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The Indiana Court of Appeals recently found in favor of a grocery store landlord in a premise liability claim for personal injuries arising out of a vehicle-pedestrian collision in a grocery store parking lot. In Poppe v. Angell Enterprises, Inc., Paul Poppe and Susan Poppe were struck by an intoxicated driver and injured as they exited a grocery store. When they exited the store, the Poppes walked through a marked crosswalk to reach their vehicle, which was parked in a handicapped parking spot. As they were walking, they saw a quickly approaching truck and tried to run to get out of the way; however, the truck pinned them against their vehicle. Angell Enterprises, Inc. (“Angell”) was the landlord of the grocery store and responsible for maintaining the grocery store parking lot. In their injury lawsuit filed against Angell and other parties, the Poppes alleged that Angell was liable in part for their injuries by the condition of the parking lot in “the funneling of pedestrian and vehicular traffic” into the crosswalk without “protective features” such as “bollards,” which are protective posts often used in areas with vehicular and pedestrian traffic.

At the time of the appeal in this case, Angell was the sole remaining defendant. To succeed in their claim against Angell, the Poppes were required to prove (1) Angell owed them a duty of care, (2) Angell breached that duty, and (3) Angell’s breach proximately caused their injuries. Whether a duty exists is a question of law for the court to decide, and absent a duty, there can be no breach and therefore no liability. Angell moved for summary judgment in court arguing that it owed the Poppes no duty and therefore was entitled to judgment as a matter of law. After a hearing, the trial court entered summary judgment in favor of Angell, and the Poppes appealed.

To decide whether Angell owed the Poppes a duty, the Indiana Court of Appeals was first required to decide whether to apply the landowner liability analytical framework in Burrell v. Meads (based upon Restatement (Second) of Torts Section 343) that applies when injuries result from a condition on land, or the analytical framework in Goodwin v. Yeakle’s Sports Bar & Grill, Inc. that applies when injuries result from the criminal acts of a third person. The Burrell analysis provides that a landowner is responsible for injuries to invitees resulting from a condition on land but only if the landowner knew, or should have known, of the condition and that it involved an unreasonable danger of harm, if the landowner should have expected its invitees would not realize the danger or protect themselves against it, and if the landowner failed to exercise reasonable care to protect its invitees. The Goodwin foreseeability analysis of duty in the case of criminal acts of third parties causing injuries focuses on the “broad type of plaintiff and harm involved, without regard to the facts of the actual occurrence,” and turns on “whether there is some probability or likelihood of harm that is serious enough to induce a reasonable person to take precautions to avoid it.”

The Indiana Court of Appeals recently directed a trial court to dismiss a particular theory of liability pursued by a medical malpractice plaintiff after completion of the medical review panel process because the plaintiff’s proposed complaint did not encompass the theory. In Holsten v. Faur, Linda Holsten (“Holsten”) filed a medical malpractice and wrongful death lawsuit arising out of medical care her husband, Paul Holsten (“Paul”), received at an urgent care facility and hospital. Under Indiana’s Medical Malpractice Act, medical malpractice claimants must file a proposed complaint before the Indiana Department of Insurance and obtain an opinion from a medical review panel before they can prosecute their medical malpractice claims in court.

Holsten filed a proposed complaint specifically alleging the defendants committed malpractice in not ordering a chest x-ray (“the x-ray malpractice theory”) and in ordering steroids (“the steroid malpractice theory”), which she alleged resulted in her husband’s death of necrotizing staphylococcus aureus pneumonia. The medical review panel formed to review the case found the defendants failed to comply with the appropriate standard of care; however, they were unable to determine if the defendants’ conduct was a factor in Paul’s death. After receiving the opinion and speaking with the panelists, Holsten filed a state court complaint that was identical in pertinent parts to her proposed complaint, except that she removed the steroid malpractice theory and added another theory which she learned from one of the panelists, that is, that the hospital’s sepsis protocol was not followed (“the sepsis malpractice theory”).

