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Penny Chappey and her husband Gregory Chappey (the Chappeys) sued a tow truck driver, Joseph Paul Storey (Storey), and his company for injuries Penny suffered when she fell from the flatbed of Storey’s tow truck while he was loading and securing her vehicle. Penny was at a CVS with her bulldog puppy when her SUV wouldn’t start. She called for a tow and Storey responded. Penny asked Storey whether her puppy could stay in her vehicle, and Storey said yes. Storey got into Penny’s vehicle to put her vehicle in neutral and Penny’s puppy was jumping all over him.

After Storey loaded Penny’s vehicle, Penny got onto the flatbed of the tow truck. While Penny said Storey asked her to get on the flatbed to restrain her puppy so that Storey could put her vehicle in park, Storey said he did not ask Penny to get onto the flatbed, did not know Penny was on the flatbed, and believed Penny being on the flatbed was in violation of industry standards. After Penny restrained her puppy on the flatbed, she pivoted to walk towards the back of the flatbed and fell several feet to the ground, suffering injuries. While Penny didn’t know exactly why she fell, she noted it was a tight space to traverse without the ability to have her feet side by side.

In personal injury negligence claims in Indiana, claimants must prove (1) the defendant owed the claimant a duty, (2) the defendant breached that duty, and (3) compensable injuries proximately caused by the defendant’s breach of duty. Storey and his company moved for summary judgment arguing that there existed no genuine issue of material fact as to proximate cause, which is generally a question of fact for the jury, because Penny did not know what caused her to fall. The trial court held a hearing and three months later issued an order granting summary judgment for the defendants.

Imagine a situation where a general contractor enters into a contract with a property owner to build a new manufacturing facility. The general contractor hires various subcontractors to perform different tasks on the project. During the performance of one of those tasks, a subcontractor’s employee is seriously injured through no fault of his own by an act a simple safety measure could have prevented. Although the worker’s injury would be covered by worker’s compensation through his employer, he may also have a remedy against the general contractor. Who is ultimately responsible for the worker’s injury and how might this scenario be decided by an Indiana court?

Under Indiana law, ordinarily, a general contractor owes no duty to its subcontractors’ employees. See Bagley v. Insight Commc’ns Co., L.P., 658 N.E.2d 584, 586 (Ind. 1995). Therefore, “when a subcontractor fails to provide a reasonably safe workspace, the general contractor will not incur liability for employee injury . . . The rationale behind this rule is that a general contractor has little to no control over the means and manner a subcontractor employs to complete the work.” Ryan v. TCI Architects / Engineers / Contractors, Inc., 72 N.E.3d 908, 913 (Ind. 2017). This general rule, however, is subject to five exceptions, Bagley, 658 N.E.2d at 586, one of which is probably the most litigated in these situations: whether a contractual obligation imposes a ‘specific duty’ on the general contractor. Ryan, 72 N.E.3d at 913.

The assumption of contractual duty exception applies when a general contractor’s contract with the project owner “affirmatively evinces an intent to assume a duty of care.” Stumpf v. Hagerman Const. Corp., 863 N.E.2d 871, 876 (Ind.Ct.App. 2007). A general contractor’s contractually assumed duty “exposes the general contractor to potential liability for a negligence claim where no such liability would have otherwise existed.” Ryan, 72 N.E.3d at 914. In other words, the general contractor is charged with providing an additional layer of responsibility that would not exist without a contractual promise. See Harris v. Kettlehut Constr., Inc., 468 N.E.2d 1069, 1076 (Ind.Ct.App. 1984) (general contractor and subcontractor jointly liable for duty assumed by each party).

The Indiana Court of Appeals recently affirmed a trial court’s grant of summary judgment in favor of a homeowner in a claim against the homeowner arising from a guest’s fall on an icy sidewalk adjacent to the homeowner’s property. In Stanley v. Burns, Andrea Burns (Burns) worked for a direct sales company and invited numerous women on her team, including Erin Harrell Stanley (“Stanley”), to her home to watch a planned YouTube live corporate broadcast. On the night of the broadcast in December 2019, the weather had been “frosty,” but it had not snowed. Burns did not check the driveway or sidewalk at her home to see whether they were safe for her guests. Stanley arrived at Burns’ home around 7:20 P.M. and at that time it was dark outside. Since Burns’ driveway was full, Stanley parked on the street. Stanley got out of her vehicle and walked “three or four steps” on the road-side sidewalk towards Burns’ driveway and slipped and fell on ice, injuring her left leg. Stanley filed a premise liability lawsuit against Burns and her husband.

