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In a recent decision, the Indiana Supreme Court affirmed the trial court’s denial of a motion to dismiss a negligence claim against two restaurants that served alcohol to an intoxicated driver who later caused a fatal car crash. The case, WEOC, Inc. v. Niebauer, involved the interpretation and application of Indiana’s Dram Shop Act, which limits the civil liability of entities that furnish alcoholic beverages to someone who causes injury due to intoxication.

The Court held that the Dram Shop Act did not eliminate the common-law liability of dram shops, but rather modified it by imposing two additional requirements: (1) the person furnishing the alcohol must have actual knowledge of the injury-causing person’s visible intoxication; and (2) the intoxication must be a proximate cause of the injury. The Court found that the plaintiff’s negligence claim satisfied these requirements and alleged facts capable of supporting relief.

The Court clarified the history and scope of dram-shop regulation in Indiana, which dates back to the late nineteenth century. The Court explained that Indiana’s dram shops have faced criminal liability for various conduct since then, and civil liability under principles of common-law negligence since the 1960s. The Court also noted that the Dram Shop Act, enacted in 1986, was not applicable in two previous cases that recognized the existence of independent common-law liability, Picadilly, Inc. v. Colvin and Gariup Construction Co. v. Foster.

In Z.D. v. Community Health Network, Inc., the Indiana Supreme Court addressed a patient’s claim for invasion of privacy and negligence against a hospital that disclosed her private health information to a wrong person.

Z.D. received medical care at Community Health Network’s emergency department in 2018. A hospital employee called Z.D. to discuss her health matters but could not reach her. The employee then prepared a letter containing Z.D.’s diagnosis and treatment, but placed it in an envelope addressed to Jonae Kendrick, a teenager who knew Z.D.’s daughter. Kendrick opened the letter, posted it on Facebook, and tried to tag Z.D. Z.D.’s daughter saw the post and notified her mother. Kendrick declined Z.D.’s daughter’s request to remove the post. However, Kendrick later relented and removed the post in response to Z.D.’s request that she remove the post and return the letter in exchange for $100. Z.D. sued the hospital for invasion of privacy and negligence, seeking damages for emotional distress and other losses.

The trial court granted summary judgment to the hospital on all of Z.D.’s claims. The court found that the hospital was not the proximate cause of Z.D.’s damages, that Z.D. could not recover emotional-distress damages in her negligence claim due to the modified impact rule, and that Z.D. did not bring a claim for public disclosure of private facts.

The Indiana Court of Appeals recently affirmed a trial court’s grant of partial summary judgment in favor of a fireworks company and against a homeowner whose house was set on fire by a firework shell mortar. In Hunter v. J & M Displays, Inc., J & M Displays, Inc. (J & M) performed a fireworks display on Lamb Lake in Johnson County, Indiana on July 5, 2019. Faye Hunter (Faye) was asleep in her bed when J & M commenced the fireworks display. While Faye was sleeping, a firework shell mortar launched by J & M crashed into Faye’s home and started a fire in her home. When the shell mortar hit, Faye’s bed shook, and she heard dishes rattling in her home. A man came to her door pounding on her door and escorted her out of her home. Faye did not sustain any physical injuries as a result of the incident.

Faye and James Hunter (the Hunters) sued J & M for the property damage to their home and for the personal injury of negligent infliction of emotional distress to Faye. J & M thereafter filed a motion for partial summary judgment in the trial court arguing that Faye could not recover emotional distress damages under Indiana law. The trial court held a hearing and, agreeing with J & M, entered partial summary judgment in favor of J & M on Faye’s negligent infliction of emotional distress claim.

Over the years Indiana law has changed with regards to the recovery of damages for negligent infliction of emotional distress. Currently, Indiana law allows for the recovery of such damages under four circumstances. First, under the impact rule, a plaintiff can recover emotional distress damages if he or she suffers a direct physical impact resulting in physical injury with emotional trauma resulting from the injury. Second, under the modified-impact rule, a plaintiff can recover when, without any physical injury, he or she sustains a direct physical impact and the defendant’s negligence caused an injury or death to a third party, so long as the emotional trauma is serious enough to affect a reasonable person and resulted from the plaintiff’s direct involvement. Third, under the bystander rule, a plaintiff can recover when, without any direct impact, he or she witnesses a relative’s severe injury or death or viewed the immediate aftermath of the incident. Fourth, a parent or guardian of a sexually abused child can recover for negligent infliction of emotional distress when the wrongdoer has a duty of care to the parent or guardian, there is irrefutable certainty of the act’s commission, the act is one that rarely, if ever, is witnessed by parents or guardians, and the abuse severely impacts the emotional health of the parent or guardian.

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

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

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

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

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

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

The Indiana Court of Appeals recently revived a parents’ case filed against a public school for mental anguish their seven-year-old son experienced when he was incorrectly directed to walk home from school instead of riding the school bus home. In Hopkins v. Indianapolis Pub. Sch., Casey Hopkins and Terry Yarbrough (the Parents), filed a lawsuit on behalf of their son, DeShawn Yarbrough (DeShawn), against Indianapolis Public Schools d/b/a Ralph Waldo Emerson School 58 (the School). On DeShawn’s second day of first grade at the School, DeShawn, who had a blue tag attached to his school bag indicating he was a bus rider, got in line to go home on the school bus, as he had done the previous day. However, he was directed by a teacher to leave the line and wait with other children who would be walking home. DeShawn had never walked to or from the school and his house was around 1.2 miles from the school. He did not know how to get home and ended up walking over a mile in the wrong direction during which time he was approached by a homeless man in an alley, he was chased by dogs, and he had to cross a busy road at rush hour. Ultimately, a stranger helped DeShawn and contacted the school, the police, and his mom.

The Parents sued the school claiming the School failed to exercise reasonable care and supervision for DeShawn’s safety. The School filed a motion for summary judgment in court arguing it was entitled to immunity as a governmental entity under the Indiana Tort Claims Act (ITCA), which provides “[a] governmental entity… is not liable if a loss results from… [t]he adoption and enforcement of or a failure to adopt or enforce… in the case of a public school… a policy.” Ind. Code § 34-13-3-3(a)(8)(B). After a hearing, the trial court granted the School’s motion for summary judgment finding the School was immune from liability under the ITCA.

The Parents appealed and on appeal argued the School was not entitled to immunity under Indiana Code § 34-13-3-3(a)(8)(B) because what happened to their son did not result from the School’s failure to properly enforce a school policy. While the Court of Appeals noted some question as to the meaning of “policy” under the ITCA, the Court ultimately concluded the Parents’ claim did not arise from the School’s failure to “enforce” its dismissal procedures, and therefore the School was not entitled to the “enforcement” immunity under the ITCA. The Court reviewed prior precedent defining enforcement under the ITCA as “compelling or attempting to compel the obedience of another to laws, rules or regulations, and the sanctioning or attempt to sanction a violation thereof,” such as a school deciding to suspend, expel, or impose discipline on students. Here, the Court ruled public schools are not entitled to immunity when they are sued concerning their own compliance, or failure to comply, with laws, regulations, or their own policies, and since the Parents were alleging the School itself failed to comply with its own dismissal procedures, as opposed to the School failing to compel DeShawn’s obedience to its dismissal procedures, the trial court erred in granting summary judgment under Indiana Code § 34-13-3-3(a)(8)(B) of the ITCA.