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The Indiana Court of Appeals recently affirmed the grant of summary judgment for a defendant driver in a car accident case finding the driver suffered a medical emergency that was not reasonably foreseeable. In Patrick v. Henthorn, Walter E. Patrick, III (“Patrick”) filed a lawsuit against April J. Henthorn (“Henthorn”) arising out of an intersection collision in Indianapolis, Indiana, which resulted in Patrick suffering several injuries and incurring more than $50,000.00 in medical bills. Henthorn, who had ornithine transcarbamylase (“OTC”), a “protein allergy,” raised an affirmative defense to Patrick’s lawsuit and filed a motion for summary judgment stating she lost consciousness at the time of the collision due to a sudden emergency not of her own making.

Henthorn testified that prior to the accident she was feeling fine and in good health, but at the time of the accident she suddenly and unexpectedly felt light-headed, flushed, and dizzy and thereafter lost consciousness. She testified when she regained consciousness, she was in her stopped vehicle adjacent to a telephone pole. She testified she did not recall the crash. Henthorn’s doctor, who had treated Henthorn for her OTC deficiency for many years, testified that he believed Henthorn suffered a sudden change in mental status with loss of consciousness prior to the collision that resulted from an unforeseen elevation in her blood ammonia levels due to her OTC deficiency, which caused Henthorn to become incapacitated just before losing control of her car and crashing.

Patrick filed a response to Henthorn’s motion for summary judgment designating the affidavits from Henthorn and her doctor, Henthorn’s deposition, and the accident report. Patrick argued Henthorn’s deposition testimony conflicted with her affidavit and her doctor’s affidavit when she testified in her deposition that she had not experienced lightheadedness or loss of consciousness in the past ten years. Patrick also raised discrepancies as to her testimony about how she felt prior to the accident and her version of the accident. After a hearing, the trial court granted summary judgment in Henthorn’s favor, finding no inconsistencies in the designated evidence, or at most immaterial inconsistencies, and that Henthorn’s sudden physical incapacity was not foreseeable.

We previously discussed the potential significance of an MCS-90 insurance policy endorsement in a truck accident case in discussing Prime Insurance Co. v. Wright. Such an endorsement is considered a guarantee of sorts, or suretyship, by an insurance company that a federally-regulated motor carrier will meet its public financial responsibility obligation under the Motor Carrier Act of 1980 as required and regulated by the Federal Motor Carrier Safety Administration.

Recently, in Progressive Southeastern Insurance Co. v Brown, the Indiana Supreme Court addressed whether an MCS-90 endorsement applies when a commercial truck crash occurs during an intrastate trip involving the transportation of non-hazardous cargo. In Brown, the commercial truck driver, Bruce Brown, an employee of B&T Bulk, a Mishawaka-based motor carrier out of Mishawaka, Indiana, was driving a truck and empty trailer when his truck crossed the centerline, striking another vehicle killing the driver, Dona Johnson.

Ms. Johnson’s surviving spouse brought a wrongful death case against Brown and B&T on his own behalf and on behalf of his widow’s estate. Progressive Southeastern Insurance Company then filed a separate declaratory judgment case against Johnson, B&T and Brown requesting a declaration from the court that it should not owe any duty to defend or indemnify B&T or Brown, because the insurance policy it had issued did not include the truck and trailer and, although Progressive had provided B&T with an MCS-90 endorsement, the endorsement should not apply. State Farm Mutual Automobile Insurance Company, Johnson’s insurer, intervened in the case and joined with Johnson’s widow and her estate, Brown, and B&T, in arguing that the MCS-90 endorsement should apply binding Progressive to pay any final judgment in the case. The trial court agreed with Progressive that the truck and trailer were not insured autos and that Progressive had no duty to defend or indemnify Brown. However, the trial court found the MCS-90 endorsement applied, which ruling Progressive appealed.

We recently wrote about the Indiana Supreme Court’s decision in Arrendale v. American Imaging & MRI, LLC in which the Court held that non-hospital medical providers could be responsible for the negligent acts or omissions of their independent contractors through apparent agency. The same day the Court issued its opinion in Arrendale, the Court also issued an opinion in Wilson v. Anonymous Defendant 1 in which it adopted Restatement (Second) of Agency section 267 and held as a matter of first impression that a medical provider can be responsible for the negligent acts or omissions of an apparent agent based upon a medical provider’s manifestations that an agency relationship exists, which causes a third party to rely on that relationship. The rule articulated in Wilson, unlike in Arrendale, does not require an independent contractor relationship.

