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The Indiana Supreme Court recently opined on a certified question from the United States District Court for the Northern District of Indiana that a Wal-Mart store manager could not be held liable for negligence for a trip-and-fall incident that occurred in the store on account of alleged failures to properly hire, train, and supervise Wal-Mart’s employees, as well as alleges failures to implement proper safety policies and procedures. In Branscomb v. Wal-Mart Stores East, L.P., the Court considered the certified question when Wal-Mart and the store manager sought to remove the case from state court to federal court under federal diversity jurisdiction upon the basis that the store manager, Clark, an Indiana citizen, was fraudulently joined to the lawsuit, was not a proper party to the case, and, therefore, his citizenship should be ignored, leaving only Wal-Mart, a non-Indiana citizen, as a defendant. After Wal-Mart removed the case to federal court on diversity grounds, Plaintiffs sought to remand the matter back to state court, alleging questions of fact existed as to the store manager’s role in the negligence giving rise to the Plaintiffs’ injuries. The federal court noted there was no clear precedent on the issue and, therefore, certified the question to the Indiana Supreme Court.

In analyzing the question, Indiana’s Supreme Court noted that although Indiana recognizes the tort of negligent hiring, training, and supervision, the tort is not applicable if the tortfeasor employee is acting in the course and scope of employment. Branscomb had suffered injuries when he tripped over a pallet in the Wal-Mart garden center, leading to his fall. Looking at the allegations of the case, the court observed that the facts made no suggestion that the individual who placed a pallet on the floor in Wal-Mart’s garden center had been acting outside the scope of their employment and the Plaintiffs had made no such allegation. Consequently, under these particular allegations, the court found the Plaintiffs could only possibly hold Wal-Mart liable for the personal injuries sustained for which they were seeking recovery in their lawsuit.

As for the other allegations—that the store manager failed to implement proper safety policies and procedures to prevent the trip-and-fall event—the store manager submitted an affidavit stating that managers in his position, do not have any discretion to unilaterally determine safety policies and procedures for the store, which discretion is, instead, given by “managers from higher up the Wal-Mart corporate ladder.” The court then turned to Indiana premise liability law, which provides only a possessor, controller, or person entitled to “immediate occupation” of the land has a duty to business invitees, like Branscomb, to prevent foreseeable harm from dangers on the land that were known or should have been known by the person. Because the Wal-Mart store manager accused of negligence did not possess the land, was not in control of the land when the fall occurred (it was his day off), and there were others who were entitled to occupy the land with intent to control it while the manager was off duty, the manager did not owe Branscomb a duty at the time of his fall under Indiana law.

The Indiana Court of Appeals recently affirmed a trial court’s grant of summary judgment in favor of a cemetery in an Indiana premise liability case. In Lowrey v. SCI Funeral Servs., Inc., Donald Lowrey and Barbara Lowrey were visiting their daughter’s interment site at the Elm Ridge Funeral Home & Memorial Park in Muncie, Indiana. As the Lowreys were walking on a sidewalk around a mausoleum in an attempt to return to the cemetery’s parking lot, Donald attempted to step across the grassy corner of two perpendicular sidewalks stepping from one sidewalk to the other sidewalk. However, when Donald stepped his foot did not make it completely onto the intersecting sidewalk, and as a result, his ankle rolled and he fell to the ground, striking his wife Barbara, who also fell. Donald and Barbara were both injured as a result of their falls and they sued the cemetery.

In their personal injury lawsuit, the Lowreys alleged the cemetery was negligent in maintaining its sidewalks due to ground/soil erosion at the corner of the two intersecting sidewalks. In support of their claims, the Lowreys presented a report from a professional engineer who determined there was a two-to-three-inch drop-off from the sidewalk to the ground at the corner of the sidewalks, the erosion of the ground at the corner of the sidewalks was due to the direction of drainage, and the cemetery’s failure to keep the ground flush with the sidewalks caused Donald’s fall. The cemetery filed a motion for summary judgment arguing it was not negligent as a matter of law. After holding a hearing, the trial court granted the cemetery’s motion, and the Lowreys appealed.

