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Southern Indiana Personal Injury Lawyer Blog

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Last week we looked at Indiana’s anti-texting statute, the unlikelihood of criminal enforcement, and asked whether punitive damages could provide an additional deterrent.  We noted the first obstacle to punitive damages is Indiana’s incentive-reducing statute that takes 75% of any uninsured, punitive judgment and requires this to be paid to the State of Indiana.

The second obstacle to punitive damages is that federal law prohibits “grossly excessive” punishment of wrongdoers as unconstitutional for violating an individual’s substantive due process rights.  Recognizing that there are many different degrees of wrongful conduct, the U.S. Supreme Court placed no arbitrary limit on punitive damages in the case of BMW of North America, Inc. v. Gore, but reversed an award of 1000x compensatory damages.  Later, in State Farm v. Campbell, the Court noted that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”  Luckily for State Farm, this meant the reversal of an award of $145 million in punitive damages where compensatory damages had been $1 million.

Indiana law provides wrongdoers in Indiana with even more protection than that provided by the U.S. Supreme Court.   Indiana places an arbitrary cap on any punitive damages award of the greater of $50,000 or three times the compensatory damages awarded.  Thus, even though Indiana victims of wrongful conduct would be helping victims of violent crime and sexual assault by maintaining a claim for punitive damages, Indiana believes three is the magic number when compensatory damages exceed $50,000.

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In 2011, Indiana joined the legions of States that made texting while driving illegal.  Indiana Code 9-21-8-59 bans drivers from using a telecommunications device to type a text message or an email, transmit a text message or an email, or read a text message or an email.  Excepted from the law is using the device in conjunction with hands-free or voice-operated technology, or to call 911 to report a bona fide emergency.

However, absent exceptional circumstances, the law also restricts police from confiscating cell phones and determining if the driver had been using it.  Police cannot use the law to confiscate a phone and keep it as evidence or to extract or download information from the phone.

Although criminal enforcement of anti-texting laws is rare, when a car crash occurs as a result of texting, there may be civil remedies available to deter such conduct.  Punitive damages developed under the law as a means of deterring particularly bad conduct.

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There is a misconception among some that if a product is destroyed during a fire, that it will be too difficult to prove the product had a defect because no specific mechanism can be pinpointed as the cause and origin of the fire.  However, in spite of manufacturing defendants’ attempts to take advantage of a potential legal Catch-22, Indiana law allows a manufacturing defect in a product to be proven through circumstantial evidence and a process of elimination.  This was explained by a federal court applying Indiana law in Gaskin v. Sharp Electronics.

In Gaskin, the plaintiffs claimed that a 19-inch Sharp television caught fire in Ms. Gaskin’s elderly mother’s room, causing her death.  They alleged that Sharp was strictly liable for placing an unreasonably dangerous and defective product–the television–into the stream of commerce.  Sharp filed a motion for summary judgment claiming the plaintiffs were unable to show a defect in the television after their engineering expert was excluded by the court as unreliable.

The plaintiffs responded to the manufacturer’s motion with evidence from a fire investigator who noted that based on his burn pattern analysis and other evidence examined, the fire originated to the north of the television stand.  And, circuit wiring in the room was examined and eliminated as the cause of the fire.  Although a definitive cause could not be determined,  the investigator opined that the fire had burned upward and outward from the television stand.  He conceded he didn’t know the first thing about televisions, but the television was the only ignition source among many he examined that could not be eliminated.

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You are sitting in a growing line of cars at a traffic light waiting to make a right turn onto the Lloyd Expressway. Up ahead at the exit of a parking lot sits a vehicle with a frowning senior citizen who apparently wants to make it across your lane into the left lane.  You recall how you felt the last time you were stuck in traffic and unable to move and someone waved you out.  You decide to return the favor and stop, leaving room for the vehicle to cross your lane.  You look in your rear-view mirror to make sure no traffic is approaching in the left lane, smile and kindly signal the driver to go.  Out of nowhere comes a speeding truck.  Horns honk, and brakes squeal.  Your heart races.

If the cars collide, could you be found negligent for having given the courtesy wave?  In Key v. Hamilton, the Indiana Court of Appeals explored this legal issue.  Hamilton was seriously injured when his motorcycle struck a vehicle Key had waved through traffic.  The trial court ruled that Key owed Hamilton a duty, determining that a jury should be allowed to decide whether Key had been negligent in extending a courtesy wave.  The jury returned a verdict in Hamilton’s favor, finding Key was 45% at fault, the driver who Hamilton had waved through 50% at fault, and Hamilton 5% at fault.  The jury found Hamilton’s damages to be $2.2 million and reduced this award after applying Indiana’s Comparative Fault Act to $990,000, entering judgment against Hamilton.  Hamilton appealed.

The trial court found Key’s duty to Hamilton was grounded in a principle of law embodied by the Restatement (Second) of Torts  324A (1965).  That legal concept provides that “[o]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”

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The Nursing Home Investigation and Selection Process
. Entrusting a loved one, such as a mother, father, sister or brother, to the care of a nursing home is one of the most difficult decisions many of us will ever make. In spite of a long, thorough investigation into suitable nursing and rest homes and assisted living centers, it is often difficult to get a true feel for the environment when you leave a loved one in the care of strangers. Often times it is not possible to witness the actual care being given so it is important to notice the overall state of care such as cleanliness, the quality and temperature of food items, how medications are delivered, changes in personality of the loved one, and missing personal items. When you arrive at the facility are the staff actually engaged in helping residents or are they out on the front porch in groups smoking, texting and checking social media on their cell phones? Has the rest home, nursing or assisted living facility changed ownership or administration often? Have medical directors changed or are they rarely or never present?What have State nursing home survey inspection findings been for the home?

