Tag Archive | "Liability"

Landlord Held Liable in Suit by Occupant

Prepared By Richard A. Mann & Todd Small

On September 28, 2017, the Indiana Court of Appeals, in Richter v. Laurenz Place, LLC, reversed the trial court’s judgment for the Defendant landlord. The Plaintiff, Kristopher Richter, sued his previous landlord, Laurenz Place, after his former co-tenant sued Richter for his portion of damages owed to Laurenz Place. In the suit, Richter claimed as a tenant he should have received notice of the alleged damages to the rental property, that he disputed some of the alleged damages, and that he was wrongfully denied access to the rental property.

There were two lease agreements. The first lease was signed on April 28, 2012 by the co-tenant only, and not Richter. However, Richter was listed as an authorized occupant in the lease signed April 28, 2012. The second lease was signed April 30, 2013 (herein “Second Lease”). The Second Lease was signed and initialed by both the co-tenant and Richter. After Richter and the co-tenant vacated the apartment, Laurenz Place sent the co-tenant an itemized list of damages, but refused to provide Richter a copy, despite his request.

The Court of Appeals restated the issue on appeal as “whether the trial court erred by determining Richter was not a ‘tenant’ within the meaning of the landlord-tenant provision of the Indiana Code.” A tenant is defined by the Indiana Code as “an individual who occupies a rental unit: (1) for residential purposes; (2) with the landlord’s consent; and (3) for consideration that is agreed upon by both parties.” Ind. Code § 32-31-3-10.   The Court of Appeals noted that the two lease agreements listed Richter as an authorized occupant, Richter signed and initialed the Second Lease, and Richter also signed the Clubhouse Addendum attached to the Second Lease as “Leaseholder.” The Court of Appeals also referenced the testimony and exhibits provided by Richter that he paid rent. One of the exhibits was a receipt from Laurenz Place with Richter’s name typewritten in the “Bill To” and “Customer Name” lines.

The Court of Appeals stated that there was no dispute that Richter occupied the rental property for “residential purposes.” They also found that it was “plain that [Richter]” occupied the rental premises with Laurenz Place’s consent. The third element for Richter to be a tenant under Indiana law is “consideration for this occupancy agreed upon by both parties.” The Court of Appeals “construing the leases between the parties strictly against Laurenz Place and doing so in the context of the other evidence at trial” found that “it is apparent that there was an agreement on monthly rent and the like.” Therefore, the Court of Appeals found that the trial court was clearly erroneous when they determined Richter was not a tenant. As such, Richter was entitled to certain rights under Indiana Code sections 32-31-3-12, 32-31-3-14 and 32-31-5-6.

The trial court was reversed and the case was remanded for the trial court to consider the costs incurred by Richter as a result of the landlord’s failure to afford him the rights as a tenant, as well as to determine the attorney’s fees to which Richter was entitled.

Conclusion:
Landlords and Tenants should review this case, their lease, their conduct, and decide how to proceed. Landlords should consider granting all rights to whomever is an authorized occupant as the Landlord can be held responsible for damages, attorney fees, and may be waiving their right to recover.

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Richard A. Mann has been practicing Family Law for more than 37 years in the Indianapolis area and throughout the State of Indiana. He is a Certified Family Law Specialist as certified by the Family Law Certification Committee, a Registered Family Law and Civil Law Mediator and Guardian ad Litem and Parenting Coordinator. Mr. Mann and his firm, Mann Law, P.C. Attorneys at Law, are proud to have been one of the firms who represented Same-Sex couples who were successful in overturning Indiana’s ban on Same-Sex marriage. He continues to fight discrimination in the law.

While a large portion of Mr. Mann’s practice is in the Family Law area he also represents several corporations on contract, personnel and other matters. He also has a varied General Practice in wills, estates, juvenile matters, collections, probate throughout the state of Indiana. Mr. Mann has tried murder cases as well as a death penalty case.

Mr. Mann has been selected for inclusion in Super Lawyers SuperLawyers Edition consecutively from 2009 – 2017.

Follow Richard Mann on FacebookTwitter, or read more blogs by him here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Grandparents, Parents, Brothers and Sisters: Guardians What are You Risking Because of Child, Part 2

BULLIES AND PARENTS OF BULLIES BEWARE
Prepared By Richard A. Mann

In my previous article, I addressed the liability you incur by signing for a child’s driver’s license in my article GRANDPARENTS, PARENTS, BROTHERS AND SISTERS HAVE YOU JUST UNKNOWINGLY SIGNED FOR LIABILITY? Part I. As previously noted, we in the family law field of practice are seeing custody or guardianship of children going to people other than their parents. Many children in Indiana are in the custody of one (1) parent or family member either because of divorce, the children are born out of wedlock, or the parent not being able to care for the child and leave the child with a relative. If your child is engaged in an activity such as bullying, vandalism, shoplifting, fights etc. you could be liable. If you or your child are a victim of any of these activities, you may have options you have not considered.

