In Martinez v. Smith, Yerano Martinez (“Martinez”) collided with a truck and suffered severe injuries after driving through a stop sign obstructed by an overgrown bush on property owned by Jeffrey Smith (“Smith”). While the bush did not intrude upon the travelled portion of the roadway, it did partially extend into Miami County’s right-of-way, an easement where the stop sign was located. Martinez argued the bush was not “wholly contained” on Smith’s property because it was within Miami County’s right-of-way. Smith argued there was a difference between a public right-of-way, that is, a roadway, and a county right-of-way easement. Based upon Reece, the trial court granted summary judgment in favor of Smith, which the Court of Appeals affirmed. The Indiana Supreme Court had to decide, therefore, what it meant when it referred to the “roadway” in Reece. 

Ultimately, the Indiana Supreme Court held the “Reece rule” encompasses, not only encroachments upon the paved portion of the roadway, but also hazardous conditions obstructing traffic control devices in the public right of way. First, looking at Indiana’s common law and various dictionary and statutory definitions, the Court found the terms “roadway” and “public right of way” are not limited to the paved portion of the roadway. Second, the Court agreed with Martinez that a stop sign, like any traffic control device, is part of the roadway as an integral part of the roadway, without which the roadway simply cannot function. Third, the Court noted that its clarification of the “Reece rule” comes with no additional burden to Indiana landowners; it does not change the bright-line rule established in Reece, but simply “clarifies where, under [the] bright-line rule, the landowner’s responsibility begins and where it ends.” 

The Indiana Supreme Court next applied the clarified “Reece rule” to the facts in this case. Although the parties disputed whether the bush was “wholly contained” on Smith’s property, Smith had admitted that his bush fell within the county right-of-way. Under the Court’s holding clarifying the “Reece rule,” the condition was not therefore “wholly contained” on his property. Reversing the trial court’s decision, the Court concluded that “under Reece, a landowner’s common-law duty to refrain from creating hazardous conditions for passing motorists on adjacent highways encompasses traffic-control devices within the public right-of-way,” and “because the hazardous condition here, by Smith’s own admission, impermissibly encroached into the public right-of-way,” “the trial court erred by granting summary judgment in [Smith’s] favor.”

You can read the full opinion here, along with Justice Molter’s concurring separate opinion in which he discusses a “law-and-economics approach” based on the legally famous Learned Hand formula of balancing the burden of taking precautions against the probability and gravity of harm, and Justice Slaughter’s dissent with separate opinion in which he faults the majority for eschewing common law precedent and relying on irrelevant dictionary definitions and inapposite statutes. 

Caryl Rosen (Rosen) tripped and fell over a floor mat inside the main entrance of Community Hospital in Munster. A hospital security supervisor viewed video footage from three cameras in the area, but he only preserved a short clip of footage from one of the cameras which was approximately 75 feet or more away from the entrance. While the preserved video footage captured Rosen’s fall, it did not show the state of the mat where Rosen alleged she fell, as it was pixelated and obscured by an object, likely a wheelchair. Because the hospital’s security system automatically records over old footage after about 45 days, the footage from the other two cameras, as well as the footage from before and after the incident on the one camera, was destroyed.

Rosen claimed the hospital should have preserved more video footage, as such may have shown whether the mat was disheveled prior to Rosen’s fall. The trial court denied Rosen’s requests for spoliation sanctions, refused to give a spoliation instruction to the jury, and excluded any evidence of the unpreserved video footage. The jury returned a verdict in favor of the hospital. Rosen appealed and the Indiana Court of Appeals reversed the trial court and remanded for a new trial, reasoning that the destroyed footage might have shown the state of the mat before the fall.

In a 4-1 decision, the Indiana Supreme Court, emphasizing that appellate courts review trial court spoliation decisions only for an “abuse of discretion,” found the trial court made “reasonable judgment calls” within the trial court’s discretion. The Supreme Court found it was reasonable for the trial court to conclude the hospital had no duty to preserve more video. The Court noted the preserved video taken from 75 feet away was highly pixelated as Rosen reached the mat, making it reasonable to doubt that earlier footage of the mat would have been any more enlightening. Also, because the other cameras did not capture the fall, it was reasonable to conclude that they did not capture the allegedly raised portion of the mat, which Rosen claimed was only the size of her foot. The Court also found it was reasonable for the trial court to conclude that the hospital’s evidence preservation was reasonable, as the security supervisor followed his routine practice for preserving video after someone falls and there was no suggestion of bad faith in the preservation efforts. Lastly, the Court concluded it was reasonable for the trial court to exclude any evidence of the unpreserved video, as the unpreserved video that did not show the fall or mat was irrelevant.

In its decision, the Indiana Supreme Court noted that while a preservation letter helps trigger the legal duty to preserve evidence, preservation letters do not create a safe harbor for defendants, nor an outer limit for proper discovery requests. However, compliance with a preservation letter is a relevant consideration in evaluating the reasonableness of a party’s evidence preservation efforts. 

Justice Goff dissented, arguing the fact-sensitive nature of spoliation makes it an issue more appropriately decided by a jury rather than a judge. The Court found Rosen forfeited this argument on appeal by not raising it before the trial court. Justice Goff, however, credited Rosen with having proffered a spoliation jury instruction and noted there existed differing reasonable interpretations of the facts. He thought the jury should have been permitted to decide the spoliation issue.

You can read the full opinion here.

Areche sued the City of Indianapolis and other defendants for the injuries he suffered in the Indianapolis electric scooter crash. Indianapolis filed a motion to dismiss, which was eventually converted to a motion for summary judgment, based upon an Indianapolis ordinance prohibiting the operation of electric scooters on Indianapolis sidewalks. The Indianapolis ordinance, Indianapolis Revised Code § 441-320.1, provides: “It shall be unlawful for any person to operate an electric foot scooter on (1) A sidewalk, (2) A greenway, or (3) Any pedestrian or multimodal path [which does not include a path set aside for exclusive use of bicycles] that is paved or unpaved in the city.” The City of Indianapolis argued Areche was negligent per se for violating the scooter ordinance and was, therefore, contributorily negligent as a matter of law, thus barring his personal injury claim against Indianapolis.

Negligence arises from (1) a duty owed to the claimant/plaintiff, (2) breach of that duty by a failure to comply with the applicable standard of care, and (3) injury proximately caused by the failure. Negligence per se, which satisfies the second element, breach of duty, is the unexcused violation of a statute or ordinance if the statute or ordinance protects (1) the class of persons in which the claimant is included (2) against the type of harm that has occurred as a result of the violation. Importantly, while comparative fault applies to many Indiana lawsuits, for tort claims against governmental entities in Indiana, the common-law defense of contributory negligence applies, which bars any recovery when claimants have any fault at all.

The trial court granted summary judgment for the City of Indianapolis finding Areche negligent per se for violating the scooter ordinance and thus contributorily negligent as a matter of law, barring his claim. While not denying he violated the ordinance, Areche argued on appeal that (1) he did not owe any duty to himself, (2) he was not part of the class of persons the ordinance was meant to protect, and (3) he did not suffer the type of harm the ordinance was meant to protect.

The Indiana Court of Appeals quickly dispensed with Areche’s first argument. The Court noted that all claimants owe a duty of reasonable care to themselves—if that were not the case, no one could ever be contributorily negligent. As for Areche’s second argument, the Court found the ordinance protected, not only pedestrians, but also scooter operators, based upon the plain language of the ordinance and as a matter of common sense in protecting against foreseeable accidents. Lastly, the Court found the ordinance protected against the type of harm here, that is, a single scooter hitting a pothole (or any other obstacle such as a sign, bench, or stand) in the sidewalk, and not just the risk of harm occasioned by scooter-pedestrian collisions. 

