There is a lot to unpack in this case, so let our injury attorneys start with what reportedly happened on the night in question. The two men were reportedly at a bar in Marion County, with the plaintiff’s truck parked outside. That truck was insured by Progressive. The two men consumed alcohol, and it is undisputed that both were impaired when they chose to leave the bar. A bartender at the establishment called a taxi company to give the pair a ride. However, as that taxi driver pulled into the parking lot, the two men opted to drive themselves home, with the plaintiff handing over the keys to his truck to his friend. (Although Indiana Code section 7.1-5-10-15.5, the state’s dram shop law, allows for bars and other establishments to be held liable for drunk driving injuries to third parties, the bartender’s effort to have a taxi driver take them home significantly limited the site’s liability, although it was later deemed five percent at fault.)

The driver crashed before the men reached their destination, rendering the passenger/vehicle owner paralyzed from the neck down. Although the defendant driver had initially argued he was not behind the wheel, security footage at a facility near the crash site proved otherwise, since he was seen exiting the driver seat.

The driver was later convicted on criminal charges. At the civil trial, attorneys for the plaintiff showed jurors footage of the plaintiff’s everyday life, in an attempt to illustrate the damages he suffered as a result of the crash. The images showed his mother moving him from the bed to the toilet and from the toilet to the shower, dressing him, feeding him, and more. Although $35 million can seem like excessive damages, the reality is that in car accident cases wherein the plaintiff is profoundly and permanently injured, it’s not a stretch. Although tort reform advocates hold up verdicts like this to illustrate how people “take advantage” of the system, those who actually sit on juries and listen to the effect such negligence has on their lives understand why these amounts make sense.

There was still the issue of comparative fault. Per Indiana Code section 34-51-2, plaintiffs whose actions contributed to the incident that resulted in their injury may still collect damages, as long as their share of the blame does not exceed 50 percent. Plaintiffs who are 51 percent or more liable for their own injuries are effectively barred from collecting damages. In this case, the plaintiff was 40 percent liable, so he was not barred, although his damages were proportionately reduced by 40 percent.

Finally, there is the question of whether the plaintiff will be able to collect the damages. In a pending case against his own insurer, the plaintiff argues his insurer is liable for damages. The auto insurer, however, argues that the liability coverage does not apply to the plaintiff, since he was a passenger rather than the driver in his own truck. The plaintiff argues that even if the family exclusion provision applies, the insurer would still be liable under the uninsured motorist provision of the plan.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Additional Resources: Quadriplegic awarded $35 million by Marion County jury, Dec. 14, 2017, By Marilyn Odendahl, TheIndianaLawyer.com

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• Vicarious liability, through the legal doctrine of respondeat superior; or
• Direct liability (i.e., negligent training, negligent hiring, negligent supervision, etc.).

Recently, the Indiana Supreme Court ruled that plaintiffs in these cases may move forward with one of the two legal theories – but not both.

This Indiana car accident case, according to court records, involves the alleged negligence of a pizza delivery driver that resulted in a fatal crash that killed a man on a scooter.

It occurred in August 2012 while the defendant driver, while working for a franchise of a national pizza chain, was operating her own vehicle when she struck the back of a scooter operated by the decedent. The rider was tossed off the scooter and onto the road, where he was run over by another motorist. His injuries proved fatal.more

The decedent’s estate filed an Indiana wrongful death lawsuit against the pizza delivery driver, the driver who ran over him, and the pizza franchise company. As far as the claims against the pizza franchise, the plaintiff alleged negligence under the doctrine of respondeat superior (Latin for, “let the master answer”) and also direct negligence for negligent hiring, negligent training, and negligent supervision. Vicarious liability does not require proof of direct negligence by the employer, only that the employee – acting in the course and scope of employment – was negligent.

The franchise filed a motion for partial summary judgment, arguing that since it had already conceded the driver was acting in the course and scope of employment, the chain could only be held vicariously liable under the doctrine of respondeat superior. The trial court agreed, granting that motion and dismissing the plaintiff’s claims of negligent hiring, training, and supervision.