The hospital filed for partial summary judgment arguing that Holsten’s sepsis malpractice theory had not been presented to the medical review panel as required by the Medical Malpractice Act. The trial court agreed with the hospital and entered partial summary judgment in favor of the hospital as to the sepsis malpractice theory. Agreeing that Holsten had failed to present the sepsis malpractice theory to the panel, but that the trial court did not, therefore, have subject matter jurisdiction as to that theory, the Indiana Court of Appeals vacated the trial court’s summary judgment order and remanded the case with instructions for the trial court to dismiss, without prejudice, Holsten’s sepsis malpractice theory of liability.

The Indiana Court of Appeals recently found in favor of an insurance carrier with regards to its handling of an underinsured claim in a construction zone truck accident case. In Brandell v. Secura Ins., Christopher Brandell (“Brandell”) was working construction on an Indiana interstate adjusting traffic control devices when he was hit by a truck, resulting in severe injuries. Brandell pursued various claims arising from the truck collision, including an underinsured claim against Secura Insurance (“Secura”), which provided underinsured coverage through a commercial auto policy issued to Brandell’s employer. Under Secura’s insurance policy, Brandell had to be “occupying” a covered vehicle, with the policy defining “occupying” as “in, upon, getting in, on, out or off.”

Secura denied Brandell underinsured coverage positing he was not insured under the policy, as he was not occupying a vehicle at the time of the collision. The police report from the collision identified Brandell as a pedestrian. The worker’s compensation first report of injury indicated Brandell was adjusting traffic control devices in a work zone when he was struck. Brandell took issue with Secura’s underinsured coverage determination and provided Secura with notice that Brandell was operating a covered auto with another employee as a passenger. Brandell was driving the company vehicle between traffic barrels, stopping, moving the barrels, and then getting back into the vehicle to drive forward a short distance to move the next barrels before he was struck by the truck. After receiving this information, Secura retained counsel to investigate coverage, but before any additional determination was made, Brandell filed a lawsuit against Secura for underinsured coverage (which Sescura eventually provided in accepting and settling the claim) and for bad faith arising from Secura’s handling of Brandell’s underinsured claim. Secura filed a motion for summary judgment as to Brandell’s bad faith claim, which the trial court granted, and Brandell appealed.

In Indiana all insurance companies must act in good faith with their insureds. To prove bad faith by an insurance company, an insured plaintiff must show the insurer (1) made an unfounded refusal to pay policy proceeds, (2) caused an unfounded delay in making payment, (3) deceived the insured, or (4) exercised an unfair advantage over the insured to pressure the insured into settling a claim. Proving negligence or bad judgment will not suffice; there must be a showing of conscious wrongdoing. In order to prove bad faith, a plaintiff must show by clear and convincing evidence that an insurance carrier had knowledge that there was no legitimate basis for denying liability.

The Indiana Court of Appeals recently issued an opinion allowing a deceased woman’s estate to move forward in a wrongful death lawsuit arising from the operation of a county 911 system. In Howard Cty. Sheriff’s Dep’t & Howard Cty. 911 Commc’ns v. Duke, Tammy Lynn Ford (“Ford”) called the Howard County 911 Dispatch from her cell phone, provided her address, and reported she could not breathe. According to the County’s standard operating procedures, dispatchers were supposed to verify a caller’s location and manually enter it into the computer. The two dispatchers who took Ford’s call did not correctly enter her address into the computer or verify her address, and as a result, medics were dispatched to the wrong address. Once medics finally arrived at the correct address, Ford had no pulse. She was subsequently pronounced dead at the hospital.

