Indiana’s comparative fault statute is designed to allocate responsibility fairly between parties based on their degree of fault. Here’s how it works: if you’re injured in an accident and found to be partially at fault, your recovery will be reduced by your percentage of responsibility. For example, if you’re deemed 10% at fault for an accident, your damages will be reduced by 10%. If you’re 49% at fault, your recovery will be cut nearly in half. However, if you’re found to be 51% or more at fault, you’re barred from recovering any damages at all. This is a critical distinction, as it means that even if you’re partially responsible, you can still recover compensation—as long as your fault doesn’t exceed 50%. It’s worth noting that not all states follow this rule. In some neighboring states, even a small degree of fault on your part could completely bar you from recovery. This makes Indiana’s approach more favorable to accident victims, but it also underscores the importance of building a strong case to minimize your share of fault.

The comparative fault system can drastically change the outcome of a case depending on how fault is assigned. For instance, if you’re involved in a car accident and the other driver ran a red light, but you were slightly speeding, the court might assign 20% of the fault to you and 80% to the other driver. In this scenario, you’d still recover 80% of your damages. However, if the other driver’s attorney successfully argues that you were 51% at fault, you’d recover nothing. This is why it’s essential to thoroughly investigate the accident and gather evidence to support your claim. A qualified Indiana personal injury attorney will know how to do this effectively. They’ll employ investigators, analyze police reports, interview witnesses, and reconstruct the accident scene to build a compelling case. They’ll also know how to argue comparative fault issues during settlement negotiations or at trial, ensuring that your share of responsibility is minimized and your recovery is maximized.

Navigating the complexities of comparative fault can be challenging, especially when you’re dealing with injuries, medical bills, and the stress of an accident. That’s why having an experienced attorney on your side is so important. They’ll handle the legal heavy lifting, allowing you to focus on your recovery. From gathering evidence to negotiating with insurance companies, they’ll work tirelessly to protect your rights and secure the compensation you deserve. And if the case goes to trial, they’ll be prepared to present a strong argument to the jury, ensuring that your side of the story is heard.

Have You Been Hurt in a Crash?

If you or someone you love has been injured in a car accident, whether it’s a straightforward incident or a more complex case involving multiple parties at fault, the accident lawyers at Padove Law are here to help. We offer free consultations to discuss your case and explain your legal options. Our experienced and dedicated legal team understands the intricacies of Indiana’s comparative fault laws and will fight to ensure you receive the compensation you deserve. At Padove Law, you won’t pay unless we win, so there’s no risk in reaching out. Call us today at 877-446-5294 for your free consultation. Let our experienced Indiana personal injury attorneys stand with you every step of the way. Your rights matter, and we are committed to securing the justice and financial recovery you need to protect your future. Don’t let the legal process overwhelm you—choose Padove Law and take the first step toward justice. Even if you were partially at fault, you may still be entitled to recovery. Let us help you fight for what’s fair.

The accident involved two speedboats, each filled with people out for a night of fun on the lake. Unfortunately, this joyride turned deadly when a boat driven by a 15-year-old collided with another boat. The driver of the second boat, a 46-year-old man from Indiana, was severely injured in the crash and later died at a hospital. The collision occurred late at night, a time when visibility was reduced and the risks on the water increased. The first boat, driven by the teenager, had seven other passengers on board, while the second boat had three additional passengers, some of whom sustained minor injuries.

This incident appears to be a result of negligence, highlighting the critical importance of safety when engaging in recreational activities. Boat safety is paramount, especially during the warmer months when lakes and rivers across Indiana are bustling with activity. It’s not just the responsibility of adults to ensure safety; parents must also teach their children the importance of operating these vehicles with care and caution. In this tragic case, the young age of the driver involved raises serious concerns about whether proper supervision and guidance were provided. Both the teenager and their parents could be held responsible for the accident, facing not only civil liability but potentially criminal charges as well.more

Recreational accidents like this one are not uncommon. Whether it’s on the water, on the road, or off the beaten path, accidents can happen in the blink of an eye, often leaving victims and their families to deal with devastating consequences. People injured in boating accidents or other recreational mishaps may have a legal claim against those responsible for their injuries. Negligence is a common cause of these accidents, and when it occurs, the injured party has the right to seek compensation for their losses.

Insurance coverage can play a significant role in these situations. Depending on the circumstances, different types of insurance policies may come into play, including boat insurance, homeowners insurance, and umbrella policies. These policies might cover damages such as medical expenses, lost wages, pain and suffering, and even property damage. However, navigating the complexities of insurance claims and determining who is responsible for an accident can be challenging. This is where the guidance of an experienced Indiana accident attorney becomes invaluable.

Where to Turn if You’ve Been Injured

If you or a loved one has been injured in a recreational accident or any other incident caused by negligence in Indiana, it’s crucial to seek legal advice as soon as possible. The aftermath of an accident can be overwhelming, but you don’t have to face it alone. The dedicated attorneys at Padove Law have extensive experience in handling personal injury cases and are committed to helping their clients secure the compensation they deserve. Whether it’s negotiating with insurance companies or pursuing a lawsuit, Padove Law knows how to get results. Their team understands the intricacies of Indiana law and will work tirelessly to ensure that your rights are protected. Don’t let the negligence of others ruin your summer fun or cause undue hardship. Contact Padove Law today at 877-446-5294 to schedule a free consultation. With their expertise on your side, you can focus on healing and moving forward while they handle the legal complexities. Remember, when it comes to your safety and well-being, you deserve nothing less than dedicated, experienced representation.

The Facts of the Case

The plaintiff in this case was a man who lost his wife in a tragic home explosion. His son was also seriously injured. According to the court’s opinion, Ceres, the defendant, refilled a propane tank at the plaintiff’s home. However, after filling the tank, Ceres failed to properly check the tank for leaks. The following morning, the plaintiff’s son turned a bedside lamp on, causing an explosion. The plaintiff’s son was able to escape the burning home through a basement window.

A few hours after the explosion, the plaintiff got off work and was driving home when he encountered a roadblock set up by a volunteer firefighter. The plaintiff could see his home was burning and obtained permission to proceed past the roadblock. He parked about 100 meters from his home and saw his son’s badly burned body on a gurney as he walked towards the home.

The plaintiff then learned that his wife could not be located. After continuing the search with the plaintiff present, a firefighter yelled out that they had found the plaintiff’s wife. The firefighters made the plaintiff leave as they removed her body from the burning home. The plaintiff did not see his wife’s body as it was removed.

The plaintiff filed a personal injury claim against Ceres, seeking, among other things, damages for emotional distress related to what he witnessed. The trial court permitted the plaintiff’s claim as it pertained to his son—because he saw his son’s injuries. However, the court dismissed the plaintiff’s emotional distress claim related to his wife, reasoning that he did not “observe” his wife being injured or the result of her injuries.

The Appellate Court’s Decision

Both the plaintiff and Ceres appealed. Ceres argued that the lower court erred in denying its motion for summary judgment relating to the plaintiff’s son. The plaintiff argued that the lower court erred in granting Ceres’ motion for summary judgment related to his wife.

