing was being done by the manufacturer and after more kids got hurt in similar incidents. The result? Changes being made by the manufacturer and the Consumer Product Safety Commission to implement new safety standard tests before toys with magnets can be put on the shelves.

Defective Tires

Similarly, in the late 90s and early 00s, there was a rash of defective Firestone tires on Ford Explorers that failed while driving, killing hundreds and seriously injuring who knows how many more. There was a recall, but it was civil litigation that revealed that Ford knew about the tire issue that could lead to rollover accidents but that Ford tried to hide that evidence. If not for the civil action, it’s possible that nothing would ever have been done to hold Ford to its responsibility for selling a safe product and, importantly, to get an unsafe product off of shelves when it found out about a major safety issue.

The history of tort law is full of examples like these where individuals made a claim or filed a lawsuit and fought against giant corporations to make changes to safety. There is a chance that Mrs. Bryant may not win this case, but even with a loss it could inspire a change in policy. Helicopter pilots may think twice before asking to fly in dangerous weather conditions and SVFR clearance may tend to err on the side of caution as opposed to letting experienced pilots test their limits.

A major principle of tort law is to try and put people back in the position they were before their injury. This is generally a fiction though. There’s no time machine available to go back and tell a pilot not to fly in conditions or to take a drunk driver’s keys. Sometimes, the best Plaintiff’s can hope for is that a claim or a lawsuit causes enough financial trouble for a defendant (or raises the possibility of financial trouble for an industry) that better safety practices are put into place to protect others from suffering the same kinds of harm that the plaintiff has.

Be safe out there.

Of all the personal injury clients we represent in Indiana, car and motorcycle accidents are the most common.  But this is Indiana after all, so winter time slips and falls due to snow and ice also happen all the time.  It’s been a mild winter in the Indianapolis area so far, but what happens if someone slips on your icy front sidewalk?  What if you slip on ice at the entrance to your local big box retailer?

Falls at homes

In Indiana there is no state law requiring you to shovel your sidewalks, however many counties and cities have implemented ordinances that require occupants of a home or business clear their sidewalks. Marion County, for example, has this kind of ordinance. It requires that snow be cleared off by 7 p.m. if the snow has stopped falling, or 9 a.m. the following day if the snow stops after 7 p.m. The penalty for failing to shovel the sidewalk is a $50 ticket.

Beyond a duty created by a law, homeowners still have some duty to keep their sidewalks in a generally safe condition.  Whether or not an occupant of a home shovels their sidewalk, if someone slips and falls there could be a case against that occupant, but it’s not as easy to prove liability as one might think. One issue that plaintiffs run into if they slip is that a landowner is not expected to remedy an unknown hazard.  Think of the example of when you shovel your sidewalk but then ice develops after you’ve done it.  A classic case of plausible deniability. It would be very difficult for a person who slipped and fell on black ice to prove that the landowner who shoveled the side walk knew the black ice was there.  The other issue comes down to whether the homeowner acted reasonably for the conditions.  If they run the snow blower & spread salt, they could have a good defense even if ice still developed because they could argue that they acted reasonably.

Falls at businesses

A business is more likely to be held liable for slip and falls on snow and ice.  Businesses have the highest standard of care they are supposed to provide to their customers and they generally have policies in place to address property hazards like snow & ice. There are, however, a couple of ways a business could escape liability. First, they could claim that they didn’t know about the icy/snowy conditions. Indiana courts have held that a landowner must have actual or constructive notice of the presence of snow or ice and a reasonable opportunity to clean it up. If a business is notified of snow and ice accumulating at the entrance of their store, that would be actual notice. If an employee looks outside and sees snow and ice falling from the sky that could constitute constructive notice that there will be slippery conditions at the entrance.

Once there is notice, a business has a reasonable amount of time to clean it. What is a reasonable amount of time? It depends on the circumstances. If it is really coming down should they wait until the snow ceases? One Indiana Appellate Court said no. A reasonable amount of time would likely be promptly cleaning up the snow and ice. On the other hand, it would be unreasonable in most circumstances to wait two or three days to clean it up. The business owner should also provide sufficient warning to visitors about the icy conditions.