In Wilson, Darci Wilson (“Wilson”) received medical care from Anonymous Defendant 1, an orthopedic physician group. She had a knee replacement performed at Anonymous Defendant 1’s facility and was thereafter referred for physical therapy on the second floor of Anonymous Defendant 1’s facility. Anonymous Defendant 1 and Accelerated Rehab, a physical therapy company, had a “Staffing Agreement” whereby Accelerated Rehab would provide physical therapy personnel to staff Anonymous Defendant 1’s facility. Athletico, Ltd and Athletico Management, LLC (“Athletico”) thereafter acquired Accelerated Rehab and seemingly continued to operate under the “Staffing Agreement.” However, there was no contract, agreement, or any legal relationship between Anonymous Defendant 1 and Athletico or its rehab personnel.

Wilson was injured while undergoing physical therapy with physical therapist Christopher Lingle (“Lingle”) at Anonymous Defendant 1’s facility, which also housed Athletico. Wilson filed a proposed complaint alleging medical negligence against Anonymous Defendant 1 before the Indiana Department of Insurance, and later, after the two-year statute of limitations had already expired, she filed against Lingle and Athletico, which were not qualified under the Medical Malpractice Act, in state court. Lingle and Athletico moved for summary judgment based upon the statute of limitations, which the trial court granted. Anonymous Defendant 1 also moved for summary judgment arguing it could not be liable for Lingle because it had no employment or contractual relationship with Lingle. The trial court granted Anonymous Defendant 1’s motion and Wilson appealed. On appeal the Indiana Court of Appeals agreed with Anonymous Defendant 1 finding Anonymous Defendant 1 could not be held liable for Lindle’s actions under Sword because there was no independent contractor relationship between Anonymous Defendant 1 and Lingle. However, the Indiana Supreme Court accepted transfer, thereby vacating the Court of Appeals opinion, and reversed the trial court, finding a genuine issue of material fact existed under Section 267’s apparent agency principles.

We previously wrote about the Indiana Court of Appeals decision in Arrendale v. Am. Imaging & MRI, LLC in which the Indiana Court of Appeals held that the apparent agency principles set forth in the Indiana Supreme Court’s opinion in Sword v. NKC Hosps., Inc., 714 N.E.2d 142 (Ind. 1999) and Restatement (Second) of Torts section 429 applied to non-hospital medical providers. The Indiana Supreme Court granted transfer and agreed, holding Sword and Section 429’s apparent agency principles apply to non-hospital medical entities that provide healthcare to patients.

The Plaintiff in Arrendale, Harold Arrendale (“Arrendale”), sued American Imaging & MRI, LLC, also known as Marion Open MRI (“Marion Open MRI”), an outpatient diagnostic imaging center, and radiologist Dr. Alexander Boutselis for medical malpractice relating to MRIs Arrendale underwent at Marion Open MRI that were interpreted by Dr. Boutselis. While Dr. Boutselis was not an employee of Marion Open MRI, Arrendale sought to hold Marion Open MRI responsible for his malpractice as an apparent agent of Marion Open MRI, which, unlike Dr. Boutselis, was not qualified under the Indiana Medical Malpractice Act. Marion Open MRI never indicated to Arrendale that Dr. Boutselis was an independent contractor, Dr. Boutselis’ opinions and conclusions in his radiology report were on Marion Open MRI’s letterhead, and Marion Open MRI advertised its services stating in a building sign that patients could “Save $$ on your next MRI!”

The trial court granted summary judgment in favor of Marion Open MRI because Indiana’s appellate courts had not yet applied Sword outside the hospital setting. The Indiana Supreme Court in Sword adopted the Restatement (Second) of Torts section 429 with regards to care provided in the hospital setting. Section 429 provides that “[o]ne who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.” Restatement (Second) of Torts § 429 (1965).

The Indiana Court of Appeals recently held that a duplex rental owner could not be held liable for injuries to a child attacked by a lessee’s dog. In Marchino as next friend Marchino v. Stines, Rex Lott (“Lott”) owned and rented a duplex property in Indianapolis, Indiana. Matthew Marchino (“Marchino”) and his family, including his son, Marcellus Marchino (“Marcellus”), rented one side of the duplex and Woody Stines (“Stines”) rented the other side. Stines had a pit bull named Boy (“Boy”). Prior to the dog bite attack in this case, Lott had been told that Boy had chased a neighbor to the bus stop and that Boy had also nipped a maintenance man fixing a toilet in Stines’ home. While Lott had thereafter asked Stines to remove the dog, Lott did not press Stines when Stines failed to remove Boy because Stines was suffering from leukemia. Unfortunately, Boy got loose one day and attacked Marcellus as Marchino and Marcellus were leaving their home.

