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Woman Suffering Injury in Fall Is Allowed to Proceed in Her Case After Indiana Court of Appeals Finds a Genuine Issue of Material Fact and Judicial Bias

Published on: March 15, 2023 | by Barsumian Armiger

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.

Indiana Court of Appeals Applies McKenzie in Allowing Invasion of Privacy Claim for Public Disclosure of Private Facts to Proceed

Published on: December 30, 2022 | by Barsumian Armiger

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.

Indiana Court of Appeals Finds Car Insurer Cannot Set Off Underinsured Motorist Limit by Worker’s Compensation Payments

Published on: October 7, 2022 | by Barsumian Armiger

In our last blog, we wrote about Erie Ins. Exch. v. Craighead in which the Indiana Court of Appeals held car insurance companies do not get setoffs against underinsured motorist (UIM) limits for payments made to their insureds under medical payments coverages. The day after the Court’s decision in Craighead, the Indiana Court of Appeals issued a similar opinion in Kearschner v. Am. Family Mut. Ins. Co., S.I. with respect to setoffs for worker’s compensation payments.

In Kearschner, Donald Kearschner (Kearschner) injured his shoulder in a car crash while working for Wal-Mart. The at-fault driver had a liability insurance policy with a $50,000 limit. Kearschner had his own insurance coverage with American Family Mutual Insurance Company (AFI), with $100,000 in liability coverage and $100,000 in UIM coverage. Kearschner sued the at-fault driver and AFI. Kearschner settled with the at-fault driver for the at-fault driver’s liability limit of $50,000 and sought an additional $50,000 in UIM coverage from AFI. AFI moved for summary judgment arguing that Kearschner was not entitled to any UIM coverage because, in addition to the $50,000 he received from the at-fault driver, he had also received a net amount of $62,084.52 in worker’s compensation payments, and his UIM policy stated that his UIM limit would be reduced by any payment from an at-fault driver and by any payment made under any worker’s compensation law. The trial court granted AFI’s motion and Kearschner appealed.

Similar to its decision in Craighead, the Indiana Court of Appeals held that the provision of Kearschner’s AFI policy providing a setoff for the $62,084.52 in worker’s compensation payments violated Indiana’s uninsured/UIM statute, specifically Indiana Code § 27-7-5-2 (“the UIM Statute”). The Court noted that the purpose of UIM coverage is to provide an insured with a recovery the insured would have received had the at-fault party carried adequate liability insurance, with the UIM Statute providing a minimum level of compensation. The UIM Statute provides that, absent a written rejection, UIM coverage (1) must be provided “in limits at least equal to the limits of liability specified in the bodily injury liability provisions of an insured’s policy,” and (2) may not be provided in an amount less than $50,000. Ind. Code § 27-7-5-2(a).

Indiana Court of Appeals Holds Auto Insurers Do Not Get a Setoff Against Underinsured Motorist Limits for MedPay Payments

Published on: September 14, 2022 | by Barsumian Armiger

The Indiana Court of Appeals recently held that automobile insurers do not get a setoff against underinsured motorist (UIM) limits above the statutory minimum of $50,000.00 for payments made by insurers under medical payments coverage (MPC). In Erie Ins. Exch. v. Craighead, Olivia Craighead (Craighead) was injured in a single-vehicle car crash while riding as a passenger. She pursued a claim against the driver, and the driver’s insurance company paid her $50,000 in liability coverage and $5,000 in MPC. Craighead also pursued a claim against her own insurance company, Erie Insurance Exchange (Erie). Craighead had $100,000 in UIM coverage and $5,000 in MPC under her policy with Erie. Erie paid the $5,000 in MPC but disputed the amount of the remaining UIM coverage after setoffs pursuant to Craighead’s policy with Erie, which provided that the limit of UIM coverage available would be reduced by liability payments and MPC payments.

Erie claimed Craighead’s $100,000 UIM coverage should be set off by both the $50,000 liability payment and the $10,000 in MPC payments, thereby making the available UIM coverage $40,000. While recognizing Erie was entitled to a setoff for the $50,000 liability payment, Craighead claimed she was entitled to the remaining $50,000 in UIM coverage with no setoff for the $10,000 MPC payments. After Erie refused to pay the undisputed $40,000 in UIM coverage absent agreement by Craighead to release her claim for the additional $10,000 in coverage, Craighead filed a lawsuit against Erie for both breach of contract and bad faith. After Craighead filed suit, Erie reversed its previous position and paid Craighead the undisputed $40,000 in UIM coverage.

Both parties moved for summary judgment in the trial court. Erie argued it acted in accordance with Indiana law and not in bad faith in enforcing the MPC setoff policy provision. Craighead argued the MPC setoff policy provision violated Indiana law and there was a genuine issue of material fact as to whether Erie acted in bad faith. The trial court denied Erie’s motion for summary judgment but granted Craighead’s motion for partial summary judgment, finding a setoff from Craighead’s UIM coverage for the $10,000 MPC payments was not permissible. Erie appealed.

