Indiana Personal Injury Lawyer and Medical Malpractice Attorney Blog

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.

Seventh Circuit Court of Appeals Holds Nursing Home Resident Placed in Chemical Restraints Stated Claim under Federal Civil Rights Law for Alleged Violation of Federal Nursing Home Reform Act

Published on: January 20, 2022 | by Barsumian Armiger

The Seventh Circuit Court of Appeals recently addressed whether a federal district court improperly dismissed a 42 U.S.C. § 1983 (Section 1983) claim premised upon a skilled nursing home resident’s complaint that he was chemically restrained and later transferred and discharged without timely notice in violation of the Federal Nursing Home Reform Act (FNHRA). In Talevski v. Health and Hospital Corporation of Marion County (HHC) et al, Gorgi Talevski, through his wife Ivanka, sued HHC, Valparaiso Care, and American Senior Communities, LLC under Section 1983 for violations of FNHRA, 42 U.S.C. § 1396 et seq.

Specifically, Talevski alleged in his complaint against the skilled nursing facility, Valparaiso Care, that it failed to follow FHNRA in several respects including failing to provide adequate medical care, administering psychotropic medicine to chemically restrain him resulting in rapid physical and mental decline, discharging him without the consent of his family or guardian, refusing to fulfill an administrative judge’s order to readmit him, and maintaining a policy, practice, or custom that failed to promote, maintain, or enhance the quality of his and each resident’s life. On appeal, Talevski narrowed the allegations to only two particulars that appear in FNHRA: the right to be free of chemical restraints imposed for purposes of discipline or convenience and his rights related to resident-transfer and discharge procedures, namely his right to remain at Valparaiso Care and to receive timely notice of transfer or discharge.

The issue for the Court was whether Section 1983, a federal law that allows for a private citizen to bring a private claim for damages for civil rights violations, would extend to a claim that a nursing home resident’s rights conferred by the language of a federal statute were violated. The Court noted that FHRNA places minimum standards of care required of nursing-home facilities to qualify for federal funding under the Medicaid program. Medicaid allows states to subsidize, through federal aid, medical assistance to low-income qualifying individuals and families. In return for this funding, the states must adhere to the program’s statutes and regulations, including FHRNA. Along with the specific rules to qualify, FHRNA also includes requirements relating to resident’s rights. The Court emphasized that FHRNA Section 1396r(c)(1)(A) provides that a “nursing facility must protect and promote the rights of each resident, including each of the following rights…(ii) Free from restraints…Restraints may only be imposed—(I) to ensure the physical safety of the resident or other residents, and (II) only upon the written order of a physician that specifies the duration and circumstances under which the restraints are to be used…”

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.

Indiana Supreme Court Adopts New Rule for Government Immunity for Temporary Conditions of Roadways Causing Personal Injury

Published on: December 23, 2021 | by Barsumian Armiger

We previously wrote about the Indiana Court of Appeals opinion in Ladra v. State affirming the trial court’s grant of summary judgment in favor of the State of Indiana and the Indiana Department of Transportation (collectively “INDOT”) finding INDOT immune from liability in a lawsuit brought by Tracy Ladra (“Ladra”), who suffered injuries when her vehicle hydroplaned on a flooded portion of I-94. In the case, there was evidence INDOT was aware of a defect in the highway’s drainage system that would cause consistent flooding in the highway. However, the Indiana Court of Appeals (reluctantly so) relied on Indiana Supreme Court precedent in Catt v. Bd. of Comm’rs of Knox Cty., 779 N.E. 2d 1 (Ind. 2002), which characterized any negligence of the government in the design and maintenance of a thoroughfare and its knowledge of past incidents as irrelevant, and held INDOT was immune based upon the Indiana Tort Claims Act (ITCA), which provides “[a] governmental entity… is not liable if a loss results from… [t]he temporary condition of a public thoroughfare… that results from weather.” Ind. Code § 34-13-3-3(3).

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.”

Indiana Court of Appeals Finds Paternal Grandmother Cannot Sue under Child Wrongful Death Statute for Grandson’s Death

Published on: December 9, 2021 | by Barsumian Armiger

The Indiana Court of Appeals recently affirmed the judgment of a trial court finding a paternal grandmother serving as personal representative of her deceased son had no standing to file a wrongful death case under Indiana’s Child Wrongful Death Statute (CWDS) for the death of her grandson. In Johnson v. Harris, a two-year-old boy drowned while swimming in his maternal grandparents’ swimming pool. The boy’s parents divorced 4-5 months after his death and the boy’s father then died four days later. Betty Johnson (“Paternal Grandmother”), as personal representative of the boy’s father’s estate, filed a wrongful death lawsuit against the mother and maternal grandparents. The mother and maternal grandparents filed a motion for summary judgment arguing the CWDS did not allow Paternal Grandmother to file a lawsuit arising from the boy’s death. The trial court granted the motion, and Paternal Grandmother appealed.

