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.

Iron County Prosecutors Drop Ag-gag Charges, Law Examined

Utah ag-gag charges dropped

Photo: Matthias M/Wikimedia Commons

Four animal activists who were allegedly on private property at a hog farm in Iron County in September have been released from charges of Utah’s agricultural interference law, also known as an ag-gag law. The activists will still face criminal trespass charges, and many are wondering when it comes to ag-gag laws, why trespassing charges aren’t sufficient and exactly who these other laws are protecting. In the case of many animal rights activists, they believe it’s not necessarily who is being protected but a certain type of misbehavior that is being protected.

Ag-gag in Iron County

The four activists from California and Maryland were members of a group known as the Farm Animal Rights Movement (FARM), and the hog farm was Circle Four Farms, a part of Murphy-Brown LLC, the livestock production subsidiary of the world’s largest pork producer. According to a report from the Salt Lake Tribune, the attorney for the activists, T. Matthew Phillips, stated that the four wanted to document the pigs’ journey from the farm to a California slaughterhouse.

According to the FARM website, they are a nonprofit group that is “working to end the use of animals as food through public education and grassroots activism.” While they claim that most of their programs are aimed at engaging “likely target audiences … and [nudging] them along the vegan path,” they also state that “[o]ccasionally, we seek to capture media attention through dramatic displays.”

Attorney Phillips says the Circle Four Farms incident was not one of these examples of “dramatic display.” In fact, he states that the four were actually on a public roadway and were only capturing images of farm buildings, not of the workers or animals.

However, the wording of Utah’s ag-gag law 76-6-112 states that a person is guilty of agricultural interference if they knowingly or intentionally record “an image of, or sound from, the agricultural operation” without the consent of the owner. The law specifies several acts that are prohibited, including leaving a recording a device on the premises, obtaining a job under false pretenses to record activity, recording activity as a regular employee of the facility, or trespassing on private property to get such images or sounds.

Given the fact that Iron County prosecutors are still charging the four activists with criminal trespass, they must differ with Phillips, however, Circle Four Farms stated that they didn’t wish to pursue the agricultural interference charges.

Ag-gag Under the Microscope and Put on Trial

Utah Rep. John G. Mathis (R-Vernal) sponsored HB 187 in 2012. The bill went through two revisions before being ultimately approved. According to an article in Deseret News, Mathis claimed the reason for sponsoring this bill was that he wanted to put an end to “animal-rights terrorists” out to destroy the agricultural industry. He was quoted as saying that animal protection groups such as FARM and People for the Ethical Treatment of Animals (PETA) were using these investigations as propaganda to promote their own organizations, especially in fundraising efforts.

Opposition to the ag-gag laws—which are currently on the books in five other states—say these laws are violations of the First Amendment and Fourteenth Amendment to the U.S. Constitution. They state that the First Amendment protecting free speech and press has specifically led to reform in the food industry in the past, citing such books as Upton Sinclair’s “The Jungle” which was pivotal in leading the government to pass the Meat Inspection Act and the Pure Food and Drug Act of 1906.

If convicted of criminal trespass, a class B misdemeanor per Utah Criminal Code 76-6-206, the four activists could face up to six months in jail and a fine of up to $1,000. Of the six states with ag-gag laws, only one other person has been charged with violation of the law. In February of 2013, Amy Meyer was charged for videotaping the operations at Dale Smith Meatpacking Company in Draper. However, charges against her were also dropped, with the reasoning cited as either public outcry or the fact that Meyer’s video footage showed that she was on public property at the time of her filming.

On a larger scale, in July of 2013, two national nonprofit organizations, the Animal Legal Defense Fund (ALDF) and PETA, filed a lawsuit against the State of Utah challenging the ag-gag law for violating the First and Fourteenth Amendments. Attorneys for the state attempted to argue that the case should be thrown out, however, according to an August 2014 article in the Salt Lake Tribune, U.S. District Judge Robert Shelby has refused.

Even though he didn’t dismiss the case, Shelby has said that at this point, the plaintiffs have failed to show how the statute has resulted in past injury as no one is currently being prosecuted under the statute or how it will cause future injury, but the case will still have its proverbial day in court which means it will have to stand up to further public scrutiny.

Fingerprint Evidence Questioned in Utah Appeals Case

Fingerprint Evidence in Utah Appeals Case

Photo: Alan Levine

A 2009 case involving Eric D. Woodard recently found its way to the Second District Court of Appeals. The case originally dealt with a search of Woodard’s residence that turned up various drugs and resulted in the conviction of Woodard for possession of a controlled substance with intent to distribute, a second degree felony, and possession of marijuana and drug paraphernalia, class B misdemeanors. In July of this year, Woodard appealed the conviction, questioning how the fingerprint evidence was admitted as well as the State’s expert witness.

