By John Estridge
The favorite phrase for Franklin County’s attorney of record in three civil suits is “Defendants deny or lack information and therefore deny all other allegations …”
Liberty R. (Libby) Roberts, an attorney with the Noblesville law firm Church Church Hittle and Antrim, is defending the county and filed the Answer and Affirmative Defenses to Plaintiff’s Complaint for Damages.
Franklin County Commissioners, Franklin County Sheriff’s Department, county council individual members and the Franklin County Highway Department are named in whole or part of three civil lawsuits regarding six people’s deaths, including three children, when the approaches to a bridge on Sanes Creek Road and over Sanes Creek washed out in the early morning hours of March 20, 2020.
The lawsuits were filed on behalf of the mother and the three children who all perished in one vehicle.
All three initial filings, although different attorneys are of record, were basically the same. As such, Roberts’ answers are basically the same in each lawsuit.
She went paragraph by paragraph in the initial filings’ complaints.
Plaintiffs allege the county is liable for the deaths by not taking better care of its roads and bridges in the days leading up to the deaths. It also alleges two dispatchers on duty in the county’s communication center in the Franklin County Security Center disregarded three phone calls concerning the bridge that was impassible due to flooding in the hours leading up to the deaths. The allegations made are the two dispatchers did not notify any other agencies of the calls, filing them as information calls, where it does not go beyond that with no other people or departments contacted concerning the phone calls.
Also, it is alleged by the complaints, the two dispatchers, who were on duty during the time of the three phone calls, were posting to personal social media accounts during the time span of the three phone calls.
According to the complaints, after three phone calls concerning the bridge’s status went to the communication center and no action was taken, the inaction of the dispatchers and the condition of the road and bridge ended in the deaths of six people: Felina Lewis, 35, and her three children, 4-year-old KyLee Mosier, 7-year-old Elysium Lewis and 13-year-old Ethan Williams; and Shawn Roberts, 47, and Burton Spurlock, 48, who were in the other vehicle. It was still dark when the two vehicles inadvertently drove off into the cold water, according to the plaintiff’s Complaint for Damages.
In the lawsuits, they named the Franklin County Highway Department as one of the defendants. Roberts answer to that was the Franklin County Highway Department is a department of Franklin County and not a separate entity, which was stated in the complaint. Since it is not a separate governmental entity, the highway department cannot be sued, Roberts said.
“Franklin County is the appropriate government entity to defend this suit,” Roberts wrote in answer to the second paragraph of the plaintiff’s Complaint for Damages.
Thus, in the next paragraph naming Franklin County as a government agency, Roberts agreed with the third paragraph. In the same light, Roberts also said her client, Franklin County, agrees with paragraph four that the Franklin County Sheriff’s Department, at the time of the fatalities, was a government entity that “owned, operated, controlled and/or oversaw the Franklin County 911 call center and dispatch. The dispatchers that work in the 911 call center are employees of Franklin County Sheriff’s Department.”
Those were the only two paragraphs Roberts and Franklin County completely agreed to in the plaintiff’s 51 paragraphs listed in the Complaint for Damages.
All of the other answers to the paragraphs within the plaintiff’s Complaint for Damages agreed in part and denied the rest of the statements, were either outright denied or stated there was not enough information; therefore, it was denied for that reason. However, some of the answers to the paragraphs were neither admitted nor denied by Roberts because she asserted the paragraphs were “legal conclusions, to which no response is required.”
Roberts’ answer to paragraph 19 is interesting. It concerns the 4:46 a.m. call, which was the third of three calls to the Franklin County Communications Center regarding the bridge being flooded and impassible.
“At 4:46 a.m. another Franklin County resident called the Franklin County Sheriff’s Office and advised that Sanes Creek Road was flooded and not passable at the Sanes Creek Bridge.”
Roberts’ answer concerned poles on Laurel Road, which have not been mentioned in any allegations within the three lawsuits. Laurel Road is quite a distance away and on the other side of the Whitewater River’s west fork from Sanes Creek Road.
“Defendants admit the 911 operator received a call at 4:46 a.m. on March 20, 2020 about poles in Laurel Road. (Emphasis mine) Except as expressly admitted herein, Defendants deny, or lack information and therefore deny, the remaining allegations in Paragraph 19 of Plaintiff’s Complaint.”
At the end of Roberts’ answers is a list of Affirmative Defenses. It is broken down into four parts:
- Plaintiff has failed to state a claim upon which relief can be granted.
- Defendants is (sic) entitled to immunity under the Indiana Tort Claims Act, Indiana Code 34-13-3-3.
- Plaintiff’s and/or decedents’ contributory negligence may bar Plaintiff’s recovery.
- Defendants reserve the right to assert additional affirmative defenses that may arise in the course of the investigation and discovery.
This led to Roberts’ final request.
“Wherefore, Defendants, by counsel, pray that the Plaintiff takes nothing by way of her (his) Complaint, for judgment in favor of the Defendant, for costs of this action, for attorneys’ fees permitted by statute, and for all other appropriate relief.”
In another motion, Roberts asked that the lawsuits be dismissed regarding the Franklin County Highway Department as one of the defendants. She lists 15 different paragraphs, each a distinct reason, why the Franklin County Highway Department should be dismissed as one of the Defendants.
Only the lawyer representing Daphne Lewis, Bradford J. Smith, filed a motion to Object to Defendant’s Motion to Dismiss Claims Against Defendant Franklin County Highway.
As of February 6, no other motions to that effect have been filed in the other two cases.
Former Franklin County Council member Rebecca Oglesby asked for herself to be withdrawn as a defendant in the lawsuit. It is something she filed herself separate from the county’s filings.
An Affidavit of Rebecca (Becky) Oglesby has six parts. She states when she was elected to the office of county council (2016); she was sworn in as a county council member to uphold the laws of the state and country; she lists the specific Indiana Code (36-2-5-2) which governs what county council can do; she states due to the Indiana Code, council’s governing powers are limited to financial activities in the county.
In paragraphs five and six, Oglesby then states what county council cannot do, according to the Indiana Code.
- County Council does not hire personnel in any county departments, as stated in the above cause of action; and
- County Council has no authority on bids, contractors, bridge inspections, contracts on supplies or other items involved pertaining to the above cause of action, now
Originally, Franklin Circuit Court II Judge Clay Kellerman was scheduled as the judge in the case. However, he recused himself. Now, the sitting judge is Franklin Circuit Court Judge J. Steven Cox.
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