To prevail in a negligence claim, a plaintiff must show (1) a duty owed by the defendant to the plaintiff, (2) breach of that duty, and (3) damages proximately caused by the breach of duty. Absent a duty, there can be no negligence. Burns moved for summary judgment in the trial court, designating as evidence Stanley’s deposition and a plat of survey of Burns’ property to show that the road-side sidewalk in front of Burns’ house was outside Burns’ property. Burns argued she was entitled to summary judgment because she had no common law duty to clear the public sidewalk where Stanley fell and the local ordinance that required her to clear the public sidewalk did not create a private right of action that Stanley could enforce against her. The trial court agreed and granted summary judgment in favor of Burns, and Stanley appealed that decision.

On appeal, the Indiana Court of Appeals first addressed Stanley’s argument that Burns had a common law duty to clear the sidewalk because Burns “controlled the premises.” Under Section 343 of the Second Restatement of Torts, which Indiana had adopted, a possessor of land is subject to liability for physical harm to invitees caused by a condition on the land when the possessor (a) knows or by the exercise of reasonable care would discover the condition, and should realize it involves an unreasonable risk of harm to such invitees, (b) should expect that such invitees will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect such invitees against the danger. However, the Court of Appeals noted that Section 343 of the Second Restatement of Torts does not define the scope of “the land” or what it means to be a “possessor of land,” there was no genuine issue of material fact that Stanley fell on the road-side public sidewalk that abutted, but was outside of, Burns’ property, and under well-established Indiana law, an owner or occupant of property abutting a public street or sidewalk has no duty to clear such streets or sidewalks of snow or ice. Accordingly, the Court found Burns did not owe any common law duty to Stanley to clear the sidewalk of ice.

In our last blog, we wrote about the Indiana Supreme Court’s decision earlier this year in Cmty. Health Network, Inc. v. McKenzie in which the Court recognized a tort claim for invasion of privacy based on the public disclosure of private facts. In the recent case of Z.D. v. Cmty. Health Network, Inc., the Indiana Court of Appeals, relying on McKenzie, allowed a public-disclosure-of-private-facts claim to proceed, as well as a negligence claim for pecuniary damages arising from a breach of medical confidentiality and privacy. In Z.D., Z.D., the patient/plaintiff, received treatment at a Community Health Network (Community) facility. After attempts were made to contact Z.D. by phone, an employee of Community wrote Z.D. a formal letter with her test results and proposed treatment. However, the employee addressed the envelope and mailed the letter to a third person, Jonae Kendrick (Kendrick), who was a classmate of Z.D.’s high-school-aged daughter. Kendrick posted the letter on Facebook where it was seen by multiple third parties.

Z.D. filed a lawsuit against Community for the “distribut[ion] [of her] extremely sensitive and private health information to unauthorized person(s) and the general public.” After the letter was posted to Facebook with Z.D.’s diagnosis, Z.D.’s fiancé broke up with her and “kicked her out of his house,” resulting in Z.D. having to rent her own apartment, Z.D.’s co-workers and supervisor at her warehouse job found out about Z.D.’s diagnosis, ultimately resulting in Z.D. leaving that job, Z.D. lost several hairdressing clients whose children attended high school with her daughter, and Z.D. suffered from depression and underwent counseling. In her lawsuit, Z.D. sought damages for loss of privacy, lost income, rent expenses, and emotional and mental distress.

Community filed a motion for summary judgment arguing Kendrick’s posting of the letter on Facebook was an unforeseeable criminal act that broke the chain of causation, Z.D. could not recover emotional distress damages under a negligence theory, and any claim for public disclosure of private facts fails because such is not recognized in Indiana (this was pre-McKenzie). The trial court granted summary judgment in favor of Community. The Court found the modified impact rule and the bystander rule barred Z.D.’s claim for emotional distress damages under a negligence theory, Z.D. could not recover damages for loss of privacy because she had not specifically pled an invasion of privacy claim, and Community’s actions were not the proximate cause of her damages.

We previously wrote about a decision by the Indiana Court of Appeals regarding a hospital employee’s unauthorized access of patient records in Community Health Network, Inc. v. McKenzie here. However, the Indiana Supreme Court later granted transfer in McKenzie, thus vacating the Court of Appeals’ decision.

