Author: John Young

We think that we were all taught as children, by our mothers, is a universal truth.  If you make a mess (or cause a harm, or hurt someone, or break a window, and wreck another’s car etc.) you are responsible to admit what you have done and take responsibility to make it right.  This is PERSONAL RESPONSIBILITY. I do not know if this is the personal responsibility that all the tort reformer are talking about.  I don’t think it is.  I don’t think it is because the tort reformer’s focus is on making sure the person who is harmed has his rights taken away.  Why do I say this?  Well let’s discuss an example.  In the Indiana Legislature, more and more bills have been introduced over the years to give people who cause others injury immunity for the harm they cause.  What is immunity you ask?  Immunity is a thumb in the eye to your mother’s advice.  Immunity allows a person (or corporation) to cause harm to others and not be responsible for the harm they cause. Last year there were at least thirty bills that sought immunity for various business enterprises.  One such immunity that is now law is for the owners of horse operations.  If you take your child to ride a horse, and the owner puts the saddle on wrong so your child falls, or puts your inexperienced child on a horse that is known to buck off every rider ever placed upon him, and your child falls and breaks a bone, or suffers a brain injury, or is paralyzed, or suffers a wrongful death, your child cannot ask the owner to make up for the harm they caused.  If you ask such a silly question, the horse owner, their insurance company and the insurance company lawyers will first snort, then thumb their nose at you , and if you persist they will threaten you, and you can’t do a thing about it.  You just have to take it.

Of course when someone is allowed to thumb their nose at their own personal responsibility a couple things happen.  First, the incentive to make property, products and other activities safe is reduced.  After all we all know that if there are no consequences, there is little incentive.  Second, the injured child will have to seek Medicare and disability.  So the Taxpayer is now the person responsible for cleaning up the mess.  The mess does not go away, we all now have to make up for what the person who caused the harm refuses to take care of.

We say, NO IMMUNITY!!!   If you cause a harm, be a human being, admit what you have done and be responsible for making it right.  We stand for what our mother knew was right.  We do not need greedy business’s, with political agendas, interfering with the truth.

If you ever serve as a juror in Indiana and the case is a medical malpractice case, there is a cap on the wrong doers liability. Take, for instance, a  case involving a baby who suffers brain damage during birth, because of the negligence of the health care provider, and the cost of the medical care alone for the rest of the baby’s life totals 10 million dollars.  You and you fellow jurors return a verdict of 10 million dollars, knowing that this is just and fair compensation for the child.  You leave the Court house, not happy about what happened, but at least you know that the child will at least have proper medical care and that the health care provider’s medical malpractice insurance will be responsible for paying that fair amount to the child, right?  Wrong!!!  Indiana, medical malpractice recoveries are capped at $1,250,000.00 dollars.  So you ask, what happens after the $1,250,000.00 is paid?  More likely than not, the child will be forced to go on social security disability and the bills that exceed the $1,250,000.00 will be paid by the tax payer.  That’s right.  In this instance, the cap that protects the doctor’s medical malpractice insurance carrier, causes the rest of us to pay for his mistake.  I ask you, is that fair?

If you suffer serious personal injury in a car accident with a government employee, and you suffer paralysis that prevents you from working, you should not have to worry, as the government’s insurance company will be required to pay you fair compensation for your injuries right?  Wrong!!!  Government liability in Indiana is capped at $700,000.00 dollars.  So if your life time bills exceed that amount, you will be forced to go on social security and Medicare and the taxpayer is forced to pay for you medical bills.  As to recovering your lost wages, sorry, the Government is not responsible for that.

So you see, what your mother taught you does not apply to very select groups within our society.  The legislature has decided it knows better.  The legislature has decided that your mother was wrong when she taught you that if you cause harm to another you are fully responsible for making up for that harm.  The legislature has decided that personal responsibility applies to some but not all of us. I say this is not right.  I say that caps should be eliminated for everyone.  Everyone is responsible to fully make up for the harm they cause.  At the very least, Jurors should be told the truth about these caps at the time of trial.  At this time the jurors are told nothing about these caps.  As my father taught me, a half truth is a whole lie.