Indiana has adopted Section 343 of the Restatement (Second) of Torts in premise liability cases, which provides that a property owner is liable for injuries to persons invited onto their property caused by a condition on their property if the owner (1) knew of, or should have discovered, the condition and that it involved an unreasonable danger, (2) should have expected persons invited onto the property would not realize the danger or protect themselves against it, and (3) the property owner failed to exercise reasonable care to protect such persons against the danger. However, under Section 343A of the Restatement, if a danger is known or obvious to an invitee, a property owner will not be liable unless the property owner should have anticipated the harm despite such knowledge or obviousness. Importantly, property owners are not insurers of their invitees’ safety, and the fact that a fall occurred is not sufficient in and of itself to prove negligence.

Non-signatories to nursing home contracts with arbitration clauses that seek to compel arbitration based upon equitable estoppel must satisfy Indiana’s established elements of equitable estoppel, the Indiana Supreme Court recently held in Doe v. Carmel Operator, LLC. As part of the admission of 77-year-old Jane Doe II (“Jane”) to Carmel Senior Living (“CSL”), an assisted living facility in Carmel, Indiana, her guardian, Jane Doe I (“Guardian”), executed a residency agreement with CSL that contained an arbitration clause requiring claims against it be arbitrated. After Jane was sexually abused by a CSL employee, Guardian filed a lawsuit against CSL, CLS’s management company, the employee, and Certiphi Screening (“Certiphi”), a company hired by CSL to conduct background checks of CSL employees. Guardian alleged CSL and Certiphi were negligent in failing to discover the employee’s prior felony convictions for a sex crime and murder.

Indiana has a strong public policy in favor of arbitration agreements. Such agreements, however, can be invalidated with generally applicable contract defenses, such as unconscionability. Even though parties may agree to have the Federal Arbitration Act apply to an agreement, state contract law governs the scope of the agreement, including who is bound by it. Typically, only contracting parties or those in privity with contracting parties can enforce arbitration agreements. However, if the parties want to allow non-signatories to enforce such agreements, the parties can state their intent in the agreement, thereby making the non-signatory a third-party beneficiary. Non-signatories can also enforce arbitration agreements under the doctrine of equitable estoppel.

Here, CSL and Certiphi both moved to compel arbitration of the claims arising out of the resident’s alleged nursing home negligence, which Guardian opposed, arguing the arbitration agreement was unconscionable and, as to Certiphi, could not be enforced by Certiphi because Certiphi was not a party to the agreement. The trial court granted the motions to compel filed by CSL and Certiphi, and Guardian appealed. The Indiana Court of Appeals affirmed, finding the agreement was not unconscionable, and, as to Certiphi, Guardian was equitably estopped from asserting Certiphi could not enforce the arbitration agreement because Guardian was alleging substantially interdependent and concerted misconduct by both CSL and Certiphi. In so holding, the Indiana Court of Appeals relied upon its prior split-panel decision in German American Financial Advisors & Trust Co. v. Reed, 969 N.E.2d 621 (Ind. Ct. App. 2012) in which the Court adopted an alternative theory of equitable estoppel for arbitration agreements allowing non-signatories to enforce arbitration agreements if they could show either (1) reliance by a signatory on the agreement in asserting a claim against a non-signatory, or (2) allegations of substantially interdependent and concerted misconduct by both a signatory and non-signatory to the agreement.

Governmental entities in Indiana have a duty to exercise reasonable care to keep roadways and sidewalks reasonably safe for travel. However, governmental entities also enjoy immunity under certain circumstances. In two recent cases dealing with governmental immunity for losses caused by temporary conditions of roadways resulting from weather, the Indiana Court of Appeals has questioned and raised concerns with the Indiana Supreme Court’s analytical framework set forth in the 2002 decision of Catt v. Bd. of Comm’rs of Knox Cty., 779 N.E. 2d 1 (Ind. 2002).

The plaintiff in Catt was injured when his vehicle slid and crashed into a ditch in Knox County caused by a washed-out culvert following a rainstorm the night before. The culvert had washed out many times prior to Catt’s car accident and had been repaired. The plaintiff alleged Knox County had negligently inspected, designed or maintained the roadway. However, the Indiana Supreme Court held Knox County, despite any negligence, was immune from liability under section 34-13-3-3(3) of the Indiana Tort Claims Act, 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). The Court framed the question as whether the washed-out culvert was due to weather and whether Knox County had the opportunity to repair the washed-out culvert and failed to do so (i.e., whether it was temporary versus permanent), regardless of any prior negligent inspection, design or maintenance or the frequency with which the culvert may have washed out on prior occasions. Since the washed-out culvert was caused by weather, Knox County had not received notice that it had washed out on this occasion prior to the collision, and Knox County was busy repairing other washed-out culverts and had previously repaired this one, the Court found the washed-out culvert was caused by weather and was a temporary condition.

