CORONAVIRUS UPDATE: How We Are Protecting and Serving Our Clients
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The Indiana Court of Appeals recently affirmed a trial court’s grant of summary judgment in favor of a property owner finding it had no duty to the traveling public as a result of tall grass on its property. In Reece v. Tyson Fresh Meats, Inc., a 92-year-old motorist, Harold Moistner (“Moistner”), pulled out into an intersection and collided with a motorcycle being driven by Walter Reece. Walter suffered catastrophic brain injuries in the motorcycle-vehicle collision. The investigating police officer completed a report and documented that tall grass on the northwest side of the intersection would have limited or prohibited Moistner’s view of Walter on his motorcycle. Judy Reece (“Reece”), individually and as Walter’s guardian, filed a lawsuit against various defendants, including Moistner and Tyson Fresh Meats, Inc. and Tyson Foods, Inc. (collectively “Tyson”), which owned a plant on the northwest side of the intersection. Tyson moved for summary judgment as to duty, which the trial court granted.

To prove negligence in Indiana, a plaintiff must show the defendant owed a duty to the plaintiff, the defendant breached that duty, and the breach proximately caused injuries to the plaintiff. Whether one party owes another party a duty is generally a question of law for the court to decide. If there is no duty owed by the defendant, there can be no breach and therefore no negligence.  Although Moistner certainly owed Reece a duty under the rules of the road applicable to motorists, whether a landowner owes a motorist operating a vehicle on a public roadway presents an interesting question for auto accident attorneys and the courts.

Under well-established Indiana law, a landowner owes a duty to the traveling public to exercise reasonable care in the use of his property so as not to interfere with the safety of public travelers on adjacent roadways. Courts have, for instance, found a duty of care on behalf of a railroad when its employees started a fire that caused smoke to blow over a nearby road obstructing the view of motorists, on behalf of a manufacturing plant that created a congestion of vehicles exiting the plant resulting in a collision, and on behalf of a landowner whose tree fell on a roadway. However, there is generally no liability for harm caused outside land by a natural condition on the land, except for unreasonable risks of harm from trees in urban areas, and even with respect to artificial conditions, there is no liability except for the creation of hazardous conditions that intrude upon a roadway. Thus, there is no duty where the activity is wholly contained on a landowner’s property.

As cold weather with the potential for snow and ice accumulations in store parking lots and on sidewalks approaches, the Indiana Court of Appeals’ recent decision in Pioneer Retail, LLC v. Jones is a reminder to businesses that despite not being an owner of the property, businesses can still be held liable for injuries to their invitees. In this case, the Indiana Court of Appeals upheld a significant jury verdict for a woman who suffered severe injuries in a fall on ice on a sidewalk outside a Wiseway Food grocery store in Crown Point, Indiana. Plaintiff Jane Jones (“Jones”) filed suit against Pioneer Retail, LLC (“Pioneer”), which owned and operated the Wiseway Food grocery store, the owner of the property where the Wiseway Food grocery store was located, a management company for the property, and a snow and ice removal contractor. Prior to trial, Pioneer filed a motion for summary judgment arguing it was entitled to judgment as a matter of law because it did not owe any duty of care to Jones. After conducting a hearing on the matter, the trial court denied Pioneer’s motion for summary judgment and the Court of Appeals denied its interlocutory appeal. The case proceeded to a jury trial and the jury returned a verdict in favor of Jones, with 25% fault apportioned to Pioneer and 75% fault apportioned to the other defendants.

Pioneer appealed and argued on appeal that the trial court erred by denying its motion for summary judgment. Pioneer argued it neither owned nor controlled the sidewalk where Jones fell. Pioneer argued the property owner was the exclusive owner of the sidewalk with ultimate responsibility for keeping it clear of snow and ice. Pioneer pointed to the fact that the property owner had contracted with a snow and ice removal contractor to clear snow and ice from the sidewalk.

