Ask Our Lawyer – July 2020

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

CAN A PARENT SIGN AWAY A CHILD’S RIGHTS? 

Can a parent sign away a child’s rights?  Good question.  Let’s start by saying if a parent can’t, who can?  Interestingly, a judge must sign off and approve “minor settlements” over a certain amount, as a minor’s settlement is required by most states.  But what about a waiver?  The general rule has been that a parent can sign a waiver, but is that waiver valid, especially since the Supreme Courts of many states, including Indiana, have not ruled on that question.  One could say that the parents have waived their right to contest the waiver that they signed, but what about the minor?  Especially the minor who has serious injuries?  Case law in most states cloaks parents with significant authority to sign for a child.  Common law allowed that.  By law a parent is a guardian of the child. So my answer to the above question is still yes until some Supreme Court says, “ hold up a minute”.  And for now it is the best we can do.

Your second question:  How do you prove signature and the facts of parental authority?  A notary requirement would give the process a formal element and perhaps quell any thought that the signature was a mere formality and didn’t amount to much – hence the rationale for a misrepresentation.  Language on the waiver that requires the parent to swear that he has the authority to sign the waiver would give most a pause before swearing to something that is not true.  Notice that I said “most”. 

Your third question:  The minor signs the waiver, lies about his age and presents himself as an adult misleading, thereby us.  Do we take that chance? If not, how do we fix it?.  Requiring a driver’s license or other photo ID verifying age should solve this problem along with keeping a copy of the ID presented for our files should cover us.  If we have been presented with a fake ID, the law may cover us and hold that against the minor.  Maybe.

Your fourth question:  Do we accept a signed waiver of the parent without proof of parental authority other than their implied say so?  Remember the old adage -” you don’t need a waiver until you need a waiver”.  So thinking that we could hold the signer/misrepresenter to some penalty set forth in the waiver for falsely signing may not work against a claim from a minor who has suffered quadriplegia caused by ABATE negligence.  So should we think about requiring proof of parental authority to sign?  But what proof and how far do we go?  Photo ID from parents?  Copy of birth cert.?  The latter should work.  But at what cost?  And are we requiring much for a minor possibility?

As to the legal theories, Indiana has always recognized that when a child is injured there are two claims. The parents have a claim for loss of services for the child and other expenses.  And the child has a separate claim for his personal injuries.  So you can see the rub here.

UNPERMITTED RIDES MAKE US LOOK BAD

Q.  I just have a question.  Last Sunday, I was on the way to the hospital to see a terminally ill family member.  We were told we had very little time to see them before passing.  On my route I was caught in what appeared to be a poker run of bikes.  I have NO problem with this but what got me was …there was no police escort and they (were) blocking traffic.  I could not get around them for about 10 miles.  Is this legal?  If so, where do I file complaints because (it) isn’t fair! I’m thankful for the good theses runs do, but I should have had the right to pass them and get to the hospital in a timely manner….thanks for your time!

A.  I understand your complaint.  All rides organized by ABATE are permitted rides and are police escorted.  In other words, they have the blessing of the powers that be.  Special consideration is given to traffic patterns to minimize the delay caused by the ride, especially around emergency facilities.  In your case,  had that been a legally permitted ABATE ride you would have been escorted around the ride so that you could reach the hospital with as little delay as possible.  I have written about the need to make sure all organized rides conform to the law  for safety sake and the concerns you have expressed.  We are passing on your sentiments as an example of what all of us in the motorcycle community should strive to prevent.

YELLOWSTONE, US 14, AND THE BIGHORN MOUNTAINS

The Road To Paradise – Ride It Before You Die

While out in Sturgis, I had the chance to ride from there to Yellowstone and took U.S. 14.  That road was built in 1926 to get the hordes of Ford Model A’s there in good style. It goes from Chicago and follows I-90. I call it the road to paradise. If it ever had an Indian name, that has to be it.

I used to suffer under the illusion that all U.S. highways could have no more than an 8% grade. Not so! If you want a riding experience that will test your skills, ride U.S. 14 into Yellowstone. Coming from the East, cut through Sheridan, Wyoming and head to Burgess Junction. A few miles out of the Junction, you will be treated to some of the best riding and scenery God ever made as you are smack dab in the center of the Bighorn Mountains. Once you get to the top and start the down-hill slide, stop at the only rest area on the way down and take a moment to collect your skills – you will need it as old U.S. 14 gets narrower and the switchbacks get scarier. Some folks say that the Bighorn Basin was possibly the site of the greatest mammal explosion the world has ever seen eons ago. This is riding with knowledge, folks.

As you shoot into Cody on the way to Yellowstone, beaucoup campsites are reasonable and fit the bill for bikers. If you like guns, take in Buffalo Bill’s Museum. And if you don’t take in the Cody rodeo, you will be sorry. People from all over the world flock to see this All-American experience. Sitting behind us were Germans, to our left – French, and to our right were a bunch of Scandinavians. The world comes to see us there as this event underscores our American image. But if anyone would have yelled “fire” few would have understood.

As you come out of the rodeo, hang a right. It takes you straight to the Yellowstone gate. What will strike you is the size of the park. It is at least 60×70 miles so calling it a “park” is misleading as it is bigger than some states. Call ahead for campsites (I was not so smart) and live in paradise. You can be just like Jim Bridger, Kit Carson and Jeremiah Johnson for at least one night.