The last hurdle that Plaintiff’s face is their own knowledge of the conditions.  Could you recover for seeing ice and getting hurt while intentionally running and sliding across it? Probably not. In that instance you should have a reasonable awareness for what conditions you may encounter.  What makes it difficult in places with a climate like Indiana’s, is that there is a general awareness that snow & ice happen in the winter.  That’s why it is important to contact an attorney to assess your premises liability case to give you an unbiased opinion about whether the available facts would support a claim.

In conclusion, if you are an occupant of a home, you have no statutory duty under Indiana law to shovel the snow, but your county may have ordinances requiring you to do so. If you are a victim of an unshoveled sidewalk, you could have a good case against the occupant of the property depending on the circumstances. Your chances may increase if the unshoveled property is a business, but you still have to have evidence that the business knew or should have known of the slick area. Regardless, if you do slip and fall this winter you need to consult an attorney to learn your rights because you should not be responsible for paying for someone else’s negligence.

Be safe out there.

It is almost time. The children have been counting down the days since Thanksgiving (a couple of our attorneys’ wives have been counting down since Halloween). There is something in the air, but what if the unthinkable happens—Santa Claus is injured while delivering gifts to your home. There are a few questions you may want to consider in case Santa files a formal complaint against you. Would liability coverage go to work? Does it matter where on your property he fell? What if he got milk poisoning?

Would your insurance cover him?

Homeowners insurance is perhaps the most essential form of financial and personal property coverage, as the majority of most people’s assets are tied up in your home. Well, as with most things in the legal world, the answer is not black and white. Was Santa trespassing? Was he invited into your home? Did you know the milk had gone bad? Did your children set a trap to try to catch Santa for giving them coal last year?

The law defines someone as a trespasser if they enter and remain on the real property of another wrongfully or without the owner’s or possessor’s authority or consent. In the case of Santa, there are likely few circumstances when he would be considered a trespasser. Most people want Santa to deliver the goods. However, say Mr. Claus falls off the roof trying to drop off a load of coal to Ebenezer Scrooge or the Grinch, neither of them wanting the big man near their homes. It is likely that Santa will have to pay for his injuries himself since he did not get Scrooge’s or the Grinch’s consent to enter their property. However, there is one instance where the property owners could still be responsible for St. Nick’s injuries.

The Known Trespasser Law.

A landowner has to duty to look out for a trespasser, but once a trespasser has been discovered, the landowner owes the trespasser a duty of reasonable care not to increase his peril.  In other words, no Santa traps. Say every year Santa comes and every year the Grinch leaves him a note telling him he is not welcome on his mountain, so this year on Christmas Eve the Grinch and Scrooge meet up to carry out a plan to finish Santa off once and for all. They decide to water the roof so that when Jolly Old St. Nick hops off his sleigh he will slide off the roof and fall down Mt. Crumpit. That is a big no-no. Just because someone is trespassing on your land does not mean you can do whatever you want to them to get them off your property. Now if the Grinch and Scrooge put a sign on the roof warning the trespasser (Santa) of the slippery condition and telling him not to land there, and Santa lands there nonetheless, they may be able to get out of that pickle.

The Grinch and Scrooge are two atypical examples. Most people want Santa to come visit their homes. Therefore he would likely be considered an invitee. The law defines an invitee as a person who comes onto another’s property, premises or business establishment upon invitation. The duty owed to an invitee is the highest legal level of care. That duty is the duty to use reasonable and ordinary care to keep the premises safe and to protect the invitee from injury caused by unreasonable risk that the invitee may not discover on his or her own. While a slippery roof is something Santa can probably foresee, hot ashes in your fireplace may not be. In that case, the property own/possessor may want to put a sign somewhere that Santa will notice informing him of the hot coals.

What about spoiled milk?

Santa has to know there is some risk drinking milk that has been sitting out for 8-10 hours. According to dairygood.org, milk can start to grow bacteria if left out for two hours. Are you negligent for not watching the Santa tracker so that you can leave milk so that it was not become spoiled? Or should Santa just know that when he drinks the milk there is the inherent risk that it may be spoiled? There are persuasive arguments for both sides so just to be safe I would write down the time the milk was left out and a waiver of all liability should the big man get sick from drinking the milk.