Under Indiana law, to recover damages in a slip and fall negligence case, a plaintiff must show 1) the defendant owed a duty to the plaintiff, 2) the defendant breached that duty, and 3) the plaintiff’s injury was proximately caused by the defendant’s breach of duty. Landowners and possessors of land owe persons they invite onto their premises a duty to exercise reasonable care for their protection while they are on the premises. An inviter is subject to liability for physical harm caused to its invitees by a condition on land if it (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees; (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.

Depending on the circumstances surrounding a fatality caused by another’s negligence, Indiana statutes may place limits on the monetary value of the human life taken when it comes to compensating the remaining family members for their loss.  Known as a “damage cap,” such limits may be triggered by the status of the negligent actor being a qualified healthcare provider or a governmental entity. Another damage cap depends on the dependency of those family members left behind, which is the topic of today’s blog.

The Indiana Court of Appeals recently ruled that the adult son of a decedent was not a dependent for purposes of Indiana’s General Wrongful Death Statute and that he could not pursue an alternative survival claim based upon the Defendants’ admissions of liability. In Franciscan ACO, Inc. v. Newman, Virginia Newman was being transported by an employee of Franciscan ACO, Inc. and/or Franciscan Alliance, Inc. (“Franciscan”). During the transport, Virginia and her wheelchair were not properly secured, and when the employee turned, Virginia and her wheelchair fell over. Virginia suffered injuries and subsequently died. Virginia’s son, Vaughn Newman, filed a lawsuit alleging wrongful death and asserting an alternative survival claim for his mother’s injuries.

Defendants filed an answer in which they admitted the factual allegations in Vaughn’s complaint as to negligence and that the negligence caused Virginia’s death. They thereafter filed a motion for summary judgment arguing that Vaughn was not a dependent under Indiana’s General Wrongful Death Statute and was therefore limited to the $300,000 cap for loss of love and companionship under Indiana’s Adult Wrongful Death Statute. They also argued the evidence established that Defendants caused Virginia’s death, and therefore, Vaughn’s survival claim should be dismissed. After holding a hearing, the trial court denied the Defendants’ motion.

The Indiana Court of Appeals recently held in Parkview Hosp. Inc. v. Am. Family Ins. Co. that a hospital was entitled to judgment as a matter of law on its hospital lien claim against an automobile insurance company that paid settlement funds directly to an injured party pursuant to an Ohio court order due to the insurance company’s failure to comply with the Indiana Hospital Lien Act. After suffering injuries in a car accident in Ohio, Carl Willis (“Willis”) received treatment for his injuries at Parkview Hospital (“Parkview”) in Allen County, Indiana with a balance due of $95,541.88 for the treatment provided at Parkview. Parkview filed a hospital lien in Allen County, Indiana pursuant to the Hospital Lien Act, Ind. Code § 32-33-4-4, and provided notice of such lien to Willis, Willis’ attorney, and American Family Insurance Company (“American Family”). Willis thereafter filed suit in Ohio against the parties responsible for the accident and American Family.

The Ohio trial court granted a motion to join Parkview as a party plaintiff in the Ohio action, ordering Parkview to appear or otherwise waive its rights. Parkview disputed that the Ohio court had subject matter jurisdiction over its claim and did not appear in the action. After settling the claim, Willis filed a motion to enforce the settlement agreement, which the Ohio trial court granted, ordering American Family to pay Willis $50,000.00 and ordering Willis to execute a hold harmless agreement with respect to any remaining valid liens. Parkview was not notified of the motion to enforce settlement agreement or order. The Ohio case was thereafter dismissed with prejudice.

Parkview then filed a complaint in Allen County, Indiana against Willis and American Family. Default judgment was entered against Willis. American Family and Parkview filed motions for summary judgment. American Family argued Parkview’s claim was barred based upon the proceedings in Ohio. Parkview argued that American Family violated the Hospital Lien Act. The trial court denied American Family’s motion finding the Ohio court did not have subject matter jurisdiction over Parkview’s hospital lien claim. The trial court also denied Parkview’s motion finding there existed a genuine issue of material fact as to whether American Family was justified in complying with the Ohio trial court’s order requiring it to pay the settlement proceeds to Willis.