The court began its analysis by noting that, to recover emotional distress damages, a plaintiff must meet the following criteria: 1.) They were on the scene at the time of the accident or immediately afterward; 2.) They were not informed of the event prior to arriving on the scene; and 3.) They witnessed the “injury-producing event.

Here, the court held that the plaintiff met each element for both his son and his wife. The court explained that, although the plaintiff did not witness his wife’s body being removed from the scene, he was subject to the “sudden sensory observation” when he heard firefighters calling out that they had found her body.

Have You Witnesses a Loved One Seriously Injured or Killed in an Accident?

If you observed a loved one experience serious or fatal injuries in an accident, you may be able to obtain monetary compensation through an Indiana personal injury lawsuit. At the Padove Law, our Indiana personal injury lawyer has decades of experience helping accident victims and their families recover the compensation they need and deserve in the wake of a serious accident. To learn more, and to schedule a free consultation, call Padove Law at 219-836-2200.

Historically, the bystander rule for negligent infliction of emotional distress allowed recovery to those who experienced distress from witnessing a close family member’s sudden and unexpected death by the at-fault party. The Court loosened the rules in 2000, allowing lawsuits if a person observed the injury or death of family or its “gruesome aftermath.”

In this groundbreaking Indiana case, the Court held that the school owed a duty of care to the woman as a parent of a child at their school. The assistant confessed and pleaded guilty; however, the mother did not discover the abuse until after the confession. At which point, the mother suffered emotional distress, which included bouts of anger and the inability to control her emotions.

The Court reasoned that the state’s longstanding rule did not meet the reasonable expectations of many individuals who experience the harrowing consequences of child abuse. Thus, the Court expanded the rule finding that when a caretaker assumes responsibility for a child and owes a duty of care to the child’s parent or guardian, the parent or guardian may proceed with an emotional distress claim. However, the parent or guardian must establish with “irrefutable certainty” that the caretaker committed sexual abuse against the child and that abuse severely impacted the parent’s emotional health.

In this case, the Court found that the mother satisfied all elements of the new exception to the bystander rule. They further explained that the lower Court’s decision to dismiss the case was improper. Ultimately, they remanded the case for further proceedings.

Have You Suffered Emotional Distress Because of Another’s Negligence?

If you or someone you love has experienced emotional distress or other injuries because of another’s negligence, contact Padove Law for assistance. Attorney Padove has spent the last 40 years successfully representing and advocating for Indiana injury victims. As the legal landscape continues to ebb and flow, Attorney Padove consistently relies on his in-depth knowledge of complex personal injury and wrongful death laws to obtain successful results for his clients. He represents clients in all types of accident claims involving Indiana motor vehicle accidents, defective products, dog bites, medical malpractice, nursing home and school abuse, and vehicular accidents. Through his diligent representation, he has secured significant compensation for his clients. Contact Padove Law at 219-836-2200 to schedule a free initial consultation.

According to a local news report, two fatalities were reported following an accident outside a gas station. Evidently, a Jeep was exiting a gas station parking lot when it collided with a motorcycle. The motorcycle was driven by a man, and there was a female passenger on the back. Local authorities later reported that both individuals died from their injuries after the crash. Law enforcement and police accident reconstruction are still investigating the cause of the accident and establishing a timeline of events.

Even before pulling out onto a busy road to exit a parking lot, the parking lot itself can be challenging for drivers. When navigating parking lots, drivers are truly tested on both their driving skills and their patience. Sometimes, however, even the most experienced and skillful drivers find themselves in a tough spot because others are distracted and driving carelessly. If an accident occurs in a parking lot, determining who is at fault may be a complicated question. The most common accidents involve (1) a driver backing out of a parking space and colliding with a car proceeding down the road or (2) a driver pulling forward out of a parking space into a car moving down the road.

In the first scenario involving a driver backing out, the driver in the parked car should not back out of their spot until the road is clear, and it is safe to proceed. In accidents where the driver backs out into another car that is driving by, the parked driver is often found to be at fault. In the second situation involving a driver pulling forward out of parking space into the roadway, they are also typically the at-fault party. The car that was in the roadway usually has the right-of-way.

If you are injured by someone pulling out of a busy parking lot because they did not account for the distance between your cars, the other party may be at fault. As the car proceeding down the busy roadway, you have the right-of-way, and the other party should have used caution to make sure they had enough room to enter the roadway without causing an accident.

Do You Need an Indiana Personal Injury Attorney?

If you or someone you know has been recently injured in an Indiana car accident that occurred in a parking lot or by someone pulling out of a parking lot, contact Padove Law. Lawyer Burton A. Padove has decades of hands-on experience successfully representing clients in all kinds of personal injury and accident claims and will tirelessly advocate on your behalf. With his help, you can effectively pursue a claim for compensation against all at-fault parties. To schedule a free consultation, contact us today at 219-836-2200.

The issue arose after the estate requested additional coverage under the woman’s parents’ insurance policy. Her parent’s policy provided coverage of up to $100,000 per person for bodily injury or death. The insurance company opposed the claim arguing that the woman was not a “resident relative” under the policy and in the alternative, even if she was a resident relative, the policy’s offset and anti-stacking provisions bar recovery.

Under the insurance company’s policy, a “resident relative” is a relative who actually resides in the insurer’s home with the intent to continue living there. In this case, the woman packed up her and her children’s belongings, moved them into her parents’ home, officially updated her address, and described the residence as her “new home.”

The insurance company argued that the woman was not insured under the policy because the parents did not provide the defendant with notice, despite the policy’s specific requirement to do so. The family argued that the policy states that the requirement was only necessary if the resident relative is an “operator.” The insurance company did not define what the term meant. In failing to do so, the court interpreted it to be mean the person who will be operating a vehicle covered under the policy. In this case, the court reasoned that the woman was not an operator. The woman had her own car, and the parents did not anticipate that she would operate either of their vehicles. Ultimately, the court concluded that the family did not need to provide notice because the woman was not a relative operator.

Next, the court considered the policy’s anti-stacking and offset term. The court found that the insurance company’s anti-stacking clause only prevents the combination of UIM policy limits and does not prevent the insured from aggregating more than one UIM recovery. Further, the court found that the defendant’s $100,000 per person UIM limits are offset by the $75,000 the estate received from the at-fault parties’ insurance companies.

In making its findings, the court held that the estate is correct in their assertion that the woman was an “insured person”, thereby allowing them to collect $25,000 in further UIM coverage under the parents’ insurance policy.

Have You Been Involved in a Dispute with an Indiana Insurance Company?

If you or someone you love has been involved in a car, truck, or pedestrian accident caused by another’s negligence, contact Padove Law. Attorney Burton A. Padove has a history of successfully representing Indiana motor vehicle accident victims and protecting the legal rights of his clients at every stage of the recovery process. He understands the devastating toll that accidents can have on an injury victim and their loved ones. He uses his skills, knowledge, and resources to effectively advocate on behalf of clients against negligent parties and their insurance companies. If you have been involved in a personal injury accident in Indiana, contact Padove Law at 219-836-2200, to schedule a free initial consultation to discuss your case. You can also reach Padove Law through their online form.