The estate appealed, and the Indiana Court of Appeals reversed and remanded. The appellate court ruled the estate could pursue both theories of recovery because they are separate torts not derivative of an employee’s negligence. The court also found this ruling to be consistent with Indiana’s Comparative Fault Act.

However, the Indiana Supreme Court has now vacated the appellate court ruling, reinstating the ruling of the trial court and affirming the 1974 appellate court ruling in Tindall v. Enderle on this issue.

In the Tindall case, a bar employee shot and killed a patron, and the estate of the patron filed a negligence action against the tavern, alleging negligent hiring and retention. Prior to trial, the defendant bar stipulated the worker was acting in the course and scope of employment at the time of the shooting and sought to exclude evidence of the employee’s prior assaults on other patrons. (The estate had intended to use this as evidence of negligent hiring and retention.) The trial court granted the tavern’s motion, effectively killing the negligent hiring and retention claim. The court of appeals decided that allowing both claims was undue because each is derived from the negligence of the employee, so it’s wholly unnecessary to a plaintiff’s recovery of damages to allow both.

The pizza franchise in this case argued the Tindall case is well settled, and absent any special circumstance, claims of respondeat superior and negligent hiring are duplicative. The state supreme court agreed.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Additional Resources: Sedam v. 2JR Pizza Enterprises LLC, Oct. 31, 2017, Indiana Supreme Court

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Premises liability refers to the duty owed by the property owner to the visitor. If that duty was breached and injuries resulted, the person hurt can pursue an Indiana premises liability claim against the property owner. The question of “duty” relies heavily on the determination of the visitor’s status. For example, a business invitee, someone invited to a business property for the benefit of the business, is owed the highest duty of care. Property owners must not only warn business invitees of potential dangers and address them quickly, but also they must regularly check for them. By contrast, if you are a trespasser, a property owner need only not intentionally harm you or set traps (although there may be exceptions for child trespassers).

Recently, the Indiana Court of Appeals ruled in favor of a premises liability plaintiff who alleged she was seriously injured when she tripped and fell on a missed step at an aviation company during an open house with her young grandson.

According to court records, the plaintiff fell while she was walking from a pilot’s lounge into the hangar. Just across the threshold was a five-inch step down that she did not realize was there.

A set of double doors was between the two rooms, and usually, when the doors remained open, the facility put chairs in front of the door with a sign warning people to watch their step. However, the plaintiff arrived early to the event, so the chairs were not yet in place.

The area was lit brightly, and the plaintiff was looking straight ahead, looking toward her grandson, who was a few steps ahead of her, walking toward a plane. She didn’t see there was a step down. As she walked through the door, she missed the step and fell. She realized after she fell that there was a red sign with white letters cautioning about the fall, but the sign was laid flat on the floor. Another sign warning of the step was obscured by the door.

She later posted about the incident on social media, saying she was “so excited I didn’t watch my step and fell.” Her ankle was injured, and she was treated at a local emergency room. (This is one example of how social media posts can come back to haunt plaintiffs later, should they decide to pursue legal action.)

Two years later, the plaintiff filed an Indiana personal injury lawsuit against the defendant aviation company. The defendant filed a motion for summary judgment, which was granted. The plaintiff appealed, and the appellate court reversed, meaning the case can now proceed.

Summary judgment, which is a judgment as a matter of law favoring one side or the other prior to trial, is usually not appropriate in negligence cases because so many elements are not matters of law but instead matters of fact. Matters of fact are supposed to be weighed by a jury, rather than a judge.

It’s well-settled in Indiana law that landowners must exercise reasonable care for the safety of invitees, but they are not responsible to ensure an invitee’s safety. Conditions that pose a reasonable risk of harm won’t trigger a finding of premises liability. In this case, the appellate court found the trial court’s grant of summary judgment appeared to result from the conclusion that a step down was not an unreasonable risk of harm. The appellate court said it could not agree with this assessment, posed as a matter of law.