We previously wrote about an Indiana Court of Appeals case in which the court reversed a trial court’s judgment on a jury verdict of $40,000 for a plaintiff in a truck accident case and remanded the case for a new trial based upon the trial court’s giving of a failure to mitigate jury instruction. In Humphrey v. Tuck, the plaintiff, Patrick Humphrey, suffered swelling of a pre-existing tumor after being sideswiped by a truck and hitting his head, which caused problems with his vision and symptoms of a hormonal imbalance. Humphrey did not follow his doctor’s orders and advice with regards to medication management and an eyeglass prescription. However, the parties disagreed as to whether the defendants had shown such failure increased his harm, and if so, by how much. In a recent opinion, the Indiana Supreme Court found there was sufficient evidence to support a failure to mitigate instruction, thereby vacating the Court of Appeals opinion and affirming the judgment.

When reviewing the appropriateness of an instruction, reviewing courts consider whether (1) the instruction correctly states the law, (2) the instruction is supported by evidence in the record, and (3) the instruction’s substance is covered by another instruction. The first consideration is a legal question reviewed without giving any deference to the trial court, whereas the second and third considerations are reviewed for an abuse of discretion. To prove a failure to mitigate, a defendant must prove by a preponderance of the evidence that (1) the plaintiff did not exercise reasonable care in mitigating post-injury damages, and (2) the failure to exercise reasonable care caused the plaintiff to suffer harm not attributable to the defendant’s negligence. When a plaintiff fails to follow medical advice aggravating his injuries, a defendant must show such failure caused discrete, identifiable harm arising from that failure and not attributable to the defendant. Courts consider whether the defendant has produced enough evidence of causation to warrant an instruction. Expert opinion is often, but not always, required, with courts considering whether the medical issue is within the common experience, observation, or knowledge of a layman.

The Court of Appeals reversed the trial court and remanded for a new trial finding the evidence insufficient to support a failure to mitigate jury instruction. The Indiana Supreme Court, however, disagreed, noting under Indiana law to warrant the giving of an instruction a defending party need only show some evidence—a “scintilla”—of each element of the underlying claim or defense. Here, the trucking crash plaintiff Humphrey conceded the existence of evidence showing he had failed to exercise reasonable care to mitigate his post-injury damages; the only question, therefore, was whether there was some evidence that his conduct caused him to suffer harm beyond that attributable to the defendants. As to the second element of failure to mitigate, the Indiana Supreme Court noted that the issue is not only whether Humphrey’s failure to follow his doctor’s orders increased his harm, but also whether it prolonged the suffering he attributed to the defendants’ negligence in any discrete, measurable way, without the defendants having to put forth a specific numerical value as to the plaintiff’s increased or prolonged harm in showing “quantifiable” harm. Defendants argued that Humphrey’s failure to mitigate his damages either aggravated his injuries or prolonged them.

The Indiana Court of Appeals recently held a nursing home, qualified under the Indiana Medical Malpractice Act, had relinquished its right to protections afforded by the Act to medical malpractice defendants by contracting for claims against it to be resolved exclusively by arbitration, such that the estate of a nursing home resident could compel arbitration in lieu of presenting the case before a medical review panel.

The Estate of Sandra King (“the Estate”) filed a medical malpractice lawsuit against Aperion Care d/b/a Aperion Care Tolleston Park (“Aperion”) relating to nursing care provided to King while she was a resident at Aperion. As part of her admission to the nursing home, King signed Aperion’s Arbitration Agreement, which provided all claims against Aperion were to be resolved exclusively by arbitration. After filing a lawsuit and conducting discovery, and prior to tendering its medical review panel submission, the Estate moved to compel arbitration based upon the Arbitration Agreement. After a hearing, the trial court denied the Estate’s motion to compel, finding the case “not yet ripe for arbitration,” as the case had not yet been presented to a medical review panel.

