PENNSYLVANIA LEGAL UPDATE

FALL 2003 ISSUE

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LIABILITY FOR THE CARELESS DRIVING OF OTHERS

Are owners of cars liable when they loan their cars to someone who then drives negligently? Are husbands liable for the careless driving of their wives? Mothers for their sons? What if the negligent driver is drunk or does not have a valid license?

Duty of Care

While many people feel morally obliged to look out for the safety and welfare of others, the law has for centuries embraced the fundamental premise that the mere knowledge of a dangerous situation, even by one who has the ability to intervene, is not sufficient to create a duty to act. Before a person can be held legally liable for another person's injuries, the law looks for a reason why a duty of care may be imposed. Without a legal duty of care, no legal liability for negligence exists.

Husbands, wives, sons, and daughters may share their lives and their households but they do not share liability for each other's negligent driving. Even if a parent or spouse has given another family member permission to use a car, and even if the parent or spouse is the title owner of the car, and even if the car is on a policy of insurance with other family cars in the parent's or spouse's name, the parent or spouse has no automatic liability for the unexpected negligence of the driver. Similarly, loaning a car to a friend does not make you liable for the friend's unexpected negligent driving.

Negligent Entrustment

Car owners or family members can be held liable if they negligently loan a car to someone they have specific reason to know may drive carelessly. Handing the keys to your intoxicated son or making your car available to your spouse for an evening of illegal drag racing on a public road are obvious examples of negligent entrustment. If you carelessly ignore any facts that clearly tell you that a friend or family member is not in the proper physical condition to drive or has specific intentions to drive dangerously, you can be held liable.

In addition, serving alcohol to minors is a crime and is a sure route to exposing yourself to liability to others. Anyone who knowingly serves alcohol to a driver under the age of 21 is liable to persons injured by the minor's negligence while driving under the influence of alcohol.

Passenger Liability

The liability of passengers is limited. Merely being present in a car with a negligent driver is not enough to make a passenger liable to others. Even driving with an intoxicated person does not make a passenger liable to others who may be injured by the dangerous driving of the driver. A passenger is liable to others only if he or she actually assists or encourages the driver to engage in unsafe behavior.

Passengers are held somewhat responsible for insuring their own safety. When a passenger knows or has reason to know that the driver may be intoxicated or otherwise unfit to drive, the passenger may be unable to recover damages for his or her own injuries. A passenger who rides with an intoxicated driver may suffer a reduction or complete elimination of the right to damages, since riding with an impaired driver may constitute assumption of the risk or contributory negligence. Central to the inquiry is whether the passenger was actually aware of the dangers.

If you loan a car to someone who you know to be unlicensed or unfit or unlikely to drive safely, you can be held criminally liable. The Pennsylvania Motor Vehicle Code prescribes fines and sanctions for such careless conduct. Liability for damages to others in civil lawsuits is part of the criminal sanction--if you violate the Motor Vehicle Code by loaning a car to someone who is unlicensed or unfit, you are responsible for the injuries caused to others.

If you are injured by a negligent driver, consider promptly investigating the circumstances of his or her driving. You may be able to pursue an award of damages against someone other than the careless driver.







WORKERS' COMPENSATION LAWSUITS BY CHILDREN

When a child is entitled to sue someone, he or she must do so through a suit brought by a parent or a guardian. Children do not have the capacity to sue on their own. The attorney retained by the parent or guardian is ethically obliged to protect the child's interests but is technically the adult's lawyer. When such an attorney or the involved adult thinks it appropriate, or when the court chooses to do so, the court can appoint a separate attorney for the child.

An attorney who is court appointed to represent a child is generally called a "guardian ad litem." A guardian ad litem investigates the child's claims, reports to the court, and acts with a particular focus on the child's best interests.

Lawsuits, including those by and for children, are subject to statutes of limitations. A statute of limitations is a legal rule that limits how long you can wait before filing a lawsuit. Generally, the statute of limitations in a personal injury claim is two years. Many exceptions apply. When a child is injured or has a claim and is entitled to file a lawsuit, the statute of limitations does not start to run until the child is 18. Recently, the Pennsylvania Supreme Court recognized an important exception to this extension of the statute of limitations.

In the case before the court, a father died from work-related injuries in 1985. Workers' compensation benefits were paid to his widow and minor son for approximately 8 years, until the widow died and the minor son turned 18. Later, 13 years after the man's death, another woman filed for workers' compensation benefits, claiming that she was the mother of another child who was the deceased worker's son. She also claimed that her son was entitled to wait until after his 18th birthday to start his claim for benefits since statutes of limitations for personal injuries are "tolled," or do not run, during a child's minority.

The Supreme Court of Pennsylvania disagreed, finding that workers' compensation cases are different from ordinary personal injury suits. Because workers' compensation claims are part of a detailed statute that provides for unique procedures and remedies, the court ruled that the time limits of the workers' compensation statute must be followed by all claimants, even children.







SPECIAL EDUCATION FOR DISABLED CHILDREN

Federal education law guarantees that all mentally and physically disabled children must receive a "free appropriate public education." In return for federal funding for disabled students, states must comply with various federal regulations. Federal law also requires states to educate disabled children in the same classroom with children who are not disabled whenever possible. This requirement is commonly known as "mainstreaming."