So let’s say that last year a little boy, we’ll just call him Kolten, kicked the Mall Claus for not delivering on a little brother so he ended up on the naughty list. This year Kolten wants to catch the fat man and hold him hostage until he gets his little brother. Kolten, with the help of his older brother Austin decide to put a bear trap in front of the fire place, and if that were not enough, they leave out spoiled milk so that Santa will at least need a new outfit for next year if the bear trap doesn’t work. Well in this case Austin and Kolten would be opening themselves up to numerous liabilities. Battery, assault, false imprisonment (if they catch Mr. Claus), and poisoning (not to mention the criminal charges that will likely result). In this case, Santa could recover a lot more than just for his injuries. He could recover punitive damages, which are damages designed to punish the party in the wrong for their wrong doing. Homeowners insurance will not cover this conduct. Kolten and Austin’s parents will likely be on the hook for all of this.  Luckily for them though, Indiana law caps a parents’ liability at $5,000 of actual damages

Most everyone loves when Santa Claus comes to town, but whether you want him there or not, you could be liable for injuries he sustains while on your premises. As your Indianapolis Injury Attorneys, we just want to make sure you have the knowledge available to protect yourself from a nasty lawsuit.  For your convenience we have attached a liability waiver form to sit on the chimney before he drops in or to mail out with next year’s wish list so that you can help protect yourself from an elf process server.

Merry Christmas & Happy Holidays from your Ladendorf Law family.  Stay frosty friends!

 

 

Waiver of Liability and Assumption of Risk Agreement

Use of Premises

Waiver:

In consideration of my use of the premises of ____________________________, I for myself, my heirs, personal representatives, elves, or assigns, do hereby release, waiver, discharge, and covenant not to sue ________________, or anyone else presiding in the household for injuries caused by slipping and falling, burns as a result of the fire place, or any other injuries, including intentional injuries, by the person listed above or anyone else presiding in the home.

Waiver:

I, Saint Nick aka Kris Kringle aka Santa Claus aka Pere Noel aka Father Christmas, understand that the milk and cookies left out at __:__ pm/am, were fit for human consumption when so placed. The expiration date on the milk carton was established as _________________, 20__. I have been advised that bacteria may start to grow in milk if left out for more than two (2) hours. My signature and acknowledgement below constitutes a waiver to sue or otherwise make a claim for damages if I should become sick as a result of consuming the aforementioned milk and/or cookies.

 

__________________________                                                   __________________________

Saint Nicholas                                                                                                 Time and Date Consumed

a/k/a Kris Kringle

a/k/a Santa Claus

a/k/a Pere Noel

a/k/a Father Christmas

 

I’m sure you have heard of those mystical personal injury law suits where the plaintiff supposedly recovered millions of dollars for a stubbed toe. Well, this example is obviously hypothetical, but you get my point. The majority of the public feels that civil plaintiffs recover millions all the time for the slightest of injuries. In fact, let’s be honest, the public perception is really that when a plaintiff has a personal injury claim, they are looking to “hit it rich.”

In reality though, that couldn’t be further from the truth. Most victims of personal injury really just want their lives to return to normal…or at least as close to normal as possible. In fact, even if an injured party wanted to “hit it rich” from a personal injury claim, in many instances, the law doesn’t allow them to do so.

A personal injury case (motor vehicle collision case, medical malpractice case, products liability case, etc.) is what the legal world refers to as a “tort claim.” A tort lawsuit is a suit where one person (“the plaintiff”) sues another (“the defendant”) for damages that the defendant caused to the plaintiff when the defendant committed an act of harm recognized by our civil laws (e.g. negligence). What do “damages” mean? Damages are compensation for the harms that were caused by the wrongful act.  This compensation is strictly for the damages sustained…no more…and no less. Specifically, tort law intends for the damages a plaintiff recovers to compensate them in a manner so to place them in the same position they would have been had they never suffered the injury in the first place. Obviously, a jury award cannot physically fix their bodies or award the plaintiff a time machine to travel back to a time when they were not injured.  What the jury award does do is provide a plaintiff with an amount of money to hopefully help them live with their injuries in a more “normal fashion.”

To provide guidance to a jury, the law specifies what losses should be included in the damage compensation awarded. Those include:

  • The reasonable value of necessary medical care, treatment, and services (past and future);
  • Loss of wages (past and future);
  • The value of a loss of earning capacity;
  • The value of loss of enjoyment of life the Plaintiff has suffered;
  • The value of the physical and emotional pain and suffering the Plaintiff has suffered; and
  • The value of disfigurement and / or deformity resulting from the injuries the Plaintiff has suffered.

