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Wednesday, August 12, 2009

Ind. Courts - Civil and criminal liability issues re accidental child death from sleeping with an infant

Tomorrow the Court of Appeals will hear oral arguments in a case where:

The Parents filed a complaint in Starke Circuit Court against the Schlamadingers, alleging that the Schlamadingers' negligence proximately caused the death of the Parents child. The Parents were overnight guests in the Schlamadingers' home, and they allege that the Schlamadingers did not provide an adequate place for the Parents' three-month-old child to sleep. The child suffocated during the night while sleeping on the couch with his mother.
Today the Fort Wayne Journal Gazette has a story by Michael Zennie headed "State reinforces dangers of sleeping with infants." The story begins:
Medical experts, law enforcement officers and child advocates want to spread the word – sleeping with your baby can be deadly.

Suffocation or other asphyxiation from unsafe sleeping kills more babies in Allen County than any other preventable cause of death – more than car crashes, more than drowning. Since 2008, it has claimed 12 lives, Deputy Allen County Coroner Patt Kite said.

Across the state, one baby a week suffocates because of unsafe sleeping, the Indiana Department of Child Services said.

But accidental suffocation is easily preventable. To that end, James Payne, director of the Department of Child Services, gathered with doctors, nurses, police officers and other experts in Fort Wayne on Tuesday to launch a new campaign to promote safe sleeping.

Officials stressed that babies should sleep alone on a firm mattress or in a bassinet; soft beds, pillows, blankets, couches and toys all pose suffocation risks for new babies; and that adults or older children can easily roll over and asphyxiate an infant without even knowing.

A July 30th article in the Wall Street Journal, by Chris Herring, begins:
In March, a slumbering Indiana father [ILB - this is not the same incident as that before the COA] accidentally suffocated his six-month-old son to death while both were sleeping on a sofa. Law-enforcement officials later determined that the man had used methamphetamine and smoked marijuana before falling asleep that night.

A month later, in Milwaukee, a one-month-old infant died while in bed with his parents and brother, possibly due to suffocation. Before coming home to sleep that night, the baby's mother had had three drinks at a nearby bar.

The tragedies are similar, but the way law-enforcement officials handled them is not. In the pending Indiana case, the father, Darik Morell, was charged with neglect of a dependent resulting in death, a felony that carries a 20- to 50-year prison sentence. An attorney for Mr. Morell, Chad Groves, called the incident "a horrible accident" and said he doesn't believe there is a clear link between his client's drug use and the baby's death.

No charges, in contrast, were filed in the Milwaukee case, or in two other bed-sharing deaths in the area since March.

Across the country, prosecutors are wrestling with how to treat what they say is a growing number of "rollover" deaths. The thorny questions in these and other child-neglect cases: At what point does carelessness, absent malicious intent, become punishable by criminal law? * * *

The legal standard governing criminal negligence varies by state, but the formulation in Wisconsin is fairly typical. There, a prosecutor is required to determine whether a certain act is "conduct that the actor should realize creates a substantial and unreasonable risk of death or great bodily harm to another."

Prosecutors are divided on how to apply the standard to bed-sharing cases or other accidental deaths, such as those that stem from auto accidents caused by fatigued drivers. Some say people should have to face criminal charges for their inattention, but others feel the tragedy itself should serve as punishment enough and that criminal proceedings are unnecessary. Said Matt Wilber, the lead attorney in Iowa's Pottawattamie County: "The No. 1 reason someone wouldn't file charges is because they feel bad for the family and don't want to pile on."

In addition, some prosecutors say filing charges in negligent bed-sharing deaths sends a strong message about the dangers.

A WSJ Blog entry by Rachel Emma Silverman, also from July 30th, commented on their paper's story, noting:
The piece explores the legal implications of such cases. In some instances, the sleeping parents had been under the influence of alcohol or drugs, but it is unclear how much of an effect that had on some of the deaths.

At the heart of the story is a thorny question: At what point does carelessness, absent malicious intent, become punishable by criminal law? These increasing “rollover” deaths are similar to another kind of parenting tragedy we’ve discussed previously: parents accidentally leaving their infants in the car, only to have the children overheat and die.

Prosecutors are divided on the legal treatment of such cases. Some say people should have to face criminal charges for their inattention, but others feel the tragedy itself should serve as punishment enough and that criminal proceedings are unnecessary. It can also be difficult to determine whether a child was smothered or simply stopped breathing on its own, a victim of a condition like Sudden Infant Death Syndrome.

Posted by Marcia Oddi on August 12, 2009 07:51 AM
Posted to Indiana Courts