Typically, the ITCA, allows injury victims to sue the government if the claim involves injuries from incidents such as medical malpractice from government health care providers, hazardous conditions at government buildings, motor vehicle accidents with government-owned cars, and other damages because of the government’s negligence.

For example, recently, the 7th Circuit issued an opinion stemming from an accident that occurred at a public swimming pond. In that case, a young girl visited a public swimming pond with her family when she ventured to the deep end and drowned. The public swimming pond was cordoned off by zones and monitored by lifeguards. However, despite these precautions, the young girl’s submersion went unnoticed.

The family filed a lawsuit against the municipality, arguing that the government violated her Fourteenth Amendment due process rights. They claimed that the pond was a state-created danger, and the government increased the likelihood of risk. The municipality moved to dismiss the lawsuit arguing that they did not engage in any behavior to increase the danger to the young girl before her drowning. The court ruled in favor of the government and found that the municipality did not create a threat merely because it operated the public swimming pond. Moreover, it held that the government did not engage in any egregious behavior. However, the court did state that a negligence lawsuit based on premises liability may be appropriate in this matter.

Indiana injury victims who suffer injuries, such as the one discussed above, should seek representation from a dedicated attorney to discuss their rights and remedies. In many cases, a government entity may face liability for injuries sustained because of their negligent maintenance of a recreational facility. Claims against the government require strict adherence, and victims should contact an Indiana injury attorney as possible to preserve their claim.

Have You Suffered Injuries in an Indiana Accident?

If you or a loved one has sustained injuries because of an Indiana government employee’s or entity’s negligence, you should contact the Indiana injury law firm of Padove Law. Indiana attorney Burton A. Padove has vast experience handling various types of accident lawsuits, including Indiana car accidents, and other claims against government entities. He also understands the importance of dedicated and zealous advocacy and provides an exceptional level of representation to each of his clients. Attorney Padove has assisted countless Indiana injury victims in getting the compensation they deserve. Compensation in personal injury lawsuits often includes payments for past medical bills, future medical costs, pain and suffering, burial expense, and pain and suffering. Contact Mr. Padove at 219-836-2200 to discuss your case.

Munster personal injury attorneys will note that while this was a work-related injury, which presumably would entitle the truck driver to workers’ compensation from his own employer, such third-party lawsuits to cover the full cost of losses is not uncommon in Indiana.

The trial court in this case held that both the engine parts manufacturer whose cargo was stowed in the truck, and the trucking company contracted to facilitate transport, did not owe a duty of care to the over-the-road-truck driver, whose employer was contracted by the trucking company to deliver the materials over longer distances. The state appellate court last month reversed this decision, at least as it pertained to the trucking company that contracted with the driver’s employer.

The cargo in question consisted of empty containers that had been lubricated with solvents. These were shipped from the manufacturer’s primary facility in Columbus, Indiana to a North Carolina facility some 650 miles away. The trailer had been loaded by an employee of the local trucking company, which was also responsible for directing its out-of-state transport.

When the plaintiff arrived to pick up the load, he didn’t notice anything unusual about the way the containers had been stacked. However, when he arrived at the final destination and opened the door of the trailer, the materials tumbled out on top of him. As it turned out, the cargo hadn’t been blocked and braced, which is standard for transport of materials of that size and weight. The results were serious permanent and disabling personal injuries, including traumatic brain injury and a broken neck.

Although workers’ compensation does provide those injured in the course and scope of employment with no-fault benefits like lost wages, reimbursement for medical bills and coverage of vocational training, such benefits don’t allow for non-economic damages such as pain-and-suffering. Munster personal injury lawyers know negligent third parties found liable are often compelled to pay these types of damages, which are especially critical if a work injury is serious and/or results in permanent disability.

The plaintiff argued the trucking company and the manufacturer were negligent for improper loading of the cargo, which proximately caused victim’s injury.

The defendants argued they were entitled to judgment in their favor as a matter of law because the plaintiff failed to prove:

• the cargo was in fact negligently loaded;
• that either company had taken on the responsibility to secure the driver’s load;
• that even if those things were true, plaintiff, an experienced trucker, was comparatively negligent in his failure to notice there was a problem;
• that anyone from either firm had given the trucker any assurance before he left that the cargo was properly loaded; and
• that he was not denied an opportunity to check the load himself.

The trucking company defendant also argued federal (49 C.F.R. § 392.9) law expressly imparts a duty of care to inspect the load on the driver.

The appellate court was not convinced, instead finding credibility in the driver’s assertion that the circumstances in this case didn’t offer him any realistic chance to inspect the trailer contents. Justices noted in their opinion that it was the trucking company exclusively that loaded the freight and that the it could not hide behind the trucker’s duty to adhere to federal safety regulations for its own negligence in alleged failure to comply with industry standards for truck loading.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond.

Civil cases like this fall under the umbrella of premises liability. Assuming a person is not trespassing and has a right or invitation to be there (paying customers especially), those who own/control property generally have a duty to exercise reasonable care to shield against known or foreseeable hazards. Whether a property owner can be held liable in these situations varies greatly depending on a host of factors, chief among them whether there is a prior history of dangerous incidents that effectively places the business on notice that more stringent safety measures are needed. The big questions are usually: what constitutes “reasonable” and “foreseeable”, especially when an incident involves a criminal attack by a third-party.

In a recent decision, the main point of contention before the Indiana Court of Appeals was whether the bar owed any duty at all to a patron, given that the fight that resulted in serious injury occurred in the parking lot after closing.

Indiana Business Liability for Criminal Attacks on Property

Defense attorneys, appealing the trial court’s denial of summary judgment, argued the bar and its staff did not owe a duty of care to the plaintiff, who was seriously injured in a parking lot fistfight just after closing. But the Indiana Court of Appeals affirmed, finding the bar failed to prove it was free from that duty of care just because the business had technically closed and patrons were outside the establishment.

According to court records, plaintiff was seriously hurt in the fight, which arose from tensions after his intoxicated friend made a careless remark toward a woman as everyone was being ushered out of the venue at closing time. The woman, her boyfriend and his friends took offense and a fight broke out.

Plaintiff walked away with a serious eye injury and sued the bar for damages.

Court: Duty to Protect Patrons Doesn’t Necessarily End at Closing Time

In the business’s argument for judgment in its favor as a matter of law, defense lawyers cited a 2016 Indiana Supreme Court decision that also involved a fight in a bar parking lot, which escalated to a shooting. The state’s high court affirmed summary judgment in the bar’s favor in that case. The bar did not owe plaintiffs a duty of care because it could not have foreseen the severity of the injuries resulting from the situation that would have prompted a business to take preventive action.

Our personal injury lawyers in Gary note that in both cases no evidence showed bar staffers should have known tensions were escalating among these individuals. However, the court held this was the type of “rowdy” behavior any bar owner should consider when weighing security and the bar’s history of previous fights both in the bar and just outside.