While stair steps are a common occurrence, the court noted, there could be conditions of stairs that create an unreasonable risk. This particular step was located in an unusual spot – right at the threshold of a doorway. The appeals panel ruled there are questions of fact as to whether the step created an unreasonable risk. The case was remanded back to the trial court for further proceedings.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Additional Resources: Carol Walters v. JS Aviation, Inc. d/b/a Eagle Aircraft, Sept. 7, 2017, Indiana Court of Appeals

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In a recent decision, the Indiana Court of Appeals ruled the plaintiffs’ claim could not proceed because it was not filed within the two-year window allowed for claims involving medical negligence and personal injury.

According to the joint complaint filed by three patients treated by the defendant dentist in January 2012, one claimant underwent conscious sedation for the removal of a single tooth, only to awaken and learn the dentist had removed 11 teeth. In the other two cases, both patients agreed to the removal of all of their teeth, but only because the dentist told them if they did not, they would be at immediate risk of heart attack, stroke, or death.

In January 2015, the trio filed a joint complaint, alleging claims of negligence, medical malpractice, and violations of RICO (Racketeer Influenced and Corrupt Organization).

The defendant dentist filed a motion for summary judgment on all of the claims, arguing they were time-barred because they were not filed within two years. Furthermore, the defendant alleged there was insufficient evidence for a RICO charge.

The trial court granted a summary judgment on the RICO charge, finding that the evidence was insufficient and further that the medical malpractice and negligence claims were filed outside the designated two-year window per Indiana Code § 34-11-2-4(a)(1) and Indiana Code § 34-18-7-1.

The plaintiff then ran into some procedural trouble, since she failed to file a traditional notice of appeal, later admitting to her misinterpretation of the error. The plaintiff further failed to establish a showing of exceptional circumstances that would invoke the court’s equitable powers rule to allow the matter to proceed.

The state appeals court affirmed.

It’s unfortunate that sometimes even legitimate claims can be barred from ever seeing a courtroom, due to the statute of limitations. The idea from the legislative perspective was that defendants should not be placed at a disadvantage by trying to defend themselves from claims that are stale, with evidence that has aged or witnesses whose memories have faded.

But this is why it is so important to pay attention to the statute of limitations, based on the nature of your claim. Most injury claims will need to be filed within two years. In cases in which there is a delayed discovery of a particular injury or its cause in a medical malpractice claim, or when the victim is a minor under six, the time period may be different.

It does seem like the merits of this case would have resulted in a substantial amount of compensation for numerous plaintiffs, had it been allowed to proceed. This particular dentist has been sued by no less than five patients for similar allegations.

WISHTV.com reports “dental overtreatment” comprises 44 percent of all complaints against dentists in Indiana, according to the state attorney general’s office.

The defendant dentist was previously the subject of a licensing complaint that alleged receiving $27,000 in over-billed reimbursements for procedures he performed on some 160 patients.

The U.S. Department of Health’s Office of the Inspector General is reportedly investigating pediatric dentistry practices in Indiana, and it discovered questionable billing practices in 95 cases. One of those named was the defendant in this case.

If you are concerned you may have been overtreated by your dentist, contact our medical malpractice lawyers in Highland.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Additional Resources: Adams v. Gonqueh, Sept. 1, 2017, Indiana Court of Appeals

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A recent Indiana hit-and-run crash resulted in one woman losing her life and a man facing a felony charge. Investigators in Indianapolis told the Indy Star on early Sunday morning that a car accident occurred on 34th Street, where officers responded to the scene to discover a passenger car literally split in two. There was no one in it. But nearby, occupants of a Dodge Neon, a man and woman both age 22, were critically injured. The driver was treated at a local hospital, while the woman was pronounced dead at the scene.

Officers discovered a man believed to be the driver a short time later. He is believed to have fled the scene on foot, and authorities suspect alcohol was a factor in the crash. He has been arrested on a charge of failure to stop at the scene of an accident involving death, a felony.

