A Citizen's Guide to Indiana

Masson's Blog

On Reading

by 5 Comments

Not this is particularly controversial, but reading is good for the brain. In retrospect, I’m a little amazed by just how much I seem to have read as a kid. Near as I can remember, the first book of any substance I read was Jack London’s “White Fang” when I was 9. I don’t remember reading too much outside of my assignments once I got to college. (I’d pick it up more again when I graduated.) It was something I always enjoyed, so it wasn’t any kind of chore or accomplishment. But, what I’ve found is that all of those stories gave my brain a sort of vocabulary or library of metaphors I’m able to use when I see a fact pattern in the real world.

What prompted this idle bit of musing is that, today, it occurred to me that our current political situation in the U.S. might be a little reminiscent of Tolkien’s story of Numenor. In the beginning, it was an island given to the good humans for their service to the Valar and the Elves in their war against Morgoth. The land was prosperous as the knowledge and mastery of its people grew. Eventually their power extended over the seas and around the world. They helped the Elves back in the old country defeat an evil empire. But, a darkness grew. Numenor’s leaders, despite enjoying untold wealth, power, and longevity, found that what they had was not enough. They wanted eternal life. Sauron used this to corrupt them until they worshiped and became the evil they once fought against.

Now, I’m not saying that Trump is Ar-Pharazôn the Golden who will ruin the country in his pride by invading Valinor. But, because I’ve read stories such as these, I have learned lessons about hubris and how a good people can be led astray. Books are full of lessons! Forewarned is forearmed.

(Incidentally, this random, somewhat pointless quick hit type of blog post comes from a notion that generating content for Facebook and Twitter isn’t necessarily the best use of my time. If I feel inclined to ramble to the world, might as well just do it here.)

 

Definition of “Nonparty” – a post ten years in the making

by 1 Comment

According to my blog metrics, one of my most persistent source of visits is, somewhat oddly, a post I wrote in 2009 entitled “HB 1318 – Definition of ‘nonparty’ in civil litigation.” As I explained then:

I am a little worried that I do not immediately grasp the significance of Rep. Lawson’s proposed legislation in HB 1318 which changes the definition of “nonparty” in civil litigation. A “nonparty” usually refers to someone involved in an incident that caused damage to someone but who has not been named as a party in the lawsuit. Typically, a victim will sue a tortfeasor for damage caused by that person. The tortfeasor will respond, in part, by saying, “hey, it’s not my fault, it’s Nonparty’s fault.” The victim then has an opportunity (usually) to bring the nonparty into the litigation, but if the nonparty is not named as a party, the nonparty can still be an “empty chair” at trial to whom a jury can assign some or all of the fault. (The nonparty would not be liable to the victim for the jury’s decision in this regard, rather the damage attributable to the nonparty would be money the victim could not recover from the tortfeasor who was named as a defendant.)

In any case, Rep. Lawson’s legislation would change the definition of nonparty from

A person who caused or contributed to cause the alleged injury, death, or damage to property who has not been joined in the action as a defendant.

to

a person who may be liable to the claimant, in whole or in part, for the damage claimed, but who has not been joined in the action as a defendant. The term does not include an employer of a claimant.

 

Today, the Court of Appeals wrote an opinion in the case of NIPSCO v. Josh’s Lawn and Snow. Josh’s was doing some landscaping, didn’t call before they dug, and punctured the gas line. However, before that happened, another contractor, Ziese had done some grading that removed sixteen to eighteen inches of soil, leaving only about two inches above the gas line. When NIPSCO sued Josh’s for the damage done to the pipe (plus, inevitably — attorney’s fees), Josh’s named Ziese as a nonparty. NIPSCO objected that Ziese didn’t owe a legal duty to NIPSCO to leave any particular amount of soil above the pipe and, absent a legal duty, couldn’t be a nonparty to whom fault could be attributed. The trial court didn’t buy the argument and, while finding Josh’s at fault and liable to NIPSCO, found that Josh’s was only 10% at fault and Ziese was 90% at fault, leaving Josh’s only responsible for 10% of the damages.