In subsequent cases based on Catt, the Indiana Supreme Court has further explained that governmental immunity for temporary conditions resulting from weather applies during the “window of reasonable response” to the road condition. That window lasts until the condition stabilizes. That is, if the condition continues to worsen or is still evolving, the condition has not stabilized and is therefore deemed temporary, and the government is immune.

Barsumian-Armiger-Personal-Injury-Medical-Malpractice-Indiana-Super-Lawyers-1-300x157

Super Lawyers rates Indiana attorneys on a yearly basis in more than 70 different practice areas, including personal injury and medical malpractice.  Following its completion of a peer review process, together with a patented evaluation process, the organization determines the lawyers in Indiana it will include on its Super Lawyers and Rising Stars list and announces those named online and in its Super Lawyers Magazine.  Super Lawyers rates attorneys nationwide among their peers for their respective states and areas of practice.

This year marks Barsumian’s fourth consecutive selection as a Super Lawyer in the field of personal injury.  Super Lawyers recognizes no more than 5 percent of the attorneys in Indiana.  Barsumian was previously selected as a Rising Star on four occasions.  Armiger, recognized for the area of medical malpractice, has now been selected to the Rising Star list on five occasions.  The Rising Stars designation recognizes attorneys 40 years old or younger and represents only 2.5 percent of the attorneys in Indiana.

Barsumian and Armiger are proud of this recognition and look forward to continuing to serve their clients in the Indianapolis and Evansville area in the areas of personal injury, medical malpractice, and wrongful death.

Jacqueline McGuire was a resident of Henderson County Healthcare Corporation’s Redbanks Skilled Nursing Facility in Henderson Kentucky.  After McGuire suffered bedsores and multiple injuries while at Redbanks, McGuire was transferred to another nursing home facility where she ultimately died.  McGuire’s brother, as administrator of her estate, filed a nursing home negligence lawsuit with various claims against Redbanks arising out of the alleged neglect.

During the prosecution of the lawsuit, Redbanks refused to respond to discovery requests seeking documents Redbanks claimed were protected by the Federal Quality Assurance Privilege (FQAP) pursuant to 42 U.S.C. § 1396r(b)(1)(B) and 42 U.S.C. § 1395i-3(b)(1)(B).  The FQAP is a subsection of the Federal Nursing Home Reform Act (FNHRA) passed in 1987.  To ensure quality care of nursing home residents, the FQAP requires skilled nursing facilities and nursing facilities to establish a quality assessment and assurance committee.  The FQAP protects the records of the committee from disclosure.

At times relevant to McGuire’s care, Redbanks had a Quality Assurance Performance Improvement (QAPI) committee, which then contracted with an independent contractor, Wells Health Systems (“Wells”), to consult and evaluate and provide guidance to Redbanks on the facility’s quality of care.  Nurse consultants employed by Wells performed site visits monthly wherein they examined residents’ medical charts, observed Redbanks staff perform their duties, and reviewed various statistical data.  These chart audits, compliance rounds, and statistics reviews were then compiled in reports provided to Redbanks QAPI.  The nurse consultants were neither Redbanks’ employees, nor members of the QAPI.

Unlike Indiana, Kentucky has a statute, the Unfair Claims Settlement Practices Act (“UCSPA”), KRS 304.12-230, that expressly allows for bad-faith claims to be brought against liability insurers for unfair claims settlement practices.  However, so-called captive insurers have taken the position that they are excluded from the law.  The Kentucky Supreme Court recently addressed the issue in Merritt v. Catholic Health Initiatives, Inc.

Harold Merritt alleged that Dr. Anthony Smith, an employee of KentuckyOne Health, was responsible for medical negligence in the deaths of his wife, Kimberly, and infant son.  During her pregnancy, Kimberly developed placenta previa, a condition wherein the baby’s placenta partially or totally covers the mother’s cervix, which can cause severe bleeding during pregnancy and delivery.  Although the high-risk obstetrician to whom Dr. Smith referred Kimberly recommended a caesarian section no later than at thirty-seven weeks gestation, Dr. Smith examined her at thirty-seven weeks and scheduled an appointment one week later.  Shortly thereafter Kimberly was found unresponsive at home and died shortly after being transported to the hospital by EMS.  The couple’s child was delivered by post-mortem caesarian section, but only survived a few hours, suffering seizures during that time.

