# Reply Brief — Lake County v. Myers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0685%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1994 - **Citation:** 513 U.S. 1058 ## Text 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 ee eee LOPE ROY LEAR TNO --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0685%3A3. Public record. Not legal advice.