Utah Wrongful Death Statutes Allow Woman to Sue Self

woman sues self for wrongful deathIt may sound like the plot to the newest movie to be considered for an award for “Best Comedy,” but the Utah case of Bagley v. Bagley, wherein Barbara Bagley is suing herself is very real. The case was dismissed in January of 2014 in district court, but it was taken to the Utah Court of Appeals, which found on Feb. 12 that the survival action and wrongful death statutes do not bar Bagley from suing herself regarding the accident that killed her husband.

Bagley Accuses Self of Wrongful Death

According to a report from the Salt Lake Tribune, on Dec. 27, 2011, Bagley and her husband were driving their Range Rover in the desert 17 miles east of Battle Mountain, Nevada. Mrs. Bagley was behind the wheel of the vehicle when she hit a large sagebrush. It is unclear if Bagley attempted to avoid the sagebrush, but whatever the reason, the Range Rover flipped upside down and ejected her husband. The 55-year-old suffered severe injuries and died a little over a week later—Jan. 6, 2012—at the Battle Mountain General Hospital.

As the heir and personal representative of the estate of her late husband, Bagley is suing herself as the driver of the vehicle for the wrongful death of her husband. Bagley’s original suit claimed that she was negligent for failure to maintain a proper lookout for potential obstacles in the road as well as failure to keep her vehicle in proper control.

The interests of the driver Bagley are being representing by her insurance carrier. The estate Bagley is suing driver Bagley for an unspecified amount of money for damages, including medical expenses, funeral expenses, loss of past and future financial support, the physical pain her husband suffered before he died, and her mental anguish at the loss of his love and companionship.

Can She Really do That?

In January of 2014, Third District Judge Paul Maughan dismissed the case, stating that “the language of the wrongful death and survival action statutes prevents a tortfeasor from seeking recovery from herself and that the plaintiffs therefore could not bring suit against the defendant.”

However, in a 3-0 ruling, the Utah Court of Appeals stated that those statutes do not in fact bar Bagley from seeking damages against herself. The question came down to semantics, specifically the definition of the phrase “of another” in the two statutes.

The wrongful death statute reads as follows: “When the death of a person is caused by the wrongful act or neglect of another, his heirs, or his personal representatives for the benefit of his heirs, may maintain an action for damages against the person causing the death.”

The survival statute reads: “A cause of action arising out of personal injury to a person, or death caused by the wrongful act or negligence of another, does not abate upon the death of the wrongdoer or the injured person.”

According to attorneys for the driver Bagley, the heirs or personal representatives cannot sue themselves if they were the cause of the death or personal injury. However, the appeals court found that “of another” simply meant someone other than the deceased or injured party.

Attorneys for the estate Bagley claim that as a responsible heir and personal representative for the estate, she really had no other choice than to initiate the lawsuit against herself, saying that she is legally obligated to pay off creditors before she could get any money from the estate.

On the other side of the issue, attorneys for driver Bagley say this would cause confusion to a potential jury. “The jury would be asked to determine how much money will fairly compensate Barbara Bagley for the harm she caused herself,” the attorneys stated in a motion to dismiss the suit. “The jury will be highly confused—it cannot order a person to compensate herself.”

However, it wasn’t the job of the Utah Court of Appeals to decide the final outcome of the litigation, just whether it should be allowed to proceed according to the wrongful death and survival action statutes. Their decision was to “reverse the dismissal of plaintiffs’ causes of action and remand for further proceedings.”

Even though that was their finding, they mentioned other legal issues which may ultimately affect the outcome of Bagley v. Bagley and other potentially similar future cases involving the wrongful death statutes. The first was in regards to heir Bagley also being appointed the personal representative for the estate. A Utah law regarding estates does not allow for spouses “alleged to have contributed to the death of the decedent” to be appointed personal representatives. However, that issue was not before the court. Nor was Utah’s comparative fault statute brought up in either the district of appeals court. This statute limits the ability of the plaintiff to recover when they bear some fault for the death or injury.

As of Tuesday, Feb. 17, attorneys for driver Bagley hadn’t made a decision as to whether they were going to appeal to the Utah Supreme Court.