The CWDS applies when a child dies because of a wrongful act or omission causing injury or death to the child. Ind. Code § 34-23-2-1. The CWDS defines child in subsection (b) as an unmarried individual without dependents who is less than 20 years old or less than 23 years old and enrolled in a postsecondary educational institution or a career and technical education school or program. The CWDS specifically states who may bring an action under the CWDS in subsection (c): (1) the father and mother jointly, or either of them by naming the other parent as a codefendant to answer as to his or her interest, (2) the person to whom custody of the child was awarded in the case of divorce or dissolution of marriage (with the Indiana Court of Appeals noting in Johnson v. Harris that it had previously interpreted the CWDS to also permit non-custodial parents standing to bring an action for injury or death of a child), and (3) the child’s guardian. The CWDS also provides in subsection (d) that in the case of the death of a person to whom custody of a child was awarded, a personal representative shall be appointed to maintain the action for the child’s death.

Paternal Grandmother argued on appeal that she was entitled to bring the action under subsection (d) because of her son’s death and her appointment as his personal representative. She also argued she was entitled to bring the action under Indiana’s probate code, which allows personal representatives of deceased persons to maintain lawsuits for any demand due the decedent or his estate or for the recovery of property of the estate. However, the mother and maternal grandparents argued that the boy’s father was never awarded custody of the boy and no wrongful death lawsuit had been filed, thus making subsection (d) of the CWDS inapplicable.

Indiana Supreme Court Finds Menards Not Liable as a Matter of Law for Injuries Caused as a Result of Sink Falling on Shopper

Published on: November 24, 2021 | by Barsumian Armiger

In Griffin v. Menard, Inc., Walter Griffin and his wife (the “Griffins”) were shopping for a sink at Menards. When they found a sink they liked, Walter reached for the sink box on the shelf and when he did, the bottom of the box opened and the sink fell on him, resulting in injuries. The Griffins sued Menards for premises liability and loss of consortium. Menards filed a motion for summary judgment arguing it had no actual or constructive knowledge of the dangerous condition of the sink box and therefore was not liable as a matter of law. The trial court granted summary judgment for Menards, and the Griffins appealed. The Indiana Court of Appeals reversed, finding Menards had failed to show no genuine issue of material fact existed as to whether Menards had actual or constructive knowledge and whether the doctrine of res ipsa loquitur applied.

Indiana law provides that landowners owe the highest duty of care to invitees to exercise reasonable care for their protection while they are on a landowner’s premises. However, landowners are only liable to invitees if they know or should know of an unreasonably dangerous condition, should expect that invitees will not discover the danger or will fail to protect themselves against it, and fail to exercise reasonable care to protect invitees against the danger. Landowners are not insurers of their invitee’s safety. Landowners must have actual or constructive knowledge of the dangerous condition causing injury. Indiana law deems landowners to have constructive knowledge of dangerous conditions on their premises when those conditions have existed for a sufficient period of time that they would have been discovered in the exercise of ordinary care.

Res ispa loquitur means “the thing speaks for itself” and is a rule of evidence allowing an inference of negligence based upon the unusual circumstances of an injury. The main question as to application of the doctrine is whether the injury probably resulted from a defendant’s negligence as opposed to another cause. To obtain an inference of negligence under the doctrine of res ipsa loquitur, a plaintiff must show (1) the injuring instrumentality was within the exclusive management and control of the defendant, and (2) the incident would not have occurred unless those having exclusive management and control failed to exercise reasonable care.

Indiana Supreme Court Adopts Bright-Line Rule that Landowners Owe No Duty to the Traveling Public from Conditions Wholly Contained on Property Despite any Visual Obstruction

Published on: November 11, 2021 | by Barsumian Armiger

We previously wrote about the Indiana Court of Appeals decision in Reece v. Tyson Fresh Meats, Inc. affirming a trial court’s grant of summary judgment in favor of a property owner finding the property owner owed no duty to the traveling public as a result of tall grass on its property. In Reece, Judy Reece (“Reece”), as wife and guardian of Walter Reece, sued Tyson Fresh Meats, Inc. and Tyson Foods, Inc. (collectively “Tyson”) because tall grass on Tyson’s property impeded the view of a driver, Harold Moistner, who pulled out into an intersection causing a collision between himself and Walter Reece. Walter Reece suffered catastrophic brain injuries in the collision.

The Indiana Supreme Court granted transfer in Reece and adopted a bright-line rule: landowners owe a duty to passing motorists on adjacent highways not to create hazardous conditions that visit themselves upon the roadway; but when a land use or condition that may impose a visual obstruction is wholly contained on a landowner’s property, there is no duty to the traveling public. Reece v. Tyson Fresh Meats, Inc., 173 N.E.3d 1031, 1034, 1041 (Ind. 2021).