All of the damage considerations can then be affected by the extent of the injuries; whether the injuries are temporary or permanent; the length of life a plaintiff would have to live with the injuries; and the effects of inflation or depreciation of the damages awarded.

In cases of death, dismemberment or permanent debilitating injury, the amount awarded for damages can rise to an extremely high number. But, given the fact that a compensation award is intended to bring the plaintiff back to the same position she would have been had she never suffered an injury in the first place, it’s only fair.

With all of that considered, did you know that Indiana law places a cap on the damages a plaintiff can recover in certain types of cases? If a Plaintiff is injured, she should be allowed to recover all of their damages, no matter how much is at stake, right? Similarly, if a Plaintiff is injured, a Plaintiff should be allowed recover all of their damages, no matter what geographic location she resides in, right? Finally, if a Plaintiff is injured, she should recover all of their damages, no matter how they were injured, right? I mean, isn’t that what I just spent the first few paragraphs explaining? Well, regretfully, I was correct in my theoretical explanation above. But according to Indiana lawmakers, practice should be different than theory. In fact, over the last 40 years the Indiana Legislature has placed numerous monetary caps on the damages a Plaintiff can recover.

For instance, if a Plaintiff suffers an injury due to medical malpractice, a Plaintiff can only recover a maximum of $1.25 million…no matter how much a jury would actually award. I.C. 34-18-14. Or, if an unmarried adult with no dependents is killed via an act of negligence, the maximum amount their estate can recover is $300,000.00 plus attorney fees. I.C. 34-23-1.

These caps may seem like a lot of money and may seem fair to some; however, keep in mind that what these caps really stand for: the state lawmakers placing a maximum value on individual’s lives and state lawmakers categorizing certain individuals based on the type of negligence involved.

Statutory caps on damages remain a hot topic among the attorneys who are confronted with them on a consistent basis. Regretfully, all too often it also affects injured parties.

Ladendorf Law is constantly keeping up to date on the legal ramifications and changes in statutory damage caps and fighting hard for our clients as we navigate through the complicated statutes that continuously “stack the deck” against victims of personal injury. If you or your loved ones have been injured by the negligence of another, contact Ladendorf Law to allow us to answer your questions concerning these statutes and more as well as conduct a free case evaluation.

A recap of the July 12, 2014  Lt. Michael Andry Memorial Ride, by Ladendorf Law attorney Dan Ladendorf:

Approximately two hundred people – volunteers and participants alike – stood under partly cloudy skies waiting for the formal invocation to kick-off the Lt. Michael Andry Inaugural Memorial Ride. A young lady was invited to the microphone where she acknowledged Lt. Andry’s selfless actions when he came upon the scene of a crash several years ago and played a role in making her presence at this event in his memory even possible.  In his work, Lt. Andry touched the lives of many people in unforeseen ways and made his community a better place until a senseless crash on July 12, 2013 claimed his own life at the young age of 49.

Despite Saturday’s stormy forecast, the only thunder overheard at American Legion Post #10 in Marion, Indiana was the roar of one hundred motorcyclist departing for a 137 mile ride in memory of Lt. Andry, a twenty-one year veteran of the Grant County Sheriff’s Department.  A law enforcement escort accompanied the procession of bikes over the Salamonie Reservoir with a scheduled stop at Brandt’s Harley Davidson in Wabash.  The ride continued across the Mississinewa Reservoir, through Converse and into the Town of Swayzee, where Lt. Andry began his career in law enforcement as the Town Marshall.   A second stop in Greentown provided a short respite before riders passed byKnox Chapel Cemetery where Lt. Andry is laid to rest.  Upon returning to the Legion, afternoon activities included food and a silent auction.

Ladendorf Law was the primary sponsor of the ride and is grateful the Andry family invited our participation in the event, which promoted driver and motorcycle safety.  Ladendorf Law attorney Dan Ladendorf was on-hand at the Legion in the hours before the 11:00 a.m. ride commenced.  Proceeds from this year’s inaugural ride are earmarked for the benefit of two law enforcement related charities including the Grant County Sheriff Department’s “Sheriff’s Gifts for Kids” program and the Marion Fraternal Order of Police “Cops and Kids” program. Both charities assist less fortunate children during the Christmas season and were supported by Lt. Andry before his untimely death.