The duty to protect a patron doesn’t extend simply to getting “them through the exits at closing time,” the court held, because to do so would in effect make the owner immune for any violent acts among customers after last call.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond.

The case history here is extensive, but the crux of the Indiana Court of Appeals’ decision in the defendants’ favor was that plaintiffs failed to prove defendant property owner could have reasonably foreseen the possibility of a food truck blowing up on-site. At first glance, that seems a reasonable position. However, it turns out there have been a number of serious – and even deadly – food truck explosions across the U.S. in recent years.

In June 2014 – a year almost to the day of the Indiana food truck explosion – a propane tank on a food truck in Philadelphia exploded while customers were being served. Local news reports indicated that the force of the blast sent the metal tank 50 feet into a nearby backyard and flames shooting up 200 feet into the air. As a result of that incident, a 42-year-old woman and her 17-year-old daughter who were inside the truck, were killed after suffering major burns across much of their bodies. Three bystanders – including a little girl – also sustained serious burns and others were hit by debris. An investigation later revealed the 70-year-old propane tank was improperly filled, resulting in a gas leak and ultimately the explosion.more

The case resulted in $160 million pre-trial settlement (believed to be one of the biggest, if not the biggest), as well as new safety standards for checking and maintaining propane tanks.

Then just last month in Portland, Oregon, a food truck explosion early on a Sunday morning destroyed not only the truck but damaged three nearby buildings. No one was in or around the truck at the time, so thankfully no one was hurt. The cause is still under investigation, but officials suspect a malfunctioning gas line.

In the case recently before the Indiana Court of Appeals, the auto salvage business where the explosion occurred occasionally has flammable materials on site. This includes items left in a vehicle that was repossessed without warning or brought in after a crash, when previous owners didn’t have time to remove all personal items. The food truck operator had a “handshake deal” first established with the previous owner of the salvage yard to sell tacos from his truck on the property, paying $25-a-day to the salvage yard. The salvage yard owners never asked whether the taco truck operator was licensed to sell food or whether safety procedures were in place for use of the propane tank necessary to operate the food truck. Managers said they were not aware of any previous incidents involving fires, explosions or other dangerous conditions created by a food truck on its premises at any time prior to this incident.

Court records indicate the food truck suddenly exploded and caught fire, which fire officials and the health department later determined was caused by ignition of gas fumes from an open cooking flame. An employee of the food truck company was deemed responsible for the explosion when he opened a can of gasoline too close to the grill when trying to refill a generator.

Plaintiff, a customer who was injured in the explosion, sued the auto salvage yard and the taco truck company. Against the food truck owner, he alleged negligence in handling of combustible fuels, selling food without a license, failing to train workers and failing to inspect its truck and equipment. The auto salvage yard, he alleged, was liable for failing to monitor or inspect the truck company’s vehicle or equipment, failing to ensure the vendor had a license and failing to study proper food truck safety procedures. He also alleged the salvage yard was vicariously liable for the taco truck’s negligence because the two were operating as a joint venture. Our Gary personal injury attorneys note such liability is often assigned to employers.

The trial court granted summary judgment in favor of the auto salvage yard. Plaintiff argued on appeal that because of the nature of the salvage yard’s business, a gas explosion on site was foreseeable, and that if the company had taken proper precautions to inspect the food truck, the explosion would not have happened.

The majority in the Indiana Court of Appeals disagreed, finding that while it was the stove in the truck that caught fire, the injuries that occurred were the result of the food truck operator’s negligence. Thus, the court held the explosion was not foreseeable and the salvage yard not liable.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond.

Additional Resources:

German A. Linares v. El Tacarajo and U-Pull-And-Pay, LLC d/b/a Pic A Part, Feb. 8, 2019, Indiana Court of Appeals

More Blog Entries:

Indiana Drunk Driving Injury Lawsuit Verdict of $21 Million Affirmed, Nov. 8, 2018, Indiana Personal Injury Attorney Blog

After the accident, the injured worker’s employer asked another company to install a backup alarm. That company’s technician affirmed there was no alarm already on it.

Although workers’ compensation is the exclusive remedy a worker has for an Indiana work injury (same goes for workers in Illinois, where this accident occurred), what is allowed is third-party liability. As Munster work injury attorneys can explain, this means that if a third-party – someone other than an employer or co-worker – was responsible for causing an injury that occurred in the course and scope of employment, that party can be held liable for negligence. Workers aren’t compensated twice, but a third-party negligence claim may entitle injured workers to collect more than they would otherwise be able to collect from workers’ compensation (which is generally limited to a portion of lost wages and medical bills).

Defective Forklift Injuries

Forklifts are large pieces of heavy machinery that can cause serious work injuries in Indiana. Forklifts that are defectively-designed or manufactured may be cause for a product liability lawsuit against the manufacturer/distributor of the product. Forklifts that are not properly maintained may point to liability by the owner (if different from employer) and/or the service/maintenance company, as was the case in the 7th Circuit ruling.

Each year, an estimated 35,000 workers in the U.S. are injured and another 85 killed in forklift accidents.

In recent years, OSHA has cited or fined companies for faulty forklifts including those that:

• Had faulty brakes due to failure to perform needed repairs;
• Put workers at risk of CO poisoning (an Illinois-based manufacturer was fined $216,000 last year by OSHA for allowing workers to operate defective forklifts emitting 10 times the accepted permissible exposure limit);
• Was unsafely loaded or driven, leading to tipping and crushing injuries.

Forklifts are considered “powered industrial trucks” which are regulated per 29 CFR 1910.178.

Court Rules Forklift Maintenance Firm Not Liable

In its decision regarding liability of a forklift maintenance firm, the 7th Circuit panel noted it was the employer – not the service company – that had the final decision on whether a backup alarm should be installed. The repair company’s duty to warn (necessary to prove negligence) didn’t require that it recommend an optional safety feature, particularly when the owner of the forklift was already aware of the safety feature (which was established in discovery).

Plaintiff failed to establish that even if there was a duty of care that there was a breach. Simply knowing about a risk – one that the owner also knows about – doesn’t create an affirmative duty of care requiring the repair service to recommend installation of a device that was neither required nor requested.

Although this outcome is disappointing for the plaintiff, it’s instructive for Munster personal injury attorneys and others handling work injury claims in Indiana.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond.

Additional Resources:

Hutchison v. Fitzgerald Equipment Co., Dec. 14, 2018, U.S. Court of Appeals for the Seventh Circuit

More Blog Entries:

Gary Truck Accident Lawsuit Claims Trucking Company Negligent, July 17, 2017, Munster Work Injury Attorney Blog

If you are an employee injured at work, your exclusive remedy against your employer is usually workers’ compensation, outlined in IC 22-3-2 through IC 22-2-6, which gives you just 30 days to submit notice to your employer and 2 years in which to formally file a claim for benefits. This assumes, of course, that you are actually an employee and not an independent contractor (a designation on which your employer doesn’t have the last say and which is often legally disputed). It also assumes your injury occurred in the course of and arose out of the scope of your employment. Workers’ compensation is meant to cover all related and reasonable medical expenses, a portion of lost wages, funeral expenses and other benefits, depending on the circumstances. However, securing full benefits to which you are entitled is often a challenge. In some cases, workers may have grounds to pursue a personal injury lawsuit for third-party liability if someone other than an employer or coworker was at-fault. An experienced work injury lawyer in Gary can best help protect your rights following a serious on-the-job injury.