Under the Indiana Medical Malpractice Act, qualified healthcare providers (i.e., those who have filed proof of financial responsibility and paid the applicable surcharge, Ind. Code § 34-18-3-2), get numerous protections, including a requirement that plaintiffs first present their claims before a medical review panel prior to prosecuting them in court. Ind. Code § 34-18-8-4. Medical review panels are comprised of one attorney chairperson and three healthcare providers. Ind. Code § 34-18-10-3. Once the panel is formed, the parties tender medical review panel submissions consisting of evidence to be considered by the panel. Ind. Code § 34-18-10-17. The panel then issues an opinion on whether the defendants complied with the applicable standard of care and whether the conduct complained of was a factor in the resultant damages. Ind. Code § 34-18-10-22.

The Indiana Court of Appeals in Anonymous Physician 1 v. White affirmed the trial court’s denial of a motion to dismiss filed by a fertility doctor and fertility clinic in a lawsuit against the fertility doctor for using his own sperm in artificially inseminating a patient in the early 1980s. The lawsuit filed on behalf of the patient and her son alleged breach of contract and medical malpractice.

The patient went to the fertility doctor for help becoming pregnant. The fertility doctor and the patient entered into a contract that provided that the doctor would artificially inseminate the patient with donor sperm from an anonymous medical school resident, and the doctor was supposed to use the donor sperm in no more than three successful artificial insemination procedures. As a result of the artificial insemination, the patient became pregnant and gave birth to a son in 1982. After learning in 2016 that the doctor had used his own sperm, the patient and her son filed a lawsuit.

The doctor and clinic filed a motion to dismiss the son’s claim arguing he had not established he was a third-party beneficiary to the contract with his mother, that he had failed to sufficiently state a claim for negligence because no duty was owed to him, and that he had failed to state a claim for compensable injuries. A motion to dismiss under Indiana Trial Rule 12(B)(6) tests the legal sufficiency of a complaint as to whether some facts have been stated giving rise to a legally actionable injury. Courts accept alleged facts as true and view them and all reasonable inferences in favor of the nonmovant. Under Indiana’s notice pleading standard, a complaint only needs to contain a short and plain statement of the claim showing entitlement to relief. Allegations are sufficient if they put a reasonable person on notice as to why the plaintiff is suing. Motions to dismiss are disfavored as they undermine the policy of deciding cases on their merits.

In Community Health Network, Inc. v. McKenzie, the Indiana Court of Appeals addressed several important health law issues, one of which was whether a claim of negligence arising out of a hospital employee’s accessing another’s private health information falls under Indiana’s Medical Malpractice Act. The Court of Appeals ruled that such mishandling of a patient’s confidential information “even by a treating physician—are not governed by the Medical Malpractice Act.”

The claimant, Heather McKenzie, was initially employed at Indiana Orthopedic Center (“IOC”), along with Katrina Gray. Katrina was the medical records coordinator and was Heather’s direct supervisor. Katrina introduced Heather to her stepson, Kevin, and the two married and had two children. Thereafter, Kevin and Heather divorced and Heather received full custody of the children. Heather later married Daniel McKenzie. The Gray family and the McKenzie family had a “family feud” according to the Court.

In 2012, Community acquired IOC through an asset purchase. Katrina was hired and trained by Community to be the medical records coordinator and was required to train on HIPPA. After training Katrina was provided access to Epic, an electronic medical records system. She was authorized to schedule appointments and release records of patients only within IOC and “strictly prohibited” from accessing any patient record without a business need or for personal reasons. After Community investigated an anonymous internal employee complaint received via Community’s anonymous hotline, it was determined that Katrina had accessed her own chart, as well as the confidential health records of multiple other patients, including the McKenzies. Katrina was placed on leave and then terminated. The McKenzies were later notified of the unauthorized access of their medical information and eventually learned that Katrina was the culprit.

