Justia Lawyer Rating
The National Trial Lawyers
Lead Council Rated Attorney
Super Lawyers
Avvo rating 10.0 - Top Attorney
Avvo rating 10.0 - Top Attorney
Top One
America's Top 100
Expertise - Best Car Accident Lawyers in Indianapolis
Expertise - Best Medical Malpractice Lawyers in Indianapolis
Expertise - Best Personal Injury Lawyers in Indianapolis 2022
Expertise - Best Personal Injury Lawyers in Fishers 2022
Expertise - Best Personal Injury Lawyers in Evansville 2022

The Indiana Court of Appeals recently reversed a trial court’s denial of a motion for summary judgment filed by the Indiana Department of Insurance and the Indiana Patient’s Compensation Fund (the Fund) in a negligent credentialing claim. In Indiana Dep’t of Ins. v. Doe, a doctor sexually molested a minor child during a physical exam. The child’s parents (the Does) filed a medical malpractice claim against the doctor and the hospital for which the doctor worked. In their lawsuit, the Does asserted the hospital was negligent in credentialing the doctor. The Does and the hospital thereafter entered into a settlement agreement, which was contingent on the Does obtaining access to excess damages from the Fund. After the Does filed a petition against the Fund for excess damages, the Fund moved for summary judgment, with the hospital as an intervening party. The Fund argued the Does’ negligent credentialing claim was not medical malpractice within the scope of the Indiana Medical Malpractice Act (the Act), and therefore, it had no liability to pay excess damages, thereby making the settlement between the Does and the hospital null and void. The trial court denied the Fund’s motion for summary judgment and the Fund appealed.

Under Indiana law, the Act applies to claims for malpractice against healthcare providers qualified under the Act. The Act provides a monetary cap on the liability of healthcare providers, and if a healthcare provider agrees to settle a claim under the Act, claimants may then pursue excess damages from the Fund. Over the years, there have been a variety of cases setting forth what is, and what is not, medical malpractice under the Act, as the Act does not cover all claims against healthcare providers. Whether a claimant can recover excess damages from the Fund depends on whether the Act applies. The Act applies to curative or salutary conduct of a healthcare provider while acting in a professional capacity. The Act does not apply to conduct unrelated to the promotion of a patient’s health or a healthcare provider’s exercise of professional expertise, skill, or judgment. Courts analyze (1) whether the alleged negligence involved the provision of medical services and (2) whether the provision of medical services was to a patient for the patient’s benefit.

Here, the Does sought to recover excess damages from the Fund based upon their negligent credentialing claim against the hospital. However, Indiana caselaw has found the Act inapplicable to claims of sexual misconduct by healthcare providers, and under prior precedent, claimants are required to prove underlying malpractice to succeed on a negligent credentialing claim. The Indiana Court of Appeals reaffirmed its prior position in holding “an underlying act of medical malpractice is a necessary predicate and condition precedent to a medical credentialing malpractice claim,” and concluded that, since the Does’ underlying claim against the doctor was not malpractice under the Act, the Does’ negligent credentialing claim also fell outside of the Act, thereby preventing the Does access to excess damages from the Fund.

The Indiana Supreme Court recently affirmed a trial court’s judgment dismissing a personal injury lawsuit based upon issue preclusion and Indiana’s Comparative Fault Act. In Davidson v. State, Kathryn Davidson (“Davidson”) sustained severe injuries and was rendered a quadriplegic when she was ejected from the passenger seat of a semi-truck that crashed into an overpass-bridge pier in a construction zone on I-69. Davidson’s boyfriend, Brandon Nicholson, fell asleep while driving the semi-truck for his employer, J Trucking, LLC. Davidson filed a lawsuit against J Trucking, LLC and obtained a $3.2 million judgment after a bench trial. Thereafter, Davidson filed a second lawsuit, for the same injuries and damages, against the State of Indiana and five other defendants (“the Defendants”) for their role in the construction of the section of I-69 where the truck crash occurred, including their alleged failure to appropriately place barriers in front of the bridge pier.

In the second lawsuit, the Defendants moved to have Davidson’s case dismissed based upon, among other things, the legal doctrine of issue preclusion, which prevents a party who has previously litigated an issue and lost from relitigating the same issue in a second lawsuit when that issue was necessarily decided in the prior lawsuit by a court of competent jurisdiction. In applying issue preclusion against a party, courts must consider whether the party had a full and fair opportunity to litigate the issue in the first lawsuit and whether it would be unfair under the circumstances for issue preclusion to be used against the party in the second lawsuit. Here, the trial court dismissed Davidson’s second lawsuit with prejudice, the Indiana Court of Appeals reversed finding issue preclusion did not apply, and the Indiana Supreme Court granted transfer.