In my continuing effort to educate the general public about the truth regarding the Civil Justice System, I want to discuss a part of the medical malpractice law in Indiana.  If you are seriously injured in a drunk driving accident, a construction accident, a slip and fall on privately owned property and you are 1% at fault for the injuries, you are still entitled to collect 99% of your damages.  This is only fair, in that each person should be personally responsible for the harm they cause, and not just a part of the harm they cause, all the harm they cause. 

This is not true in a medical malpractice case.  If the health care provider commits malpractice, but the injured patient is 1% at fault for his/her injuries, because they forgot to take a medication on one occasion, then that 1% fault means that the health care provider does not have to compensate the patient they injured even though the health care provider’s fault caused 99% of the harm.  Now remember, medical malpractice does not mean the health care provider meant to do anything to cause the harm.  Medical malpractice simply means that the health care provider failed to treat the patient the same way a reasonably careful doctor would treat the patient.  You can liken this to a driver who fails to stop at a stop sign and causes an auto accident.  The driver did not mean to ram the other car, they simply did not drive as a reasonably careful driver would drive, i.e. stopping at the stop sign.

It is not fair that health care providers are not responsible for making up for the harm they cause, if the person they injure is minimally at fault for the injuries.  If you are a juror, you are not told this truth about medical malpractice, and there is no sound reason why you are not told this truth. I propose one of two changes.  Either change the system so that each party to the lawsuit is responsible for exactly the amount of harm they cause, or tell jurors the truth about how the system now works.

As an Indiana Serious Personal Injury Attorney practicing all over the State of Indiana from our offices in Indianapolis, I want to offer another point in my question to improve the Civil Justice System.  As you all know our civil justice system is the best in the world.  In this civilized and effective system, businesses work out disputes without violence.  In this system our government is called to task for errors and omissions, another check in the balance of power. Seriously injured people, the victims of drunk driving accidents, highway accidents, motorcycle accidents and the like, are able to bring their claims to the civil justice system in an attempt to find fair compensation and justice. However, improvements should  always be considered.

I suggest that jurors should always be told the truth about Insurance.  Currently, if a person is injured and brings their claim to Court, the jury is not told whether the person who caused the collision, and injuries, has insurance which will cover the claim.  The person bringing the claim must tell the jury they have health insurance, so why is the jury not told that there is liability coverage that will pay the judgment?  The answer is that the insurance companies have convinced the Courts that Jurors are not trustworthy.  The insurance companies assert that if the jurors know there is insurance they will give the injured person more than fair compensation.  I, for one, believe that jurors are honest, intelligent and want to do the right thing according to the law.  So I think the reasons for not telling Jurors the truth about the existence of insurance do not hold up.  As the civil justice system is based finding the truth, withholding the truth from jurors is not justifiable and should not be done.

I’ve been practicing law for more than 23 years.  In all that time, except for a three year stint as a part time public defender at the start, I have represented only those seriously injured as a result of the negligence of others.  In that time, I have seen much criticism of the civil justice system.  I have heard that there are too many law suits.  I have heard that people need to take personal responsibility.  I have heard that our medical system is being irreparably harmed by malpractice suits.  The list goes on and on. In response to all this criticism, I am starting a multi part blog that addresses ideas that will make the system a level playing field for the benefit of all concerned.  Let me start by saying that our civil justice system is the best in the world.  Of course it will always be subject to change to accommodate our changing society.  However, in our system of civil justice we do not drag a person who has caused a serious collision and serious personal injury or wrongful death and beat the driver to death..  We come to Court.  We behave as civilized human beings.  We allow our adversaries counsel and the opportunity to present their evidence in a peaceful manner.  We ask our peers to listen to the evidence and return a verdict.  We then live with the results of that verdict.  I offer the following ideas as an observer whose goal it is to aide our society to greater heights.

Every person should be held responsible for their actions.  Currently, a person is held accountable for their actions, but only in part. Responsibility is based on fault and fault is determined by percents.  For example if a driver is 75% at fault for causing a serious injury, and the injured person is 25% at fault, the 75% responsible driver fairly compensates the injured driver by paying  75% of their damages.  However if the injured driver is 51 % at fault, and the other driver is 49% at fault, the other driver has no responsibility to fairly compensate any of the 49% of damages they caused.  In addition, the jury is not told this fact.  I suggest making two changes.  First, change the system so that the driver who causes any percent of a collision, is responsible for fairly compensating the injured driver equal to that percent of fault.  If they are 25% of fault, pay 25% of the injured person’s damages.  If they are 95% at fault they are responsible for compensating 95% of the damages.  After all it is only fair that a person be responsible only for that percent of harm they cause. Second, tell the jury the truth about how the system works. Jurors are smart.  Jurors do not become frivolous just because they are sitting in the jury box.  Jurors listen to the evidence and try to follow the instructions.  Tell them the truth and let them do their job.