Derrick Duke and Dustin Duke, as co-personal representatives of the Estate of Tammy Lynn Ford (the “Ford Estate”), filed a lawsuit against the County alleging the County’s 911 delay caused Ford’s death and the County’s actions amounted to willful and wanton misconduct. Under Indiana law, governmental entities have immunity for losses resulting from the use of a 911 system, except to the extent of willful or wanton misconduct. Willful or wanton misconduct includes an intentional act done with reckless disregard of the natural and probable consequence of injury to a known person under circumstances known to the actor at the time, or an omission or failure to act when the actor has knowledge of the natural and probable consequence of injury and the actor’s opportunity to avoid the risk. To prove willful and wanton misconduct, a plaintiff must show (1) the defendant had knowledge of an impending danger or consciousness of a course of misconduct calculated to result in probable injury, and (2) the defendant’s conduct exhibited an indifference to the consequences of the defendant’s conduct. Typically, whether a defendant engaged in willful and wanton misconduct is a question of fact for the trier of fact to decide (e.g., a jury). However, in this case, the County filed a motion for summary judgment arguing that the trial court should find as a matter of law that it did not engage in willful and wanton misconduct, and as such, was entitled to the 911 immunity. The trial court denied the County’s motion and the County appealed.

On appeal, the Indiana Court of Appeals noted that to succeed in its motion for summary judgment, the County was required to show that there was no genuine issue of material fact as to whether it engaged in willful and wanton misconduct. The County argued its dispatchers’ actions were not willful and wanton, but merely a simple mistake. However, the Ford Estate designated evidence in response showing that there had been prior reported problems with the 911 dispatch reported by the Kokomo Police Department and the Kokomo Fire Department and the dispatchers’ failure played a “big role” in Ford’s death. As such, the Indiana Court of Appeals found there existed a genuine issue of material fact as to whether the County engaged in willful and wanton misconduct and the County was not entitled to the 911 immunity as a matter of law. The Court affirmed the trial court’s order denying the County’s motion and remanded the case for further proceedings.

We previously blogged about the Seventh Circuit’s certified question to the Indiana Supreme Court: “Whether Indiana’s Medical Malpractice Act applies to claims brought against qualified providers for individuals who did not receive medical care from the provider, but who are injured as a result of the provider’s negligence in providing medical treatment to someone else?” In Cutchin v. Beard, the Indiana Supreme Court answered this question in the affirmative.

The Indiana Patient’s Compensation Fund will often take the position in claims for excess compensation that the Medical Malpractice Act does not apply when it would mean escaping liability for otherwise viable claims. In Cutchin, the Fund secured a dismissal of the excess damages claim brought against it by Jeffrey Cutchin. Cutchin had settled a malpractice claim with a qualified medical provider who had negligently prescribed opiates and other medications to Sylvian Watson. Watson had run a red light and killed Cutchin’s wife and daughter. Watson claimed she could not lift her foot from the accelerator in time to stop her vehicle due to the opiates and other medications prescribed by the provider. Despite the settlement, the Fund sought to avoid paying excess damages. Upon appeal of the federal district court’s ruling, the Seventh Circuit certified the above question, as well as another that went unanswered.

In arriving at its decision, the Indiana Supreme Court first addressed the Act’s definition of “patient” found in Indiana Code Section 34-18-2-22: “an individual who receives or should have received health care from a health care provider, under a contract, express or implied, and includes a person having a claim of any kind, whether derivative or otherwise, as a result of alleged malpractice on the part of a health care provider. Derivative claims include the claims of a parent or parents, guardian, trustee, child, relative, attorney, or any other representative of the patient including claims for loss of services, loss of consortium, expenses, and other similar claims.” The Court found this definition creates two categories of “patient” under the Act: the first is the traditional patient who receives care by a provider; the second is a third party whose claim results from a provider’s medical malpractice to a traditional patient.

The Indiana Court of Appeals recently extended the Indiana Supreme Court’s Sword apparent agency holding to a non-hospital medical provider in Arrendale v. Am. Imaging & MRI, LLC. At issue in Sword and Arrendale was whether medical facilities could be held liable for the negligence of non-employee medical providers contracted to perform services for patients at the facilities.