In adopting this bright-line rule, the Indiana Supreme Court surveyed numerous prior landowner negligence cases. Factors noted in the prior cases included harms caused by conditions contained on land and those intruding upon the roadway, natural versus artificial conditions, and population density. As to its bright-line rule, the Court specifically noted that Indiana’s state and local legislatures could enact laws imposing different duties on landowners. The Court also noted that its decision did not apply to situations where a motorist comes in contact with a condition wholly contained on the land.

Indiana Supreme Court Finds Medical Malpractice Claimant’s Right to Amend Timely-Filed Complaint after Statute of Limitations to Add EMTALA Claim Against Hospital Is Not Preempted by EMTALA

Published on: October 28, 2021 | by Barsumian Armiger

The Indiana Supreme Court recently reversed the Indiana Court of Appeals’ denial of a medical malpractice claimant’s request to amend her complaint to allege a violation of 42 U.S.C. § 1395dd, a federal law also known as the Emergency Medical Treatment and Labor Act (“EMTALA”). The claimant, Betty Miller, had sued various health-care providers under medical malpractice theories claiming her mentally ill grandson, Zachary Miller, should not have been released from Community Howard Regional Health Hospital’s (“Community Howard”) emergency room after he had arrived at Community Howard’s emergency room requesting admission for his mental illness and dangerous propensities. She later sought to amend her complaint to include an EMTALA claim.

EMTALA was enacted by Congress to deter hospitals from the practice “dumping” indigent patients. EMTALA provides that a hospital emergency department must screen individuals for “emergency medical condition[s]” and either stabilize the condition or transfer the patient as permitted under the law. However, relevant to the issue presented, any legal claim under the law must be brought no more than two years after the date of the violation.

Federal law can preempt state law either implicitly or explicitly when provisions of the federal and state laws are at odds. EMTALA contains an express preemption provision which provides that “this section does not preempt any State or local law requirement, except to the extent that requirement directly conflicts with a requirement of this section.” 42 U.S.C. § 1395dd(f). A year before Miller, in Williams v. Inglis, the Indiana Court of Appeals had held that EMTALA’s two-year statute of limitations preempted Indiana Trial Rule 15(C)’s provision allowing amendments to timely-filed complaints to relate back to the time the complaint was filed. In, other words, in Williams, the Court of Appeals had held that because EMTALA provided a claim had to be filed within two years after the violation, this conflicted with the otherwise liberal right to amend a complaint under Indiana law and refused to allow an amendment to relate back to add an EMTALA claim after the two years. And, the Indiana Supreme Court had refused to consider Williams’ request for review, so the Court of Appeals had simply followed its past precedent in Miller to deny the same request. Luckily for Miller, unlike in Williams, the Indiana Supreme Court agreed to accept her appeal of the issue in her petition to transfer.

Indiana Court of Appeals Finds Indiana City Immune from Liability for Potholes Causing Bicyclist’s Crash

Published on: October 14, 2021 | by Barsumian Armiger

A divided Indiana Court of Appeals recently found Michigan City immune from liability for a bicyclist’s injuries caused by a large pothole in a street. In Johnson v. City of Michigan City, Laura Johnson (“Johnson”) struck a large pothole in a street while riding her bicycle, which caused her to crash and suffer a tibial plateau fracture. Michigan City (“the City”) was responsible for maintaining the street. The City used a rating system to decide which streets to repair in any given year. The City’s engineering staff would decide which streets to repair based upon annual consulting reports that would evaluate 20% of the streets each year, with every street inspected every 5 years. The engineering staff would create a budget for resurfacing, the City would then contract with consultants to plan the projects, and the City’s Board of Works would approve individual projects for bidding. The engineering staff would also keep track of citizen complaints and consider them along with the street inspections in prioritizing street repairs. The City’s process for responding to complaints about individual potholes entailed the City’s Street Department receiving the complaint, preparing a work order, and then sending a crew to patch the pothole.

Prior to the accident in this case, the City had already decided the subject street needed to be resurfaced. The Board of Works had already approved the project for bidding, which was in process at the time of Johnson’s crash. In the month prior to Johnson’s crash, the City had also received two complaints about the street, one from a member of the LaPorte County Board of Commissioners describing the street as being in “dire shape,” and another complaint indicating the street had a “severe pothole problem,” which was causing cars to weave across lanes to avoid the potholes. The street was eventually resurfaced around 5-6 months after Johnson’s crash.

Johnson sued the City for negligence in causing her injuries. The City filed a motion for summary judgment arguing it was immune from liability under the Indiana Tort Claims Act, which grants immunity to governmental entities under some circumstances, including “[t]he performance of a discretionary function.” Indiana law distinguishes between planning and operational functions. Planning functions, which are afforded immunity, are “acts or omissions in the exercise of a legislative, judicial, or executive or planning function that involve formulation of basic policy decisions characterized by official judgment or discretion in weighing alternatives and choosing public policy.” Operational functions, such as the “execution or implementation of already formulated policy,” are not discretionary and are not afforded immunity. The purpose of governmental discretionary function immunity for planning and policy-making activities is to allow governments freedom to deal with difficult policy issues without the prospect of liability.