A tragedy has once again occurred at the Indiana State Fair.  The canopy, or rigging, or roof (all terms bandied about to describe the structure) collapsed Saturday night killing five people.  Christina Santiago, Glenn Goodrich, Nathan Byrd and Alina Bigjohny  are gone.  We have heard the pundits talking about the collapse.  We have heard officials saying an investigation is underway.  What we do not hear a lot about is the issue of foreseeability.  No, this is not looking into a crystal ball to predict the future.  This is the practice of learning from the past to make judgments about what is likely to happen in the future.  With this in mind I offer a few insights.

Although Indiana is not in tornado alley, we do have our share of high speed wind events. In fact, we have such a good history of high wind events, we can predict, with confidence, that we will experience high wind events in August in Indianapolis.  We rarely see tornados in August, so we can say with some certainty that we are not likely to see tornados in August in Indianapolis.  But, we do see a lot of straight line winds.  These winds are of high intensity over a very short period of time.  These winds are observed to reach speeds of up to 100 miles per hour for very short blasts.  We never know where they might hit, but we do know that they are very often associated with the beginning of a storm front where the changes in air temperature can be great.

So, what is foreseeable? It is foreseeable that we will see high speed straight line winds in August in Indiana.  We do not know where they will appear, but they are most likely to appear at the beginning of a storm front.

Now, what do we know about temporary structures?  Well in the case of the structure that collapsed, we know that it is big enough, and heavy enough that if it collapses and lands on people, it will likely cause serious injury and wrongful death.  We also know that the closer the people are to the structure, the more likely they are to be killed and injured, if the structure collapses. Thus, it just makes sense that the structure be designed and erected knowing it may be in the path of a high speed wind event, and if therefore, it must be erected so that it can withstand that possibility.

I suggest to you it was foreseeable that high winds would hit the structure and if it was not erected to withstand those winds, it will collapse and seriously injure or cause the wrongful death of the innocents.      I hope that a complete and accurate statement of what happened comes to the fore.  In the mean time, our sympathies go out to the victims and their families.

There is one rule of the road that seems to be violated more than others.  It is keeping a safe lookout.  A corollary to this rule of the road is to keep your car under control.  These are basic rules, so basic that we should not have to talk about them, but we do.  Violations of both these rules resulted in the wrongful death of a motorcyclist yesterday.  To put this another way (and to put it in perspective) a Hoosier died unnecessarily, a dead father cannot look after his children, children of a dead father will bear this burden for the rest of their days, a wife is without her friend and companion, a solid worker is no longer contributing to our society, schools etc.  It is because a driver did not see what was plainly there to see.  Is it because the driver was in a hurry?  I hope not.  She had her own granddaughter in her van as she pulled out of a parking lot and into the path of a man on a motorcycle.  The collision occurred on west 38th Street in Indianapolis.

We all know that motorcycles are on the road.  We all know that a quick glance, without stopping is not enough to always see what is plainly there.  A motorcycle has a bright headlight, it is plainly visible.  Slow down, take a better look.  Care for the life and welfare of the other guy.  He/She probably has a family that loves and needs them.  Even if they do not, they are entitled to live their life.  Be careful.

We most often get calls when someone is seriously injured as a result of an auto accident or other event that causes wrongful death or injury as a result of negligence.  Damages can come in the form of injury to  property as well. A recent example is occurring in the form of  damage to trees including mainly Norway spruce and white pines. A relatively new lawn care herbicide is believed to be causing damage to these trees which may require their removal and replacement. A recent notice from DuPont indicates that the herbicide Imprelis may be harming the trees.  IF you have pines or spruce trees that appear to be dying in an area where this product was used you should call contact the State Chemist office (765-494-1582) and file a report to have your damage investigated and documented. If the damages were causes by negligent application then there may be insurance coverage to help defray the cost of removal and replacement. Another source to contact is your homeowners to see if you have purchased protection against  these types of losses.  In either situation a valuable tool to help prove the loss is an official investigation by the state chemist.