Judge Scheele dissented with a separate opinion. He disagreed the ordinance protected against the type of harm Areche suffered: hitting a large hole with gravel while riding his electric scooter on the sidewalk. He felt the majority interpreted the ordinance too broadly to encompass a type of harm not contemplated by the ordinance. He distinguished foreseeable obstacles, like pedestrians, signs, benches, and stands, from the unforeseeable obstacle presented by the hole. 

You can read the full opinion here.

Barsumian Armiger Injury Lawyers advocates for clients in Indianapolis accident cases, including crashes and accidents involving motorized and electric scooters.

Kiera Isgrig (Isgrig), a student at Indiana University in Bloomington, suffered injuries when a window, including its frame and casing, in one of the university’s buildings fell out of the wall and landed on her head while she was studying for finals with friends. The building, Swain Hall, was open and accessible to students and the public at large. IU staff came and examined the window and found two broken sash springs, but no defect that would have caused it to fall. IU would perform reactionary maintenance, as opposed to proactive maintenance, on its windows when notified of issues with its windows. IU last serviced the window that fell on Isgrig in repairing its blinds a little over a year prior to the incident. No other damage was found at that time.

Isgrig filed a personal injury lawsuit against IU in which she asserted the legal doctrine of res ipsa loquitur, which translated from Latin means the “thing speaks for itself.” Res ipsa loquitur provides an inference of negligence when something happens that would not normally happen without someone’s negligence. IU moved for summary judgment, which the trial court granted. The Indiana Court of Appeals reversed. The Indiana Supreme Court accepted transfer.

Claimants attempting to use res ipsa loquitur must show the injuring instrumentality was under the “exclusive control” of the defendant and what happened does not normally happen if those who have control over the injuring instrumentality use proper care. Importantly, exclusive control “focuses upon who has the right or power to control and the opportunity to exercise it” and can be found even where there may be multiple defendants or multiple possible causes. It is not necessary that a claimant eliminate every other possible cause other than the defendant’s negligence. If the elements of res ipsa loquitur are shown, the inference of negligence remains in the case to be considered by the factfinder, even if the defendant has an explanation for what happened. 

In this case, IU argued that it cannot be held liable under Indiana’s premise liability standard because it did not have actual or constructive knowledge of any issue with the window, res ipsa loquitur is inapplicable when, as here, a claimant cannot establish the elements of premise liability, and it did not otherwise have exclusive control of the window, as required by res ipsa loquitur. In its decision, the Indiana Supreme Court framed the question before it as “whether a plaintiff can utilize the doctrine of res ipsa loquitur to infer negligence in a premise liability case.”

After examining Indiana premise liability law, the doctrine of res ipsa loquitur, and the application of res ipsa loquitur in premise liability cases, including prior case precedent, the Indiana Supreme Court held “res ipsa loquitur is appropriate in premise liability where the injuring instrumentality is a fixture and where such an incident would not normally occur absent negligence,” and importantly, a claimant need not first establish the elements of premise liability. The Court found duplicative and unnecessary its recent requirement in Griffin v. Menard, Inc., 175 N.E.3d 811 (Ind. 2021) that a claimant show a defendant’s actual or constructive knowledge under Indiana’s premise liability law before proving the elements of res ipsa loquitur. “[W]here the injuring instrumentality is a fixture and if the plaintiff is relying on res ipsa loquitur, they do not need to first establish that the defendant had actual or constructive knowledge of the fixture’s defect.” 

Analyzing the facts of this case, the Indiana Supreme Court found Isgrig could use res ipsa loquitur to defeat IU’s motion for summary judgment. The Court agreed that “the window was under the exclusive control or management of the University” and “windows do not ordinarily fall out of walls if those who have management or control have exercised proper care.” The Court reasoned, “[g]iven the well-established duty of care that landowners owe to invitees, it follows that landowners should bear responsibility if invitees are injured by defective fixtures in buildings on their land.” However, the Court noted that the inference of negligence supplied by the doctrine of res ipsa loquitur does not equate with a finding of negligence. While the inference of negligence supplied by res ipsa loquitur is enough for claimants to overcome summary judgment, ultimately, it is up to the trier of fact—a judge or jury—to determine whether a defendant was negligent.

You can read the full opinion here. 

McElhany filed a personal injury lawsuit against Jordan and Grisham claiming they were negligent in causing her injuries. Jordan filed a motion for summary judgment arguing that neither she nor anyone in her household knew of the dangerous propensities of pit bulls. She also argued she could not be held liable for what happened when she was not in control of Gus when it happened. The trial court granted summary judgment in favor of Jordan, and McElhany appealed that decision.

Under Indiana law, there is a presumption that all dogs, regardless of breed or size, are harmless domestic animals, which generally shields dog owners from liability for their dogs’ acts. However, that presumption can be overcome when there is evidence of a known or dangerous propensity as shown by specific acts of a particular dog. A dog may have a dangerous propensity if the dog has a tendency to do any act that might endanger the safety of persons or property.

Jordan adopted Gus from an animal shelter. Gus came to the shelter after animal control received a report of a stray pit bull-mix dog near a dumpster that had reportedly “lunged at people.” The animal control officer that responded noted Gus did not lunge when first approached, but did bark and make a low growl. Gus received trazadone for anxiety at the animal shelter. While Jordan had not done so for another pit bull she had adopted from the shelter, she hired a behavioral trainer for Gus, describing Gus as “puppy bitey, not aggressive.” The trainer marked down that Gus showed “Aggression toward People,” as Gus had barked and lunged toward the trainer and her dog while on his leash when they first came to Jordan’s home. The trainer provided five training lessons, including one at Rural King. During a veterinary visit, Gus “tried to bite” a technician and required a basket muzzle. A basket muzzle was also used at another visit with the vet noting Gus “still hates being touched on the left ear” and “started to bark a lot ang [sic] growl more.” 

The day before the incident in this case, Jordan’s other pit bull died. While Grisham did not ask Jordan for permission to take Gus to the Rural King, Jordan had never told Grisham not to take Gus out in public, and she admitted that she would not have objected to Grisham taking Gus to the Rural King. Before the incident, when Grisham was at the Rural King with Gus, Gus snarled or snapped at another Rural King employee with no warning. The employee had noted Gus had a cut to the left side of his face, which Grisham indicated came from him falling out of a truck. After the incident, Gus was initially quarantined, as he was not up to date on his rabies vaccinations, but then he was returned. Jordan and Grisham later took Gus to the veterinarian for “some anxious behavior,” noting what seemed to be a stressful time with Jordan’s other dog passing and changes at home. The vet ordered trazadone and recommended Gus be seen by a veterinarian behaviorist. 

On appeal, the Indiana Court of Appeals found there was a genuine issue of material fact as to whether Jordan knew, or should have known, of Gus’s dangerous propensities. While the Court noted there was some evidence that Gus did not exhibit dangerous propensities, there was also evidence otherwise, including the nature of Gus’s capture, his veterinary and training records, McElhany’s testimony, and the testimony of McElhany’s veterinarian expert, who testified by affidavit that “taking a dog with anxiety such as Gus into a public store makes it likely that he will escalate to aggressive behavior.” The Court also noted, citing previous precedent, that while not all pit bulls are aggressive, “pit bulls are known to exhibit dangerous or vicious tendencies.”

With respect to Jordan not being present when the incident occurred, the Court noted Gus’s history of anxiety around people and known sensitivity to being touched near his left ear, which the Court found gave rise to a genuine issue of material issue of fact as to her negligence in “tacitly allowing Grisham to take Gus into public.” The Court noted the common experience of people approaching and petting dogs in public and the common practice of cashiers at the Avon Rural King offering treats to dogs. Jordan had never instructed Grisham not to take Gus out in public, and she admitted after the fact that she would not have objected to Grisham taking Gus to the Rural King. 