The inaugural Lt. Michael Andry Memorial Ride ride was held on the one year anniversary of Lt. Andry’s death, which was caused by the negligence of another driver who executed a left turn directly into and across the path of Lt. Andry’s motorcycle on SR 13 just north of Elwood, Indiana.  Lt. Andry’s family intends to continue the event each year in celebration of his life and in support of his commitment to the community in which he lived and worked.  Ladendorf Law looks forward to being along for the ride.

Like family.  Because we are.

dan + family

Dan Ladendorf hands this young lady a special “Ladendorf Law” kickstand puck.
Dan Ladendorf hands this young lady a special “Ladendorf Law” kickstand puck.

 

Kickstands up! Time to roll out for the 100+ mile ride.

 

Lt. Michael Andry Memorial Ride volunteers… hard at work!
Lt. Michael Andry Memorial Ride volunteers… hard at work!

This week’s national headlines featured a criminal case for the ages at the intersection of law and social science.  It also reintroduced America to what has been described as the “All-Consuming Epidemic” for children of extremely wealthy families: “Affluenza.”

The facts of the juvenile criminal proceeding that shocked the nation are simple, though incredibly tragic.  From theLos Angeles Times recap:

“According to officials, the teenager and some friends were seen on surveillance video stealing two cases of beer from a store. He had seven passengers in his Ford F-350, was speeding and had a blood-alcohol level three times the legal limit, according to testimony during the trial. The pickup fatally struck four pedestrians: Brian Jennings, 43; Breanna Mitchell, 24; Shelby Boyles, 21; and her mother Hollie Boyles, 52.”

Texas prosecutors had sought the maximum 20 years in state custody for the boy for the death of the four pedestrians, but his defense attorneys were able to successfully argue to District Judge Jean Boyd that the ideal sentence for the offender is rehabilitation, as opposed to prison.  Couch will serve 10 years of probation and is anticipated to submit to rehabilitation at a California facility at a cost in excess of $450,000.

So how was it that Couch got off with such a glaringly light sentence under the circumstances?  A piece of exculpatory evidence?  A remorseful plea of mercy at the sentencing hearing?  Other mitigating factors?  Well, sort of.

This time, what carried the day was the defense’s argument that Couch himself was a victim.  The defense presented psychologist G. Dick Miller to testify that Couch was suffering from “affluenza” —that he lived such an extravagant, materialistic, consequence-free life that he was unable to understand or control his behavior. According to Christopher J. Ferguson at Time.com, this is perhaps the first time in American jurisprudence that having too easy a life has been considered a mitigating circumstance.

Read more: “Affluenza” is Junk Science | TIME.com http://ideas.time.com/2013/12/14/psychologist-affluenza-is-junk-science/#ixzz2naPrbUFa

As expected, this sentencing has sent a shock wave through the news media, the blogosphere, and the legal community.  Major criticisms are being levied against the validity of “affluenza” as a defense in our system of justice.  Over at USA Today, the debate is heating up over the future of “affluenza”-type defenses.   Is the “affluenza” defense merely an extension of the law’s insistence that criminal culpability requires an appreciation of the consequences of one’s actions?  Or is this a product of pop psychology without empirical support that would have the odious effect of condoning differential treatment between those litigants who have hoards of money and those who do not?
Although Couch’s sentence would seem to create the sort of double standard based on wealth that the law abhors, I hesitate to be Chicken Little here.  While defense attorneys in both the criminal setting and the civil arena (where the burden of proof is much lower) may try to replicate the success of Mr. Couch’s lawyers, I ultimately don’t see the “affluenza” defense gaining much traction in our courts of law.  For one, “affluenza” as a psychological construct has not received blessing within the Diagnostic and Statistical Manual (DSM) published by the American Psychiatric Association.  Second, prosecutors and plaintiffs’ attorneys will likely respond to the Couch decision by challenging the admissibility of any purported expert testimony on “affluenza” generally and as applied to a particular case.  Finally, our courts of law and the judges who lead them are going to take heed of the public outrage over the “Blame the Parents” implications of this decision.  Judges, particularly in those jurisdictions which select their judges through popular elections, are keenly aware of the political and professional consequences of appearing “soft on crime.”  Although this criticism usually manifests itself with career offenders, there is good reason to believe that citizens will be equally outraged by a judge who over-sympathizes with a wealthy young defendant who seeks to avoid responsibility by claiming that he is the victim of his family’s wealth and the lack of boundaries that attend to that affluence.  The courts will therefore reject the classism that is inherent in the “affluenza” defense to preserve their own accountability to “We the People,” and this most recent case, though intriguing, will become an outlier.