Marchino filed a negligence lawsuit against Stines and Lott. To establish negligence in Indiana, a plaintiff must show a duty owed to the plaintiff by the defendant, the defendant’s breach of that duty by failing to comply with the requisite standard of care, and injuries proximately caused by the breach.

Lott filed a motion for summary judgment arguing he had no duty of care towards Marcellus and could not be held liable for the injuries Boy caused because Stines had leased the property and had exclusive possession and control of the property. In response, Marchino argued Lott knew of Boy’s dangerous propensities (a question of fact conceded by Lott), and Lott had retained control of the premises giving rise to a duty of care to Marcellus. As to control, Marchino pointed to the lease agreement between Stines and Lott, which provided Lott retained a right of inspection and no pets were allowed on the property unless approved by Lott. After a hearing, the trial court granted Lott’s motion for summary judgment finding Lott owed no duty of reasonable care to Marcellus.

The Indiana Court of Appeals recently revived a parents’ case filed against a public school for mental anguish their seven-year-old son experienced when he was incorrectly directed to walk home from school instead of riding the school bus home. In Hopkins v. Indianapolis Pub. Sch., Casey Hopkins and Terry Yarbrough (the Parents), filed a lawsuit on behalf of their son, DeShawn Yarbrough (DeShawn), against Indianapolis Public Schools d/b/a Ralph Waldo Emerson School 58 (the School). On DeShawn’s second day of first grade at the School, DeShawn, who had a blue tag attached to his school bag indicating he was a bus rider, got in line to go home on the school bus, as he had done the previous day. However, he was directed by a teacher to leave the line and wait with other children who would be walking home. DeShawn had never walked to or from the school and his house was around 1.2 miles from the school. He did not know how to get home and ended up walking over a mile in the wrong direction during which time he was approached by a homeless man in an alley, he was chased by dogs, and he had to cross a busy road at rush hour. Ultimately, a stranger helped DeShawn and contacted the school, the police, and his mom.

The Parents sued the school claiming the School failed to exercise reasonable care and supervision for DeShawn’s safety. The School filed a motion for summary judgment in court arguing it was entitled to immunity as a governmental entity under the Indiana Tort Claims Act (ITCA), which provides “[a] governmental entity… is not liable if a loss results from… [t]he adoption and enforcement of or a failure to adopt or enforce… in the case of a public school… a policy.” Ind. Code § 34-13-3-3(a)(8)(B). After a hearing, the trial court granted the School’s motion for summary judgment finding the School was immune from liability under the ITCA.

The Parents appealed and on appeal argued the School was not entitled to immunity under Indiana Code § 34-13-3-3(a)(8)(B) because what happened to their son did not result from the School’s failure to properly enforce a school policy. While the Court of Appeals noted some question as to the meaning of “policy” under the ITCA, the Court ultimately concluded the Parents’ claim did not arise from the School’s failure to “enforce” its dismissal procedures, and therefore the School was not entitled to the “enforcement” immunity under the ITCA. The Court reviewed prior precedent defining enforcement under the ITCA as “compelling or attempting to compel the obedience of another to laws, rules or regulations, and the sanctioning or attempt to sanction a violation thereof,” such as a school deciding to suspend, expel, or impose discipline on students. Here, the Court ruled public schools are not entitled to immunity when they are sued concerning their own compliance, or failure to comply, with laws, regulations, or their own policies, and since the Parents were alleging the School itself failed to comply with its own dismissal procedures, as opposed to the School failing to compel DeShawn’s obedience to its dismissal procedures, the trial court erred in granting summary judgment under Indiana Code § 34-13-3-3(a)(8)(B) of the ITCA.

In a matter of first impression, the Indiana Court of Appeals recently reviewed the applicability of Indiana’s Bystander Rule for emotional distress damages arising from a home gas explosion and fire. In Ceres Sols. Coop., Inc. v. Estate of Bradley, Ceres Solutions Cooperative, Inc. (“Ceres”) negligently failed to check for gas leaks in refilling a propane tank at Kenneth Bradley’s (“Bradley”) home. Bradley lived in the home with his wife Kathy and son Eric. In the early morning after the refill, while Bradley was at work, Eric turned on a lamp next to his bed, which caused an explosion, surrounding him in a ball of fire. Part of the home’s roof collapsed and there was rubble and fires around the home. Eric was severely burned but escaped. Kathy was killed.