Findings genuine issues of material fact as to whether Jordan knew or should have known of Gus’s dangerous propensities before the attack and whether Jordan was negligent in allowing Gus to be taken out in the public, the Court of Appeals reversed the grant of summary judgment in favor of Jordan and remanded the case for further proceedings in the trial court. 

You can read the full opinion here.

After the fall, a hospital security guard found Rosen lying face down on the floor mat. Rosen said she tripped over the floor mat. However, according to the security guard, the floor mat was flat and not disheveled or flipped up in any way. The next day, after receiving the security guard’s incident report, a hospital security supervisor viewed video footage from three cameras in or near the hospital’s main entrance lobby. Of the three hospital cameras, the supervisor only preserved 10-12 seconds of footage from one of the cameras, which was near a security desk pointing towards the entrance approximately 75 feet or more away from the entrance. While the preserved video showed Rosen’s fall, the portion of the floor mat over which Rosen fell was obscured by a wheelchair. According to the supervisor, the other two cameras did not show Rosen’s fall. As part of the hospital’s camera system, video footage not specifically saved was erased within 45-60 days.

Rosen filed a lawsuit against the hospital for injuries sustained in the fall. Prior to filing the lawsuit, Rosen obtained the preserved video from the hospital. After filing the lawsuit, Rosen learned about the other two video cameras. During litigation, Rosen filed a motion for sanctions for the hospital’s alleged spoliation of evidence. The trial court denied Rosen’s motion, finding the hospital did not engage in spoliation of evidence. At trial Rosen made an offer of proof regarding the hospital’s alleged spoliation of evidence and sought a jury instruction on spoliation of evidence, which the trial court refused to give. The jury returned a verdict in favor of the hospital and Rosen appealed. 

Under Indiana law, spoliation of evidence involves the negligent or intentional destruction, mutilation, alteration, or concealment of evidence. Anyone who anticipates being a party or is a party to a lawsuit has a duty to preserve what they know, or reasonably should know, is relevant to the action, reasonably calculated to lead to the discovery of admissible evidence, reasonably likely to be requested during discovery, and/or the subject of a pending discovery request. The duty to preserve relevant evidence can arise prior to a lawsuit being filed when a party knows, or should know, that litigation is possible and exists regardless of any request for preservation. A party making a claim for spoliation of evidence must show (1) a duty to preserve evidence and (2) the negligent or intentional destruction, mutilation, alteration, or concealment of evidence. Spoliation of evidence can result in sanctions and an adverse inference against the spoliator that the evidence would have been unfavorable to the spoliator.  

Here, the Indiana Court of Appeals found the hospital’s failure to preserve additional video from the one camera it preserved video from and video from one of the other two cameras, which was above the main entrance and showed the main lobby before, during, and after Rosen’s fall, was spoliation. The Court found the hospital had knowledge that litigation was possible—and thus a duty to preserve evidence—as early as the day after the fall, noting that was when the hospital security supervisor reviewed the video footage from the three cameras and preserved the 10-12 seconds of footage from the one camera. The Court reasoned that, had the hospital preserved earlier video from the one camera when the wheelchair was not obscuring the mat, that footage may have shown the state of the mat before Rosen’s fall, which would have been relevant to Rosen’s claim. Similarly, while the hospital security supervisor stated the other two cameras did not show Rosen’s fall, the Court noted that no evidence was presented by the hospital as to whether the footage from the camera above the entrance showed the state of the mat before Rosen’s fall.  

The Court found the hospital’s spoliation of the video footage, whether negligent or intentional, prejudiced Rosen’s case. Rosen was unable to prove negligent maintenance of the floor mat because the video the hospital preserved did not show the state of the mat, whereas the erased video may have. The Court noted that, while Rosen could not prove the erased video definitively would have shown the state of the floor mat, she did not have to prove that. She only needed to show the spoliated evidence was “relevant evidence that might be useful to an adversary.”

As to remedies for the hospital’s spoliation, the Court found the trial court should have at a minimum given Rosen’s proposed jury instruction on spoliation, which stated that, “If a party fails to produce a document or physical evidence under the party’s exclusive control, you may conclude that the documents or evidence would have been unfavorable to the party’s case.” The Court found this instruction to be an accurate statement of the law and the trial court’s refusal to give the spoliation instruction was an abuse of discretion and reversible error. The Court remanded the case for a new trial, directing the trial court to give the spoliation instruction and grant any other appropriate sanction for the hospital’s spoliation of evidence.

You can read the Court’s full opinion here.

Gerard Kirsch, a longtime member and board member of Calvary Temple Church in Evansville, Indiana, was injured in 2019 while helping construct a storage barn on the church’s nearly five-acre property. While climbing a ladder to attach a metal sheet to the barn’s roof, Kirsch lost his balance and jumped from the ladder. Kirsch landed on the sharp edge of the metal sheet, causing a deep cut to his right arm that required surgery. Despite the procedure, he continued to experience numbness in his arm and hand.

Kirsch sued the church for his personal injuries, alleging negligence in failing to provide safe equipment, adequate supervision, and proper training. The church moved for summary judgment, arguing that Indiana Code § 34-31-7-2 limited its liability. Specifically, the church contended that it only had a duty to warn Kirsch of hidden dangers it knew about and to refrain from intentional harm—duties it claimed it had not breached.

Kirsch countered that the statutory limitation on church liability only applied to areas of the property “used primarily for worship services.” He argued that because the storage barn construction site was not an area used for worship, the church still owed him a general duty of reasonable care. The trial court agreed and denied summary judgment, but granted the church’s motion to certify its order for interlocutory appeal.

The Indiana Court of Appeals accepted jurisdiction and affirmed the trial court’s decision. It found the statute ambiguous and in derogation of common law and, therefore construed it narrowly. It likewise held that the statute applied only to specific portions of a church’s property primarily used for worship. The appellate court reasoned those other areas of church-owned land, like the storage barn site, fell outside the statute’s scope, leaving churches liable for negligence claims in those areas. We previously wrote about the decision here.

The church sought transfer. Reversing the lower courts, the Indiana Supreme Court ruled in favor of Calvary Temple Church. The Court determined that the term “premises” in Indiana Code § 34-31-7-2 refers to an entire parcel of church-owned land, not just the portions specifically used for worship services. Because the statute applies to premises as a whole, the church was shielded from liability for Kirsch’s claim.

Because the statute did not define “premises,” the Court noted it was the Court’s responsibility to define the term in the plain, ordinary sense. Consulting the American-Heritage Dictionary and Merriam-Webster Dictionary definitions of premises, the Court concluded premises includes “any real property that one can enter,” whether improvements or the land itself. Thus, the Court explained that the law’s plain language supports a broad interpretation of “premises,” encompassing the full extent of church-owned property. The Court further noted that the legislative intent behind the statute was to limit a church’s exposure to premises liability, reinforcing that churches are only responsible for warning invitees of known hidden dangers and avoiding intentional harm.

This decision significantly limits the circumstances under which a church can be held liable for injuries on its property. Under the Court’s ruling churches are protected from general negligence claims so long as the injury occurs on property that is “owned, operated, or controlled” by the church and “used primarily for worship services.” Liability is limited to failure to warn of known hidden dangers and intentional harm, meaning individuals injured on church property face a high burden in pursuing a claim. And, finally, the definition of “premises” includes an entire parcel of land, rather than just buildings or areas specifically used for worship services.

For personal injury attorneys and claimants, this ruling reinforces the importance of evaluating whether it will be possible to prove that a church knew of a hidden danger and failed to warn, or that the injury resulted from intentional misconduct. General negligence claims against churches will now face significant hurdles. You can read the decision here.