Threat of Terrorism Charge for Man Threatening Provo PD

Threat of terrorism to Provo PD

Photo: Fabexplosive/Wikimedia Commons

Between Tuesday, Feb. 17 and Friday, Feb. 20, three men and one woman were arrested after allegedly making threats against the Provo Police Department. One of the men was charged with a threat of terrorism.

Don’t Write it if You Don’t Mean it. Or Maybe Just Don’t Write it.

According to KSL News, the incident that set the stage for the threat of terrorism charges was the fatal shooting of Cody Evans, 24, of Springville, on Sunday, Feb. 15. A Provo police officer and a Utah County sheriff’s deputy shot and killed Evans after he pointed what they believed to be an assault rifle at them. It was later determined that Evans had two different pellet guns.

The same day Evans was killed, “concerned citizens” reported to Provo police that they had seen several threatening messages on social media, including one that read: “To provo pd. Beware of c4 and dat 50cal … I’m fed up yall killin my homies, im killin u!” Provo police said “c4” was in reference to “an explosive that has the capability to cause mass casualties and substantial property damage.” This is where the threat of terrorism comes into play.

On Tuesday, Feb. 17, Brandon Stacy West was arrested after attempting to purchase a firearm. West wasn’t the poster of the comments, however, the attempted purchase went against his probation, and he allegedly had spoken of “retaliation.”

The poster of the comments, Michael Leon Angus, also reportedly referred to a “Fletcher” and asked who else was “down to ride on these pigs,” to which Jacob Fletcher responded, “You know I am …”

Police arrested Fletcher on Wednesday, Feb. 18, on multiple felony warrants. Lindsay Parker, 25, made the third suspect to be arrested. Parker had been with Fletcher for several days, including driving him around the day they were arrested. She admitted in a police affidavit that she knew Fletcher was on the run. In addition to obstruction of justice, Parker was booked on several drug charges.

Angus was the last link in the chain, and he was arrested on Friday, Feb. 20, and booked on investigation of a threat of terrorism. In a statement released by the Provo Police Department, Angus “admitted that he had posted threatening comments about Provo police officers, but claimed he was just upset and did not intend to do anything.”

Threat of Terrorism Seriousness Depends on Circumstances

According to Utah Criminal Code 76-5-107.3, a threat of terrorism can range from a class B misdemeanor to a second degree felony. The misdemeanor would be “if the person threatens to commit any offense involving bodily injury, death, or substantial property damage,” and cause “an official or volunteer agency organized to deal with emergencies to take action due to the person’s conduct posing a serious and substantial risk to the general public.”

In the case of Angus, the fact that he mentioned the C4 explosive jumped the charges up to a second degree felony, punishable by up to fifteen years in prison and a fine of up to $10,000, because he threatened to use a “weapon of mass destruction” as defined in Utah Criminal Code 76-10-401.

This is not to say that Angus didn’t have a right to be upset, however, the lesson is to be aware of how you vent such strong emotions. Putting them in writing on the Internet is not the way to handle it. If you or someone you know has been charged with a threat of terrorism, don’t leave fate in the hands of a public defender. Be sure to contact an experienced criminal defense attorney.

Capital Punishment Continues to Draw Lines in the Sand

capital punishment draws lines in the sand

Photo: CA Corrections/Wikimedia Commons

In the wake of multiple botched lethal injection executions over the past year—including those of Clayton Lockett in Oklahoma, Dennis McGuire in Ohio, and Joseph Rudolph Wood in Arizona—the practice of capital punishment is being brought under the microscope in a way that it hasn’t been perhaps since its inception.

On Feb. 9, the American Bar Association House of Delegates passed two resolutions, both focusing on a seeming overall stance that capital punishment isn’t something to be administered lightly. According to the ABA Journal, Resolution 108A calls for a unanimous jury decision before imposing the death penalty anywhere that capital punishment is legal—including the U.S. military. In addition, Resolution 108B calls for “open and transparent” disclosure of execution protocols as well as public comment on any new protocols and disclosure of all relevant information.

This latter resolution would seem to address previous cases of death row inmates requesting more information on the drugs that would be used to execute them. The U.S. Supreme Court walked away from one such case, that of Joseph Rudolph Wood, with egg on their face after lifting a stay of execution requested by Wood so he could get such information. It took Wood nearly two hours to die, during which it was reported by his lawyers: “He has been gasping and snorting for more than an hour . . . He is still alive.”