On appeal, the Court of Appeals notes that NIPSCO “does not argue on appeal that the small claims court should have assessed different percentages of liability to Ziese and Josh’s.” So, basically, on appeal it was going to live and die by whether a person had to have a legal duty — and, therefore potential liability to the Plaintiff — before it could be named as a nonparty. This brings us back to Rep. Lawson’s proposed legislation in 2009. In determining that legal duty and potential liability were not necessary for a person to be named as a nonparty, the Court of Appeals relied on a change to the definition that took place back in 1995. Rep. Lawson was essentially trying to revert the definition back to its old definition. The Court of Appeals explained:

[T]he small claims court was not required to find that Ziese had a legal duty of care toward NIPSCO in order to attribute  fault to Ziese. In Bulldog Battery Corporation v. Pica Investments, Inc., 736 N.E.2d 333, 336 (Ind. Ct. App. 2000), property owner Pica Investments sued neighbor Bulldog Battery for negligence when Bulldog’s property improvements led to increased runoff and flooding of Pica’s property. Bulldog asserted a nonparty defense that the negligent designs of its architect contributed to Pica’s damages. Id. at 337. Pica argued that Bulldog could not name its architect as a nonparty defendant because, pursuant to caselaw, an architect owed no duty to third parties such as Pica absent contractual privity or a design that was so negligent as to create an imminently dangerous condition. Id. In reversing the trial court’s grant of summary judgment to Pica on Bulldog’s nonparty defense, the court noted that until 1995, the comparative fault statute defined a nonparty as “‘a person who is, or may be[,] liable to the claimant in part or in whole for the damages claimed but who has not been joined in the action as a defendant by the claimant.” Id. (quoting I.C. § 34-4-33-2(a), emphasis in opinion). The statute was subsequently amended to define a nonparty as “‘a person who caused or contributed to cause the alleged injury, death, or damage to property but who has not been joined in the action as a defendant.’” Id. at 338 (quoting I.C. § 34-6-2-88, emphasis in opinion). Drawing on the change of statutory definition, the court rejected Pica’s argument that “‘[i]n naming a person as a nonparty, it is implicit that some legal duty must exist as to the plaintiff.’” Id. The court found that the amendment to the definition of ‘nonparty’ specifically excluded the concept of liability to focus instead on causation. Id. Thus, the court concluded that “whether or not the nonparty may be liable to the plaintiff is no longer a consideration.” Id.

The upshot is that a person who is at fault but who is, nevertheless, not potentially liable to the plaintiff can be named as a nonparty, relieving the named defendant of liability for those damages that were not the defendant’s fault even if it means that the plaintiff might not obtain a full recovery.

 

Fear & Loathing of the Poor

by 3 Comments

Earlier today, I saw a meme knocking on people who need public assistance because they probably use drugs. The particulars don’t matter a lot – it’s just a jumping off point that reminded me of how often we seem to need to blame poor people for their condition. I think we do this for basically two reasons: 1) fear of becoming poor ourselves; and 2) unhappiness with ourselves for not being more helpful.

By making poverty a moral failing, we can at some level convince ourselves that if we just work hard and play by the rules, we’ll keep ourselves out of poverty. This isn’t entirely irrational. We can hedge our bets to a great extent. But there are a lot of factors way beyond our control, and that’s scary. So, there is a reluctance to acknowledge the structural causes of poverty that could come for us some day. Best to pretend that people who are poor got that way by making bad decisions that we’d never make.

The unhappiness with ourselves for not being helpful is perhaps inevitable to a certain extent. The needs of the poor are well beyond any of our individual ability to remedy completely. Very few of us are willing to take an oath of poverty and live in rags on the street and, even if we did, our personal effort would just be a drop in the bucket. We all draw the line on how helpful we’ll be in one spot or another that comes up short. And that leaves us feeling lacking — even if we’re not engaging in particularly blameworthy behavior. I wish I could remember where I read this — I thought it was Dostoyevsky, but I’ve never been able to find it; in any case, there was an author who suggested that we hate people not for what they do to us, but for what we do to them. And it’s this dynamic that arises when we see poverty that we don’t address while we’re enjoying our overpriced coffee or whatever. That feeling is mitigated when we re-imagine the poor as undeserving.

I’m not suggesting any fixes to poverty here. Just advising that, when you see negative characterizations of the poor, try to evaluate how based in reality those sentiments might be versus whether there is some kind of psychological projection at work.