Indiana Court of Appeals Reverses Trial Court and Revives Crowd Surfer’s Personal Injury Lawsuit Against Music Venue Security Company

Published on: August 18, 2022 | by Barsumian Armiger

The Indiana Court of Appeals recently reversed a trial court’s grant of summary judgment in favor of a music venue security company alleged to have caused a crowd surfer’s injuries in a fall. In Wiley v. ESG Sec., Inc., Seth Wiley (Wiley), a minor at the time, was crowd surfing during a “punk rock” concert at the Murat in Indianapolis, Indiana. ESG Security, Inc. (ESG) was contracted by Live Nation to provide security at the concert. “Bicycle racks” were placed between the stage and the crowd with several ESG personnel stationed between the racks and the stage. Various concertgoers were crowd surfing during the concert, including Wiley on three or four occasions prior to his fall. On prior occasions, ESG personnel helped Wiley to the ground after he reached the front of the audience and was passed over the racks. However, the last time he crowd surfed the crowd moved him to the front of the audience when there were no ESG personnel to support him down, as they were attending to another concertgoer, and he fell and sustained injuries.

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.

Indiana Court of Appeals Issues Second Opinion in Dispute Between Automobile Insurer and Hospital Concerning Hospital’s Lien Under Indiana’s Hospital Lien Act

Published on: June 24, 2022 | by Barsumian Armiger

Over a year and a half ago we wrote about the Indiana Court of Appeals decision in Parkview Hosp. Inc. v. Am. Family Ins. Co. (“Parkview I”) in which the Court held that Parkview Hospital (“Parkview”) was entitled to summary judgment on its hospital lien claim against American Family Insurance Company (“American Family”) after American Family violated the Indiana Hospital Lien Act, Ind. Code § 32-33-4-4, by paying settlement funds directly to Ohio plaintiffs in a car accident personal injury matter pursuant to an Ohio court order without having obtained a release of Parkview’s hospital lien. Recently, the Indiana Court of Appeals issued another opinion in Parkview Hosp. Inc. v. Am. Family Ins. Co. (“Parkview II”) in a second appeal of the matter.

On remand after the first appeal the trial court ordered American Family to pay Parkview the full amount of Parkview’s hospital lien, $95,541.88, and Parkview’s attorney’s fees. After American Family filed a motion to correct error, the trial court ordered that Parkview was not entitled to its attorney’s fees; however, the trial court ordered that Parkview was entitled to the full amount of its hospital lien despite American Family’s request that its liability be limited to $50,000.00, which was the Ohio plaintiffs’ underinsured policy limits. Parkview appealed raising three issues: (1) whether Parkview I required the trial court to enter judgment for Parkview on its original request for damages and attorney’s fees; (2) whether American Family forfeited its challenges to Parkview’s damages by raising those challenges under Indiana Trial Rule 59 on remand; and (3) whether Parkview was entitled to its attorney’s fees under the Hospital Lien Act. American Family cross-appealed raising just one issue, whether it was required to pay Parkview the full amount of Parkview’s lien, $95,541.88, or the $50,000.00 limit of its underinsured policy with its insured.

In Parkview II the Indiana Court of Appeals ultimately concluded that the amount of Parkview’s damages and whether it was entitled to attorney’s fees was not decided in Parkview I, American Family did not forfeit its right to challenge the trial court’s award of damages and attorney’s fees under Indiana Trial Rule 59, Parkview was not entitled to attorney’s fees under Indiana’s Hospital Lien Act, and American Family’s responsibility for damages was limited to $50,000.00.

Indiana Court of Appeals Finds Public School Not Immune from Liability for Making Seven-Year-Old Child Walk Over a Mile Home Instead of Riding on School Bus

Published on: February 24, 2022 | by Barsumian Armiger

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.

Indiana Court of Appeals Decides Issue of First Impression on Recovery of Emotional Distress Damages under Indiana’s Bystander Rule for Home Gas Explosion Fire

Published on: February 8, 2022 | by Barsumian Armiger

In a matter of first impression, the Indiana Court of Appeals recently reviewed the applicability of Indiana’s Bystander Rule for emotional distress damages arising from a home gas explosion and fire. In Ceres Sols. Coop., Inc. v. Estate of Bradley, Ceres Solutions Cooperative, Inc. (“Ceres”) negligently failed to check for gas leaks in refilling a propane tank at Kenneth Bradley’s (“Bradley”) home. Bradley lived in the home with his wife Kathy and son Eric. In the early morning after the refill, while Bradley was at work, Eric turned on a lamp next to his bed, which caused an explosion, surrounding him in a ball of fire. Part of the home’s roof collapsed and there was rubble and fires around the home. Eric was severely burned but escaped. Kathy was killed.