STRICT LIABILITY STATUTE FOR PARENTS
At common law people were generally not responsible for the acts of their children. Indiana has a law that changes that as it applies to the parent of a child. Pursuant to I.C. 34-31-4-1 “…, a parent is liable for not more than five thousand dollars ($5,000) in actual damages arising from harm to a person or damage to property knowingly, intentionally, or recklessly caused by the parent’s child if: (1) the parent has custody of the child; and (2) the child is living with the parent.” This means that if the child lives with a parent and that child knowingly, intentionally, or recklessly harms property of a person you can be strictly liable for up to $5,000 in damages. By strict liability this means even if you are not at fault you can still be sued.

LIABILITY FOR PARENTS AND GUARDIANS
 Where the guardian or custodian may be at risk or the parent for more than $5,000 is set forth in the Wells decision. In that case the Court of Appeals found a parent liable but the reasoning could be applied to a guardian and there is no limit in such cases. Furthermore, it is likely that there is no insurance coverage available so you could be made to pay the entire judgment yourself.

“In addition to Indiana Code § 34–4–31–1, there are four common law exceptions to the general rule that a parent is not liable for the tortious acts of her child.

(1) where the parent entrusts the child with an instrumentality which, because of the child’s lack of age, judgment, or experience, may become a source of danger to others; (2) where the child committing the tort is acting as the servant or agent of its parents; (3) where the parent consents, directs, or sanctions the wrongdoing; and (4) where the parent fails to exercise control over the minor child although the parent knows or with due care should know that injury to another is possible.

K.C. v. A.P. (1991), Fla.App., 577 So.2d 669, 671.2 Wells’ claim is based on the fourth common law exception. She alleges that Hickman was negligent because Hickman failed to control her minor son when she knew or should have known that L.H. would injure D.E.”

Wells v. Hickman, 657 N.E.2d 172, 176 (Ind. Ct. App. 1995)

Some examples of such cases are Hyman v. Davies, 453 N.E.2d 336, where the child broke into a neighbor’s home and stole their car; Wells v. Hickman, 657 N.e.2d 172, where the child beat a person to death; State Farm Fire & Casualty Company v. T.B., 858 F. Supp.2d 971, where the son struck another minor in the mouth and the insurance company refused to defend the suit against the parents and the child; Stewart v. Swartz, 57 Ind. App. 249, 106 N.E. 719, in which the court found that the parent would be liable when he knew his children had stretched a rope across a road (the case was remanded for other reasons); Johnson v. Toth, 516 E.E.2d 85, where a child struck another child with a pop bottle; Shepard v. Porter, 679 N.E.2d 1383, in which a 13-year-old accidently burned when lighter fluid was ignited (the parents were not held liable based solely on facts of the case); and Economy Premier Assurance Company v. Wernke, 521 F. Supp.2d 852, where the son struck someone in the face causing damage. In Wernke, the insurance company was successful in having the court declare that the insurance company did not have to defend or pay for the injuries when their son struck someone which resulted in the victim having a broken jaw.

LIABLITY FOR CRIMINAL ACTIVITY
Another source of liability is if the child is involved in a criminal organization commonly known as a gang.

A parent of a child who is a member of a criminal organization (as defined in IC 35-45-9-1), who actively encourages or knowingly benefits from the child’s involvement in the criminal organization, is liable for actual damages arising from harm to a person or property intentionally caused by the child while participating in a criminal organization activity if: (1) the parent has custody of the child; (2) the child is living with the parent or guardian; and (3) the parent failed to use reasonable efforts to prevent the child’s involvement in the criminal organization.

Ind. Code Ann. § 34-31-4-2.

The statute uses the terms parent and guardian and as such an argument could certainly could be made that a grandparent with custody of a grandchild could be liable. A criminal organization or gang does not have to be a major gang as the law only requires that it be made up of 3 or more people that (1) either: (A) promotes, sponsors, or assists in; (B) participates in; or (C) has as one (1) of its goals; or (2) requires as a condition of membership or continued membership; the commission of a felony, an act that would be a felony if committed by an adult, or a battery offense included in IC 35-42-2. Ind. Code Ann. § 35-45-9-1.   In Cole v. State, 967 N.E.2d 1044, the defendant was convicted of criminal gang activity (now criminal organization activity) when he and 2 others committed felonies. Shop lifting can be a felony; joy riding can be a felony; hitting someone with your fist or pop bottle can be a felony if it causes moderate bodily injury or is committed against a person under 14 years of age by someone 18 years old or over. You could be liable, for example, if your child and 2 others decide to go do vandalism if the damage they cause is $750 or more. It does not take much damage to cost $750.