After using the restroom, Cardenas and his teammates went to look at drinks and were talking and laughing. Without thinking about it, Cardenas put his hoodie back on. Sedam started yelling and cursing at him from across the store, calling him names. Cardenas again removed his hoodie and he and his teammates went to leave, with Sedam continuing to curse at Cardenas.  As he was leaving, Cardenas put his hoodie back on. Sedam said, “oh, you want me to come take that [omitted] off,” and then he began pulling on Cardenas’ hoodie. When Cardenas broke free, Sedam pulled out a gun, placed Cardenas in a chokehold, and held the gun against Cardenas’ head, while using racial slurs and stating he would “kill this guy.” The police responded to a bystander’s call, and after reviewing surveillance video, released Cardenas. Sedam was arrested a few weeks later and ultimately pled guilty to felony intimidation, criminal confinement, and pointing a firearm.

Cardenas filed a civil lawsuit against CVS, Single Source Security d/b/a Protos Security (“Protos”), a security company that CVS had contracted with, Protos’ subcontractor and Sedam’s employer, Shield Protection Solutions, LLC (“Shield”), and Sedam. CVS moved for summary judgment arguing that it could not be held liable for Sedam’s actions because Sedam was not its employee but an independent contractor. Under the doctrine of respondeat superior, an employer can be held liable for the acts of an employee done within the course and scope of employment. However, there is generally no liability for the acts of independent contractors.

Here, CVS had entered into a service agreement with Protos, which provided that, among other things, Protos was to perform management of security guard services; security guards were to provide customer support, managerial support, brand support, and record-keeping; Protos could use its own employees and/or subcontractors, all of whom were characterized as independent contractors and not agents or employees of CVS in the service agreement; all employees or independent contractors of Protos would have the requisite knowledge, expertise, and qualifications to perform the work; and Protos would provide the security services in accordance with CVS’s requirements as determined in CVS’s sole discretion, including numerous stated standards, responsibilities, duties, and requirements for the security services. 

Under Indiana law, a person’s classification as an employee or an independent contractor is generally a question of fact, unless the facts are undisputed, in which case courts can determine the classification as a matter of law. In determining whether someone is an employee or independent contractor, courts look at ten factors, with no single factor being dispositive. However, the “leading factor” is the first factor—control, with the Indiana Supreme Court having noted that an employee is someone employed to perform services and subject to the other’s control or right to control with respect to the physical conduct in the performance of services.

The ten factors courts look at in distinguishing an employee from an independent contractor are: 

1. the extent of control which, by the agreement, the master may exercise over the details of the work;
2. whether or not the one employed is engaged in a distinct occupation or business;
3. the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
4. the skill required in the particular occupation;
5. whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
6. the length of time for which the person is employed;
7. the method of payment, whether by the time or by the job;
8. whether or not the work is a part of the regular business of the employer;
9. whether or not the parties believe they are creating the relation of master and servant; and
10. whether the principal is or is not in business.

Here, the Court went through each of the factors, with reference to prior case precedent. The Court found factors 1, 3, 4, 7, and 10 favored classifying Sedam as an employee, whereas factors 2 and 9 favored classifying Sedam as an independent contractor. The Court found factors 5, 6, and 8 were neutral as to whether Sedam was an employee or independent contractor. For example, as to the leading first factor, control, the Court found the numerous stated requirements in the service agreement showed that CVS controlled numerous details of the work the security guards were to perform, including how they were to perform their work and their schedules, location within the store, and interaction with customers. Ultimately, the Court of Appeals found a reasonable fact-finder could conclude that Sedam was, for respondeat superior purposes, an employee of CVS when he attacked and pointed a gun at Cardenas, therefore making CVS liable for his actions. The Court accordingly reversed the trial court’s entry of summary judgment in favor of CVS.

You can read the full opinion here.

Oukbu and Dhillon were both independent contractors/truck drivers. Neither of them had been to the fulfillment center before and neither were given instructions on how to access the facility’s premises. Amazon only gave them an address and a delivery time. Both Oukbu and Dhillon were injured in the early morning while it was still dark. The fulfillment center had three entrances along the county road. When approaching from the west, as Oukbu and Dhillon both did, the first two entrances had “no truck” signs. The third entrance was for deliveries, but it was 500 feet east of the facility. Oukbu and Dhillon both exited their trucks after passing the second “no truck” sign. Amazon had no signage at the first two entrances informing truck drivers where to go, and truck drivers were often seen getting out of their trucks in the same location. In fact, an Amazon employee told the police that “these lost truck drivers get out of their trucks at this spot every day.”

Oukbu and his wife and the estate of Dhillon filed lawsuits against Amazon. They alleged Amazon was negligent in its maintenance, design, and control of the fulfillment center’s entrances, including the layout and lack of lighting and signage at the entrances, which they claimed created a hazardous condition to business invitees such as Oukbu and Dhillon. Amazon filed motions for judgment on the pleadings, arguing that Amazon did not owe Oukbu and Dhillon any duty of care and that any negligence by Amazon was not the proximate cause of their injuries. The trial court granted Amazon’s motions, finding Amazon had no duty with respect to the negligent acts of someone over whom Amazon had no control and when the injury occurred off Amazon’s premises.

In negligence cases, claimants must prove (1) a duty owed by the defendant, (2) breach of that duty by the defendant, and (3) damages proximately caused by the defendant’s breach of duty. Premise liability is generally based upon control, and landowners are generally not liable to their invitees for the acts of third parties over whom they have no control and when the injuries occur off the premises. However, landowners may be liable for injuries off their premises when those areas have dangerous conditions created by their use of those areas, when invitees reasonably believe landowners control the areas, and when landowners know invitees customarily use the areas in connection with the invitation. Also, landowners may be liable when they use their premises in a way that affects the risk of foreseeable injuries off the premises.

On appeal, Amazon argued that the Indiana Supreme Court’s decision in Reece v. Tyson Fresh Meats, 173 N.E.3d 1031 (Ind. 2021), which we blogged about here, supported it having no duty to Oukbu and Kaur. However, the Indiana Court of Appeals noted that Reece was specifically limited to “visual obstructions” and did not involve duties owed to business invitees, and therefore, the Court found it inapplicable. Rather, the Court likened Amazon’s duty to that found in Lutheran Hosp. of Ind., Inc. v. Blaser, 634 N.E.2d 864 (Ind. Ct. App. 1994), a case in which the Indiana Court of Appeals found a hospital liable for a claimant’s injuries caused by the hospital’s funneling of pedestrian and vehicular traffic in an “exit” parking lot driveway often mistaken and used as an entrance. The Court also referenced Restatement (Third) of Torts, § 54 (2012) (Section 54), which provides in part that “[a] possessor of land has a duty of reasonable care for artificial conditions or conduct on the land that poses a risk of physical harm to persons or property not on the land.”

Here, the Indiana Court of Appeals found the allegations made by Oukbu and Kaur were sufficient to show Amazon owed a duty of reasonable care and Amazon’s conduct created a dangerous condition making passage on the abutting road unsafe. The Court referenced the allegations that Amazon controlled how delivery drivers entered the premises; created an artificial hazard, i.e., the “no trucks” signage, on the premises; knew or should have known truck drivers trying to enter the fulfillment center were confused about how to do so and were stopping and exiting their trucks because of the layout, signage, and lighting of the facility’s entrances; used its premises in a manner that harbored a dangerous condition off its premises affecting the risk of injuries to others; and did not provide instructions to truck drivers. Accordingly, the Court reversed the trial court and remanded the case for further proceedings.

Judge Mathias concurred, writing separately to request the Indiana Supreme Court adopt the Restatement (Third) of Torts, § 54 (2012) to resolve the issues in these cases.

You can read the opinion in Oukbu here.

You can read the opinion in Kaur here.

The Indiana Supreme Court accepted transfer of the case and clarified Indiana law with respect to Indiana’s firefighter’s rule and Indiana’s first-responder’s rule, with the Court holding they are two separate doctrines. Under Indiana’s firefighter’s rule, originating from Woodruff v. Bowen, 34 N.E. 113 (Ind. 1893), a landowner’s only duty to a firefighter who enters the premises to address a fire is to refrain from positive wrongful acts, with the firefighter treated as a licensee under premise liability principles. Indiana’s firefighter’s rule only applies to firefighters. Indiana’s first-responder’s rule, as set forth in Babes Showclub, Jaba, Inc. v. Lair, 918 N.E.2d 308 (Ind. 2009), applies to both firefighters and other first responders and prevents them from recovering damages based upon negligence that caused the emergency to which they responded when injured.