In his medical malpractice complaint, Merritt named Catholic Health, an entity that sponsors KentuckyOne Health and its affiliates, and First Initiatives, a foreign, wholly-owned subsidiary of Catholic, which provided self-insurance coverage to Catholic, its affiliates and employees including KentuckyOne Health and Dr. Smith.  First Initiatives provided coverage and Catholic paid assessments to First Initiatives, although Catholic’s affiliates did not pay for the coverage.  Merrit included a claim that First Initiatives violated the UCSPA, KRS 304.12-230, by engaging in bad faith settlement negotiations.

How does a $1,000,000 verdict in a car-accident-whiplash case become a $250,000 verdict and then ultimately become a $0 judgment? That is the query recently answered by the Seventh Circuit in Spinnenweber v. Laducer.

Spinnenweber was driving a minivan on I-94 in Indiana when he was rear-ended by a truck driven by Laducer. Spinnenweber refused medical care at the scene and only five days later sought care at an urgent care center for pain in his neck and possible ringing in the ears, which is also commonly known as tinnitus. Three months later Spinnenweber reported to his doctor that he was suffering tinnitus and short-term memory loss. Spinnenweber ultimately treated with seventeen medical providers.

Spinnenweber sued Laducer and Laducer’s employer. At trial, Spinnenweber did not seek damages for anything but physical injuries, waiving any request for medical expenses or lost wages or psychiatric, mental, or emotional injuries. The Defendants conceded responsibility for causing the crash.

The United States Court of Appeals for the Seventh Circuit recently requested the Indiana Supreme Court address two questions through a process known as certification of questions.  Both Seventh Circuit Rule 52(a) and Indiana Rule of Appellate Procedure 64 recognize federal courts may seek guidance from a state’s highest court on questions arising under the law of that state which will control the outcome of a case pending in federal court.

The questions arose out of a tragic car crash in Gibson County, Indiana, which claimed the lives of two drivers and a passenger.  Sylvia Watson was driving from a repair shop in Owensville, Indiana to Princeton, when she approached a red light and exclaimed to the sole survivor of the crash, her granddaughter/passenger, Brandy Mayer, that she could not stop the vehicle.  Watson’s vehicle struck a vehicle driven by Claudine Cutchin, whose daughter, Adelaide, was in the passenger seat.  Claudine died at the scene and Watson and Adelaide died later from the injuries suffered.

A blood test on Watson revealed opiates in her bloodstream and Mayer recounted Watson had taken two pills before leaving the repair shop.  It was later discovered that a physician had prescribed Watson eight different medications, including an opioid and muscle relaxers.

We previously wrote on the Indiana Court of Appeals’ decision in Smith v. Franklin Twp. Cmty. Sch. Corp. in which the Court of Appeals reversed a trial court’s dismissal of a personal injury lawsuit concerning a motor vehicle accident finding the pre-suit notice requirements of Indiana’s Claims Against Public Schools Act (“CAPSA”), which was enacted a year and a half after the subject accident, could not be retroactively applied. Recently, on a petition to transfer, the Indiana Supreme Court weighed in and affirmed the trial court’s dismissal on procedural grounds.

The personal injury lawsuit arose when Benjamin Smith (“Smith”) was injured when his vehicle collided with a school bus owned and operated by the Franklin Township School Corporation (“the School”). After Smith filed a lawsuit, the School filed a motion to dismiss arguing that Smith failed to comply with the notice provisions of the newly enacted CAPSA. Smith did not file a response to the motion to dismiss, and when the trial court dismissed Smith’s complaint without prejudice, he did not appeal. Instead, after two months had passed, Smith filed a series of filings requesting reinstatement of his complaint pursuant to Indiana Trial Rule 41(F), which the trial court denied.

The Indiana Supreme Court did not review whether Smith’s tort claim notice pursuant to the Indiana Tort Claims Act satisfied the notice requirements of CAPSA, or whether CAPSA could be retroactively applied given it was enacted after the subject accident. Instead, the Court focused on whether Smith followed the proper procedure in challenging the trial court’s dismissal.

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