The Indiana Supreme Court in Sword v. NKC Hosps., Inc., 714 N.E.2d 142 (Ind. 1999) adopted the Restatement (Second) of Torts section 429 (1965) dealing with apparent agency in the hospital setting, which states 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). Under Sword, a judge or jury must consider the totality of the circumstances surrounding a hospital’s manifestations and a patient’s reliance on such manifestations, including the reasonableness of a patient’s belief that a hospital or its employees were rendering the care provided. “A hospital will be deemed to have held itself out as the provider of care unless it gives notice to the patient that it is not the provider of care and that the care is provided by a physician who is an independent contractor and not subject to the control and supervision of the hospital.” Sword, 714 N.E.2d at 152. Hospitals can generally avoid liability by giving meaningful notice to patients, acknowledged at the time of admission. If hospitals do not give meaningful notice, if the patient has no special knowledge of a hospital’s relationship with its independent contractor physicians, and if there is no reason the patient should have known of the relationship, then reliance is presumed, and a hospital can be held liable for the negligence of its independent contractor physicians.

In Arrendale, the Plaintiff, Harold Arrendale (“Arrendale”), filed a medical negligence lawsuit against Marion Open MRI and radiologist Dr. Alexander Boutselis and other healthcare providers arising out of their failure to diagnose and treat an arteriovenous fistula of his spine. In his lawsuit, Arrendale alleged Marion Open MRI was vicariously liable for Dr. Boutselis’ negligence because Dr. Boutselis was “an employee and/or agent” of Marion Open MRI. Marion Open MRI moved for summary judgment arguing that it could not be held liable for Dr. Boutselis because he was not an employee of Marion Open MRI, but rather an independent contractor. Marion Open MRI argued that the holding in Sword should be limited to hospitals only and not applied to non-hospital medical facilities. The trial court, while indicating it tended to agree with Arrendale’s position, granted Marion Open MRI’s motion reasoning that Indiana’s appellate courts should resolve the issue.

The Indiana Court of Appeals recently reviewed whether under Indiana law the mother of a disabled child who was sexually abused by a school instructional assistant could bring a claim for the emotional distress she experienced as a result of her child’s sexual abuse. In K.G. by Next Friend Ruch v. Smith, Melody Ruch (“Ruch”) filed a lawsuit individually and on behalf of her daughter, K.G., arising out of sexual abuse of K.G. by Morgan Smith (“Smith”), an instructional assistant at New Augusta North Public Academy. New Augusta North Public Academy and the Metropolitan School District of Pike Township (the “School Defendants”) filed a motion for summary judgment on the individual claims brought by Ruch, including her emotional distress claim. After the trial court granted the School Defendants’ motion, Ruch appealed.

Indiana law allows for the recovery of damages for mental distress or emotional trauma under the traditional impact rule, the modified impact rule, and the bystander rule. Under the traditional impact rule, a plaintiff can recover if the plaintiff can 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. Under the modified impact rule, a plaintiff can recover if the plaintiff suffers a direct impact by another’s negligence, and by reason of that direct involvement suffers an emotional trauma which is serious in nature and of a kind and extent normally expected to occur in a reasonable person, without regard to whether the emotional distress arises out of or accompanies any physical injury to the plaintiff. Under the bystander rule, a plaintiff can recover if he or she actually witnessed or came on the scene soon after the death or severe injury of a loved one, with a relationship to the plaintiff analogous to a spouse, parent, child, grandparent, grandchild or sibling, caused by a defendant’s wrongful conduct, even if he or she was not directly impacted.

In this case, Ruch conceded she could not recover emotional distress damages under the traditional impact rule, the modified impact rule, or the bystander rule, as she was not touched by Smith and did not witness the sexual abuse. However, Ruch argued that Indiana should adopt another rule providing for recovery in cases in which the wrongful conduct would never be witnessed, such as sexual abuse, which occurs in secret. Ruch argued Indiana should allow for recovery when “(1) the genuineness of a claim is beyond question, (2) the facts present a unique and rare occurrence, and (3) the tort would never happen with a witness present.” Unfortunately, the Indiana Court of Appeals rejected Ruch’s invitation to expand the parameters of recoveries for emotional distress damages. The Court also held the Article I, Section 12 of the Indiana Constitution did not require recognition of such claims if not otherwise recognized by law.