The Indiana Court of Appeals recently found in favor of a restaurant and winery in an Indiana slip-and-fall case. In Cooper’s Hawk Indianapolis, LLC v. Ray, the Plaintiff, Katherine Ray, while at Cooper’s Hawk Winery & Restaurant (“Cooper’s Hawk”), went to use the restroom and slipped and fell on her way out of the restroom door. Ray filed a complaint against Cooper’s Hawk alleging she slipped and fell on an accumulation of water and was injured as a result of her fall. Cooper’s Hawk filed a motion for summary judgment, which the trial court denied, arguing that Cooper’s Hawk did not have actual or constructive notice of the defective condition that allegedly caused Ray to fall and that any breach of any duty was not the proximate cause of Ray’s injuries.

Under Indiana premises liability law, property owners must maintain their property in a reasonably safe condition for business invitees. A possessor of land is subject to liability for physical harm caused to its invitees by a condition on land if it (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees; (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. An inviter must exercise reasonable care to discover defects or dangerous conditions on the premises, and will be charged with knowledge of, and held liable for injuries that result from, any dangerous conditions that could have been discovered in the exercise of reasonable care. However, inviters are not insurers of their invitees’ safety and must be shown to have actual or constructive knowledge of the dangerous conditions on their premises before liability will attach. Negligence cannot be inferred from the mere fact of a fall and constructive knowledge can only be found if it is shown that a condition had existed for such a length of time that under the circumstances it would have been discovered if the inviter or its agents or employees had used ordinary care.

In this case, it was raining outside around the time of Ray’s fall. Ray testified she did not observe anything, any water, or any wet spots on her way to the restroom. She did not observe any slippery substance or wet spot outside the women’s restroom in the hallway after she exited the restroom. She did not feel any liquid substance or anything like that on her body after she fell. She did not see any wetness on her clothing. While Ray’s husband testified that after EMS arrived he noticed that one of the EMS personnel had a damp knee, Ray’s jeans were damp, and there were a few very small puddles or mist on the floor, he could not testify as to what the liquid was, where it came from, and how long it would have been there, and he did not recall seeing it when he first got to the area of the fall. An employee of Cooper’s Hawk submitted an affidavit stating she was working on the day of the fall, did not know how Ray fell, neither she nor Cooper’s Hawk were notified of the presence and had no knowledge of any type of hazard or liquid substance, employees would inspect the restrooms and hallways every twenty to thirty minutes, and when she inspected the area of the fall, she found no sign of a hazard, water, or other liquid on the floor.

As injury lawyers representing victims of car crashes, one of the most common causes of car accidents we see in police reports is that the at-fault driver was texting or reached down to retrieve a dropped phone. These common car crash causes should vanish if drivers follow Indiana’s new hands-free phone law. Indiana Passes Hands Free Phone Law

“Do not hold or use your phone while driving in Indiana” is the new law in Indiana as of July 1, 2020. Under the law, a person operating a motor vehicle in Indiana may no longer hold or use their phone while driving unless that person has hands free or voice operated technology or is calling 911 to report a bona fide emergency. The new law, which went into effect July 1, 2020 and which can be found in Indiana Code § 9-21-8-59, provides as follows:

(a) Except as provided in subsections (b) and (c), a person may not hold or use a telecommunications device while operating a moving motor vehicle. (b) A telecommunications device may be used in conjunction with hands free or voice operated technology. (c) A telecommunications device may be used or held to call 911 to report a bona fide emergency. (d) A police officer may not, without the consent of the person: (1) confiscate a telecommunications device for the purpose of determining compliance with this section; (2) confiscate a telecommunications device and retain it as evidence pending trial for a violation of this section; or (3) extract or otherwise download information from a telecommunications device for a violation of this section unless: (A) the police officer has probable cause to believe that the telecommunications device has been used in the commission of a crime; (B) the information is extracted or otherwise downloaded under a valid search warrant; or (C) otherwise authorized by law. (e) The bureau may not assess points under the point system for a violation of this section occurring before July 1, 2021.

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