Reply Brief — Lake County v. Myers

Hipreme Court, U.S

FILED

DEC § 1994

Chri. THE CUERK

No. 94-731 i

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

COUNTY OF LAKE, INDIANA,

Petitioner,

STEVEN MYERS and ROBERT MYERS,

Respondents.

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

REPLY BRIEF FOR PETITIONER

ROBERT P. KENNEDY

Counsel of Record

FEISAL AMIN ISTRABADI

SPANGLER, JENNINGS

& DOUGHERTY, P.C.

8396 Mississippi Street

Merrillville, Indiana 46410

(219) 769-2323

JOHN S. DULL

DULL AND DUGGAN

8300 Mississippi Street

Suite F

Merrillville, Indiana 46410

(219) 769-2875

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

TABLE OF CONTENTS

PAGE

TABLES OF ALTTIIORII MD oc ccc cccccces i

SE er ecu hub euckuweosavens 1-6

TABLE OF AUTHORITIES

CASES: PAGE

Beckett v. Clinton Prairie School Corporation,

504 N.E.2d 662 (Ind. 1967) .............. 2

Brown v. Slentz, 237 Ind. 497, 147 N.E.2d

I PP te Nene ate ee 4

Cole v. Indiana Department of Corrections,

616 N.E.2d 44 (Ind.App. 1993) ............ 3

Erie R. Company v. Tompkins, 304 U.S. 64,

58 S.Ct. 817, 82 L.Ed. 1188 (1938) ......... 3

McGill v. Duckworth, 944 F.2d 344 |

co Ee ore 2

McNall v. Farmers Ins. Group, 423

PPE OP CEI PED oo ck ect ceceescces 4

STATUTES:

Ind. Code § 34-4-16.5-4 (Burns 1986) .......... 4

i

No. 94-731

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

COUNTY OF LAKE, INDIANA,

Petitioner,

STEVEN MYERS and ROBERT MYERS,

Respondents.

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

REPLY BRIEF FOR PETITIONER

I.

Unable to defend the merits of the Seventh Circuit’s

errant Opinion, Respondents argue that the applicability of

affirmative defenses to a governmental entity is a question

of first impression in Indiana. (Respondents’ Brief at 11).

This is not true. That affirmative defenses involving a

plaintiffs conduct bar liability as to governmental defen-

dants is a well-settled doctrine in Indiana. No Indiana court

a

has ever questioned this fact. The only issue raised in the

instant Petition is whether it was incumbent upon a federal

Court of Appeals to apply existing State negligence law, or

whether that court was free to conjure legal doctrines, with-

out reference to any principle of Indiana law. Respondents

fail utterly to respond to this issue.

Lake County’s argument throughout has been that it was

entitled to a directed verdict because it had established

affirmative defenses involving Steven’s conduct as a matter

of law. No question concerning the appropriateness of these

defenses was raised in the courts below. The Seventh

Circuit ignored the issues argued by the parties, instead

fashioning a hitherto unknown legal doctrine in the State

of Indiana: that a governmental entity charged with negli-

gence may not raise any affirmative defenses involving the

plaintiffs conduct. Thus, the Seventh Circuit’s Opinion, in

defiance of existing Indiana law, occurred without the bene-

fit of argument.

In Indiana, if a plaintiffs conduct contributes to his

injury, plaintiff is barred from recovering from a negligent

defendant, even though that defendant was in loco parentis.

Beckett v. Clinton Prairie School Corporation, 504 N.E.2d

552 (Ind. 1987). Three years ago, the Seventh Circuit held

that Beckett controlled in a prisoner rape case. McGill v.

Duckworth, 944 F.2d 344 (7th Cir. 1991). (See Lake Coun-

ty’s Petition at 8-9).

Neither the Seventh Circuit nor Respondents have shown

why it is that Beckett properly controlled McGill, but has no

application whatsoever in the case at bar. Indeed, Beckett

is not even cited by Respondents in their filing in this

Court. The reason for this failure is self-evident: there is no

principled argument for distinguishing McGill and Beckett

from this case. Unable to defend this egregiously aberrant

Opinion, Respondents chant the mantra of “first impres-

=

sion” in an effort to minimize the unconscionable overreach-

ing of the Seventh Circuit.

The import of the Seventh Circuit’s decision cannot be

overstated. The court held that if a defendant is charged

with a duty to exercise reasonable care to prevent a suicide,

it may not raise plaintiff's contribution to the suicide as an

affirmative defense. The same rationale could be used to

obviate these affirmative defenses in a simple slip-and-fall

case: since the defendant’s duty is to exercise reasonable

care to prevent plaintiff from falling, defendant should not

be able to raise plaintiffs contribution to the fall as a

defense. The result is a complete re-writing of Indiana

negligence law.

A dichotomy now exists thanks to the Seventh Circuit.