Currently the Supreme Court has another case pending, Glossip v. Gross, wherein four Oklahoma death penalty defendants have challenged the state’s use of midazolam in lethal injection, claiming the drug lacked the necessary pain-relieving qualities. Of the four defendants, Richard Warner, was not granted a stay of execution and was put to death on Jan. 15. The other three defendants were granted their stays on Jan. 28.

Amidst this controversy, states where capital punishment is still allowed are making headlines with different approaches to try to remedy the situation, including Oklahoma where the Glossip case is pending, Utah, and Pennsylvania.

Oklahoma Reconsiders Gas Chamber

Many of the problems with lethal injection as the preferred method of capital punishment have arisen as a result of the fact that suppliers of the traditional three-drug combination used for execution have started deciding that they no longer are going to sell their drugs for that use. As a result, many states are having to seek alternative drug or drug combinations, some of which have yet to be approved by the FDA.

In addition to the lack of pain-relieving properties of midazolam, according to a Law.com report, an anesthesiologist testified that the drug has a “ceiling effect,” a point at which the drug saturation in the body may not be able to continue keeping the person completely unconscious.

The ABA Journal reports that in the midst of Glossip v. Gross, Oklahoma officials have conceded that midazolam is not the preferred drug for execution. However, taking it a step further, two bills are in Oklahoma legislative committees to use nitrogen gas to carry out the capital punishment as a backup method if the state’s current method is found unconstitutional.

As opposed to traditional gas chambers which use drugs such as cyanide, breathing nitrogen would lead to hypoxia, a depletion of oxygen in the bloodstream. One of the bill sponsors, Rep. Mike Christian called the practice “a lot more practical,” “efficient,” and “painless,” saying it is similar to what can happen to pilots at high altitudes.

Currently four states allow lethal gas for capital punishment—Arizona, California, Missouri, and Wyoming—but only as a secondary method to lethal injection, and no state has ever used nitrogen or another inert gas to create hypoxia.

As Oklahoma law stands now, their secondary method of execution is the electric chair, and the firing squad is the third option. However, Christian is considering amending his bill to include eliminating the electric chair as an option.

Utah Reconsiders Firing Squad

Even though Utah has only executed seven men since 1976, as a state where capital punishment is still legal, they are facing the same dilemma as Oklahoma. If the practice is found unconstitutional, what do they do next? While not considering the gas chamber, the state is closer to reinstating the firing squad.

According to an article in the Salt Lake Tribune, on Feb. 13, the Utah House of Representatives passed HB11 reinstating the firing squad as a secondary means of carrying out the death penalty. The bill passed 39 to 34, with 38 votes being the minimum to pass the House. The bill, sponsored by Rep. Paul Ray, will now move to the Senate.

This bill would bring back the firing squad as an option, something which was eliminated from Utah law in 2004. Opponents to the legislation claim that it disproportionately affects minority communities and is more barbaric than lethal injection.

Minority Leader Brian King argued not so much against the firing squad as he did against capital punishment in general, stating that death penalty sentences result in higher costs for the state than life terms in prison and that states with the death penalty actually have a higher murder rate than other states.

Pennsylvania Governor Says “No” to Capital Punishment

Also on Friday, Feb. 13, Pennsylvania governor Tom Wolf stated that he is putting a stop to all scheduled executions until he has a report from a task force on the matter.

According to the ABA Journal, while Wolf says he believes that the guilty should be punished and is still sympathetic to crime victims, he called capital punishment “a flawed system that has been proven to be an endless cycle of court proceedings as well as ineffective, unjust, and expensive.”

Opponents to Wolf’s decision, including prosecutor and police organizations, are strongly criticizing the action. The Pennsylvania District Attorneys Association called his decision “a ploy” and “a misuse of power” and said he was disregarding a long line of people—including juries and judges—who didn’t take the decision to impose capital punishment lightly.

However, Wolf has supporters in the decision as well, including in some cases, relatives of murder victims. Some have reiterated the cost factor of capital punishment as well as the fact that it has often been discovered posthumously that innocent people were put to death.

While the future of lethal injection is uncertain, it would seem that the decision by the Supreme Court regarding Glossip v. Gross will most likely set the stage in the 32 states that still allow capital punishment to make moves similar to those seen in Oklahoma, Utah, and Pennsylvania.