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Articles Posted in Civil Litigation

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Many Indiana personal injury cases do not make it to trial. Instead, the parties agree to settle the case. Frequently, cases settle after the parties have progressed past the summary judgment stage. Parties often use the summary judgment stage as a barometer for how their case would fare if it were to go to trial.

The summary judgment stage occurs before a case is listed for trial, and is used by courts to weed out cases or claims that do not have merit. Typically, in a summary judgment motion, the judge will consider all the uncontested evidence and make a determination if the moving party is entitled to judgment as a matter of law. If there is conflicting evidence regarding a material issue in the case, summary judgment is not appropriate.

Every state is free to craft their own summary judgment standard, within reason. For example, the federal system uses what is called the “no evidence” approach. Under this standard, the moving party can succeed in their motion if they are able to show that the other party does not have any evidence supporting their claims. Defendants in personal injury lawsuits frequently file summary judgment motions in no-evidence jurisdictions because doing so is simple and there is little to lose (and potentially quite a bit to gain).

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When a victim of a car accident files an Indiana personal injury lawsuit against the party they believe was responsible for causing their injuries, the case proceeds through a number of stages before it goes to trial. Through each stage, the parties learn a little more about the strength of their case, the opposing party’s likely arguments, and the amount of damages that may be recovered by the plaintiff if she is successful.

At any time up to and during a trial, the parties can agree to settle the case. At its core, a settlement agreement is a contract between the parties. The details contained in an Indiana settlement agreement vary widely, but in general the defendant would agree to compensate the plaintiff an agreed amount of money and, in turn, the plaintiff would release the defendant from liability related to the accident.

Of course, Indiana settlement agreements must be carefully drafted. In the event that an agreement leaves questions unanswered or uses overly broad language, certain issues can arise. In a recent personal injury case, the plaintiff’s attempt to settle a case with several liable parties almost resulted in excusing other parties that the plaintiff did not intend to excuse from the case.

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Earlier last month, an appellate court in Louisiana issued a written opinion invalidating an arbitration clause in a case brought by the parents of a young child who was injured while at the defendant’s trampoline park. In the case, Alicea v. Activelaf, the court held that although the plaintiff voluntarily signed a contract containing a clause agreeing to arbitration, the clause was invalid, and therefore the defendant cannot demand arbitration.

A Young Boy Is Injured While at the Defendant’s Trampoline Park

The Aliceas planned on taking their two young boys to the defendant’s trampoline park. However, prior to allowing anyone access to the park, the defendant required that guests sign a “Participant Agreement, Release and Assumption of Risk.” This is common among pay-to-play activities, such as bungee jumping, water parks, and ski resorts. Essentially, these forms, if signed, give up certain rights the guest would otherwise have. Specific to this case, the contract contained a clause waiving the plaintiffs’ right to use the court system if any personal injury claims should arise during their visit. Instead of proceeding through court, the contract stated that the claims would be settled through arbitration.

Arbitration is an alternative to the court system, in which a single arbitrator or panel of arbitrators will make a decision on a plaintiff’s personal injury claim. Arbitration is usually binding, is much cheaper for sophisticated litigants, and tends to favor the companies that seek to compel it. Whenever possible, it is usually in a plaintiff’s interest to have a case filed in a court of law rather than through arbitration.

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A Zionville adoption agency is now facing liability after being sued by a couple for failing to disclose information relating to the baby’s drug addiction. The Indiana Court of Appeals overturned the previous dismissal of the suit by a lower court.A Canadian couple, Jesica and Gerson Urbina, sought out the services of A Bond of Life Adoptions (ABLA) to adopt the child of a pregnant woman based in the Noblesville area.
After communication with the agency and the mother, the couple came to Indiana to spend time with the newborn child. Over the span of several days, the couple proudly acquired photos of the infant to share with friends and family. The baby then, however, began to display signs of drug withdrawal stemming from alleged methadone use by the birth-mother during the pregnancy. The hospital began monitoring for problematic symptoms and alerted ABLA. It wasn’t until several days later that the news of their baby’s addiction was shared to the parents, by a social worker.

The couple, horrified at the news, mulled over their options and painfully withdrew from the adoption process, citing that they may not be capable to take care of a special needs child. The couple then proceeded to file a complaint against ABLA for negligence, fraud, breach of contract and fiduciary duty, infliction of emotional distress. On appeal, the court commented with regards to the Urbanis’s breach of contract claim on the basis that vital information gathered by the adoption agency regarding the baby is important to the parents’ decision and should thereby be disclosed.

The family has claimed that they do not believe they will attempt the adoption process again.