Bradley filed a lawsuit against Ceres which included a claim for his emotional distress. Typically, to recover emotional distress damages in Indiana, under Indiana’s Modified Impact Rule, a claimant must suffer a direct impact by another’s negligence and by virtue of that involvement suffer an emotional trauma serious in nature and of a kind and extent normally expected to occur in a reasonable person. However, Indiana has also adopted the Bystander Rule, which is an exception to the Modified Impact Rule, that allows emotional distress damages when a claimant establishes a direct involvement with the incident. To recover emotional distress damages under Indiana’s Bystander Rule, courts consider as a matter of law three factors: (1) the severity of the victim’s injury (serious injury or death to a victim), (2) the relationship of the plaintiff to the victim (a close familial relationship with the victim), and (3) the circumstances surrounding the claimant’s discovery of the victim’s injury (direct observation of the incident or its immediate “gruesome aftermath,” rather than learning of the incident by indirect means). To satisfy the third factor, (A) the bystander claimant must come on the scene at or immediately following the incident, (B) the claimant must not have been informed of the incident before coming on the scene, and (C) the scene and victim must be in essentially the same condition as immediately following the incident.

Here, about three hours after the explosion, Bradley was driving home from work when he came upon a roadblock, around three-quarters of a mile from his home. He could see flames coming from his home. He asked the lady at the roadblock, who was a local volunteer firefighter’s wife, whether his wife made it out of the house, but she did not know, she had no radio, and she had not been provided any information as to what was occurring. Bradley drove to his home and saw “big and steady” flames. Bradley saw his son Eric on a gurney with a blanket on and visible burn injuries to his face. Eric told Bradley he did not know where Kathy was, and although firefighters continued to search for her, the flames got bigger every time they dug, so they had to wait. The firefighters eventually found Kathy and made Bradley leave the scene so they could remove her.

Indiana Supreme Court Adopts New Rule Allowing Mother of Sexually Abused Child to Recover Emotional Distress Damages

Published on: January 6, 2022 | by Barsumian Armiger

We previously wrote on the Indiana Court of Appeals opinion in K.G. by Next Friend Ruch v. Smith in which the Indiana Court of Appeals held that Melody Ruch (“Ruch”) could not recover damages for emotional distress arising from the sexual abuse of her child. Ruch’s disabled child was sexually abused by a school instructional assistant who later plead guilty to child molesting. Ruch filed a lawsuit against Morgan Smith (“Smith”), the assistant, the school, and the Metropolitan School District of Pike Township (collectively “School Defendants”). The School Defendants moved for summary judgment arguing that Ruch could not recover for her emotional distress under Indiana’s traditional impact rule, the modified impact rule, or the bystander rule.

Indiana’s traditional impact rule requires a plaintiff prove (1) an impact on the plaintiff, (2) which causes physical injury to the plaintiff, and (3) which physical injury, in turn, causes the emotional distress. The modified impact rule requires a plaintiff prove a direct impact, and because of that direct involvement an emotional trauma serious enough to affect a reasonable person, without regard to whether the emotional distress arises out of or accompanies any physical injury to the plaintiff. Indiana’s bystander rule requires a plaintiff prove (1) serious injury or death to a victim, (2) a close familial relationship with the victim, and (3) direct observation of the incident or its immediate “gruesome aftermath,” rather than learning of the incident by indirect means.

The trial court granted the School Defendants’ motion for summary judgment, and on appeal the Indiana Court of Appeals affirmed, finding Ruch’s claim for emotional distress did not fall within any of the appliable rules. The Indiana Supreme Court, however, granted transfer and adopted a new rule: when a caretaker assumes responsibility for a child, and when that caretaker owes a duty of care to the child’s parent or guardian, a claim against the caretaker for the negligent infliction of emotional distress may proceed when the parent or guardian later discovers, with irrefutable certainty, that the caretaker sexually abused that child and when that abuse severely impacted the parent or guardian’s emotional health. To satisfy the rule, a plaintiff must show (1) that the tortfeasor had a duty of care to the parent or guardian; (2) that there is irrefutable certainty of the act’s commission; (3) that the tortious act is one rarely, if ever, witnessed by the parent or guardian; and (4) that the abuse severely impacted the parent or guardian’s emotional health. Irrefutable certainty under the Court’s new rule requires an admission to the abuse by the caretaker to a person of authority, a finding of abuse by a judge, or the caretaker’s conviction for the abuse.

Grocery Store Landowner Not Responsible for Patrons’ Injuries Arising from Vehicle-Pedestrian Collision in Parking Lot

Published on: September 17, 2021 | by Barsumian Armiger

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

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

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