Party’s Failure to Raise an Issue at Trial Will Almost Certainly Prevent Appellate Review of That Issue

An axiomatic law of appellate procedure is that an appellate court can only rule on an issue on which the trial court had the opportunity to rule below. Thus, any argument that a party fails to make during a trial will considered to be waived for the purpose of appellate review. This rule is very important for personal injury plaintiffs to keep in mind, since it means that a thorough investigation must be conducted and the case properly prepared prior to trial to ensure that all available evidence is gathered and effectively presented to the court.

A recent opinion in a slip-and-fall case illustrates how a plaintiff’s failure to adequately gather all of the evidence and present it to the trial court prevented that party from using the evidence on appeal.

The Facts of the Case

The plaintiffs were the parents of a young boy who was injured while playing a game of baseball in a park that was owned by the defendant city. At the pre-trial motion for summary judgment, the city argued that it was entitled to immunity under the state’s recreational use statute. The plaintiffs issued a very broad objection to the applicability of the recreational use statute but did not offer any argument as to why the application of the statute was not appropriate. The judge granted summary judgment in favor of the defendant, and the plaintiffs appealed.

On appeal, the plaintiffs presented the court with a letter from another citizen of the city, explaining that she had notified the city of the poor condition of the baseball diamonds in the very park where the plaintiffs’ son was injured. This evidence, the plaintiffs argued, showed that the city had knowledge of the dangerous condition but failed to warn park-goers of the danger. The plaintiffs claimed that since the city knew about the dangers but did not warn park-goers, that immunity should not apply.

The court, however, refused to consider the evidence or the plaintiff’s argument that stemmed from it. The court explained that the proper time for this evidence to have been considered was at the summary judgment motion. By not presenting the evidence then, the plaintiffs waived their opportunity to raise it on appeal. As a result, the plaintiffs’ case was dismissed, and they will not be permitted to seek compensation for their son’s injuries.

Have You Been Injured in an Indiana Slip-and-Fall Accident?

If you or a loved one has recently been injured in any kind of Indiana slip-and-fall accident, you may be entitled to monetary compensation. However, as the case discussed above illustrates, there are numerous defenses that may arise during the course of a slip-and-fall lawsuit, and it is best to be prepared for what may lie ahead. Call one of the skilled injury attorneys at the Indiana law firm of Parr Richey Frandsen Patterson Kruse at 888-532-7766 to schedule a free consultation to discuss your case. Calling is free, and we will not bill you for our services unless we are able to help you obtain the compensation you deserve.

Court Finds Plaintiff’s “Mere Speculation” in Premises Liability Case Insufficient to Survive Summary Judgment Challenge, Indiana Injury Lawyer Blog, February 22, 2017