Bradley filed a lawsuit against Ceres which included a claim for his emotional distress. Typically, to recover emotional distress damages in Indiana, under Indiana’s Modified Impact Rule, a claimant must suffer a direct impact by another’s negligence and by virtue of that involvement suffer an emotional trauma serious in nature and of a kind and extent normally expected to occur in a reasonable person. However, Indiana has also adopted the Bystander Rule, which is an exception to the Modified Impact Rule, that allows emotional distress damages when a claimant establishes a direct involvement with the incident. To recover emotional distress damages under Indiana’s Bystander Rule, courts consider as a matter of law three factors: (1) the severity of the victim’s injury (serious injury or death to a victim), (2) the relationship of the plaintiff to the victim (a close familial relationship with the victim), and (3) the circumstances surrounding the claimant’s discovery of the victim’s injury (direct observation of the incident or its immediate “gruesome aftermath,” rather than learning of the incident by indirect means). To satisfy the third factor, (A) the bystander claimant must come on the scene at or immediately following the incident, (B) the claimant must not have been informed of the incident before coming on the scene, and (C) the scene and victim must be in essentially the same condition as immediately following the incident.

Here, about three hours after the explosion, Bradley was driving home from work when he came upon a roadblock, around three-quarters of a mile from his home. He could see flames coming from his home. He asked the lady at the roadblock, who was a local volunteer firefighter’s wife, whether his wife made it out of the house, but she did not know, she had no radio, and she had not been provided any information as to what was occurring. Bradley drove to his home and saw “big and steady” flames. Bradley saw his son Eric on a gurney with a blanket on and visible burn injuries to his face. Eric told Bradley he did not know where Kathy was, and although firefighters continued to search for her, the flames got bigger every time they dug, so they had to wait. The firefighters eventually found Kathy and made Bradley leave the scene so they could remove her.

The Seventh Circuit Court of Appeals recently addressed whether a federal district court improperly dismissed a 42 U.S.C. § 1983 (Section 1983) claim premised upon a skilled nursing home resident’s complaint that he was chemically restrained and later transferred and discharged without timely notice in violation of the Federal Nursing Home Reform Act (FNHRA). In Talevski v. Health and Hospital Corporation of Marion County (HHC) et al, Gorgi Talevski, through his wife Ivanka, sued HHC, Valparaiso Care, and American Senior Communities, LLC under Section 1983 for violations of FNHRA, 42 U.S.C. § 1396 et seq.

Specifically, Talevski alleged in his complaint against the skilled nursing facility, Valparaiso Care, that it failed to follow FHNRA in several respects including failing to provide adequate medical care, administering psychotropic medicine to chemically restrain him resulting in rapid physical and mental decline, discharging him without the consent of his family or guardian, refusing to fulfill an administrative judge’s order to readmit him, and maintaining a policy, practice, or custom that failed to promote, maintain, or enhance the quality of his and each resident’s life. On appeal, Talevski narrowed the allegations to only two particulars that appear in FNHRA: the right to be free of chemical restraints imposed for purposes of discipline or convenience and his rights related to resident-transfer and discharge procedures, namely his right to remain at Valparaiso Care and to receive timely notice of transfer or discharge.

The issue for the Court was whether Section 1983, a federal law that allows for a private citizen to bring a private claim for damages for civil rights violations, would extend to a claim that a nursing home resident’s rights conferred by the language of a federal statute were violated. The Court noted that FHRNA places minimum standards of care required of nursing-home facilities to qualify for federal funding under the Medicaid program. Medicaid allows states to subsidize, through federal aid, medical assistance to low-income qualifying individuals and families. In return for this funding, the states must adhere to the program’s statutes and regulations, including FHRNA. Along with the specific rules to qualify, FHRNA also includes requirements relating to resident’s rights. The Court emphasized that FHRNA Section 1396r(c)(1)(A) provides that a “nursing facility must protect and promote the rights of each resident, including each of the following rights…(ii) Free from restraints…Restraints may only be imposed—(I) to ensure the physical safety of the resident or other residents, and (II) only upon the written order of a physician that specifies the duration and circumstances under which the restraints are to be used…”

We previously wrote on the Indiana Court of Appeals opinion in K.G. by Next Friend Ruch v. Smith in which the Indiana Court of Appeals held that Melody Ruch (“Ruch”) could not recover damages for emotional distress arising from the sexual abuse of her child. Ruch’s disabled child was sexually abused by a school instructional assistant who later plead guilty to child molesting. Ruch filed a lawsuit against Morgan Smith (“Smith”), the assistant, the school, and the Metropolitan School District of Pike Township (collectively “School Defendants”). The School Defendants moved for summary judgment arguing that Ruch could not recover for her emotional distress under Indiana’s traditional impact rule, the modified impact rule, or the bystander rule.