Whenever a plaintiff can sue an Indiana governmental unit

in federal court, Myers can be used to bar defendant from

raising affirmative defenses. By contrast, if a plaintiff sues

in State court, that court, bound by legislative enactments

and precedents of Indiana reviewing courts, would allow

governmental defendants to raise such affirmative defenses.

This situation is abhorrent to principles of federalism, and

the right of states to be the final arbiters of issues of state

law. Erie R. Company v. Tompkins, 304 U.S. 64, 58 S.Ct.

817, 82 L.Ed. 1188 (1938).

The effect of the Seventh Circuit’s Opinion is to make

governmental entities including schools, hospitals, jails, and

prisons, insurers of the safety of their charges. This prop-

osition is contrary to an existing State statute and unani-

mous case-law of the State of Indiana. (See Lake County’s

Petition at 6-7). Indeed, the Indiana Court of Appeals has

recently noted that it is contrary to public policy to hold

custodial institutions as insurers of their charges’ safety.

Cole v. Indiana Department of Corrections, 616 N.E.2d 44,

45 (Ind.App. 1993).

auillinin

Unable to address these arguments, Respondents spend

approximately two-thirds of their Brief to show that there

was sufficient evidence to support the jury’s conclusion that

Lake County was negligent. This argument wholly misses

the point. The issue is not whether or not Lake County was

negligent; it is whether Lake County has the right to raise

the plaintiff's conduct as an affirmative defense notwith-

standing its negligence. Lake County seeks relief in this

Court upon the failure of a federal Court of Appeals to defer

to existing State law involving traditional issues of State

negligence law. At a time when the nation is engaged in a

debate about the limits of federal power over the states, the

Seventh Circuit has issued a published opinion eliminating

affirmative defenses recognized by a State statute and

invariably allowed under State decisional law. Certiorari is

appropriate.

II.

In regards to the Seventh Circuit’s error in failing

properly to enforce limits of liability imposed by Ind. Code

§ 34-4-16.5-4 (Burns 1986), Respondents repeat the refrain

that the father’s and son’s causes of action in this case are

“separate and distinct.” (Respondents’ Brief at 15). This is

a proposition which Lake County has never disputed.

Instead, it has pointed out that, under Indiana law, a

father’s claim for loss of services ana medical expenses is

purely derivative of that of his son. McNall v. Farmers Ins.

Group, 423 N.E.2d 593 (Ind. 1981); Brown v. Slentz, 237

Ind. 497, 147 N.E.2d 239, 240 (1958). Since the father’s

claim is derivative, it is subject to the same “per-person”

limitation as the son’s claim.

Respondents again assert that this issue is one of “first

impression” as though there has been no Indiana law

informative on the question of how many limits apply in

~

this case. In all other contexts in which Indiana law has

been applied both by federal and State courts, the courts

have consistently held that a derivative claim is subject to

the same single cap as the underlying claim. (See Petition

at 10-13). There is, therefore, no basis for a federal Court

of Appeals to assert that an Indiana court would hold other-

wise.

As it did in respect to liability, the Seventh Circuit mere-

ly substituted its own judgment, unsatisfied with enact-

ments of the Indiana Legislature and decisions of Indiana

courts. Not only does the Seventh Circuit believe itself un-

bound by Indiana law when deciding issues of State law; it

also believes itself to be unbound by United States Supreme

Court precedent mandating that existing State law must be

applied. Certiorari is appropriate.

Il.

Respondents have failed utterly to address Section II of

the Petition for Certiorari. In this Section, Lake County set

forth errors of law and fact committed by the Seventh Cir-

cuit, which tortured and distorted legal principles as well

as the record on appeal. Respondents failed to controvert a

single assertion of error.

It is self-evident that Respondents failed to controvert

these errors because no defense is possible. The Seventh

Circuit rewrote Indiana statutes, misstated the facts of

cases, misinterpreted the holdings of cases, and committed

at least nine egregious errors of fact.

The Seventh Circuit’s aberrant behavior is utterly incon-

sistent with the norms and standards which litigants have

a right to expect from a United States Court of Appeals.

The Seventh Circuit may believe itself insulated from criti-

cism for the egregious errors which it committed in its

Opinion, because of the improbability of certiorari being

— a

granted in any particular case. This indefensible conduct

ought itself to be sufficient reason for this Court to exercise

its discretion and grant certiorari.

Respectfully submitted,

ROBERT P. KENNEDY JOHN S. DULL

Counsel of Record DULL AND DUGGAN

FEISAL AMIN ISTRABADI 8300 Mississippi Street

SPANGLER, JENNINGS Suite F

& DOUGHERTY, P.C. Merrillville, Indiana 46410

8396 Mississippi Street (219) 769-2875

Merrillville, Indiana 46410

(219) 769-2323

December 1994

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LOPE ROY LEAR TNO