The disclosing employee, Katrina Gray, was previously employed by an orthopedic group along with one of the eventual plaintiffs, Heather McKenzie. Heather was supervised by Katrina, who was the group’s medical records coordinator. Katrina also introduced Heather to her stepson and Heather and Katrina’s stepson would marry and have children. Later, Heather and Katrina’s stepson divorced, and Heather received custody. Heather then married Daniel McKenzie. The Grays and McKenzies did not get along. Later, after the orthopedic group was acquired by Community, despite agreeing to restricted access to orthopedic records only, Katrina used her access to Epic to access her records and those of other patients, including Heather’s family and relatives. Heather McKenzie, her husband, her children, her parents, and her father-in-law all brought claims against Katrina’s employer, Community, based upon Katrina’s actions.

In its opinion, departing from the Court of Appeals, the Supreme Court held that Indiana does recognize a tort claim for the public disclosure of private facts, paraphrasing a popular comic-book refrain: “with great access comes great responsibility—an abuse of which may give rise to liability.” The Court also reiterated that the situation was not governed by Indiana’s Medical Malpractice Act. Further, the Court found that the patients’ negligence claims could not survive, because, although their “distress is understandable,” no negligence claim for emotional distress may be maintained in Indiana where there is no physical impact or where the claimant does not contemporaneously “perceive any physical injury to a loved one.”

The Indiana Court of Appeals recently affirmed a trial court’s grant of summary judgment in favor of three healthcare providers in a medical malpractice case finding the affidavit of the patient’s expert was insufficient to create a genuine issue of material fact to refute a negative opinion of a medical review panel formed to review the case. In Korakis v. Mem’l Hosp. of S. Bend, Penny Korakis (Korakis) was involved in a car crash and went to Memorial Hospital of South Bend (the Hospital) where she was seen by emergency care physician David Halperin, M.D. (Dr. Halperin). Korakis reported pain from her left hand to her left shoulder and had x-rays of her left arm and hand. Dr. Halperin diagnosed her with an acute soft tissue injury. A week later Korakis returned to the Hospital and had additional x-rays, including x-rays of her left shoulder, elbow, and wrist. Korakis thereafter saw family physician Michael Messmer, D.O. (Dr. Messmer) who ordered additional x-rays of Korakis’s wrist and referred her to physical therapy. Later, Korakis obtained a second opinion from an orthopedic physician, who ordered an MRI of Korakis’s elbow. Korakis ultimately required corrective surgery for a fracture of her elbow, and she sued Dr. Halperin, Dr. Messmer, and the Hospital for failing to appropriately diagnose and treat her injuries.

To prevail in a medical malpractice case a patient must prove (1) the defendant owed the patient a duty, (2) the defendant failed to comply with the applicable standard of care, and (3) the defendant’s failure to comply with the applicable standard of care proximately caused injury to the patient. Under the Indiana Medical Malpractice Act, a medical malpractice claimant must present their case to a medical review panel comprised of three healthcare providers who issue an opinion as to whether a defendant failed to meet the applicable standard of care and whether the conduct complained of was a factor in the resultant damages. If a medical review panel finds a defendant complied with the applicable standard of care, a patient must then come forth with expert testimony to refute that opinion in order to survive summary judgment. Expert testimony necessary to refute a medical review panel opinion must establish (1) the applicable standard of care required by Indiana law, (2) how the defendant breached that standard of care, and (3) that the defendant’s negligence in breaching the standard of care proximately caused the injuries complained of.

Here, the Medical Review Panel formed to review Korakis’s case found the Defendants complied with the applicable standard of care, and the Defendants filed a motion for summary judgment based upon that opinion. In response, Korakis designated the affidavit of an orthopedic physician, James Kemmler, M.D. (Dr. Kemmler), who opined that Korakis suffered an occult fracture of her left elbow which was visible on the x-rays Korakis had at the Hospital; Dr. Halperin failed to diagnose the fracture; Dr. Messmer failed to order additional x-rays of Korakis’s elbow; Dr. Messmer should have done more testing; the delay in diagnosing and treating Korakis’s fracture worsened her condition and recovery; and Dr. Messmer’s treatment fell below the standard of care. The Defendants argued in turn that Dr. Kemmler’s affidavit was insufficient to create a genuine issue of material fact refuting the opinion of the Medical Review Panel. The trial court ultimately agreed with the Defendants and granted summary judgment in favor of the Defendants, and Korakis appealed.