The Indiana Department of Labor reports the most hazardous industries in the state for work injuries include agriculture and forestry, healthcare and social assistance, manufacturing, waste management, transportation and warehousing, arts/recreation/entertainment, accommodation and food service. more

Just recently in Elkhart, Indiana, a flash fire at an RV product manufacturing plant caused a worker to suffer serious burns while he was mixing chemicals. The incident was described by the Occupational Safety and Health Administration as a chemical fire.

A report published last fall by NWI.com revealed heavily industrialized workplaces in Indiana – including steel mills, factors and refineries – are getting safer. Historically, these were work sites where employees routinely were crushed, pinned, electrocuted, struck or suffered burns. Injuries sustained by workers in steelmaking, for instance, historically one of the most dangerous professions, fell from 1.81 per 1 million to 1.39 percent per 1 million. More than 10,000 workers are employed by steel mills in Northwest Indiana. Employers and workers say that years ago workplace safety was nothing more than a slogan. Now, it’s something practiced every day. Local labor unions credit new policies, such as allowing workers the right to refuse work they believe is too dangerous or have reason to believe will expose them to carcinogens. Federal law also now requires that companies tell workers what chemicals they’ll be exposed to on the job. Workers say one of the biggest causes is less fear that they’ll be retaliated against if they report unsafe conditions. Today, they say, a reported safety concern can result in operations being shut down entirely until it’s been established that it’s safe to proceed.

While all this may be good news, an injured employee will not have to prove negligence or fault to obtain workers’ compensation benefits, which are defined no-fault benefits under Indiana law. While fault or negligence may be an issue in a third-party liability claim, securing proper workers’ compensation benefits requires focus on quality of care, extent of injuries or disabilities, and long-term prospects in the workforce. The fact is, all workplaces have the potential to be dangerous.

Workplace falls remain a top cause of injury. Last year, NBC affiliate WTHR-13 reported a widow’s lament that she was unable to sue her husband’s employer after a fatal workplace fall from a ladder in an empty concrete pool inside a hotel in Marion. The employer was cited by OSHA for failure to maintain work conditions that were reasonably safe and free from recognized hazards that could seriously injure or kill. The fine of $4,800 was later negotiated down to $2,400, which many contend gives workplaces little incentive to improve employee safety. His widow said the employer should be made to pay for negligence resulting in the death of her husband of 18 years. But the workers’ compensation exclusive remedy provision prevented it. What she can do, as our Gary, Indiana injury attorneys can explain, is file for workers’ compensation death benefits, which will pay surviving spouses and/or dependents two-thirds the decedent’s salary for 10 years, plus burial costs and any medical expenses incurred because of the accident.

Personal injury lawyers know that because Indiana workers’ compensation does not cover all losses, it’s important to look at any potential third-party liability.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond.

Additional Resources:

2016 Indiana Non-Fatal Injuries and Illnesses, Indiana Department of Labor

More Blog Entries:

Indiana Work Injury Compensation for Under-the-Table Laborers, Sept. 4, 2018, Gary, Indiana Work Injury Attorney Blog

It is worth noting too that while workers’ compensation is the exclusive remedy available for an injured employee against the employer, separate third-party claims can be asserted against non-employer defendants alleged to have been negligent in causing the accident/injury.

Still, not all workers are treated exactly the same under federal or state law. Indiana railroad workers are among them. When one of Indiana’s hundreds of railroad employees suffers a work-related injury, they must recover for injuries under the Federal Employer Liabilities Act, or FELA, as outlined in 45 U.S.C. 51, liability of common carriers by railroad for injuries to employees from negligence.more Indiana Railroad Worker Injuries: Understanding Your Rights

Prior to FELA’s 1908 passage, injured railroad workers filed common law tort actions in state or federal court for recovery of damages. FELA made it so that all railroad worker injuries are treated as negligence actions and the federal standard of care applies. The law prohibits employers from asserting that employees assume the risk of employment or that companies shouldn’t be held liable for injuries resulting from negligence by plaintiff’s co-workers. The law also replaces contributory negligence as an absolute defense with comparative negligence, the establishment of which can reduce a plaintiff’s damages. (This is all very different from Indiana workers’ compensation law, which establishes a no-fault system for injured employees to be compensated for medical bills, a portion of lost wages and more from a workers’ compensation insurer.)

Recently, the 7th Circuit Court of Appeals – under which Indiana falls – weighed a railroad employee injury case under FELA. Court records show a train operator filed a state common law claim for relief against a railroad company for injuries caused by railroad equipment. His shoulder and back were injured when his seat on the train collapsed while he was operating it in Ontario, Canada. Because the injury occurred across the Canadian border, FELA did not apply, so he pursued a tort claim under state law instead.

He argued in his claim that defendants failed to provide adequate warnings of the seat’s defect, and indicated on numerous occasions during litigation that the claims surviving on appeal were those for failure to warn. He argued his employer, doing business as Canadian Pacific, should be liable under state tort laws that borrow applicable standards from other federal law (namely the Locomotive Boiler Inspection Act, or LIA). The district court rejected his argument, concluding that in arguing for relief under LIA, any state law remedy was preempted.

Plaintiff appealed, and the 7th Circuit affirmed – but for a different reason. Appellate justices agreed FELA didn’t apply because U.S. federal law doesn’t apply to injuries occurring outside U.S. jurisdiction and this happened in Canada. It’s true state-level claims for theories of liability such as defective design and failure to warn are preempted by LIA. But, the court ruled, that doesn’t stop a plaintiff not covered by FELA from relying on LIA’s standard of care applicable to defendants as part of a state law injury lawsuit. The court also found there had been nothing from Congress to indicate there should be an independent private right to sue in federal court for LIA violations. The problem here was that plaintiff waived the right to pursue a claim on the only viable theory – failure to warn – by arguing he merely wanted to “borrow” the standard of care used in LIA, but avoid the preemptions cited therein.

Injured railroad worker cited other cases – in New York and Maine – wherein railroad workers injured while the trains were in Canada were allowed to file claims for damages under state law. However, neither of those cases addressed the LIA preemption issue, nor did they hint at any legal analysis or reason that might provide this plaintiff with a viable path to recovery at this point.