Rules and Regulations

The centerpiece of the federal regulations is the "individualized educational program" (IEP). An IEP is a written education plan tailored to a child's particular needs that results, in part, from a multi-disciplinary evaluation (MDE). An MDE is an evaluation performed by a team to determine whether a student suffers a disability and qualifies for special education services. Parents are entitled to be informed about and have input into the MDE and IEP.

Every disabled child is entitled to an IEP. The IEP must include, among other things, a statement of the child's current level of educational performance, an identification of the annual goals for the child, a list of the specific educational services to be provided, and a decision as to whether the child will participate in regular educational programs. A disabled student is entitled to a free appropriate public education between the ages of 3 and 21. An IEP can include both early intervention services prior to kindergarten and free educational services beyond the 12th grade.

Due Process Hearing

Parents who object to their child's IEP may request a "due process hearing," which is conducted by an appointed education hearing officer. Parents who remain dissatisfied after the hearing officer's review can further appeal the hearing officer's decision to an education department appeals panel. The law requires that the hearing must be concluded and a final decision be issued not later than 45 days after the receipt of a request for a hearing. Federal regulations also insure that the appeals panel must reach a formal decision not later than 30 days after the receipt of a request for a panel review. State and federal law allow a party aggrieved by the final appeals panel decision to sue in court.

Time Limits?

Federal judges have held that while hearing officers and appeals panels have the power to continue hearings when necessary, the federal time limits for the issuance of decisions are mandatory and must be followed. Nevertheless, parents litigating IEPs generally find that the hearing and panel review process is rarely completed within the time established in the federal guidelines. More importantly, parents who remain dissatisfied and who sue in court usually spend at least a year in the process.

One federal judge has observed that "a final judicial decision on the merits of an IEP will in most instances come a year or more after the school term covered by that IEP has passed." In the meantime, parents who disagree with the proposed IEP are faced with a choice: Go along with the IEP to the detriment of their child if the IEP turns out to be inappropriate, or pay for private education to get what they consider to be the appropriate placement.

When either a hearing officer, appeals panel, or a judge finds that a child has not received adequate and appropriate public education services, tuition reimbursement may be awarded if the child's parents have already paid for private education. But parents who unilaterally enroll a child in private school during the administrative proceedings do so at their own risk. Tuition reimbursement is justified only if the proposed IEP was inappropriate.

In addition to or separate from an award of private school tuition reimbursement, parents also can receive "compensatory" education for a child--services that extend beyond the regular school year or beyond the child's achieving the age of 21. Parents who successfully litigate also may be entitled to reimbursement for attorney's fees. In extraordinary circumstances, parents may be entitled to an award of monetary damages.







PSYCHOLOGIST DISCIPLINED FOR MISCONDUCT

A Pennsylvania court recently upheld the discipline of a psychologist by the state Board of Psychology. In this case, a psychologist was disciplined for evaluating a four-year-old child whose custody was in dispute. The psychologist did not have the permission of both parents to conduct any evaluation. He was authorized only by the child's mother. The psychologist met with the child twice and also met with the mother and stepfather, but he did not meet with the father.

At the outset, the psychologist told the mother's lawyer that he would not conduct any evaluation without the permission of both parents. Despite the fact that he never received any confirmation of permission from the child's father, he met with the child. When the child's father discovered that the second evaluation commissioned by the mother was underway, he telephoned the psychologist, objected to the evaluation, and directed the psychologist not to meet with the child. The psychologist met with the child on one final occasion after the father's telephone call. After receiving a written directive from the father, the psychologist stopped meeting with the child but did testify in court regarding his opinions.

The Board found that it was unprofessional and a departure from the standards of acceptable practice for the psychologist to evaluate a four-year-old child without permission from both parents. Although none of the Board's rules contained in its Code of Ethics directly addresses just how and when a psychologist can evaluate children, the Board decided that psychologists should refrain from evaluating children unless both parents are clearly in agreement. In the rare case where a parent does not enjoy legal custody, a psychologist may be entitled to evaluate a child without that parent's permission.







BEWARE OF IDENTITY THEFT

Sophisticated thieves have almost unlimited means of stealing names, Social Security numbers, credit-card numbers, and other credit information. Within hours of such thefts, the thieves may manage to purchase expensive consumer goods, open cell-phone contracts, and secure new credit cards. If your identification is stolen or misused or if your wallet is lost or stolen, you should act quickly to protect yourself. One thing you can do right now to help is to copy the front and back of all of your credit cards so that you have the creditors' toll-free numbers and your account numbers handy. Without this information, reporting the theft of your cards can be difficult and time consuming.

Report any identity theft to the police so that you have a record of your prompt report. If your identity or personal information is stolen, also consider contacting the three national credit reporting agencies to put a fraud alert on your name and Social Security number. This fraud alert may make processing your credit cumbersome in the future since creditors will later look to you for guarantees that you are who you claim to be. But placing a fraud alert means that any company that checks your credit will know your information was stolen--a valuable means of curtailing the illegal use of your identity. The three national credit reporting companies can be found at Experian.com, Equifax.com, and Transunion.com, and each publishes toll-free fraud alert numbers on their websites.

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Updated March 22, 2005
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Email: cee@eabylaw.com

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