Ripped from His Hands: Comparative Fault in a Tragic Case
It’s a cold snow-swept night. A 14-year-old boy is walking his 13-year-old girlfriend from his next-door home down a narrow rural road.
Snowplows have cleaned the street leaving high snow piles along each side of the road. This made it necessary they walk in the roadway a hundred yards or so to her family’s driveway. She is on his left out in the road some while he is at the road’s edge as they walk hand in hand.
The snow continues to fall around them in the dark. A car approaches from the rear and the driver is distracted and doesn’t see the couple in her headlights.
Before the couple could react, the car hits the 13-year-old girl, ripping her hand from the boy’s hand, throwing her body down the road.
In the blink of an eye, one young life is lost and two other lives are forever devastated. An already troubled 14-year-old boy now has to live with the horror of an emotionally wrenching tragedy no one should have to experience. He’ll forever be asking the, “What if?”
Because this is a story about a real case seeking legal remedies I cannot relate anything more about the young lady and her family because I was not involved in that case. However, the young boy was not physically injured in this accident. The car never touched him. His only physical contact was having her hand ripped from his.
As you can be certain, this young man needed counseling for quite some time because of this tragedy. The nature of his injury was purely psychological.
The Legal Issues
Indiana is a comparative fault state, which means if a jury were to hear this case they would be asked at the end of the trial to assess percentages of fault to either party.
- Would the couple have some comparative fault for walking in the roadway in the dark, in dark clothing, on a rural road, while it is actively snowing?
- Could the couple have taken other precautions or made alternate arrangements to transport the girl home?
Indiana has a “modified” comparative fault statute as compared to “true” comparative fault statute in many other states. Under both comparative fault statutes, if the plaintiff (injured party) is found to be 0% at fault, 10% at fault, or 50% at fault, then the plaintiff would recover his damages in the amount of the defendant’s percentage of fault.
In Indiana, once the plaintiff is judged to be more than 50% at fault, then his recovery is completely cut off.
What percentage of fault do you believe, if any, should be assigned to the couple?
Indiana generally follows the “contact rule” when it comes to being entitled to damages for negligent infliction of emotional distress. That rule would require the boy have some physical contact from the accident before being entitled to damages for his emotional injuries and for all the psychological therapy he had following the incident.
Was having her hand ripped from his sufficient contact?
One exception to the contact rule is observing a horrible tragedy to a close family member.
- A mother seeing her child hit and killed by a car.
- Someone seeing a spouse murdered.
Here we have a friend seeing a friend killed. Does that qualify under the exception?
The boy is a minor, and as such, any recovery he makes is subject to a “minor’s compromise” in the probate court of his county of residence. That requires his recovery to be deposited into a restricted account until he reaches the age of 18.
To make this tragedy even more tragic, the driver has minimal insurance for personal injury on her car. The boy recovered enough to require a minor’s compromise hearing and restricted account deposit. He has since reached the age of majority and taken control of the funds.
The insurance company did not want to fight this case.
- First, their policy limits were low and not worth the legal fight over comparative fault and the contact rule.
- Secondly, the insurance company believed the case was so tragic that most juries would be sympathetic to the young couple.
When you read the opening paragraph telling the story of this tragic incident, you were horrified and felt great sympathy for both the girl and boy. However, once you heard the legal issues you likely started to wonder if you were a juror in this case would you put some percentage of fault on the couple.
Was the boy entitled to anything by law since he did not get hit by the car?
The moral of the story is that victims should never assume they have a perfect case on liability or damages. You need legal advice and need to understand that some of the laws are protective of defendants. So, if you go it alone then you may be walking through a minefield of legal issues that may greatly damage your case or ruin it altogether.
Whether you were rear-ended at a stoplight or involved in an incident much more complicated, you need legal advice AND representation so the insurance company does not take advantage of your lack of legal knowledge.
Call Garrison Law Firm at 317-842-8283 where we have helped injured folks get paid, get well, and get back to their lives for over 40 years.
We Invite Your Comment
We are interested in your thoughts about the legal questions raised in this case history.
- Would you assign any fault to the couple, if so how much?
- Should the contact rule prevent the boy from recovery?
We look forward to your comments because they help us evaluate future cases. Thank you.
**This case summary removes the party’s names and is intended to demonstrate that you may have damages from an experience that may be compensable that you had not considered. Considering such issues with a lawyer at Garrison Law Firm is easy and free. There is no attorney fee until we recover money for you. Call us about your case today.**
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