 

From ABC News earlier this week:

An appeals court has cleared a driver in a fatal crash after agreeing she faced an “unforeseen emergency” when a back-seat passenger untied her bikini top.

Brittany Lahm of Manhattan briefly took her hands off the wheel when her bikini top came off while she was driving on the New York Thruway in July 2008, the Daily News reported (http://nydn.us/1b01Hz9 ).

Lahm and a group of friends were returning to Rockland County after a day at the New Jersey shore when Brandon Berman allegedly pulled the bikini strings. He was killed when the vehicle hit a guardrail and flipped.

In a 3-1 decision, the Brooklyn Appellate Division last week upheld a Rockland jury verdict, which found Lahm’s bikini top problem constituted “a sudden and unforeseen emergency not of her own making.”

The verdict came after a 2011 civil trial brought by Jason Pelletier, one of four passengers in Lahm’s car.

Pelletier, who was injured in the crash, sued Lahm for damages. He testified that she leaned forward for about 20 seconds as she attempted to retie her bathing suit top. His lawyers argued that she should have pulled over before trying to adjust her top.

Lahm testified that she took her hands off the wheel for only a second.

Of all the muddied waters in Indiana tort law that we navigate as trial lawyers, one of the muddiest has to be what is discussed in the ABC News article as the “sudden emergency doctrine.”  The common law tort of negligence requires that one must act as a reasonably prudent person, and a failure to do so renders that person liable for all foreseeable damages to another caused by that failure.   However, because incidents sometimes occur based at least in part on conditions outside of our control, the law has long recognized that a person confronted with sudden or unexpected circumstances calling for immediate action is not expected to exercise the judgment of one acting under normal circumstances.  Willis v. Westerfield, 839 N.E.2d 1179, 1184-85 (Ind. 2006) (citing W.P. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 33 at 196 (5th ed.1984).   The basis of the sudden emergency doctrine is that “the actor is left no time for adequate thought, or is reasonably so disturbed or excited that the actor cannot weigh alternative courses of action, and must make a speedy decision, based very largely upon impulse or guess. Under such conditions, the actor cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it later appears that the actor made the wrong decision, one which no reasonable person could possibly have made after due deliberation.” Id.

Okay, fair enough.  So, the sudden emergency doctrine is not really intended to lessen the standard of care and judgment that a person must exercise in the course of their actions, but a emergency is simply one of the circumstances that a judge or jury can consider in forming a judgment about the person’s fault.

However, despite the fact that Indiana courts have made very clear that the sudden emergency doctrine applies only in narrow circumstances, you would not believe how often defendants attempt to raise “sudden emergency” as an excuse for their negligent conduct.   In our work as trial attorneys, we often see the party or parties defending a case try to invoke the sudden emergency doctrine when the road conditions are less than pristine on account of weather (e.g. rain or snow).  Or, in a recent federal court case, the defendant (the driver of a semi tractor trailer) rear-ended a second semi rig in front of his, forcing the latter semi into our client’s vehicle and causing serious injury to our client.  Although the defendant in that case was cited by the investigating officer for following too closely, he tried to raise “sudden emergency” to diminish his responsibility for causing the multi-vehicle, multi-impact collision.  (Thankfully, the trial court refused to consider a “sudden emergency” jury instruction.)

Admittedly, the sudden emergency doctrine still has its place in tort law and trial practice, but it should be a limited one.  For one, in a case involving a motor vehicle collision, defendants should not be automatically granted the right to argue “sudden emergency” to a jury just because the roadways were slick on account of rain, sleet, snow, or even ice.  Why?  Because the danger in this instance is not “so imminent” that the defendant would not have known about the possibility, leaving no time for deliberation.  Second, a defendant should not be permitted to claim sudden emergency for rear-ending a slowing vehicle because he could not bring his vehicle to a stop prior to impact.  Finally, in the medical setting, a medical provider should not be afforded the luxury of sudden emergency doctrine if he or she damages a patient’s tissue or organ from overcauterizing during surgery.