In analyzing Dolsen’s claims against VeoRide, the Indiana Supreme Court first found that Indiana’s first-responder’s rule does not bar Dolsen’s claims. Dolsen claimed VeoRide was negligent, thus causing his fall, for failing to fix the open wall in the building and for failing to warn him of the danger of the open wall, neither of which were based upon any negligence related to the cause of the fire (the battery). The Court noted that Indiana’s first-responder’s rule was created as a limitation to Indiana’s rescue doctrine, which sets forth the circumstances under which a person needing to be rescued because of his or her own negligence might be liable to the person providing rescue. With the first-responder’s rule, while a person being rescued may potentially be liable to non-professional, spur-of-the-moment rescuers acting voluntarily to help, for negligence causing the emergency itself, no such liability exists with respect to first responders. The Court also noted that contributing factors in the cause of an injury, for example here, the smoke from the fire, were irrelevant, as the “key question” is whether the alleged negligence caused the emergency. As noted by the Court, under the first-responder’s rule, courts look to the act or omission the plaintiff claims was negligent and not whether the emergency contributed to the cause of the injury.

As for Indiana’s firefighter’s rule, the Indiana Supreme Court found genuine issues of material fact existed as to whether VeoRide breached its duty to Dolsen under the firefighter’s rule. Under the firefighter’s rule, Dolsen was a licensee, and therefore, VeoRide owed him (1) a duty not to willfully or wantonly injure him or act in a manner increasing his peril and (2) a duty to warn him of any latent (non-obvious) danger on the premises of which it had knowledge. As to the duties of a landowner, the Court also noted that while statutes can create duties owed to licensees, landowners need only comply with those designed to protect firefighters, and landowners owe no duty to anticipate extraordinary circumstances and make premises safe for firefighting purposes.

Here, the Court found genuine issues of material fact as to (1) whether the potential danger of the open wall was obvious to VeoRide, thereby making its failure to fix it a willful or wanton act, and (2) whether VeoRide should have known the danger was hidden to Dolsen when the building was filled with smoke and when there was no light in the building, such that VeoRide was required to warn Dolsen. To prove a willful and wanton act, a claimant must show a defendant knew of a particular risk to the claimant and disregarded it. As to this claim, the Court found disputed evidence as to VeoRide’s knowledge of the potential danger of the open wall, noting a seemingly obvious danger while at the same time the lack of any prior injuries and VeoRide not having knowledge of any prior code violations. As to the lack of warning claim, the Court found disputed evidence as to whether the open wall was a latent danger (concealed or dormant) of which VeoRide was aware. While the open wall was obvious with light, factual questions remained as to why the lights were off, whether VeoRide knew the lights were off, and whether Dolsen could have seen the open wall, despite the darkness and smoke, by using a flashlight or other means. Ultimately, the Court found the trial court erred in granting summary judgment in favor of VeoRide, reversed the trial court, and remanded the case for further proceedings consistent with its opinion.

You can read the full opinion here.

Under Indiana’s common law, a possessor of land is liable to invitees for a condition on land if the landowner (1) knows or with reasonable care would discover the condition and should realize it involves an unreasonable risk of harm, (2) should expect its invitees will not discover or realize the danger or will fail to protect themselves against it, and if the landowner (3) fails to exercise reasonable care to protect its invitees against the danger. However, Indiana’s legislature has enacted special protections for non-profit religious organizations.

Indiana Code § 34-31-7-2 states in relevant part as follows:

[A] nonprofit religious organization has only the following duties concerning persons who enter premises owned, operated, or controlled by the nonprofit religious organization and used primarily for worship services: (1) If a person enters the premises with the actual or implied permission of the nonprofit religious organization, the nonprofit religious organization has a duty to: (A) warn the person of a hidden danger on the premises if a representative of the nonprofit religious organization has actual knowledge of the hidden danger; and (B) refrain from intentionally harming the person.

On appeal Calvary argued the trial court erred in denying its motion for summary judgment because Kirsch’s injury occurred on its premises, which it owned and used primarily for worship services, Kirsch was not injured due to a hidden danger, and it did not intentionally injure Kirsch. In support of its argument, Calvary cited prior precedent in which the Indiana Court of Appeals found the term “premises” was unambiguous and included a church parking lot. However, here, the Court found Calvary’s cited precedent inapplicable, as the case Calvary cited dealt only with the term “premises” in the statute. As noted by the Court, the statute requires that the subject “premises,” in addition to being owned, operated, or controlled by the nonprofit religious organization, be also “used primarily for worship services.” The Court found the qualifying terms “used primarily for worship services” subject to more than one reasonable interpretation and therefore ambiguous. As such, the Court resorted to the rules of statutory construction.

Indiana’s rules of statutory construction provide that statutes in derogation of the common law must be strictly construed, and in attempting to fulfill the legislature’s intent in interpreting a statute, courts presume the legislature was aware of the common law when enacting legislation and did not intend to change it unless it did so in express terms or by unmistakable implication. Here, the Court reasoned “used primarily for worship services” could mean either (1) the entire premises even if only a portion of the premises are used primarily for worship services, or (2) only that part of the premises actually used primarily for worship services, for example, a main worship building and its parking lot, the latter being a necessary component for access to worship services. The Court noted that if “premises” was meant to include the entire premises, including those not used primarily for worship services, then the legislature would not have needed to add the qualifying language “used primarily for worship services.” The Court reasoned the legislature excluded from the statute’s scope those portions of a non-profit religious organization’s premises used only occasionally for worship services. As such, the Court held that “premises… used primarily for worship services” under the statute means only those portions of the premises that are primarily used for worship services, not the entire premises. As applied to the facts in Kirsch, the Court found no evidence designated by Calvary that the shed where Kirsch was injured was used primarily for worship services. Having rejected Calvary’s interpretation of the statute, the Court accordingly affirmed the trial court’s denial of Calvary’s motion.

You can read the full opinion here.

The CWDS governs actions involving injury or death to children, which the CWDS defines as unmarried individuals without dependents who are less than 20 years of age or less than 23 years of age and enrolled in a postsecondary educational institution or a career and technical education school or program. Ind. Code § 34-23-2-1(b), (c). Actions under the CWDS may be brought by (1) the father and mother jointly, or either of them by naming the other as a codefendant to answer as to his or her interest, (2) in case of divorce or dissolution of marriage, the person to whom custody of the child was awarded, and (3) a guardian, for injury or death to a protected person. Ind. Code § 34-23-2-1(c). In the case of death, damages awarded for loss of the child’s services, love, and companionship, reasonable expenses of psychiatric and psychological counseling of a surviving parent or minor sibling, and uninsured debts of the child inure to the benefit of (1) the father and mother jointly if both parents had custody of the child, (2) the custodial parent, or custodial grandparent, and the noncustodial parent of the deceased child as apportioned by the court, or (3) a custodial grandparent if the child was not survived by a parent entitled to benefit under the CWDS. Ind. Code § 34-23-2-1 (f), (i). Importantly, a CWDS claim must be brought within two years from the date of the child’s death. Ellenwine v. Fairely, 846 N.E.2d 657, 666 (Ind. 2006).

