Comments on Advance Indiana™: First Lawsuit In Indiana State Fair Stage Collapse Poses Interesting Challenges

The fact is, Bob, there are states that recognize ...

2011-08-21T14:18:12.135-05:00

The fact is, Bob, there are states that recognize same-sex marriages just like they do opposite-sex marriages. A license is issued as proof of the marriage. My point is that no marriage license could have been issued to the couple in Hawaii. That's a big distinction legally.

Allow me to point out the obvious - which also is ...

2011-08-21T13:32:22.840-05:00

Allow me to point out the obvious - which also is the point that makes the religious argument against gay marriage a moot point: Same gender couples can get married even in states that don't recognize it. I've been to several same gender marriages in Indiana.

I don't know the law behind it, however, if the point is to demonstrate to a jury that these two had a long-term committed relationship, I think a marriage ceremony would help to establish that-regardless of the recognition by the state.

I've looked at the text of the Hawaii civil un...

2011-08-21T05:31:40.503-05:00

I've looked at the text of the Hawaii civil unions statute, and it clearly states that it will become effective in 2012, with no hint of any retroactive applications to people, for example, who went to Hawaii for some kind of application process, ceremony, etc. So it remains a mystery how this couple claim a status that the Indiana wrongful death statute should recognize.

I agree w/MC about the unfairness of Indiana law. ...

2011-08-20T17:53:05.196-05:00

I agree w/MC about the unfairness of Indiana law. Our choice of law rules operate further. If Indiana finds a specific law of another jurisdiction repugnant, our courts will give that law no force or effect. The old hypothetical involved an action to enforce provisions of a divorce decree from a country that recognizes polygamy. In this instance, if the couple's relationship had occurred in Vermont, for example, a jurisdiction in which same-sex marriage is recognized and given equal status, in Indiana in a wrongful death suit, defendant/defendants would have a colorable argument that the surviving spouse is not entitled to damages as a spouse. In other words, the survivor probably would receive nothing. I do not say I agree w/that outcome, but that is the way our law has been construed in the past.

Agreed, MC. He rushed to file the suit to preserve...

2011-08-20T16:27:11.488-05:00

Agreed, MC. He rushed to file the suit to preserve the evidence, Paul. The plaintiffs' attorneys are going to be greatly aided by the fact that you have two outside expert consultants paid for by the taxpayers that are examining the evidence and issuing reports that will no doubt become evidence in the legal proceedings. It doesn't get any easier for the plaintiff in that sense. From what has been reported, the wreckage has remained untouched since the rescue efforts that night and Thornton Tomasetti won't begin its on site work examining the wreckage next week.

Well if he's suing the state, the Notice of To...

2011-08-20T15:45:15.640-05:00

Well if he's suing the state, the Notice of Tort Claim period is a minimum of 90 days. I suppose you can stay things during that 90 days. Of course, he'd be foolish not to sue the State.

It sounds like this got rushed forward probably to try to get other plaintiffs.

The facts concerning the relationship between the ...

2011-08-20T15:11:44.318-05:00

The facts concerning the relationship between the two victims seem a bit muddy. As you observe, Gary, reports that they were "married" in Hawaii aren't legally correct, and it isn't clear how they could even claim the relvance of Hawaii's new civil union statute if the claimed union took place a decade ago. However, I did hear one news report saying they had "recently" returned from Hawaii and had big plans. Whatever the nature and outcome of this aspect of the litigation, it will point out the unequal treatment of same-sex couples under the law in an increasing patchwork of different recognitions from state to state, against the background of the federal Defense of Marriage Act. An increasing number of legal scholars have written that the issue is becoming more than just legal recognition of marriage itself, but of such spin-offs as how such a couple gets a divorce in another state, and many related rights and incidents. Even without having to rule on the direct question of same-sex marriage, courts are increasingly going to have to deal with these matters.

I agree, Paul, that Marion Co. would be the prefer...

2011-08-20T13:07:56.636-05:00

I agree, Paul, that Marion Co. would be the preferred venue for filing the lawsuit. He likely filed it there for convenience and familiarity with the local court rules. You are correct that you aren't suppose to specify the dollar amount in the lawsuit in a personal injury claim in Indiana. I'm assuming that is a figure the attorney furnished to the media. I haven't seen a copy of his complaint so I can't say for certain; I'm only going by the news reports. Of course, his tort claim notice to the state would state the amount of his clients' claims.

There are some things I'm unclear about. Firs...

2011-08-20T12:37:52.665-05:00

There are some things I'm unclear about. First, a specific dollar asmount is listed as damages they are asking for. I believe the rules were amended a few years ago to prohibit specifying damages in a complaint. Years ago, I had the amount in my complaint struck on that basis.

Second, how are they filing that lawsuit in Porter County? Shouldn't that be in Marion County or the location of the Defendant(s). I don't think the fact the Plaintiff lives in Porter County (I assume) would give the court there jurisdiction. Maybe there's something I'm overlooking. Interesting take on the same sex marriage argument.