Our Highland work injury lawyers recognize this overlapping of state and federal law can be very confusing for injured federal employees, including railroad workers. It’s imperative that if you are severely injured on the job – in whatever capacity – you at least consult with an injury attorney with extensive experience and success with these types of cases.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Additional Resources: 7th Circuit affirms dismissal of railroad worker’s injury suit, Aug. 28, 2018, By Katie Stancombe, The Indiana Lawyer

More Blog Entries: Indiana Work Injury Compensation for Under-the-Table Laborers, Sept. 4th, 2018, Highland Work Injury Attorney Blog

Bird electric scooter-share’s dockless scooter service in Indianapolis launched in the spring along Mass Ave. and also in Irvington, relying on smartphone apps to track and bill users. Licensed adult locals and visitors alike have been making use of them for leisurely downtown tours in Fountain Square or City Market or a breezy ride along nearby bike paths like Pennsy Trail, though Bird scooters are actually advertised to those needing a boost on that “last mile” of their trek or short commute when it’s slightly too long to comfortably walk. They were so popular, the Indianapolis scooter market got competitive when Lime (formerly LimeBike, now in 50 cities globally) launched its Indianapolis scooter share, pricing itself low and muscling its way in to the Hoosier market.

Our injury attorneys in Gary and Munster (who also serve Indianapolis) see the biggest safety fear centering on the fact that scooters are going to be interacting with often crowded downtown traffic. Riders are instructed to use the bicycle lane (staying off sidewalks and roads) and park well clear of public roads (a directive users aren’t strict about following). All this puts riders at risk of an Indiana scooter crash.

There has already been at least one Indianapolis scooter crash involving a serious injury. The Indy Channel reports a 21-year-old was on his way to work after renting a scooter, when he struck a pot hole (he says he didn’t notice it until it was too late), slammed on the brake and was launched face-first onto the pavement. He broke his nose, required 15 stitches, and is likely to need plastic surgery. His mother said he wasn’t wearing a helmet. While the services offer helmets free to those who request them, reporters stated the process for getting one wasn’t entirely clear. The company has said it encourages helmet use. Based on what we know of collisions involving other vulnerable road users like bicyclists and pedestrians, those on scooters would be wise to follow these suggestions.

Other Midwestern and a few Southern towns have experienced some growing pains in trying to incorporate scooters into their urban traffic landscape. Nashville, for instance, issued a cease-and-desist letter to Bird, which temporarily removed some 400 scooters in service amid safety concerns that the rides were being dangerously parked in doorways and on ramps and sidewalks. The company is in talks with the city about establishing ground rules and regulations.

Bird electric scooter owners say they want to have a positive working relationship with the city and other nearby businesses, advertising a “Save our Sidewalks” pledge to help avoid scooters parked on the walkway. The company also has said it won’t invest in adding more scooters in rotation until they reach the point every scooter is getting at least three rides daily (or equivalent). Users can also earn a bit of extra cash as Bird “chargers,” rounding up scooters set aside by users at random sites.

There are a host of similarities between Lime and Bird (mostly marketing a few price differentials and a couple unique special features). Lime says it “encourages” users to obey traffic laws, avoid the sidewalks, pay attention, wear a helmet and park somewhere reasonable to avoid public annoyance or city official ire.

If you are injured in a scooter accident in Indianapolis or elsewhere in Indiana, our dedicated personal injury lawyers in Gary are committed to helping.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond.

Additional Resources:

Another electric scooter service arrives in Indianapolis, Aug. 30, 2018, By Ethan May, The Indianapolis Star

‘More Blog Entries:

Indiana Uninsured Motorist Claim Must Prove No Insurance for At-Fault Driver OR Vehicle, Aug. 23, 2018, Indianapolis Crash Injury Attorney Blog

Some companies specifically avoid paying above-board wages because then they’d incur other costs, like insurance for unemployment and workers’ compensation, requirements to pay overtime, administrative payroll expenses and other costs. Others will wrongly classify “employees” (entitled to these benefits) as “independent contractors.” But even independent contractors usually have clear written terms and are asked to file a tax form. Many times, companies will pay cash specifically for illegal immigrant workers, but you should know that your immigration status has no bearing on the Indiana workers’ compensation or personal injury benefits to which you are entitled. If you are paid under-the-table and are hurt at work, your claim for benefits/ damages could be more complicated than a typical work injury case. An experienced Munster work accident lawyer can best help you navigate the system and obtain appropriate compensation.

Recently, the Indiana Court of Appeals dealt with one such case, wherein a worker was seriously injured and his small business employer, someone he’d worked for under-the-table for nine years in the logging industry, was killed in that accident.

According to court records, plaintiff had worked with the same company for years, which was tasked primarily with tree-trimming. He cut trees, roped limbs and used a pull saw. The owner gave him all the tools, including boots and a company logo shirt, for the job. The hours were random, but it was usually at least 30 hours weekly. He had no set pay rate, but it was usually about $10 hourly – always paid in cash, never overtime and no 1099 forms.

One afternoon in 2016, the plaintiff accidentally knocked down a utility pole while chopping a rotted tree on his own. He called his boss, apologized for “messing up.” Plaintiff went home, his boss picked him up and they returned to the site together. Assessing downed wires wasn’t part of his typical job, but the plaintiff nonetheless was there to help. While checking the site, both men were shocked by a powerful volt of electricity. The business owner died. Plaintiff suffered serious injuries.

Plaintiff sued decedent’s estate, seeking payment from the businesses’ commercial liability policy. Insurer helped defend the claim, conceding that while it did offer general personal injury and medical damages for which the business might be liable, this particular incident was expressly foregone in the “worker exclusion,” which included employees, contractors, temporary workers and anyone else paid by the company for work. There was also an exclusion for injury stemming from “logging and lumbering” by the sole proprietor of the company and/or on his behalf.

Usually, workers’ compensation is the exclusive remedy for injured worker, meaning they can’t sue their boss – but also that they don’t have to prove their employer negligent (only establish the injury/illness occurred in the course/scope of employment). Those who fail to purchase proper work injury coverage could be held personally liable (possibly payable through umbrella coverage or estate assets, but that assumes the worker could show he was in fact an employee, not a contractor, requiring an in-depth judicial analysis). Depending on the details, other third party defendants (manufacturers of defective tools, careless property owners, etc.) might also be liable for damages.

With regard to this particular case, though, the commercial general liability policy, the appellate court ruled, was not responsible. The exclusions in the policy were clear. If the injured worker is hoping for compensation, he’ll have to seek it elsewhere.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond.

Additional Resources:

Smith v. Progressive Southern Insurance Co. et al., Aug. 31, 2018, Indiana Court of Appeals Lawyer Blog

More Blog Entries:

Pre-Existing Condition Doesn’t Bar Indiana Employee From Receiving Workers’ Compensation, May 2, 2018, Munster Work Accident Attorney Blog

Recently in Indiana, a federal jury awarded $15 million to a woman (and her husband) who claimed a radiologist and imaging center were negligent in failing to identify a tumor for a full 18 months, resulting in a substantial reduction in her survival chances. Following a four-day verdict, jurors in the case of Webster v. CDI Indiana, LLC, before the U.S. District Court Southern District of Indiana Indianapolis Division, jurors found the diagnostic center was liable for the conduct of the doctor who didn’t find the tumor in a CT scan she underwent in late 2014. The tumor was ultimately discovered in 2016 – more than a-year-and-a-half later.