On appeal the Court first noted the “odd procedural posture” of the case and standing issues with regards to the Mother alone appealing the dismissals of the Father’s and Grandmother’s claims. Nonetheless, recognizing it has allowed parties to raise arguments as to the dismissal of other parties when there is prejudice to a party and “some confusion” with regards to the CWDS itself, the Court addressed the merits of the parties’ arguments. The Court noted that service on the Father and his answer occurred more than two years after Isabelle’s death and the Grandmother was not added as a defendant within the two years and never appeared and answered in any case. While Mother argued that neither Father nor Grandmother were required to “bring a claim” to be entitled to an apportionment of damages under the CWDS, the Court found such inconsistent with Indiana’s trial rules and procedures requiring a claim for relief to be made by a party. As such, the Court concluded that, even though the CWDS sets forth an apportionment in their favor, Father and Grandmother were nonetheless required to assert a claim as to any damages, and the two-year time period for them to do so under the CWDS had passed, thereby making their claims properly subject to dismissal. The Court found the trial court did not abuse its discretion and affirmed on appeal.

You can read the full opinion here.

The plaintiff, Dr. Jennifer Pennington, was a member of the fitness center owned and operated by Memorial Hospital of South Bend, doing business as Beacon Health and Fitness. The fitness center had a rectangular, multi-purpose swimming pool that was designed by Panzica Building Corporation and Spear Corporation. The pool had a long ramp and a concrete “wing-wall” on one side, separating the ramp from the main swimming area. The wing-wall had a gap at the bottom, allowing swimmers to pass through, and another shorter wing-wall at the end of the pool near the entry steps. The wing-walls were designed to sit at the pool’s water level through an automatic leveling mechanism. The ends of the wing-walls were unpadded, and no floating lane divider was placed across the gap. However, backstroke pennants were strung above and across the width of the pool approximately fifteen feet from each end.

Dr. Pennington visited the pool during its first week of operation and swam several laps of various strokes in the lane adjacent to the wing-walls. After switching from freestyle to backstroke, she collided with the corner of the wing-wall by the entry steps, causing her injury.

Dr. Pennington and her husband sued the hospital, the architects, and the designers, alleging various claims of defective design, failure to warn, negligent maintenance and operation, and loss of consortium. The trial court granted summary judgment to the architects and the designers on all counts, and to the hospital on some counts, but denied summary judgment to the hospital on the claim of negligent maintenance and operation for failing to provide adequate warnings or instructions to swimmers.

The plaintiffs appealed the summary judgment for the architects and the designers, and the hospital cross-appealed the partial denial of summary judgment on the maintenance and operation claim. The Court of Appeals consolidated the appeals and affirmed the trial court.

The Supreme Court granted transfer to the hospital and reversed the Court of Appeals in part. The Supreme Court held that the plaintiffs designated no admissible evidence that the architects or the designers breached their professional duty of care in designing the pool, and therefore affirmed summary judgment in their favor. The Court next determined that the hospital was not entitled to summary judgment on the maintenance and operation claim, as there were issues of fact as to whether the hospital should have foreseen the risk of harm posed by the wing-wall and whether it should have expected the plaintiff to protect herself against it. The Court applied the test for the foreseeability of dangerous conditions on the premises, rather than the test for activities on the premises, as the plaintiff’s injury stemmed from a physical object, not a conduct or behavior. Finally, the Court determined that the hospital was also not entitled to summary judgment on the design claim, as the plaintiff’s expert was qualified to give an opinion on the hospital’s standard of care as a landowner involved in the design process. The expert opined that the hospital acted negligently in failing to appoint a design team with aquatic safety expertise and in relying on the architects to design a safe pool.

The Supreme Court remanded the case for further proceedings on the claims against the hospital. The case is significant for clarifying the distinction between the two tests for foreseeability in premises liability cases and for applying the duty of reasonable care to landowners during the design phase of their premises. You can read the Supreme Court’s decision here.

Isgrig filed a lawsuit against IU for her injuries relying on the legal doctrine of res ipsa loquitur, which translated from Latin means “the thing speaks for itself.” The doctrine allows an inference of negligence in situations where the nature of the incident is such that the person having control over the situation was likely negligent, even though no particular negligent act can be shown. To get an inference of negligence against a defendant with res ipsa loquitur in Indiana, a claimant must show (1) that the injuring instrumentality was within the exclusive management and control of the defendant, and (2) the incident is of the type that ordinarily does not happen if those who have management or control exercise proper care. As to the element of exclusive control, it is exclusive control over the injuring instrumentality at the time of the alleged negligent act or injury, with the focus on who had the right or power to control and the opportunity to exercise the control.

Here, in response to Isgrig’s lawsuit, IU moved for summary judgment in the trial court arguing that even with res ipsa loquitur Isgrig still had to establish its liability under premise liability law by proving it had actual or constructive knowledge of the dangerous condition of the window, which it argued it did not have, and that it did not otherwise have exclusive control of the window, making res ipsa loquitur inapplicable. The trial court ruled in favor of IU and Isgrig appealed.

On appeal the Indiana Court of Appeals reviewed the applicability of res ipsa loquitur in premise liability cases. Under Indiana premise liability law, a possessor of land is subject to liability only if certain elements are met. In reviewing prior cases, the Court of Appeals recognized prior precedent could be read to hold that a claimant in a premise liability case must first prove the elements of a premise liability case before res ipsa loquitur could apply; however, the Court deemed such an approach illogical, as there would be no need for res ipsa loquitur if a claimant could first establish premise liability. Rather, the Court interpreted prior precedent as allowing the use of res ipsa loquitur in premise liability cases if the injury results from a fixture or other component that others did not or could not disturb and the incident would not normally occur absent negligence. The Court reasoned that if a claimant establishes liability under res ipsa loquitur, then a defendant necessarily would also be liable under the premise liability elements.

As applied to the facts of this case, the Court found the circumstances of the falling window better aligned with the precedent in which res ipsa loquitur was found applicable. The Court noted the window was a fixture. As to whether it could have been “disturbed” by others, the Court noted IU could be found to have had exclusive control and management of the window at the time of the incident, having the power or right to control the window, and a window falling out of a wall without anyone interacting with it is not something that occurs absent negligence. While others could access the window to open it or its blinds, a trier of fact could find such should not cause it to fall out of the wall absent negligence. The Court noted this evidence and the fact that IU had not performed any preventative maintenance on the window precluded summary judgment for IU as to IU’s liability for the window inexplicably falling out of the wall causing injury.

You can read the full opinion here.

Dolsen filed a personal injury lawsuit against VeoRide and Sweet alleging negligence in the handling of the batteries at the building and in failing to warn Dolsen about the opening in the wall. VeoRide filed a motion for summary judgment arguing Dolsen’s claims were barred by Indiana’s firefighter’s rule. Sweet filed a motion for summary judgment arguing it could not be held liable since it had given full possession and control of the building to VeoRide. The trial court granted both motions for summary judgment, finding Dolsen’s claims were barred by Indiana’s firefighter’s rule. Dolsen appealed the trial court’s order only with respect to VeoRide.

On appeal, the Court of Appeals reviewed Indiana Supreme Court precedent on Indiana’s firefighter’s rule. According to that precedent, Indiana’s firefighter’s rule bars any claim by a professional emergency responder for any negligent conduct that created the emergency responded to. As such, with regards to Dolsen’s claim arising from any negligence by VeoRide in handling the battery that caused the fire, the Court held that such claim was barred by the firefighter’s rule. However, as noted by the Court, Indiana’s firefighter’s rule does not bar a claim when an injury is caused by conduct separate and apart from the conduct that contributed to the emergency, even if that conduct occurred prior to the emergency responder arriving on the scene. Here, Dolsen also alleged VeoRide was negligent in failing to warn him of the dangers associated with the open wall next to the stairwell. The Court found such claim was separate from and independent of any negligent conduct causing the fire, and therefore, was not barred by Indiana’s firefighter’s rule.