The Indiana Court of Appeals recently backtracked on one of its more recent opinions on the applicability of the Indiana Medical Malpractice Act (MMA) and held in Doe v. Indiana Dep’t of Ins. that a plaintiff’s claims of sexual battery by a nurse while hospitalized do not fall under the MMA. In Doe, Jane Doe (Doe) was admitted to Indiana University Ball Memorial Hospital (the Hospital) after suffering a stroke. One of the hospital’s nurses, Nathanial Mosco (Mosco), sexually assaulted Doe and was thereafter convicted of battery. Doe filed a lawsuit against Mosco and the Hospital in court and before the Indiana Department of Insurance (IDOI). Doe and the Hospital entered into a settlement agreement for $400,000, which would allow Doe to pursue further damages from the Indiana Patient’s Compensation Fund (the Fund), which is administered by the IDOI. However, the settlement agreement provided that the settlement was not conditioned on Doe’s ability to recover additional damages from the Fund. After Doe filed a petition for excess damages against the Fund, the Fund moved for summary judgment arguing the MMA did not apply, and therefore, it had no obligation to pay any excess damages, even if warranted. The trial court granted the Fund’s motion for summary judgment and Doe appealed.

The MMA applies to claims of medical malpractice against healthcare providers that are qualified under the MMA. Qualified healthcare providers have numerous protections under the MMA, including, among other things, a cap on damages. Ind. Code § 34-18-14-3. Under the MMA, if a qualified healthcare provider or its insurer has agreed to settle its liability by payment of its limits, a claimant is then allowed to seek excess damages from the Fund. Ind. Code § 34-18-15-3. However, not all claims against qualified healthcare providers constitute medical malpractice.

Over the years, court decisions have delineated tests as to what constitutes medical malpractice. These tests include whether the claim involves curative or salutary conduct of a healthcare provider acting in a professional capacity, whether the subject conduct was related to the promotion of a patient’s health and the provider’s exercise of professional expertise, skill, or judgment, and whether the issues in the case are capable of resolution by a jury without application of the standard of care. However, in the recent Indiana Court of Appeals decision in Martinez v. Oaklawn Psychiatric Ctr., Inc., the Court stated that “the current test… as to whether the [MMA] applies to specific misconduct is to determine whether that misconduct arises naturally or predictably from the relationship between the health care provider and patient or from an opportunity provided by that relationship,” with the Court also noting such conduct may include tortious or abusive conduct. Martinez v. Oaklawn Psychiatric Ctr., Inc., 128 N.E.3d 549, 558 (Ind. Ct. App. 2019).

In our last blog, we wrote about Erie Ins. Exch. v. Craighead in which the Indiana Court of Appeals held car insurance companies do not get setoffs against underinsured motorist (UIM) limits for payments made to their insureds under medical payments coverages. The day after the Court’s decision in Craighead, the Indiana Court of Appeals issued a similar opinion in Kearschner v. Am. Family Mut. Ins. Co., S.I. with respect to setoffs for worker’s compensation payments.

In Kearschner, Donald Kearschner (Kearschner) injured his shoulder in a car crash while working for Wal-Mart. The at-fault driver had a liability insurance policy with a $50,000 limit. Kearschner had his own insurance coverage with American Family Mutual Insurance Company (AFI), with $100,000 in liability coverage and $100,000 in UIM coverage. Kearschner sued the at-fault driver and AFI. Kearschner settled with the at-fault driver for the at-fault driver’s liability limit of $50,000 and sought an additional $50,000 in UIM coverage from AFI. AFI moved for summary judgment arguing that Kearschner was not entitled to any UIM coverage because, in addition to the $50,000 he received from the at-fault driver, he had also received a net amount of $62,084.52 in worker’s compensation payments, and his UIM policy stated that his UIM limit would be reduced by any payment from an at-fault driver and by any payment made under any worker’s compensation law. The trial court granted AFI’s motion and Kearschner appealed.