CONCLUSION

If you have a child or are contemplating taking the custody of a child of another person, you should consider the above issues. You should consult your attorney about the possibilities raised in this article. You should also speak to your insurance agent and if you do not have one you should get one. You need to look at what your automobile, homeowners, renters, and umbrella coverages are and, even as important, what they do not cover. I once read a case where the appellate court judge said after reading the insurance policy what the coverage gave the exclusions took away. You should also consider if your child is a bully or a victim of bullying how these laws can affect your liability or your options to stop such activity.

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Richard A. Mann has been practicing Family Law for more than 37 years in the Indianapolis area and throughout the State of Indiana. He is a Certified Family Law Specialist as certified by the Family Law Certification Committee, a Registered Family Law and Civil Law Mediator and Guardian ad Litem and Parenting Coordinator. Mr. Mann and his firm, Mann Law, P.C. Attorneys at Law, are proud to have been one of the firms who represented Same-Sex couples who were successful in overturning Indiana’s ban on Same-Sex marriage. He continues to fight discrimination in the law.

While a large portion of Mr. Mann’s practice is in the Family Law area he also represents several corporations on contract, personnel and other matters. He also has a varied General Practice in wills, estates, juvenile matters, collections, probate throughout the state of Indiana. Mr. Mann has tried murder cases as well as a death penalty case.

Mr. Mann has been selected for inclusion in Super Lawyers SuperLawyers Edition consecutively from 2009 – 2017.

Follow Richard Mann on FacebookTwitter, or read more blogs by him here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Grandparents, Parents, Brothers & Sisters Have You Just Unknowingly Signed for Liability, Part 1

Prepared By Richard A. Mann

More and more we in the family law field of practice are seeing custody or guardianship of children going to people other than their parents. Many children in Indiana are in the custody of one (1) parent or family member either as a result of divorce, being born out of wedlock, or the parent not being able to care for the child and leaving the child with a relative. This article is only meant to address one issue. Under Indiana Law, a child under 18 years of age must have an adult 18 years of age or older to sign for financial responsibility of that child in the case they are held liable for the operation of a motor vehicle. See IC 9-24-9-4 which says “(a) An individual who signs an application for a permit or driver’s license under this chapter agrees to be responsible jointly and severally with the minor applicant for any injury or damage that the minor applicant causes by reason of the operation of a motor vehicle if the minor applicant is liable in damages.”

This statute could result in liability you had not considered. For example, you take guardianship or third-party custody of your grandson, nephew, sister, cousin, etc. When that child applies for their driver’s license you take them to the Indiana Bureau of Motor Vehicles and sign for him or her to get their driver’s license. At that point, you are liable for “…any injury or damage that the minor applicant causes by reason of the operation of a motor vehicle if the minor applicant is liable in damage.” You might then say well I have car insurance. Unfortunately, that is not where the discussion ends. Many times, as occurred in Motorists Mut. Ins. Co. v. Wroblewski, 898 N.E.2d 1272 (2009), insurance agents recommend that you cover the young driver on a separate policy as many companies will not cover high risk drivers or the adding of a new driver increases everyone’s insurance costs. In the Wroblewski case, the grandparents had guardianship of their grandson. When the grandson turned 16 years of age, grandmother took him to the BMV to sign for his driver’s license. The grandparents then gave him a car which was put in his name alone. The grandparents purchased him car insurance with an insurance company different that the one that covered their vehicles. That same month grandson was involved in an automobile accident. Unfortunately, grandson was found at fault and the insurance that the grandson carried was not enough to pay the judgment. The injured party then filed to have grandmother pay the judgment based solely upon her signing for financial responsibility upon him getting his license. The trial court entered a judgment against grandmother for $99,422.19 plus court costs. The injured party then sued grandmother’s insurance to pay the claim. The Indiana Court of Appeals held that based upon the policy terms the grandson was excluded from coverage as he owned the vehicle and he had his own insurance. In plain terms, this means that grandmother would have to pay the entire $99,422.19 out of her pocket and her insurance did not cover her since her grandson and his car were not on her insurance.

The various ways you can be held liable are numerous. Another case to consider is what if the person you sign for liability loans their vehicle to an unlicensed or intoxicated driver? The court in Cedars, infra, ruled that when a daughter allowed an unlicensed driver to drive her vehicle and then there was a car accident injuring others the injured parties could sue the parent who had signed for financial liability of the daughter who was not driving. The court held that the accident arose out of the daughter’s negligence in allowing an inexperienced driver which resulted in a wreck. The court stated, “Accordingly, the trial court properly found that Linda Waldon can be jointly and severally liable if the jury finds Cherish liable to the Cedars on the theory of negligent entrustment.” Cedars ex rel. Cedars v. Waldon, 706 N.E.2d 219, 225 (Ind. Ct. App. 1999)

So, if you are or have obtained custody of a child, guardianship of a child, or just are asked to sign for a child’s driver’s license, you need to make sure you have the child and their vehicle insured and in an amount to cover your risk. If you have a change of custody, even if it is not approved by the court, and you have a driver, whether you signed for financial responsibility or not, you should consult your automobile and homeowner insurance agent. You should get your agent’s opinion in writing. You should also know for most policies if you have a relative who lives with you and they are not named on your automobile or homeowner’s policy they are not covered.