Indiana’s traditional impact rule requires a plaintiff prove (1) an impact on the plaintiff, (2) which causes physical injury to the plaintiff, and (3) which physical injury, in turn, causes the emotional distress. The modified impact rule requires a plaintiff prove a direct impact, and because of that direct involvement an emotional trauma serious enough to affect a reasonable person, without regard to whether the emotional distress arises out of or accompanies any physical injury to the plaintiff. Indiana’s bystander rule requires a plaintiff prove (1) serious injury or death to a victim, (2) a close familial relationship with the victim, and (3) direct observation of the incident or its immediate “gruesome aftermath,” rather than learning of the incident by indirect means.

The trial court granted the School Defendants’ motion for summary judgment, and on appeal the Indiana Court of Appeals affirmed, finding Ruch’s claim for emotional distress did not fall within any of the appliable rules. The Indiana Supreme Court, however, granted transfer and adopted a new rule: when a caretaker assumes responsibility for a child, and when that caretaker owes a duty of care to the child’s parent or guardian, a claim against the caretaker for the negligent infliction of emotional distress may proceed when the parent or guardian later discovers, with irrefutable certainty, that the caretaker sexually abused that child and when that abuse severely impacted the parent or guardian’s emotional health. To satisfy the rule, a plaintiff must show (1) that the tortfeasor had a duty of care to the parent or guardian; (2) that there is irrefutable certainty of the act’s commission; (3) that the tortious act is one rarely, if ever, witnessed by the parent or guardian; and (4) that the abuse severely impacted the parent or guardian’s emotional health. Irrefutable certainty under the Court’s new rule requires an admission to the abuse by the caretaker to a person of authority, a finding of abuse by a judge, or the caretaker’s conviction for the abuse.

We previously wrote about the Indiana Court of Appeals opinion in Ladra v. State affirming the trial court’s grant of summary judgment in favor of the State of Indiana and the Indiana Department of Transportation (collectively “INDOT”) finding INDOT immune from liability in a lawsuit brought by Tracy Ladra (“Ladra”), who suffered injuries when her vehicle hydroplaned on a flooded portion of I-94. In the case, there was evidence INDOT was aware of a defect in the highway’s drainage system that would cause consistent flooding in the highway. However, the Indiana Court of Appeals (reluctantly so) relied on Indiana Supreme Court precedent in Catt v. Bd. of Comm’rs of Knox Cty., 779 N.E. 2d 1 (Ind. 2002), which characterized any negligence of the government in the design and maintenance of a thoroughfare and its knowledge of past incidents as irrelevant, and held INDOT was immune based upon the Indiana Tort Claims Act (ITCA), which provides “[a] governmental entity… is not liable if a loss results from… [t]he temporary condition of a public thoroughfare… that results from weather.” Ind. Code § 34-13-3-3(3).

In the same blog, we also wrote about the Indiana Court of Appeals opinion in Staat v. Indiana Dep’t of Transp., in which Chad Staat and Julie Statt (collectively the “Staats”) filed a personal injury lawsuit against INDOT arising from injuries Chad sustained when his vehicle hydroplaned on accumulated, pooling, or puddled water on I-74, left the roadway, and collided with a tree. In Staat, as in Ladra, the trial court granted summary judgment in favor of INDOT finding INDOT immune from liability for a temporary condition resulting from weather under the ITCA. However, in Staat, unlike in Ladra, the Court of Appeals reversed, finding there was a genuine issue of material fact as to whether the roadway condition was temporary so as to entitle INDOT to immunity, and INDOT had not otherwise negated its duty as a matter of law.

The Indiana Supreme Court granted transfer in Ladra and in a divided opinion modified its rule in Catt and reversed the trial court’s grant of summary judgment in favor of INDOT on the issue of immunity. The Court’s opinion first reviewed the common-law origins of sovereign immunity, the abrogation of such by Indiana courts, and legislative codification of governmental immunity in the ITCA; second, it analyzed and modified the rule in Catt; third, it discussed why legislative acquiescence and stare decisis do not forbid the Court’s modification of the rule in Catt, with discussion of policy arguments advanced by INDOT; and last, it analyzed the Court’s new rule as to the facts in Ladra, finding a genuine issue of material fact under the Court’s new rule. Under the Court’s new rule, “when the government knows of an existing defect in a public thoroughfare that manifests during recurring weather conditions, and when it has ample opportunity to respond, immunity does not apply simply because the defect manifests during inclement weather.”

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