The contractual nature of the Urbanis relationship with ABLA allowed for the Urbanis to recover. However, the contract was also relied upon by ABLA to dismiss the claim. According to the contract, there is release which limits ABLA’s liability from claims based upon unknown medical conditions of the family or child. The court’s most pointed concurring opinion, authored by Judge Bradford, identified the problem of adoption agencies hiding behind this clause. Hon. Bradford lists a history of cases where agencies use this clause and “public policy” concerns to limit recovery. The purpose of the clause is protect upstanding organizations when information passed on to the agency turns out to be incorrect. In the Urbanis’s case, ABLA had information that was not incorrect, just unfortunate, and ABLA failed to inform parents making a lifelong decision.
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A welder filed a products liability lawsuit, claiming that defects in the shirt he was wearing caused it to catch fire while he was operating a plasma torch. The suit, Hathaway v. Cintas Corporate Services, Inc., also asserted causes of action for breach of warranty and negligence. The District Court for the Northern District of Indiana granted summary judgment for the defendant on the breach of warranty and products liability claims, but allowed the negligence claim to proceed.

Plaintiff Rex Hathaway worked for Quik Cut, Inc. as a welder and plasma torch operator. His employer used uniforms provided by the defendant, Cintas Corporate Services. The rental agreement between Quik Cut and Cintas provided that Cintas would furnish work clothes and provide laundry and repair services. Hathaway was operating a plasma torch, a machine used to cut various types of metal, on February 12, 2009. Sparks from the plasma torch allegedly caused Hathaway’s shirt, a 100% cotton shirt provided by Cintas, to catch fire, and he suffered severe burns over much of his body.

Hathaway filed suit against Cintas, asserting causes of action for negligence, breach of warranty, and products liability. His wife also brought a cause of action for loss of consortium. Hathaway alleged that the shirt had both a manufacturing defect and a design defect, and he claimed that Cintas was liable for failure to warn of the risk of injury.

Cintas moved for summary judgment on the negligence, breach of warranty, and products liability claims. The court first ruled that the plaintiff’s breach of warranty claim was subsumed by his products liability claims. The court held that because the plaintiff did not claim economic damage for the loss of the shirt, the breach of warranty claims were based in tort, and were therefore part of the products liability claim under the Indiana Products Liability Act (IPLA).
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We recently addressed a wrongful death lawsuit brought in federal court that invokes Nebraska’s fetal death statute, and how that law differs from corresponding statutes in Indiana. The lawsuit, Baumann v. Slezak, et al, also asserts a cause of action for alleged violations of federal commercial truck driving regulations, including restrictions on the number of hours a driver may be behind the wheel without a break. Indiana law has allowed for evidence of regulatory violations in order to prove a claim of negligence, although such evidence may not be sufficient to establish liability by itself.

The Nebraska lawsuit arises from a September 9, 2012 accident on westbound Interstate 80 in western Nebraska. A family traveling through the state in two separate cars was stopped at the rear of a line of traffic, which had backed up nearly a mile because of an accident involving two semi-trailers. Another semi-trailer collided with the back of one of the family’s vehicles. This propelled the car into the family’s other car, which collided with another vehicle. All occupants of the two vehicles died in the accident. The truck driver, Josef Slezak, was allegedly driving at seventy-five miles per hour, and did not slow or stop prior to the collision.

The family’s legal representatives filed suit against Slezak and his employer, alleging negligence per se and violation of Federal Motor Carrier Safety Administration (FMCSA) regulations. The two regulations cited in the complaint prohibit operating a commercial motor vehicle while impaired, such as by fatigue, and regulate the length of time a vehicle operator may drive without rest. The hours-of-service (HOS) regulations prescribe maximum lengths of time a driver can be on-duty or behind the wheel before a required period of time off duty. According to the complaint, Slezak had arrived at a trucking terminal in Milwaukee, Wisconsin at 10:49 a.m. on September 8, and left after less than three hours off duty at 1:49 p.m. The accident occurred more than eighteen hours later, at around 5:19 a.m., and about 920 miles away.
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A Nebraska law allowing wrongful death claims for unborn children is getting its first test in a federal lawsuit. The suit, Baumann v. Slezak, et al, arises from a multi-vehicle accident that killed a family of four and their unborn child. It asserts causes of action for negligence and violations of federal trucking regulations. Several states, including Indiana, have passed statutes allowing wrongful death claims for unborn children at various stages of gestation, and courts in other states have recognized causes of action related to fetal death.

The accident giving rise to the lawsuit occurred on westbound Interstate 80 during the early morning of September 9, 2012. Traffic had become backed up for about a mile after two semi-trailers collided at about 4:30 a.m. One semi-trailer had become disabled and pulled onto the right shoulder. The driver, Vladimir Zhukov, however, allegedly left the trailer in a lane of traffic. Another semi-trailer driven by Keith Johnson reportedly collided with Zhukov’s trailer. The impact killed Johnson and caused his tractor to catch fire. The accident blocked all westbound lanes of the highway, creating a significant risk of further accidents for vehicles forced to stop on the highway.