The initial question in these medical malpractice lawsuits isn’t necessarily whether doctors or other health care providers got it wrong or even how severely you were hurt. The issue is whether those actions met or fell short of the applicable standard of care, given provider’s specialty, education, resources and region. Jurors were asked to consider whether a similarly-situated, prudent provider would have responded the same in similar or identical circumstances. Here, jurors determined the doctor’s actions fell below the applicable standard of care, reducing plaintiff’s chance of survival, her options for treatment and inflicting serious physical pain and emotional suffering.more

Defendant clinic in this case refused to accept liability when the claim was first filed, arguing that as a corporation it didn’t run the center and shouldn’t be considered a medical provider. Rather, defense lawyers argued, this was a company that provided management services to the diagnostic center. However, the corporation’s stance on this point actually put it at a disadvantage because medical providers who opt in to the protections of the Indiana Medical Malpractice Act have their damages for any singular lawsuit capped at $1.25 million. Now, they’ll be paying 12 times that amount.

A spokesman for the company issued a statement indicating it is strongly considering its options for appealing the verdict.

Plaintiff, meanwhile, is currently undergoing intense chemotherapy treatment, but even still, with a form of stage 4 cancer, she has only a 10 percent survival rate from the five-year date of her diagnosis.

So serious are these issues that in another study by The BMJ, medical errors came in third highest as the cause of death in the U.S., accounting for an estimated 250,000 lives lost each year. Many of those cases are never reported, often because surviving family members may not even realize what’s happened. The study authors, surgeons and professors with the Johns Hopkins University School of Medicine, say they concluded that nearly 10 percent of all deaths in this country are the result of some medical mistake, including missed diagnosis. They may also include administering the wrong dose of medicine, negligent care due to a communication breakdown or misdiagnosis.

Even so, “medical error” is not an option listed as a code on death certificates, which makes them difficult to track – and therefore challenging to address. An experienced medical malpractice attorney in Gary, IN can be invaluable.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond.

Additional Resources:

Medical Errors Are the Third Leading Cause of Death: Study, May 3, 2016, By Mary Oaklander, TIME

More Blog Entries:

Indiana Nursing Home Neglect Alleged in Resident’s Fatal Shower Fall, March 26, 2018, Indiana Medical Malpractice Attorney Blog

Premises liability is predicated on the legal theory that businesses and/ or property owners have a duty of care to shield invited customers or guests from an unreasonable risk of harm. The element of a “duty of care” is the foundation for any lawsuit alleging negligence, as is the breach of duty and the fact that the breach caused the injury. In premises liability cases in particular, foreseeability of danger is what establishes the duty.

The new test model was outlined in a pair of 2016 rulings – Goodwin v. Yeakle’s Sports Bar & Grills, Inc. and Rogers v. Martin. It’s particularly relevant to those cases stemming from a third-party criminal attack on someone else’s property. In both cases, the state high court established that courts must decide as a matter of law (by the judge) rather than as a matter of fact (by the jury) whether the injury in question was foreseeable by analyzing a broad type of harm and a broad type of plaintiff. This differs substantially from the previous approach, which relied on fact-sensitive inquiries. Those two cases have been cited as precedent-setting in a number of recent Indiana premises liability cases.more

This shift is one your Munster injury attorney will need to weigh carefully when formulating trial strategy in premises liability claims.

Prior to the Goodwin and Rogers rulings, courts were instructed to consider the totality of the circumstances to ascertain whether a harm was foreseeable. Defendants fought to have the issue of foreseeability (and thus duty) in summary judgment from the judge, while plaintiffs would argue the court should send those questions to a jury to decide. Plaintiffs argued that determination of whether an act was foreseeable is fact-intensive based on the circumstances of the incident, which would mean summary judgment wouldn’t be appropriate.

Now with this new approach that was established in 2016, an increasing number of defendants are seeking (and being granted) summary judgment in Indiana premises liability lawsuits before the case reaches the trial phase.

In the Goodwin case, the question that arose was whether a bar owed a duty of care to protect one of its customers from a shooting after the plaintiff allegedly made a derogatory comment about the assailant’s wife. The Indiana Supreme Court granted the defense motion for summary judgment, finding there was no duty established when the foreseeability of sudden gun violence at a local bar could not be proven.

In the Rogers case, the court was asked to consider whether the homeowner owed a duty to keep a party guest safe from a physical fight that erupted with a co-host and also whether it was foreseeable that his injuries were made worse after the home owner failed to help him when she discovered him motionless on her basement floor after the confrontation. Although the court found that a brawl is not a foreseeable consequence of a house party, there were questions of fact as to whether the defendant had acted negligently in failing to seek medical help for her injured guest and the exacerbation of his injuries was foreseeable.

Still, there is a great deal of ambiguity in these decisions, and there are a flurry of premises liability cases now making their way through Indiana civil courts that consider these matters. For instance, earlier this year, the Indiana Court of Appeals weighed the case of Hamilton v. Steak ‘n Shake Operations, Inc., wherein plaintiff was the victim of a shooting inside the fast-food restaurant. Defendant sought summary judgment, arguing such an incident wasn’t foreseeable. The appellate court, however, disagreed, noting that staffers were aware of a growing conflict at the site for a full half hour before the shooting occurred.

Some have expressed concern that this new pre-trial test could result in up to 60 percent of duties owed by premises liability defendants, therefore putting additional undue burden on plaintiff to try to weed out some exception that would show the danger was foreseeable. It may further result in fewer cases being settled through negotiation pre-litigation or pre-trial because defendants may want to take their chances at trial, knowing their odds of summary judgment are higher. An experienced injury attorney in Munster can help you weigh your options.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond.

Additional Resources:

Hamilton v. Steak ‘n Shake Operations, Inc., March 7, 2018, Indiana Court of Appeals

More Blog Entries:

Rogers v. Martin – Indiana Supreme Court Weighs Duty of Care for Party Hosts, November 16, 2016, Indiana Personal Injury Attorney Blog

As our attorneys can explain, there are some key differences between the two types of cases. On the positive side, with workers’ compensation, one does not need to prove the defendant/employer did anything wrong (i.e., was negligent). It’s a no-fault system, and payments should be made as long as the injury or death arose out of and in the course of one’s employment. However, recipients of death benefits cannot pursue certain types of damages, such as pain and suffering, loss of life enjoyment, or loss of consortium. Those damages are available in an Indiana wrongful death case.

Here, the plaintiff (the decedent’s mother) is asserting she was an independent contractor, and therefore the exclusive remedy provision of the law doesn’t apply, so she is free to pursue her claim in state court. The church is arguing she was an employee, and the exclusive remedy rule does apply, so the claim must be weighed by the state’s Workers’ Compensation Board.

According to local news reports of the case, the decedent was a full-time university student and a member of the church’s congregation. For two months in 2015, the church hired her to work as a babysitter, under the direct supervision of the defendant pastors. She filled out an IRS Form W-9 when hired. This form is specifically intended for independent contractors. She babysat at the church on five occasions during those two months, both at the church and at the pastor’s private residence. She was paid on each occasion. She didn’t have a set work schedule at the church, but she accepted jobs with the church if they didn’t conflict with her other job at the university dining hall or her classes.