Our Highland auto accident attorneys know there are numerous avenues one might consider pursuing to seek damages following a hit-and-run accident. Some of those include:

• The driver of the vehicle. This of course assumes the driver is ultimately identified. Indiana is a tort state, also known as a “fault” state (as opposed to a no-fault state), so people injured by the negligence of others can directly pursue action against the at-fault driver, as opposed to being required to first seek compensation from PIP (personal injury protection) or MedPay coverage.
• PIP/ MedPay/ PUP (personal umbrella policy). Although these types of insurance are not required, they are often highly recommended and can be especially important in a hit-and-run crash, particularly if the driver is not identified.
• Uninsured / Underinsured Motorist Coverage (UM/UIM). The State of Indiana does not require motorists to purchase UIM/UIM coverage, but it must be offered with every newly written policy, and it is included unless the insured explicitly rejects it. UM coverage will be applied in cases in which an at-fault driver either does not have insurance or is not identified (i.e., hit-and-run crashes). Minimum limits are $25,000 per person and $50,000 per crash for bodily injury, plus $10,000 for property damage. This coverage is often used even when hit-and-run drivers are found.

Hit-and-run crashes are a growing problem in the Hoosier state, according to data prepared by the Indiana Criminal Justice Institute. Fatal hit-and-run crashes in the state rose by 6.1 percent between 2008 and 2012. These crashes also result in hundreds of incapacitating injuries in the state each year.

The Insurance Information Institute reports the number of fatal hit-and-run crashes nationally has risen, reaching about 1,500 annually. Approximately one in five pedestrian crashes involve hit-and-run drivers, while 60 percent of all hit-and-run fatalities are pedestrians.

An estimated 11 percent of all police-reported crashes involve at least one driver who flees the scene. That’s why it’s so important for drivers to make sure they are adequately insured. If you have been injured in a hit-and-run crash in Highland, our experienced injury lawyers can help you explore your legal options.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Additional Resources: Indianapolis man arrested in west-side hit-and-run that left woman dead, April 23, 2017, by Justin L. Mack, IndyStar

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According to The Daily Journal, the decedent was driving his truck on State Road 135 near Trafalgar in December 2014 when another truck came barreling toward him – in his lane – from the opposite direction. The plaintiff’s husband died as a result of the crash, while her son, who was a passenger, was seriously injured, as was the allegedly negligent driver of the other truck.

In a lawsuit filed in Johnson County Superior Court, the plaintiff asserts there is a history of car accidents along that section of roadway that gave the state’s transportation department actual or constructive knowledge that safety improvements were necessary. Specifically, state officials should have installed center-line rumble strips, widened the road, and installed warnings signs near the road curves at the site of the fatal crash.

This failure to act, the plaintiff alleges, was the proximate cause of her husband’s death.

Officials with INDOT declined to comment on the case, as is standard when it comes to pending litigation. More information will come to light during the discovery phase of the litigation, assuming the state chooses not to settle, and the case continues toward the trial phase.

The plaintiff is requesting unspecified damages for the plaintiff and her two sons.

An attorney for the plaintiff notes that while the family is seeking compensation for economic and non-economic damages, it’s critically important to them that the state undertake necessary safety improvements so that this kind of tragedy doesn’t befall yet another family. According to police reports, this particular stretch of road – between Trafalgar and State Road 44 – has been the site of dozens of crashes since 2004. At least 12 drivers have been killed during that time frame.

The state has undertaken a few improvements since that 2014 crash. Center line rumble strips were installed between Bargersville and Morgantown. These devices give an alert to the driver that the vehicle they are operating has crossed over to the opposite lane. The express purpose is to help prevent a head-on car accident, like the one that claimed this man’s life. The plaintiff’s lawyer says if those same rumble strips had been in place two years earlier, after so many other deadly crashes, the plaintiff’s husband might have lived.

In addition, the plaintiff says the state should have properly banked or contoured the road. There was also no effort to upgrade or widen the road, despite its history of crashes. To do so would have been an exercise in reasonable care to keep the roadway in a reasonably safe condition for motorists.

An insurance claim against the other truck driver has already been settled, with no need for litigation, resulting in the plaintiff receiving an undisclosed sum, although the driver conceded no liability for the crash.

The lawsuit was filed just inside the two-year window provided by the statute of limitations for Indiana wrongful death claims.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Additional Resources: Lawsuit claims INDOT responsible for fatal crash, Dec. 13, 2016, By Jacob Tellers, Daily Journal

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