The mark of the immature man

by Leave a Comment

So, yesterday, I posted a call-back to my suggestion regarding firearm insurance. Today, it’s a call-back to an admonition to live humbly. Mass shootings have happened enough that I mostly don’t have any more original thoughts on the subject. I tend to think that the sheer volume of firearms mostly explains why other countries don’t have the same struggles we have in this area. But, a cultural attachment to pride might be another part of it. In the Catcher in the Rye, JD Salinger wrote:

The mark of the immature man is that he wants to die nobly for a cause, while the mark of the mature man is that he wants to live humbly for one.

As I said last time:

This quote is from J.D. Salinger’s “The Catcher in the Rye.” I didn’t much care for the book in general, but that quote stuck with me. In fact, it was the subject of discussion in a college English class. It made me surprisingly indignant; I suppose because it belittled as immature things that I supposed to be heroism — going out in a blaze of glory, and all of that. Oddly, I felt like something was being taken away from me even though I had no immediate plans in that direction. In retrospect, I was (as Krusty said of Sideshow Raheem) an angry, angry young man.

The emotional fires of adolescence have cooled, so it’s easier for me to regard this vision of maturity in a positive way. The most recent massacres in Florida is Ohio and Texas are what brought this to mind again. But, it has broader application outside of the gun debate. As a culture, we seem to celebrate dying nobly a whole lot more than we celebrate living humbly even though the latter is generally more beneficial to society over the long term. It’s tough to live humbly though. There’s no particular glory in it. It means grinding out small gains over the long term in a universe that is vast, apathetic, and frequently arbitrary. That certainly does not have the emotional punch of being the bright star of a short but exciting story where you are heroically battling the evil arrayed against you — or at least taking decisive revenge against those who have wronged you. But, ultimately, living humbly is the right thing to do. We should make more of an effort to value and celebrate those who do it well.

 

30th Class Reunion

by 4 Comments

My 30th high school reunion was this weekend. Richmond High School Class of ’89. I won’t go into an extended meditation on the subject. (I mostly did that for my 25th reunion.) But, I’d recommend going to these things. People are, for the most part, just people, and you come to recognize that the folks you knew in high school mostly aren’t the caricatures that maybe you’ve built up in your head. (Although, there are a handful of people that remain stubbornly disagreeable.) My sense is that, by understanding the people you grew up with a little better, you come to understand yourself a little better. And, as I mentioned after 25 years, in a sense, it’s a chance to visit with your younger self a little bit.

Anyway, have a picture.

Mandatory Firearm Insurance Re-revisited

by 4 Comments

After Sandy Hook, I wrote a blog post with the modest proposal for mandatory firearm insurance. There is a cost of firearm ownership imposed involuntarily on innocent third parties in the form of their injuries and deaths. Injuring or killing someone is a statistically unlikely event for any given firearm but one with high costs when it does happen — costs that you don’t see at the same level in other Western countries without our abundance of firearm ownership.

I envision something with strict liability that runs with the weapon — your firearm injures someone, your insurance policy pays. I think there would be some kind of cap on an individual policy and then, something like the medical malpractice system in Indiana where a state fund pays out for damages in excess of the individual limits. I would also suggest a tax on firearm dealers and/or manufacturers with different rates based on type of firearm and the experience of that particular dealer/manufacturer. If the guns you sell don’t often wind up being used to kill or injure people, you wouldn’t pay so much. If your shop somehow winds up with a lot of guns being used for criminal activity, you’re going to have to pay more. (A bit similar to the unemployment system. If you end up firing a lot of people, you pay more into the unemployment system.)

This is the relevant portion of what I wrote at the time:

We mandate liability insurance for cars. Why not for firearms? Bring market forces to bear on this issue. More firearms make things safer? Insurance rates will go down (if true).

Anyway, what I envision is a requirement that a firearm owner obtain liability insurance that covers injuries caused by that particular firearm. (Runs with the weapon – provides an incentive for people to secure the weapon in a way that ensures, for example, kids don’t have access to the weapon.) I would also envision a policy surcharge used to subsidize coverage for uninsured losses, treatment of mental illness, enforcement of existing regulations, and safety education efforts.

