Friday, June 08, 2012

Wells Family Should Be Very Happy With Settlement

Some people reading about the family of Eric Wells' settlement with the City of Indianapolis for the tragic death he suffered when IMPD Officer David Bisard's police cruiser crashed into his motorcycle while he was stopped at an intersection may think $1.5 million isn't a lot for the loss of a loved one's life. Yet had the case been allowed to proceed the family would have likely recovered much less than $1.5 million, which is why I'm surprised the City agreed to such a large settlement, one of the largest in the City's history.

Lawyers for Eric Wells' estate brought the case in federal, not state court. This was not a tort claim case brought under the state's wrongful death statute, which is how it should have been postured. Wells' lawyers sued under the novel theory that his civil rights were violated under the 14th Amendment, which applies the equal protection and due process clauses of the U.S. Constitution to the actions of the state and local governments. Judge William Lawrence, whose decisions have frequently been reversed on appeal before the 7th Circuit Court of Appeals, ruled against the City's motion to dismiss. He held that a lower standard of proof applied in this case. According to Lawrence's ruling, it was not necessary for the plaintiffs to show that Officer Bisard intended to cause harm to Wells; rather, the plaintiffs only needed to prove that Officer Bisard recklessly disregarded the risk of harm to others. By analogy, the City settled a case with the family of Michael Taylor in 2000 for $1.9 million. That was a case of a 16-year-old boy who somehow managed to shoot himself in the head and kill himself while handcuffed after he had been arrested and placed in the back seat of a police car. From today's Indianapolis Star:

Linda Pence, an Indianapolis attorney representing Wells, said the settlement would have no impact on the criminal case.
"It won't affect it at all," she said. "Under the rules of evidence, any settlement of any case is not admissible."
The Wells family filed a wrongful-death lawsuit against the city of Indianapolis and IMPD in state court, then sought to have it transferred to federal court.
They alleged in U.S. District Court in Indianapolis that Bisard's action deprived Eric Wells of life without due process of law in violation of the 14th Amendment.
The city argued that there was no civil rights violation because there was no evidence that Bisard intended to harm Wells.
But U.S. District Judge William Lawrence ruled last November that to make the civil rights claim, the Wells family had to show only that Bisard recklessly disregarded obvious risks when the accident occurred.
"A jury could reasonably find that Bisard acted recklessly in conscious disregard of that risk," Lawrence ruled in refusing to dismiss the lawsuit.
He noted that Bisard was driving 73 mph on a crowded street answering a non-emergency call while looking at his car's computer.
The city appealed the decision, and a three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago was to hear arguments May 31.

Incidentally, Judge Lawrence prior to joining the federal bench was a partner in the former Indianapolis law firm of Johnson Smith where Linda Pence was also once a partner. The City appealed his ruling to the 7th Circuit, and the City probably had a pretty good chance of getting a reversal based on the Court's prior rulings, which would have kicked the case back to state court. If the case had proceeded on a state law claim, the state's tort claim statute caps claims at $700,000; however, if I'm not mistaken, Wells was an unmarried adult, and as such, claims brought on behalf of his estate under the wrongful death statute are capped at $300,000. So yes, Wells' family should be delighted with the $1.5 million settlement reached with the City of Indianapolis. The money isn't going to bring their son back, but the settlement could have been much worse for the family if the case had proceeded on appeal.

UPDATE: Check out this 2009 7th Circuit case involving St. Joseph County and the interplay of the federal civil rights claims in play and the state's laws limiting liability for the actions of its employees. Fellow blogger and attorney Doug Masson brought this case to my attention in a comment he posted this morning. What is happening with the settlement in this case is that our taxpayer dollars are being used to pay for potential liability that would have been borne by Bisard personally, not by the City of Indianapolis under the applicable law. Absolutly incredible. Attorneys who regularly practice in this area agree that the case law is very clear that cases involving automobile crashes with police officers are applied on negligence standards; they do not constitute a civil rights violation. See also this 7th Circuit case, Bublitz v. Cottey, that is even more on point since it involves a high speed chase involving a Marion County Sheriff's deputy where a mother and her child were killed. The 7th Circuit affirmed the trial court's dismissal of the plaintiff's claim, which included a due process claim under the 14th Amendment. Essentially, the actions of the government must "shock the conscience" in order for the plaintiff to prevail on this theory.


Doug said...

I'm reasonably certain the city's liability for the constitutional claim is also capped at $700k. IC 34-13-4-1. See also Estate of Morland v. Dieter, 576 F.3d 691, 695 fn. 3 (7th Cir. 2009).

Gary R. Welsh said...

Doug, Thanks for sharing. I know you have experience defending a law enforcement agencies against these types of lawsuits. I hope you will share more of your thoughts.

Gary R. Welsh said...

Wow, Doug. I just took a quick look at the 7th Circuit decision you cite. Shocking beyond belief. Someone should bring an action on behalf of the taxpayers to block enforcement of this settlement order, which is clearly contrary to the law.