Ultimately, the Indiana Supreme Court held Davidson’s claims in her second lawsuit were barred by issue preclusion based on its interpretation of Indiana’s Comparative Fault Act. Under the Comparative Fault Act, a trier of fact must consider the fault of all persons who caused or contributed to cause an injury or death and apportion 100% of the damages in the case between parties and nonparties. Nonparties are persons who caused or contributed to cause an alleged injury or death but who have not been joined in a lawsuit as defendants. A defendant may raise a nonparty defense to have fault attributed to a nonparty, thereby lessening any fault attributable to the defendant, and in turn, any judgment that must be paid. However, for fault to be attributed to a nonparty, the Comparative Fault Act requires the nonparty be named in the lawsuit.

The Supreme Court of the United States has spoken on nursing home resident rights. In a landmark decision, it has affirmed the right of nursing-home residents to sue for violations of their dignity and freedom under federal law. The case was brought by Ivanka Talevski, whose father Gorgi suffered from dementia and was subjected to chemical restraints and forced transfers by his nursing home, Valparaiso Care and Rehabilitation, which was owned by the Health and Hospital Corporation of Marion County and managed by American Senior Communities. Talevski sued all three entities. She claimed they had breached the Federal Nursing Home Reform Act (FNHRA), which was passed in 1987 and signed into law by President Reagan to protect residents from unnecessary restraints and requires advance notice of discharge. She brought claims under Section 1983 of Title 42 of the United States Code (“Section 1983”), which is a statute that allows anyone to sue for deprivation of federal rights and reads in relevant part:

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

The nursing home argued that Talevski could not maintain Section 1983 claims because the FNHRA was enacted under Congress’s spending power and did not create individual rights.

The Indiana Court of Appeals recently affirmed a trial court’s grant of summary judgment to the Indiana Department of Transportation (INDOT) based upon immunity provided under the Indiana Tort Claims Act (ITCA), Indiana Code Chapter 34-13-3. In Cranfill v. Dep’t of Transp., Josephine Cranfill was killed when the vehicle in which she was riding as a passenger was struck while crossing a problematic intersection in 2019 in Hendricks County, Indiana. The INDOT had known of safety concerns at the intersection since 2014, including a history of “right angle crashes.” In 2016 the INDOT installed extra signage at the intersection. Concerns about the intersection increased prior to the collision in 2019 because I-65 was closed and traffic from I-65 was detoured through the intersection. While at the time of the collision the speed limit on the main roadway going through the intersection was 55 MPH, after the collision, the INDOT temporarily reduced the speed limit to 45 MPH pending the installation of a traffic signal at the intersection.

Matthew Cranfill (“Cranfill”), Josephine’s father and the personal representative of Josephine’s estate, sued the INDOT for Josephine’s wrongful death. As applicable here, Cranfill alleged that the INDOT was negligent for failing to reduce the speed limit on the main roadway prior to the collision. While Indiana’s common law provides that governments have a duty to exercise reasonable care to keep streets and sidewalks in a reasonably safe condition for travel, the ITCA provides enumerated instances in which governments have immunity from tort liability. In the trial court, the INDOT moved for summary judgment based upon the ITCA, including, as applicable here, Indiana Code § 34-13-3-3(a)(8), which provides that “a governmental entity… is not liable if a loss results from… [t]he adoption and enforcement of or failure to adopt or enforce… a law (including rules and regulations).” The trial court agreed with the INDOT that the INDOT had immunity that was a complete bar to Cranfill’s claims, and therefore, entered final judgment in favor of the INDOT. Cranfill thereafter appealed to the Indiana Court of Appeals.

On appeal, Cranfill argued the trial court erred in finding the INDOT had immunity. Cranfill relied on the Indiana Supreme Court’s decision in Ladra v. State, a case discussed in one of our prior blogs. In Ladra, the Indiana Supreme Court adopted a new rule removing governmental immunity for the temporary condition of public thoroughfares when the government knows of an existing defect in a public thoroughfare that manifests during recurring weather conditions and has ample opportunity to respond. Here, Cranfill argued the INDOT should not have immunity because it knew about the dangerous condition at the intersection and had ample time to respond. However, the Indiana Court of Appeals noted the rule in Ladra did not apply to the ITCA subsection applicable here, Indiana Code § 34-13-3-3(a)(8). While the INDOT has statutory authority to alter speed limits and despite knowing of the dangerous condition of the intersection with ample time to respond, based upon prior precedent and the plain meaning of Indiana Code § 34-13-3-3(a)(8), the Court found the INDOT was immune for failing to lower the speed limit prior to the collision. The Court held that “[t]he Department’s failure to lower the speed limit on [the roadway] involved the ‘adoption and enforcement of or failure to adopt or enforce’ a rule and/or regulation,” and therefore, under the ITCA, the INDOT was immune from Cranfill’s claims.

The Indiana Court of Appeals recently affirmed a trial court’s grant of summary judgment to a rental home landlord in a lawsuit for injuries and damages brought by a mail carrier who was attacked by two pit bull dogs at the landlord’s rental home. In Fields v. Gaw, Constance Gaw (Gaw) rented a home to Jason McClurg (Jason), who, along with Jill Fields (Jill), resided at the home and owned the dogs. The rental lease stated Jason could have two dogs or cats in the home. Tiffance Fields (Fields), a USPS mail carrier, was delivering mail to Jason’s home and was attacked by Jason and Jill’s dogs. Fields thereafter filed a lawsuit against Jason, Jill, and Gaw alleging they were liable for her injuries and damages under Indiana’s Dog Bite Statute, Ind. Code § 15-20-1-3.