 

 

One Treasury, Multiple Elected Officials – Things Get Murky

by Leave a Comment

Marilyn Odendahl, writing for the Indiana Lawyer, has an article on the latest maneuverings in the Curtis Hill sexual harassment case. The Indiana House of Representatives and Senate have fi

Let’s you and him fight.

led motions to use their own counsel and to intervene in the lawsuit. The Plaintiffs have sued the State of Indiana and the Attorney General to answer for their acts and omissions with respect to Hill’s alleged groping and the response by the various parts of state government. The Plaintiffs have sued the state as a whole which makes some sense but which also puts the House and Senate in a bind. They may or may not have done enough, but their culpability seems to be a lot less obvious than Hill’s based on what we know at the moment, and while there are some checks and balances, the General Assembly does not have the ability to directly alter the Attorney General’s behavior in an employment context. With a normal corporation, if one employee is mistreating another employee, there is going to be a Board of Directors or some ultimate authority who can take corrective action. With a governmental entity, you have multiple elected officials connected by one treasury but no ultimate authority to oversee them.

Additionally, the fact that the Attorney General is responsible for defending them under normal circumstances creates an obvious conflict in this case. Because Hill is personally involved, it could create a situation where short-changing the legislature’s defense strengthens his own. From the Indiana Lawyer article:

The briefs supporting the House’s motion and Senate’s motion argue that as the employers of [the plaintiffs, the legislative]  chambers are the proper defendants in the Title VII claims. . . . Also, in a footnote, the House and Senate claim they have Article III standing. They assert if the plaintiffs are awarded monetary and injunctive relief on their Title VII claims, they would suffer injury-in-fact because they would be responsible for the compensatory damages.

Relatedly, the House and Senate argue they have a sufficient interest and should be allowed to intervene since they could be liable under Title VII. However, both chambers seek to distance themselves from Hill’s alleged misconduct by maintaining they are liable only if they were negligent in responding to the harassment. Also, they assert they have no control over the Attorney General because he is an elected official of the executive branch and not an employee of the Legislature.

Having one defendant pointing fingers at another defendant can often be useful for a plaintiff. It’ll be interesting to see how much the legislative chambers’ motions to intervene are contested and how the court sorts it out.

Flashback: 40th Anniversary of the Moon Landing

by Leave a Comment

Yesterday, I posted some thoughts on the occasion of the 50th anniversary of the moon landing. Apparently I also had some thoughts on the 40th anniversary, among other things potential parallels between European exploration — is our space program more like Leif Ericson or more like Prince Henry the Navigator:

One question I remember from history class was the one of why the Norse didn’t end up colonizing North America. They simply didn’t have the population, technology, or other resources necessary to sustain the effort. Prince Henry, on the other hand, devoted a substantial amount of resources on behalf of Portugal to explore the African coast and ultimately find a route around Africa to the Pacific. Eventually they had Dias rounding the Cape of Good Hope, da Gama making it to India, and Portugal benefiting from the spice trade for years to come. The European gold rush that followed has shaped the world to this day.

It may be that we don’t have the resources to sustain space exploration. It may be that there is no outer space equivalent to the profits from the spice trade. But, I’ve always been of the mind that we ought to figure out the whole space colonization thing so that, when we inevitably screw up this planet irretrievably, the human race has some options.

In any event, last night the kids & I went and paid our respects to Neil on the Purdue campus.

Moon Landing – 50th Anniversary

by 2 Comments

Apollo 11 launch (artist’s impression)

Today marks the 50th anniversary of the moon landing. I grew up in the shadow of that achievement. I was born about two years after the landing and about a year before the last moon landing in 1972. But, even after the moon landings, we had Skylab and the space shuttles. Tang and Star Wars. “As seen on TV” commercials would breathlessly tout that their products were made from “space age polymers.”  In the mid-70s, my Dad had a farm out in the country. When I’d stay there on the weekends, sometimes my step-brother & I would sleep outside. Satellites were still rare enough that we’d get excited pointing them out as they crossed the sky. (“It’s moving, so it’s not a star. It’s too high up to be an airplane. It’s a satellite!”)