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Richard A. Mann has been practicing Family Law for more than 37 years in the Indianapolis area and throughout the State of Indiana. He is a Certified Family Law Specialist as certified by the Family Law Certification Committee, a Registered Family Law and Civil Law Mediator and Guardian ad Litem and Parenting Coordinator. Mr. Mann and his firm, Mann Law, P.C. Attorneys at Law, are proud to have been one of the firms who represented Same-Sex couples who were successful in overturning Indiana’s ban on Same-Sex marriage. He continues to fight discrimination in the law.

While a large portion of Mr. Mann’s practice is in the Family Law area he also represents several corporations on contract, personnel and other matters. He also has a varied General Practice in wills, estates, juvenile matters, collections, probate throughout the state of Indiana. Mr. Mann has tried murder cases as well as a death penalty case.

Mr. Mann has been selected for inclusion in Super Lawyers SuperLawyers Edition consecutively from 2009 – 2017.

Follow Richard Mann on FacebookTwitter, or read more blogs by him here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Liability For Contractors

By Richard Mann, Richard A. Mann, P.C., Indianapolis

Are you placing you or your company in jeopardy?

Are you having work done in your office? Is you IT contractor installing a new computer system, telephone system etc.? Are you paying more than $1,000.00?

The Indiana Court of Appeals has held that a person or business may be liable for injuries sustained by the employee of a tree trimming service when that employee was injured. A little known statute which is Indiana Code 22-3-2-14(b), requires that when you hire someone to perform any activity on your company’s behalf exceeding one thousand dollars ($1,000.00), such as tree trimming, lawn service, plumbing, electrical service and the like, that you require them to provide you with proof from such contractor a certificate from the worker’s compensation board showing that such contractor has complied with section 5 of this chapter, IC 22-3-5-1, and IC 22-3-5-2. If you fail to do so you shall be liable to the same extent as the contractor for compensation, physician’s fees, hospital fees, nurse’s charges, and burial expenses on account of the injury or death of any employee of such contractor, due to an accident arising out of and in the course of the performance of the work covered by such contract. There are some exceptions that apply to your owner occupied residence but you should obtain the certificate in any case.

The interesting question raised in this case was the tree trimming service was only being paid six hundred dollars ($600.00). Part of the agreement between the tree trimming service and the business was that the tree trimming service was allowed to keep the wood that resulted from cutting up the downed tree. The employee of the tree trimming service argued that the wood was valued at more than four hundred dollars ($400.00) and therefore the true value of the contract was in excess of one thousand dollars ($1000.00). Therefore, under this case, if a painter, roofer, chimney sweep, or the like is injured while performing work for you in the amount in excess of one thousand dollars ($1000.00), you could be personally liable for compensation, physician’s fees, hospital fees, nurse’s charges, and burial expenses on account of the injury or death of any employee of such contractor, due to an accident arising out of and in the course of the performance of the work covered by such contract.

Also, another insurance that you should require them to provide is proof of liability insurance, which also covers you.

This is one of a series we will be doing on the issues of sole proprietorships, partnerships and other small business and issues with not complying or handling insurance, tax and other issues.

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Richard A. Mann has been practicing Family Law for more than 36 years in the Indianapolis area and throughout the State of Indiana. He is a Certified Family Law Specialist as certified by the Family Law Certification Committee, a Registered Family Law and Civil Law Mediator and Guardian ad Litem and Parenting Coordinator. Mr. Mann and his firm, Richard A. Mann, P.C. Attorneys at Law, are proud to have been one of the firms who represented Same-Sex couples who were successful in overturning Indiana’s ban on Same-Sex marriage. He continues to fight discrimination in the law.

While a large portion of Mr. Mann’s practice is in the Family Law area he also represents several corporations on contract, personnel and other matters. He also has a varied General Practice in wills, estates, juvenile matters, collections, probate throughout the state of Indiana. Mr. Mann has tried murder cases as well as a death penalty case.

Mr. Mann has been selected for inclusion in Super Lawyers SuperLawyers Edition for 2009, 2010, 2011, 2012, 2013, 2014, 2015 & 2016.

Follow Richard Mann on FacebookTwitter, or read more blogs by him here.

This blog does not constitute legal advice nor does it establish an attorney client relationship. This is for general information purposes as in most legal situations the facts and terms of an agreement between the parties can affect the result.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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