Indiana’s Dog Bite Statute provides that an owner of a dog that bites a person, without provocation, is liable for all damages suffered by the person if the person was acting peaceably and was in a location where the person may be required to be in order to discharge a duty imposed upon the person by the laws of Indiana, the laws of the United States, or the postal regulations of the United States. Ind. Code § 15-20-1-3(a). An “owner” is defined in the Dog Bite Statute as the owner of a dog, including any person who “possesses, keeps, or harbors a dog.” Ind. Code § 15-20-1-2. Under the Dog Bite Statute, an owner is liable for damages even if the dog had not previously behaved in a vicious manner and the owner had no knowledge of prior vicious behavior by the dog. Ind. Code § 15-20-1-3(b). In essence, Indiana’s Dog Bite Statute renders dog owners strictly liable when their dogs bite the class of individuals set forth in the Statute without provocation.

Gaw filed a motion for summary judgment arguing that she had no duty of care to Fields, with her noting that Jason had full possession or control of the rental property, she was not present on the property when the incident occurred, and she was not the owner of, and did not have control over, the dogs. In response, Fields argued that because the lease agreement between Gaw and Jason allowed Jason to have dogs at the rental home, Gaw thereby “harbored” the dogs, making her an “owner” under the Dog Bite Statute. The trial court granted summary judgment for Gaw, finding Gaw was not “the owner of the dog at issue,” with “not even any inference… that supported [Fields’] argument that Gaw possessed, kept, or harbored the dog at issue.” The trial court also found no common law liability on behalf of Gaw and denied Field’s cross-motion for summary judgment. Fields only appealed the trial court’s judgment as to the applicability of Dog Bite Statute as to Gaw.

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.

Imagine a situation where a general contractor enters into a contract with a property owner to build a new manufacturing facility. The general contractor hires various subcontractors to perform different tasks on the project. During the performance of one of those tasks, a subcontractor’s employee is seriously injured through no fault of his own by an act a simple safety measure could have prevented. Although the worker’s injury would be covered by worker’s compensation through his employer, he may also have a remedy against the general contractor. Who is ultimately responsible for the worker’s injury and how might this scenario be decided by an Indiana court?

Under Indiana law, ordinarily, a general contractor owes no duty to its subcontractors’ employees. See Bagley v. Insight Commc’ns Co., L.P., 658 N.E.2d 584, 586 (Ind. 1995). Therefore, “when a subcontractor fails to provide a reasonably safe workspace, the general contractor will not incur liability for employee injury . . . The rationale behind this rule is that a general contractor has little to no control over the means and manner a subcontractor employs to complete the work.” Ryan v. TCI Architects / Engineers / Contractors, Inc., 72 N.E.3d 908, 913 (Ind. 2017). This general rule, however, is subject to five exceptions, Bagley, 658 N.E.2d at 586, one of which is probably the most litigated in these situations: whether a contractual obligation imposes a ‘specific duty’ on the general contractor. Ryan, 72 N.E.3d at 913.

The assumption of contractual duty exception applies when a general contractor’s contract with the project owner “affirmatively evinces an intent to assume a duty of care.” Stumpf v. Hagerman Const. Corp., 863 N.E.2d 871, 876 (Ind.Ct.App. 2007). A general contractor’s contractually assumed duty “exposes the general contractor to potential liability for a negligence claim where no such liability would have otherwise existed.” Ryan, 72 N.E.3d at 914. In other words, the general contractor is charged with providing an additional layer of responsibility that would not exist without a contractual promise. See Harris v. Kettlehut Constr., Inc., 468 N.E.2d 1069, 1076 (Ind.Ct.App. 1984) (general contractor and subcontractor jointly liable for duty assumed by each party).

The Indiana Court of Appeals recently affirmed a trial court’s grant of summary judgment in favor of a homeowner in a claim against the homeowner arising from a guest’s fall on an icy sidewalk adjacent to the homeowner’s property. In Stanley v. Burns, Andrea Burns (Burns) worked for a direct sales company and invited numerous women on her team, including Erin Harrell Stanley (“Stanley”), to her home to watch a planned YouTube live corporate broadcast. On the night of the broadcast in December 2019, the weather had been “frosty,” but it had not snowed. Burns did not check the driveway or sidewalk at her home to see whether they were safe for her guests. Stanley arrived at Burns’ home around 7:20 P.M. and at that time it was dark outside. Since Burns’ driveway was full, Stanley parked on the street. Stanley got out of her vehicle and walked “three or four steps” on the road-side sidewalk towards Burns’ driveway and slipped and fell on ice, injuring her left leg. Stanley filed a premise liability lawsuit against Burns and her husband.

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.

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.

Contact Information