Similar to its decision in Craighead, the Indiana Court of Appeals held that the provision of Kearschner’s AFI policy providing a setoff for the $62,084.52 in worker’s compensation payments violated Indiana’s uninsured/UIM statute, specifically Indiana Code § 27-7-5-2 (“the UIM Statute”). The Court noted that the purpose of UIM coverage is to provide an insured with a recovery the insured would have received had the at-fault party carried adequate liability insurance, with the UIM Statute providing a minimum level of compensation. The UIM Statute provides that, absent a written rejection, UIM coverage (1) must be provided “in limits at least equal to the limits of liability specified in the bodily injury liability provisions of an insured’s policy,” and (2) may not be provided in an amount less than $50,000. Ind. Code § 27-7-5-2(a).

The Indiana Court of Appeals recently held that automobile insurers do not get a setoff against underinsured motorist (UIM) limits above the statutory minimum of $50,000.00 for payments made by insurers under medical payments coverage (MPC). In Erie Ins. Exch. v. Craighead, Olivia Craighead (Craighead) was injured in a single-vehicle car crash while riding as a passenger. She pursued a claim against the driver, and the driver’s insurance company paid her $50,000 in liability coverage and $5,000 in MPC. Craighead also pursued a claim against her own insurance company, Erie Insurance Exchange (Erie). Craighead had $100,000 in UIM coverage and $5,000 in MPC under her policy with Erie. Erie paid the $5,000 in MPC but disputed the amount of the remaining UIM coverage after setoffs pursuant to Craighead’s policy with Erie, which provided that the limit of UIM coverage available would be reduced by liability payments and MPC payments.

Erie claimed Craighead’s $100,000 UIM coverage should be set off by both the $50,000 liability payment and the $10,000 in MPC payments, thereby making the available UIM coverage $40,000. While recognizing Erie was entitled to a setoff for the $50,000 liability payment, Craighead claimed she was entitled to the remaining $50,000 in UIM coverage with no setoff for the $10,000 MPC payments. After Erie refused to pay the undisputed $40,000 in UIM coverage absent agreement by Craighead to release her claim for the additional $10,000 in coverage, Craighead filed a lawsuit against Erie for both breach of contract and bad faith. After Craighead filed suit, Erie reversed its previous position and paid Craighead the undisputed $40,000 in UIM coverage.

Both parties moved for summary judgment in the trial court. Erie argued it acted in accordance with Indiana law and not in bad faith in enforcing the MPC setoff policy provision. Craighead argued the MPC setoff policy provision violated Indiana law and there was a genuine issue of material fact as to whether Erie acted in bad faith. The trial court denied Erie’s motion for summary judgment but granted Craighead’s motion for partial summary judgment, finding a setoff from Craighead’s UIM coverage for the $10,000 MPC payments was not permissible. Erie appealed.

The Indiana Court of Appeals recently reversed a trial court’s grant of summary judgment in favor of a music venue security company alleged to have caused a crowd surfer’s injuries in a fall. In Wiley v. ESG Sec., Inc., Seth Wiley (Wiley), a minor at the time, was crowd surfing during a “punk rock” concert at the Murat in Indianapolis, Indiana. ESG Security, Inc. (ESG) was contracted by Live Nation to provide security at the concert. “Bicycle racks” were placed between the stage and the crowd with several ESG personnel stationed between the racks and the stage. Various concertgoers were crowd surfing during the concert, including Wiley on three or four occasions prior to his fall. On prior occasions, ESG personnel helped Wiley to the ground after he reached the front of the audience and was passed over the racks. However, the last time he crowd surfed the crowd moved him to the front of the audience when there were no ESG personnel to support him down, as they were attending to another concertgoer, and he fell and sustained injuries.

Wiley sued various parties for his personal injuries, including ESG. Under Indiana law, to recover in a negligence case, a plaintiff must show (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the defendant’s breach proximately caused the plaintiff’s injuries. Generally, the existence of a duty is a question of law for courts to decide.

ESG filed a motion for summary judgment arguing it was entitled to judgment as a matter of law as it did not owe Wiley a duty of care and Wiley incurred the risk of his injuries. While the contract between ESG and Live Nation stated that ESG would “exert reasonable… efforts to protect all persons who enter [the venue] from… personal injury from any causes whatsoever,” ESG argued that language only applied to risks of which a concertgoer would not be aware or warned against and such did not mean ESG had to protect concertgoers from their own negligent acts. There were signs posted throughout the venue, and an audio message repeatedly played, that crowd surfing was prohibited and those who crowd surfed did so at their own risk and were subject to expulsion.

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