Under Indiana law, claimants pursing premise liability negligence claims must prove the existence of a duty owed to the claimant, breach of that duty by the defendant, and damages proximately caused by the breach. Indiana law categorizes persons entering onto the property of another as either an invitee, a licensee, or a trespasser, and which category a person falls into defines the nature of the duty owed to the person. The highest duty of care is owed to invitees—to exercise reasonable care for the invitee’s protection while the invitee is on the premises. Trespassers are owed the lowest duty of care—a duty to refrain from wantonly or willfully injuring them after discovering their presence. As to licensees, persons privileged to enter or remain on land by virtue of permission or sufferance, such as firefighters, landowners/possessors must not willfully and wantonly injure them or act in a manner increasing their peril, which includes a duty to warn them of any latent (or non-obvious) danger on the premises that the landowner or possessor knows about.

Here, the Court noted that when Dolsen responded to the fire the building was dark and filled with smoke, such that the danger of the open wall was latent, i.e., not obvious to him. The Court found instructive Section 342 of the Restatement (Second) of Torts, which provides a possessor of land is liable to a licensee for a condition on land if (1) the possessor knows or has reason to know of the condition and should realize it involves an unreasonable risk of harm to a licensee and should expect the licensee will not discover the condition, (2) the possessor fails to exercise reasonable care to make the condition safe or warn the licensee of the condition and its risks, and (3) the licensee does not know or have reason to know of the condition and its risks. Based upon this framework, the Court concluded whether VeoRide owed Dolsen a duty to warn him of the open wall depended on underlying facts, for instance, whether VeoRide should have realized the open wall involved an unreasonable risk of harm, whether VeoRide should have expected Dolsen would not discover it, and whether VeoRide had reason to expect Dolsen would encounter the condition as part of his license to enter the land. The Court reasoned these underlying facts required resolution by a court or jury. Assuming the existence of a duty, the Court also found material issues of fact as to breach (whether VeoRide failed to exercise reasonable care to make the condition safe or warn Dolsen of the risks), causation, and comparative fault. Accordingly, the Court of Appeals reversed the trial court’s entry of summary judgment and remanded for further proceedings.

You can read the full opinion here.

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.

The Court next addressed Stanley’s argument that Burns owed her a statutory duty to clear the sidewalk based upon a local town ordinance. The ordinance stated that every owner, lessee and/or occupant owning, leasing and/or occupying any premises abutting any concrete sidewalk shall remove snow and ice from such sidewalk each day before 6:00 P.M. However, the ordinance also stated that the town shall cause snow and ice to be removed each day after 6:00 P.M., with the cost of such removal to be assessed to the owner of the premises abutting the sidewalk.

Under Indiana law, a violation of a statute or ordinance will give rise to civil liability if the drafters of the law intended to create a “private right of action,” that is, a duty enforceable by tort law. Courts first look to see whether the law contains an express right of action. If there is no express right of action, courts ask (1) whether the law was designed to protect particular individuals or the public in general and (2) whether the law includes an independent enforcement mechanism.

Here, the Court of Appeals noted the ordinance did not contain an express right of action, Indiana courts have consistently found similar ordinances were not enacted for the protection of individuals using streets but rather for the benefit of the municipalities, and the ordinance already contained an enforcement mechanism (the town recouping the cost of snow and ice removal from premise owners). As such, the Court found the ordinance did not create a private right of action that Stanley could enforce against Burns. Having found Burns did not owe Stanley either a common law duty or statutory duty, the Court of Appeals affirmed the grant of summary judgment in favor of Burns.

You can read the full opinion here.

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.

Wiley argued that while concertgoers may have understood the risks of crowd surfing, ESG knew that concertgoers would fail to protect themselves against that risk, which required ESG to exercise reasonable precautions for the safety of concertgoers engaging in crowd surfing. In fact, ESG had an operating procedure for crowd surfing in which ESG personnel would assist crowd surfers, and ESG had recommended to Live Nation that two additional ESG personnel be stationed at the racks for the concert. After hearing, the trial court denied ESG’s motion “on the issue of duty,” but nonetheless granted summary judgment for ESG finding Wiley incurred the risk of his injuries.

On appeal, the Court of Appeals first found ESG’s duty of reasonable care to provide concert security at the venue did not include protecting concertgoers from the prohibited conduct of crowd surfing. Based upon prior precedent, including the Indiana Supreme Court’s decision in Cavanaugh’s Sports Bar & Eatery, Ltd. v. Porterfield, the Court noted that foreseeability as an element of duty in cases involving dangerous activities on premises involves a threshold evaluation of (1) the broad type of plaintiff and (2) the broad type of harm (i.e., the general class of persons of which the plaintiff was a part and whether the harm suffered was of a kind normally to be expected). Here, in the Court’s view, a concert attendee getting dropped or thrown to the ground from above the heads of other concertgoers is not normally to be expected.

However, Wiley also argued that ESG assumed a duty of care by its conduct. Wiley argued ESG knew concertgoers at this concert would crowd surf despite warnings not to, and because of that, had recommended additional personnel be stationed at the racks; ESG had an operating procedure to handle crowd surfers; and ESG had assisted crowd surfers the night of the concert. Indiana law recognizes that parties can assume a duty of care by undertaking to perform an act with affirmative conduct. On this issue—the assumption of a duty of care—the Court of Appeals found there was a genuine issue of material fact, and therefore ESG was not entitled to summary judgment.

As to Wiley having incurred or assumed the risk of his injuries, the Court noted that, in accordance with Indiana’s Comparative Fault Act, incurred or assumed risk only negates duty in cases of express consent. Here, the Court found there was no evidence Wiley expressly (as opposed to impliedly) consented to take his chances as to sustaining injury from crowd surfing. The Court of Appeals accordingly reversed the trial court’s grant of summary judgment in favor of ESG and remanded the case for a determination of whether and to what extent ESG assumed a duty of care, and if so, determinations as to beach of that duty, causation, and comparative fault.

You can read the full opinion here.

The jury returned a verdict in favor of Mastellone calculating her total damages at $850,000, which was reduced to $510,000 based upon finding her 40% at fault and the YMCA 60% at fault. Prior to trial, the YMCA filed a motion in limine to exclude evidence as to the new floor installation. The trial court ordered it would allow evidence of the new floor installation, but it would not allow evidence that the flooring was changed. During trial, when Mastellone’s counsel asked a YMCA employee whether the flooring had been replaced, YMCA’s counsel objected, arguing the evidence was irrelevant and prejudicial. After the trial court indicated it would allow the question, YMCA’s counsel moved for a mistrial, which the trial court denied. In response to the question from Mastellone’s counsel, the YMCA employee testified the flooring had been replaced. YMCA’s counsel then elicited testimony that the flooring was not changed due to the fall but a facility upgrade. After the jury had reached a verdict but before reentering the courtroom, YMCA’s counsel then moved for a second mistrial after learning a piece of the flooring where Mastellone fell had not been sent back to the jury room. The trial court denied the second motion for mistrial because the jury had the opportunity to examine the flooring after it had been admitted as evidence.

After the jury verdict was read, the trial court stated it would enter judgement on the verdict, and then the trial court noted the entry of judgment on the docket, or chronological case summary (CCS). However, three days after the verdict, the trial court sua sponte (i.e., of its own accord) issued an Order Reconsidering Motion for Mistrial setting aside the jury’s verdict and the judgement. In its Order Reconsidering Motion for Mistrial, the trial court did not state which of the two motions for mistrial it had reconsidered, and it did not provide any reasoning. Mastellone appealed the Order Reconsidering Motion for Mistrial and the YMCA cross appealed arguing the trial court erred in denying its two mistrial motions and the verdict was excessive.