The Original Case Against Woodard

In 2009, North Ogden police responded to a noise complaint at Woodard’s residence. Having already obtained a warrant to search his home, the officers detained Woodard outside while they attempted to search the residence. They ran into difficulties with house guests who “weren’t cooperating with the efforts to search the home.” Finally, police forcibly entered and began to search the house.

During the search, officers found a small bag of marijuana, a digital scale and cigarette rolling papers which Woodard admitted belonged to him. Officers also found a bag of 478 pills referred to as “Obama ecstasy” [an ecstasy mimic containing benzylpiperazine, a Schedule I controlled substance, shaped and stamped with the head of President Barack Obama]. Woodard denied knowing about the pills. However, fingerprint evidence on the bag of pills resulted in his conviction of possession of a controlled substance with intent to distribute. It is this charge that Woodard was appealing.

Utah Rules of Evidence Used to Question Fingerprint Evidence in Appeal

Utah criminal proceedings are governed by Rules of Evidence which “should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.” When it came to Woodard’s appeal, he based his case on two of these Utah Rules of Evidence.

The first claim made by Woodard was that the fingerprint evidence admitted in his case lacked foundation, addressing Rule 901 which requires that the proponent of an item of evidence authenticates or identifies it with “evidence sufficient to support a finding that the item is what the proponent claims it is.” The rule includes a list of means by which authentication can be achieved.

In Woodard’s original case, the State provided a comparison of a photo of a fingerprint taken from the bag of “Obama ecstasy” with Woodard’s ten-print card [a fingerprint card taken when one is booked into jail]. When the defendant’s counsel asked the crime scene investigator, Paul Rimmasch, which photo was used as a basis for comparison with the ten-print card, Rimmasch was unable to say at that time exactly which one he had retrieved from a database known as the Digital Image Management System (DIMS).

However, given the fact that the State had the crime scene investigator, Sandra Grogan, testify to her part in taking the photos and uploading them to DIMS, as well as Woodard’s identifying information on the ten-print card–including the name of the jail, date and time of collection, and personal identifying information of Woodard such as social security number and date of birth–the Court of Appeals found that the fingerprint evidence was properly authenticated under rule 901.

The next Utah Rule of Evidence that Woodard attempted to use to his advantage was rule 702, which “assigns to trial judges a ‘gatekeeper’ responsibility to screen out unreliable expert testimony” further stating that “the principles of methods that are underlying in the testimony (1) are reliable, (2) are based upon sufficient facts or data, and (3) have been reliably applied to fact.”

For Woodard’s appeal, he stated the procedure discussed by Rimmasch for fingerprint evidence verification, a four-step procedure known as ACE-V, was not sufficiently reliable. He brought up the fact that the National Academy of Sciences and its operational arm, the National Research Council, have “noted a lack of empirical validation of fingerprint evidence and specifically questioned the efficacy of the ACE-V methodology.”

Rule 702 states that “judges should approach expert testimony with ‘rational skepticism.’” However, the Court of Appeals cited another part of rule 702 which states that the degree of scrutiny “is not so rigorous as to be satisfied only by scientific or other specialized principles of methods that are free of controversy” and that it “requires only a basic foundational showing of indicia [signs or indications] of reliability for the testimony to be admissible, not that the opinion is indisputably correct.”

Woodard also addressed the final step of ACE-V, which is “verification,” during which, according to Rimmasch’s testimony, “another examiner goes through the same process [as the original examiner] and looks at the print again.” Woodard stated that the State should have been required to produce this second examiner to verify the fingerprint evidence. However, the Court of Appeals rejected this argument as well based on the idea that the lack of the second verifier wouldn’t affect the reliability of Rimmasch as an expert.

The Importance of a Good Defense

The Court of Appeals went on to point out how Woodard was somewhat defeated by his own defense counsel. According to court documents, “Defendant’s trial counsel had full opportunity to challenge the ACE-V methodology and Rimmasch’s credibility on cross-examination.” This could have included questioning Rimmasch on who performed the fingerprint evidence verification and when it was done, calling that person as a witness, or calling their own expert witness to testify about the process in this particular case or problems with ACE-V in general. Rule 702 does allow for “contrary and inconsistent opinions” which leave it up to the jury to decide. However, Woodard’s counsel did none of this in an attempt to give Rimmasch’s testimony less weight. Ultimately Woodard lost the case.

This final point goes to show the importance of an experienced criminal defense attorney who understands the Utah Rules of Evidence and how they might apply to fingerprint evidence. If you or someone you know is being charged with a crime and fingerprint evidence is being used as part of the prosecution’s case, make sure you contact a criminal defense attorney who will professionally handle your case.