The Indiana Court of Appeals recently reversed a trial court’s order on a motion for preliminary determination filed by a dentist in a dental malpractice case directing a patient to redact portions of her submission to a medical review panel formed to review the case. In White v. Nichols, Millie White (“White”) filed a dental malpractice case against John Lee Nichols, D.D.S. and John L. Nichols, D.D.S., P.C. (“Dr. Nichols”) as a result of injuries stemming from the placement of a dental bridge. Prior to filing the lawsuit, White notified the Indiana Dental Association of her complaints, and in response, the Indiana Dental Association provided White and Dr. Nichols a “resolution letter” setting forth a panel of dentists’ findings and recommendations. White’s submission to the medical review panel included the text of the resolution letter. Dr. Nichols filed a motion for preliminary determination asking the trial court to order White to redact the contents of the resolution letter from her submission arguing the letter was privileged and inadmissible. The trial court ordered White to redact the contents of the resolution letter and White appealed.

Under the Indiana Medical Malpractice Act (MMA), when bringing a medical malpractice claim against a qualified provider patients must file a proposed complaint before the Indiana Department of Insurance and present the proposed complaint to a medical review panel and receive an opinion from the panel before prosecuting their case in court. During the medical review panel process, the jurisdiction of a trial court is limited. The MMA provides that a trial court has jurisdiction to “(1) preliminary determine an affirmative defense or issue of law or fact that may be preliminarily determined under the Indiana Rules of Procedure; or (2) compel discovery in accordance with the Indiana Rules of Procedure.” Ind. Code § 34-18-11-1.

White argued on appeal that the trial court lacked jurisdiction to order her to redact the resolution letter from her submission. Examining the limited scope of jurisdiction afforded trial courts under the MMA, the Indiana Court of Appeals agreed and held the trial court exceeded its jurisdiction in ordering White to redact the resolution letter from her submission. The Court found Dr. Nichols’ request did not concern a discovery issue, as both White and Dr. Nichols already had the resolution letter. The Court found that although privilege in some cases could be considered an affirmative defense, in this case, the privilege was not Dr. Nichols’ privilege but rather a third party’s privilege and therefore was not Dr. Nichols’ affirmative defense as to White’s claim against him. And lastly, the Court found Dr. Nichols’ motion did not request the trial court to preliminarily determine any issues of law or fact that may be preliminarily determined under Indiana Trial Rule 12(d).

Can a plaintiff’s medical bills be introduced as evidence by a defendant when the plaintiff is not seeking reimbursement for the medical bills as an item of damages? Yes, according to the Indiana Court of Appeals’ recent opinion in Gladstone v. W. Bend Mut. Ins. Co.

Daniel Gladstone (“Gladstone”) filed a lawsuit against Christina Carli (“Carli”) and his own insurance company, West Bend Mutual Insurance Company (“West Bend”), seeking damages for injuries he sustained, including a Colles fracture, in an automobile accident with Carli. Carli paid her automobile liability policy limits of $50,000.00 and was dismissed from the case. Gladstone sought damages from West Bend under his underinsured insurance coverage, which had a policy limit of $250,000.00. Gladstone’s medical bills were $14,000.00 but had been reduced to just under $2,000.00. The trial court allowed West Bend to introduce evidence of Gladstone’s reduced medical bills at trial, over Gladstone’s objection and despite the fact that Gladstone was not seeking medical expenses in the case, and the jury returned a verdict of $0.00 for Gladstone.

Gladstone appealed the trial court’s decision admitting his medical bills into evidence. Under Indiana law, a trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion resulting in prejudicial error, which is very deferential to trial courts. A party seeking reversal of a trial court’s evidentiary ruling must show the trial court’s decision was clearly against the logic and effect of the facts and circumstances, or that the trial court misinterpreted the law.

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 alleged 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.

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