I’d always had a healthy respect for the space program, but when the HBO miniseries “From the Earth to the Moon” came out, I was at an age where I could more fully appreciate just what we had accomplished. The audacity and complexity of the undertaking were firmly impressed upon me. What’s more, having a pretty good background in history, I had a more nuanced appreciation for the wonder of it all. Sure, when I was a kid, there was definitely a “wow” factor. But meeting Fleegle from the Banana Splits at King’s Island was pretty cool too. For millennia, humans had been staring up at the moon, telling stories to themselves about it. Only in recent centuries have we had a correct understanding of what the moon was and how it traveled in space around the earth. And I have the good fortune to be born within a couple of years of when we figured out how to throw some guys into a can, launch them beyond the Earth, and with computing power that would be laughable in a telephone these days, manage to land them in a spot 240,000 miles away and bring them back again. That is phenomenal.

Remember back when the future was great? We need to make the future great again. We need to fill our kids with a sense of hope and wonder instead of existential dread and despair. We need to commit ourselves to a cause that’s larger than ourselves. This need for a cause to unite and motivate us is not unique to our time. However, way too often war is the only cause that seems to rally a people together. I’ll scream bloody murder if my tax dollars are taken from me in order to feed a guy who is sitting in his trailer feeding his opioid addiction; but, take my tax dollars so the same guy can go get killed while trying to shoot some foreigners and I’ll regard it as my solemn duty. Ultimately, in practical terms, both the addiction and the war are a waste. Far better if we had neither to begin with. Far better if we could avoid war and battle the sort of listless ennui that makes people feel hopeless by collectively getting our shoulders into a project that’s God Almighty huge. We have the technology, we have the people willing to work. People are willing to sacrifice when they are convinced of the cause. What we lack is something productive to do. We — or at least too many of us — lack purpose.

The question is, what can our generation do that gives young people today the same sense of hope and wonder that Armstrong, Aldrin, Collins, Kennedy, Johnson, and the whole Apollo 11 team gave us? If we don’t come up with something, I’m pretty sure it’s going to be a war of some sort that comes along and fills the void. We need to make the future great again.

I See Dead People: Charter Schools in Indiana

by 6 Comments

This should probably be a hearse.

The joke is that dead people vote in Chicago. Apparently they go to school in Indiana. Stephanie Wang, reporting for Chalkbeat Indiana, has an article about the Indiana Virtual School and Indiana Virtual Pathway Academy which, among a number of other abuses, kept a dead kid on their claims for state money for two years after he died.

Five years after two students moved to Florida, they reappeared on enrollment records for Indiana Virtual School and its sister school.

And nearly every one of the more than 900 students kicked out of Indiana Virtual School and its sister school in the 2017-18 school year for being inactive were re-enrolled the next school year, included in per-pupil funding calculations that netted the two online schools more than $34 million in public dollars last year.

These were among the ways that Indiana Virtual School and Indiana Virtual Pathways Academy allegedly inflated their enrollment to at least twice its actual size, according to the findings of a state examiner’s investigation released Monday.

Definitely click through to see the whole article. If the allegations in there are true, someone should go to jail. Heads would roll if this was a public school manipulating its Average Daily Membership (ADM) in this fashion. The virtual school superintendent responded by reminding everyone that these weren’t great students and also freedom.

In a written response to the state education board, Clark did not address the enrollment discrepancies but defended the online schools for serving “last-chance students” who have dropped out of or been expelled from traditional public schools — even if they weren’t active.

He accused state education officials of trying “to remove educational choice and force students to remain in school environments in which success has evaded them and where hope has abandoned them.”

“The beacon of hope has just been doused,” Clark concluded.

Also, I’d add that if you make public money for voucher schools contingent on providing actual services to actual students then the terrorists win. Obviously.

There are studies that suggest that, with rigorous oversight and a generally solid public education system, charters can sort of work a little bit. That is not at all the route Indiana is going. Subsidizing religious schools, busting teacher’s unions, and diverting public money to friends and well-wishers does not require that sort of oversight. So, we’re not likely to get it.

[Edit: I improperly used the word “voucher” in the title, edited to reflect that these schools were charters. As the article points out, “Daleville Community Schools, the rural district that oversees Indiana Virtual School and Indiana Virtual Pathways Academy . . . receives 3% of the virtual charter schools’ state funding, a fee for monitoring the schools that amounted to about $1 million last year.”]