Christopher and Diana Schmidt were traveling to California from Maryland with their two children, and Diana Schmidt was seven-and-a-half months pregnant with a child they had named Ethan. Diana Schmidt was driving a 2007 Toyota Corolla with the two children, and Christopher Schmidt was following her in a 2010 Ford Mustang. They were at the rear of the line of cars stopped because of the semi-trailer accident, with the Corolla stopped behind another semi-trailer, and the Mustang behind the Corolla. A semi-trailer driven by Josef Slezak approached the stopped traffic reportedly travelling at about seventy-five miles per hour. Allegedly without slowing or stopping, Slezak’s vehicle collided with the back of the Mustang at about 5:19 a.m., propelling it into the Corolla. This pushed the Corolla under the trailer in front of it. All four members of the Schmidt family and their unborn child died in the impact.
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An Illinois appellate court overturned a $30 million verdict in favor of a chemical-flavoring plant worker who claimed that a chemical used in popcorn butter flavoring caused him permanent lung damage. The verdict in Solis v. BASF Corporation was reportedly the largest in a series of popcorn flavoring lawsuits. The appellate court reviewed the question of whether Illinois’ statute of limitations barred the plaintiff’s claim, and ruled that the trial court erred by rendering a directed verdict for the plaintiff on that issue.

The plaintiff, Gerardo Solis, began a nearly two-decade career in the flavoring industry in 1987. His job duties, according to the court’s opinion, often involved working with or near butter flavorings containing the chemical diacetyl. Solis worked at Flavorchem from 1998 to 2006. He spent two years as a compounder, which involves mixing different ingredients to create a final flavor product. He was then promoted to supervisor, but continued primarily working in the area of the plant that produced powder flavorings. He claimed that he noticed an increase in the plant’s use of diacetyl, particularly in butter flavorings for popcorn, beginning in 2000, and that he experienced significant exposure to the chemical from 2000 to 2004.

Diacetyl provides the buttery flavor and aroma in popcorn and other food products. It has been linked to respiratory problems in workers with prolonged exposure, including bronchiolitis obliterans, an inflammation of the small airways in the lungs. This can cause a permanent loss of pulmonary function in some cases. A recent study also found a link between diacetyl and a brain protein believed to contribute to Alzheimer’s disease. Solis received a diagnosis of bronchiolitis obliterans in June 2006. He allegedly suffered permanent lung damage and was eventually told he needed a lung transplant.
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A Shelbyville man has submitted a tort claim to the Indiana Attorney General, indicating his intention to file a wrongful death lawsuit against the state’s Department of Child Services (DCS) over the death of his one year-old son. He alleges that DCS ignored warnings that the child’s mother and her boyfriend were abusing the child, and that the agency’s failure to intervene and protect the child contributed to his death. The man also notified the hospital that treated his son of his intent to file a medical negligence lawsuit.

According to Jerraco Noel, he reported the abuse of his son, Jayden, to DCS in July 2011. Jayden was treated in the emergency room of Major Hospital in Shelbyville on July 15, 2011 for injuries resulting from abuse by his mother and her boyfriend. DCS reportedly found Noel’s claims at the time “unsubstantiated.” Jayden died on January 18, 2012 from “multiple blunt-force traumatic injuries to the head.” Prosecutors have charged the mother and her boyfriend with neglect of a dependent causing death. Both have pleaded not guilty.

Noel claims that DCS “failed to conduct a reasonable investigation” after he reported his suspicions of abuse. He also alleges that the agency failed to consult with any of the medical professionals who treated Jayden, and that those medical professionals failed to report the injuries to DCS. He is demanding $700,000, the maximum amount of damages allowed by statute from DCS, for “loss of love and affection.”
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After her husband allegedly died from the effects of asbestos exposure, an Indiana woman filed suit against a company that provided services to his former employer. Her wrongful death lawsuit in Gill v. Evansville Sheet Metal Works, Inc. asserted claims for products liability and contractor negligence. Although the trial court dismissed both claims, and the Court of Appeals affirmed, the Indiana Supreme Court allowed the case to proceed on the contractor negligence claim.

Gale Gill worked for Aluminum Company of America, or Alcoa, at its plant in Newburgh, Indiana from approximately 1963 until 1986. As a “pot room worker,” he was tasked with the operation, maintenance, and repair of smelting pots. He allegedly experienced asbestos exposure during his time at the plant as a result of other people using and handling products that contained asbestos. In 2004, doctors diagnosed him with an asbestos-related illness. He died of lung cancer on May 4, 2005.

Sharon Gill, Gale Gill’s wife, filed suit against an Alcoa contractor, Evansville Sheet Metal Works, Inc. (ESMW), on May 4, 2007. ESMW allegedly provided services to Alcoa at the same work site where Gale Gill had all or part of his asbestos exposure. The exact time and location of ESMW’s alleged work remains undetermined, although all parties agree that any work that might have caused asbestos exposure occurred prior to 1989. The lawsuit went into the Mass Tort Asbestos Litigation Docket in Marion County, where it became subject to a stay.
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