On appeal the Indiana Court of Appeals first found the trial court erred in granting a mistrial because, in failing to provide the reasons for a mistrial and the motion upon which such was based, it did not comply with the requirements of Indiana Trial Rule 59 for a motion to correct error. Since the trial court had entered a final judgment, it no longer had authority to reconsider its previous denials of YMCA’s mistrial motions. While courts are permitted to raise errors sua sponte, Indiana Trial Rule 59 states that the error raised “shall be stated in specific rather than general terms and shall be accompanied by a statement of the facts and grounds upon which the error is based.” Ind. Trial Rule 59(D). Indiana Trial Rule 59 also states that “[i]f corrective relief is granted, the court shall specify the general reasons therefor.” Indiana Trial Rule 59(J). Since the trial court did not comply with Indiana Trial Rule 59, the Court of Appeals, based upon Indiana Supreme Court precedent, reversed the trial court’s Order Reconsidering Motion for Mistrial and remanded to the trial court with instructions for the trial court to reinstate the jury’s verdict.

On the YMCA’s cross motions on appeal, the Indiana Court of Appeals found the trial court did not abuse its discretion in denying the motions for mistrial and there was sufficient evidence to support the jury’s verdict. As to the YMCA’s first motion for mistrial based upon the trial court allowing evidence of the floor replacement, the Court found that, while the relevance of such evidence was marginal, any error was harmless, as Mastellone’s counsel only asked one question as to the floor replacement and YMCA’s counsel made clear on cross the replacement was not in response to the fall, and YMCA had not shown the probative value of such evidence was substantially outweighed by the danger of unfair prejudice, as it had not demonstrated what the unfair prejudice was. As to the YMCA’s second motion for mistrial based upon the jury not having a piece of the flooring during deliberations, the Court noted YMCA had cited no case supporting a mistrial under such circumstances, and there was no indication the jury failed to take the evidence into consideration. Lastly, the Court found the jury award was supported by sufficient evidence, noting the extensiveness of Mastellone’s injuries and damages, including, among other things, her shoulder dislocation, fracture, and surgical replacement, her pain, her treatment, her permanent lifting limitations, how her injuries affected her life, and the possibility of additional surgery.

You can read the full opinion here.

Marchino filed a negligence lawsuit against Stines and Lott. To establish negligence in Indiana, a plaintiff must show a duty owed to the plaintiff by the defendant, the defendant’s breach of that duty by failing to comply with the requisite standard of care, and injuries proximately caused by the breach. Lott filed a motion for summary judgment arguing he had no duty of care towards Marcellus and could not be held liable for the injuries Boy caused because Stines had leased the property and had exclusive possession and control of the property. In response, Marchino argued Lott knew of Boy’s dangerous propensities (a question of fact conceded by Lott), and Lott had retained control of the premises giving rise to a duty of care to Marcellus. As to control, Marchino pointed to the lease agreement between Stines and Lott, which provided Lott retained a right of inspection and no pets were allowed on the property unless approved by Lott. After a hearing, the trial court granted Lott’s motion for summary judgment finding Lott owed no duty of reasonable care to Marcellus.

In Indiana dog bite cases, whether a landowner has a duty of reasonable care depends on the landowner’s control or possession of the property and the landowner’s actual knowledge of a dog’s dangerous propensities. If neither exist, a landowner cannot be held liable. Landowners who give tenants full control and possession of leased property are generally not liable for personal injuries suffered by persons on the property, absent a statute, covenant, fraud, or concealment.

Marchino argued on appeal that there was a genuine issue of material fact as to Lott’s duty of reasonable care because Lott retained control of whether there would be pets in the duplex unit, Lottt had the right to inspect the unit, and without regard to physical possession of the property, Lott was in the best position to protect Marcellus from Boy. However, the Indiana Court of Appeals disagreed. The Court noted its prior decisions rejecting similar arguments as to control based upon common lease provisions such as the ones at issue in this case. As to who was in the best position to prevent the harm, the Court noted the question of duty depends not on the characteristics of the tenant, but the characteristics of the property, and when a landlord has given possession and control of property to a tenant, it is the tenant who is legally responsible. Concluding Stines had exclusive control and possession of the property, the Court found Lott had negated the element of duty in Marchino’s claim and affirmed the trial court’s grant of summary judgment in favor of Lott.

You can read the full opinion here.

In the same blog, we also wrote about the Indiana Court of Appeals opinion in Staat v. Indiana Dep’t of Transp., in which Chad Staat and Julie Statt (collectively the “Staats”) filed a personal injury lawsuit against INDOT arising from injuries Chad sustained when his vehicle hydroplaned on accumulated, pooling, or puddled water on I-74, left the roadway, and collided with a tree. In Staat, as in Ladra, the trial court granted summary judgment in favor of INDOT finding INDOT immune from liability for a temporary condition resulting from weather under the ITCA. However, in Staat, unlike in Ladra, the Court of Appeals reversed, finding there was a genuine issue of material fact as to whether the roadway condition was temporary so as to entitle INDOT to immunity, and INDOT had not otherwise negated its duty as a matter of law.

The Indiana Supreme Court granted transfer in Ladra and in a divided opinion modified its rule in Catt and reversed the trial court’s grant of summary judgment in favor of INDOT on the issue of immunity. The Court’s opinion first reviewed the common-law origins of sovereign immunity, the abrogation of such by Indiana courts, and legislative codification of governmental immunity in the ITCA; second, it analyzed and modified the rule in Catt; third, it discussed why legislative acquiescence and stare decisis do not forbid the Court’s modification of the rule in Catt, with discussion of policy arguments advanced by INDOT; and last, it analyzed the Court’s new rule as to the facts in Ladra, finding a genuine issue of material fact under the Court’s new rule. Under the Court’s new rule, “when the government knows of an existing defect in a public thoroughfare that manifests during recurring weather conditions, and when it has ample opportunity to respond, immunity does not apply simply because the defect manifests during inclement weather.”

The Court in Ladra reasoned that the question as framed in Catt as to whether a condition was “temporary” encompassed only the particular condition causing injury, and thus, by preventing courts from considering the government’s prior negligence in the design or maintenance of a thoroughfare, the rule in Catt effectively granted blanket immunity to the government whenever there was inclement weather, despite the government’s long-standing duty to exercise reasonable care to keep roadways reasonably safe. The Court believed the rule in Catt effectively sanctioned negligent government conduct. The Court reasoned that the ITCA provides immunity when injuries result from a “temporary condition of a public thoroughfare… that results from weather,” but not from government negligence “along with a temporary condition of a public thoroughfare… that results from weather.” While acknowledging that the Court’s new rule effectively merges liability and immunity inquiries with negligence factoring into the analysis, the Court noted that immunity does not apply when a condition or defect in a roadway is “not caused by weather.” As to the facts in Ladra, the Court found they showed that the condition of the roadway resulted from a known problem with the highway drainage system which INDOT had ample time to correct.

On the same day the Indiana Supreme Court issued its opinion in Ladra, the Court also issued an opinion in Staat, in which it, unlike in Ladra, affirmed the trial court’s grant of summary judgment on the issue of immunity. The Court distinguished the cases as Ladra turning on a question of causation, whereas Staat turned on a question of whether the weather condition was “temporary.” The Court noted that immunity under the ITCA as to temporary weather conditions requires two things: the injuries result from a condition (1) that is “temporary” and (2) that is “caused by weather.” In Staat, the Court found the government had established the weather-induced condition continued to worsen at the time of the accident, with the government’s “period of reasonable response,” which extends at least until the condition is stabilized and responses completed, not having expired. Noting the Court’s decision in Ladra, the Court in Staat found no evidence that prior government conduct contributed to or caused the accident. There was an ongoing storm causing flooded roadway conditions, not just a single large puddle, and low visibility, establishing the weather condition had not stabilized. The Staats, in turn, did not put forth any evidence that the road condition had stabilized. As such, the Court found the road condition was “temporary,” and it was the result of weather, not prior government conduct as in Ladra. Therefore, the Court affirmed the trial court’s entry of summary judgment in favor of INDOT on immunity.

You can read the Indiana Supreme Court’s opinion in Ladra here.

You can read the Indiana Supreme Court’s opinion in Staat here.