One evening, she was babysitting the defendants’ granddaughter at their residence. At around 3 p.m., someone found the decedent floating face down and unresponsive in the swimming pool. She was later pronounced dead. The coroner ruled the death accidental, but her mother insists the death is suspicious, given the fact that her daughter was a former lifeguard.

The church and the pastors insist that the young woman was their employee and that workers’ compensation is the exclusive remedy.

The Indiana Court of Appeals sided with the girls’ mother in April. In reaching its decision, the appellate court looked at a 10-factor analysis to ascertain whether the decedent was an independent contractor or an employee. It considered the fact that she was a full-time student with another regular job, she worked irregular hours as a babysitter, she was paid for each babysitting job individually, she was free to accept or reject babysitting jobs, and no pay was withheld for taxes.

Now, the church, claiming the appellate court erred, is asking the Indiana Supreme Court to consider the question. The court has not yet indicated whether it will accept review of this Indiana wrongful death case.

Indiana Wrongful Death Attorney Burton A. Padove handles wrongful death and personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Additional Resources: FCC v. Olds, April 17, Indiana Court of Appeals

More Blog Entries: When Indiana Workers Suffer Injuries or Death, Third-Party Litigation Should be Considered, March 12, 2018, Munster Wrongful Death Attorney Blog

Injuries are common among restaurant cooks, according to the U.S. Bureau of Labor Statistics. There are approximately 26,500 restaurant cooks in Indiana, with injuries regularly reported, including:

• Slips, trips, and falls;
• Burns;
• Cuts;
• Exposure to chemicals;
• Assault (due to basic lack of security);
• Ergonomic hazards.

But that list isn’t exhaustive. In this Indiana workers’ compensation case, the claimant was employed as a cook at the defendant restaurant when he was accidentally struck in the back by a freezer door. As a result of this incident, he suffered a lower back injury. The injury was immediately reported, and the cook was sent for medical treatment. At the time of this incident, the 25-year-old plaintiff was six feet tall, weighed about 340 pounds, and smoked roughly 30 cigarettes daily. more

His treatment for the back injury included both medication and physical therapy. However, the physical therapy had to be stopped because the claimant’s pain continued to worsen. A physician for the worker recommended that if he was to continue treatments for his back injury, he should lose weight, via a lap band surgery, which the doctor opined would substantially help improve his back pain symptoms and possibly help him avoid back surgery.

The employer argued it should not have to pay for weight reduction treatment, arguing that the pre-existing condition of excessive weight and inability to lose weight – combined with a workplace injury – didn’t produce a “single injury.”

The Workers’ Compensation Board of Indiana disagreed, finding the injured line cook should receive this secondary medical treatment relating to his first injury, and further continuing his payment of temporary total disability benefits.

When the pizza shop employer appealed, it argued that I.C. 22-3-3-12, the Indiana Apportionment Statute, acts to separate workplace injuries from pre-existing disabilities or impairments that might or might not be related. The employer argued the law shows it would be counter to state public policy to make an employer responsible for a medical condition that resulted from another cause or employment. It also cited several decisions from other state appellate and supreme courts on similar issues, including from Florida, California, Ohio, Oregon, and South Dakota.

However, the appeals court disagreed. It ruled the employer must bear the cost of the weight reduction surgery because despite the worker’s pre-existing conditions, it was not able to produce evidence to show that prior to the date of his injury, he had a weight problem that impaired his health or required medical intervention. In other words, these pre-existing conditions were not a problem until the work injury, leading to a conclusion that but for the work injury, they may not have ever been an issue (or at least not an immediate one requiring aggressive intervention).

The Workers’ Compensation Board’s decision was affirmed. Our experienced Highland work injury attorneys are committed to fighting for favorable results in our clients’ workers’ compensation claims.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond.

Additional Resources:

PS2 LLC v. Childers, Aug. 6, 2009, Indiana Court of Appeals

More Blog Entries: What to Do Immediately After an Indiana Car Accident, Feb. 2, 2018, Gary Motorcycle Accident Attorney Blog

According to CNHI News Indiana, the resident, who had one leg, was taken to the shower by a staff member in March 2017 and left to stand on her single leg with no assistance. Nursing home staffers reportedly found her some time later on the shower floor, her leg twisted and in agony. She was diagnosed with a displaced spiral fracture of the femur, although initially, staffers decided to place her back into bed before calling 911. Her family alleges the staffers told dispatchers they did not witness the fall, but they later filed false documentation indicating they had seen the fall, which occurred because she let go of her wheelchair. She underwent surgery two days later, remained in a debilitated state for months, and then died in June 2017. That incident reportedly marked her 16th fall at the facility since she entered it two years earlier. A wrongful death lawsuit alleges her passing was a direct and proximate result of nursing home staffers’ actions and inaction, and further that state health department citations for violations of federal quality-of-care regulations are evidence of callous disregard for patient rights, safety, welfare, and dignity.

Indiana nursing home falls are a serious problem affecting elderly and disabled residents. The U.S. Centers for Disease Control and Prevention reports 1,800 older adults in nursing homes die annually from fall-related injuries. Those who do survive often suffer hip fractures and head injuries that lead to serious and permanent disabilities.

Our Highland nursing home neglect attorneys know these cases can be complex because they often fall under the umbrella of medical malpractice, as opposed to general negligence. Indiana’s medical malpractice laws have more stringent deadlines, filing requirements, and proof burdens than what is required for cases involving general negligence. These cases require the involvement of an experienced and well-resourced injury law firm with a track record of proven success in these matters.

Unfortunately, these kinds of problems are far too common. One report by the AARP indicated Indiana has the highest number of poorly performing nursing homes in the country. Only 57 of the state’s 500 nursing homes were without any deficiencies. Forty-six had been cited by the state for neglect and negligence that placed residents in immediate jeopardy for serious injuries or death.

410 IAC 16.2-0.5-1 details the rights nursing home residents have under Indiana law. These rights include:

• The right to receive the services and/or items included in your plan of care.
• The right to be treated with respect and dignity, which includes freedom from abuse, neglect or maltreatment, involuntary seclusion, and chemical restraints.
• The right to a safe, clean, comfortable, and homelike environment.
• The right to voice grievances without fear of discrimination or reprisal.

When a nursing home patient suffers a fall, it is a form of neglect because nursing homes owe a legal duty of care to ensure their patients are properly cared for and supervised. Many patients are fall risks, and facilities have a responsibility to ensure they have appropriate assistance in carrying out their daily activities and that every reasonable measure is taken to prevent the foreseeable risk of falls.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Additional Resources: Aperion Care Kokomo hit with wrongful death lawsuit after patient falls in shower, March 1, 2018, By Carson Gerber, CNHI News Indiana

More Blog Entries: Quadriplegic Wins $35M Verdict in Indiana DUI Crash; Whether He Can Collect is Uncertain, Jan. 17, 2018, Highland Nursing Home Abuse Lawyer Blog