Keeping Tabs on Conditions and Care

While it is likely impossible to meet the ideal conditions we would like to see for a loved one, some nursing, rest and assisted living homes fall well short of meeting even the most minimum standard of care. Sometimes failure to ensure proper staffing levels means the routine care of a loved one suffers. Pay careful attention to your loved one’s mood changes. Do they seem anxious or concerned when they see particular staff? Are you seeing a lot of different faces and are those faces less friendly than when the stay began? Do you hear yelling or exasperation from staff as you walk by other rooms, administration or the nursing station? Does your loved one exhibit signs of dehydration such as dry eyes, flaky skin or chapped lips? When you arrive, do they have a full or empty drinking cup in their room and within their reach and are they eating or refusing to eat reminiscing about home-cooked meals? Are they losing weight or exhibiting skin changes? Do you notice flies or uncleaned restroom facilities? If they had bedsores or pressure ulcers upon admission, have these gotten better or worse? If they were continent when they started are they now incontinent? Or, if they were incontinent when they started at the facility and were on a scheduled toileting program, has the facility now suggested they are continent to avoid the burden of scheduled toileting? Has your loved one fallen from a wheelchair, bed or been found wandering outside the facility?

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At one time or another, most drivers have been passed by or stuck behind a large truck hauling a trailer enclosed by a loose tarp or an open bed of rock, gravel or rip-rap. Oftentimes, the truck has a sign that reads, “NOT RESPONSIBLE FOR BROKEN WINDSHIELDS,” suggesting such vehicles are protected from the harm they may cause on the roadway. Not true.

Commercial truck drivers have a duty to ensure the safety of their cargo and equipment. Federal regulations provide that commercial truck drivers must perform a safety inspection. No shipper can force a driver to accept a load the driver believes is unsafe. Nonetheless, a shipper may face liability if a defect in the load could not be uncovered by the driver through ordinary observation.

Commercial Truck Drivers Careless loading and hauling of cargo and equipment can cause chipped paint, dents and broken windshields. However, sometimes serious and catastrophic injuries and even death can occur when a a vehicle is struck by unsecured cargo or equipment, such as a crane boom, or must leave the road to avoid such dangers. Because many companies and their insurers will seek to shift the blame to the victim for purportedly following too closely or not taking equally dangerous evasive maneuvers, the only recourse in such situations may be to seek a legal remedy.

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Many people may already associate premises liability claims with what is referred to as slip and fall injuries. However, these claims can involve a lot more than slipping on a store floor and getting hurt. In Indiana, there are a wide variety of situations that can lead to a premises liability case.

If a store or establishment has the ability and means to protect against a preventable injury, that place has the legal responsibility to enforce those protections. This can mean ensuring an uneven sidewalk is fixed or labeled as broken or uneven. If you break an ankle on an uneven sidewalk, you could have a a viable claim for monetary damages.

Banisters and sidewalks can be the source of injury just as easily as a store floor that is wet without a warning sign. If a banister leading up the stairs — inside or outside — breaks and gives way, an unexpected fall can lead to serious injuries. Also, a single step in a state of disrepair or otherwise unsafe can collapse and also lead to serious injuries.

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Not every car accident can be cut and dry to assess. In fact, many multi-vehicle car accidents can be difficult to sort out and assign any kind of culpability. One car accident in Indiana is currently being investigated as there were six vehicles involved.

The multi-vehicle accident happened around 6:30 p.m. on a Saturday evening. According to an initial assessment of the accident, a pickup truck was westbound and hit several cars that were at an intersection. Then, the same pickup truck is believed to have hit another vehicle that was southbound at the time, although there is no word for sure as to what exactly unfolded.

Authorities said a van was pushed over a curb and a red pickup truck was in the center of the intersection when the incident was assessed. Two vehicles were also said to be smashed together in front of a service station. The crash in being investigated, and four people were injured in the melee. There was no word as to exact nature or severity of any injuries suffered.

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When a driver runs a red light and smashes into another vehicle, the consequences can be far-reaching and life-altering for those in that driver’s path. This scenario is the cause of the many car accidents in Indiana. One such accident recently resulted in a man suffering critical injuries.

The accident occurred on a Sunday night as a man drove a Hummer through a red light. His vehicle struck another vehicle operated by a 32-year-old man. The victim suffered critical injuries as his vehicle was pushed into a ditch, causing him to be trapped in his vehicle until help arrived at the scene.

The driver of the Hummer left the scene. Witnesses said the Hummer was going roughly 80 mph. Police are currently working to track down the owner of the vehicle. The family of the man who was seriously injured have stated it hopes someone with information comes forward.

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The sheer force and unexpected nature of a head-on car accident can leave devastating consequences behind for the injured and for the family of victims who die as a result. Head-on car accidents in Indiana in particular are responsible for countless injuries and can be deadly for innocent victims. One recent head-on car accident took the life of a 57-year-old innocent driver.

The accident occurred on a Sunday night, roughly around 9:30 p.m. A 61-year-old man was driving north on the highway. For some reason, his car drove left of the center line and hit another vehicle head-on. That vehicle was driven by the 57-year-old woman.

That woman was pronounced dead at the scene of the accident. The man who hit her vehicle was air lifted from the crash. He was being treated for serious injuries. There is currently an investigation into the accident, but police indicate they do not yet know if alcohol or drugs played a role in the car accident.

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