You can’t get enough of “Old Faithful.” It is more impressive than I imagined. Some say that it is part of a super volcano that will erupt like no other volcano has in the last few million years. When it does, they claim that ash from the volcano will go all the way to Delaware Street in Indianapolis. But don’t fret, as that is not supposed to happen for a few more million. As you leave paradise, you are joining the likes of Teddy Roosevelt and just about anybody that was somebody in the world. And they and you will say there is no other place like it. Do it and do it again, before you die.

DEALING WITH PERSONALITY DISORDERS (BULLYING) IN THE ORGANIZATION AND WHAT EVERY SMRO SHOULD KNOW ABOUT IT

Q.  Our local ABATE organization has been successful until recently. Before, all of us got along well and made a difference in achieving ABATE’s goals. Now we have a person in the organization  that is tearing the place apart with his bullying. At first, this individual seems like he is your friend: flattering, well-spoken and energetic. Then he turns one by one on his “friends” by dividing and conquering us, seemingly to get his own way. He is a master manipulator. He spreads falsehoods about those he wants to get rid of (usually those who disagree with him). Many have quit because of his “bullying.” He spreads falsehoods and when upset sets off a flurry of emails cutting his target. As volunteers, there is just so much stuff most of us are willing to take. I am concerned for our organization. To make matters worse, there are some financial irregularities that he has created. What can we do? I know there are legal remedies for libel and slander, and he can be prosecuted for theft if that is the case, but that is not the direction we want to go. Help!

– ABATE member

A.  Sounds like you may be dealing with a person who the medical professionals say is afflicted with a personality disorder. The American Psychiatric Association lists ten types (see DSM-IV-12).These types flock to not-for-profit organizations like ABATE. They are confusing and misleading in that they are usually very talented, but you should not ignore the serious disruptive effects that they can cause in your organization. Impulsive behavior, wild emotions and calculated divisiveness contribute to discord and disunity of our ABATE organizations. Disruptions by this kind of personality can be very confusing, especially in a volunteer organization.

Daily contact in not-for-profits is usually infrequent, which makes catching on to and stopping them especially difficult. Persons with this disorder usually get to where they are – by conning those above them and exploiting those below them. Typically they don’t give a damn about anybody. Their by-line is “I don’t give a f____.” This disorder is usually signaled by a history of unstable relationships outside the family and abusive relationships within the family. Usually the person has a checkered employment past as they do not make good traditional employees. Almost always the person that suffers from this type of disorder goes from treating his targets as best friends to declaring them hated enemies, bewildering and confusing those that work with the affected person.

Accompanying these types of symptoms are always extreme angry reactions and impulsiveness. Misappropriation, fiddling with the books, fiddling with expenses, pilfering, embezzlement, fraud, deception, awarding benefits to family and accusing others of doing the same are also common indicators of the bullying personality disorder.

ABATE should be on the look-out for this type of person when they join our organization. After all, we provide the perfect breeding ground where this personality type can create self-promoting turmoil. It is difficult to catch on to their ways when there is no daily contact and as such, they can comfortably ply their manipulative techniques. Usually, in the normal business situation, management catches on and the situation dies a natural death with firing. But what do we do in not-for-profit organizations like ABATE, with the person who has managed to hang on and continues to wreak havoc in the organization?

Here are some of the non-legal recommendations that I have passed on to others dealing with this issue.

Unfortunately, we are a volunteer organization, so it is tough to fire these types. If you can, you should. We are not in the mental health treatment business. Since we cannot fire, I recommend that you educate yourself and the organization as to “personality disorder” symptoms. Your description of the person touches on the classic characteristics of that disorder, so be familiar with the usual pattern of conduct that these afflicted persons exhibit. Share your knowledge with others. In recent years, many business organizations have had to develop plans to deal with this personality type. By educating your organization, everyone will have been clued into what is going on and the techniques used by this person. That takes the fun out of it for the afflicted trouble maker. Once the news is out and exposed, it is highly likely the person will leave, taking the problem along with them.

Another method is to try the straight-on approach. Control and security issues drive the person afflicted with these issues, so meet with the person and review honestly his concerns. Compliment his work where warranted. You should have others with you for these meetings. Keep it positive. If the person is salvageable, keep him with the strings you attach. If not, get rid of him ASAP. He is poisoning your ABATE well. If you cannot get rid of him, at the very least separate and assign him projects that lessen his involvement with others. Have him report to a “committee” so he cannot turn on an individual. Never let this type of person handle money for ABATE. Almost always, they steal.

If the “bully” does not get the hint, confrontation may be in order. Typically, the disordered person leaves a trail of inconsistent emails, false allegations/conversations, inflammatory accusations, bad books and puzzling math. Keep records and make “book” so that you can back up what you say. When the “bully” realizes that his methods are known, the fun runs out of his approach and the problem goes away when you have done a “HIGH NOON” on him.

Ride Safe & Free,

Rod Taylor

ABATE Legal Services

http://www.abatelegal.com 

All questions from ABATE members are answered confidentially unless otherwise authorized and only after the matter is concluded, except when authorization for publication anonymously or otherwise is given for pending matters. Remember, injured ABATE members pay only 28 ½% of total recovery motorcycle crash cases, and expenses as approved by the client. Elsewhere, you may pay 33 ⅓%, 40% or even 50% of your recovery.  In those cases, ABATE members are not charged for recovery of damage to their motorcycle, and have access to a 24-hour toll-free telephone number. Call us at 1-(800)-25-RIDER. Questions? Submit them to: RodTaylor@abatelegal.com. © 2020. 

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