Premises Liability

February 1, 2018

Court Dismisses Victim’s Case Against Ski Resort Due to Signed Release Waiver

by Parr Richey Frandsen Patterson Kruse LLP

Earlier this month, a federal appellate court issued a written opinion in a personal injury case requiring the court to determine if a plaintiff’s case against a ski resort could proceed toward trial despite the fact that she had signed an accident-release waiver prior to her injury. After reviewing the applicable law, the court concluded that the release waiver was enforceable and that the plaintiff’s lawsuit was barred as a matter of law. The case presents important issues for Indiana personal injury plaintiffs, since accident-release waivers are commonly used as a defense in certain Indiana negligence cases.

The Facts of the Case

The plaintiff arranged to take a ski lesson at the defendant resort. Prior to getting out on the mountain, the plaintiff was presented with an accident-release waiver and asked to sign it. The waiver essentially stated that the plaintiff understood and appreciated the risks involved in skiing, that she accepted the risks, and that she agreed not to hold the resort liable in the event she was injured.

The plaintiff was later issued a lift ticket, which contained similar language on the reverse side of the ticket. The plaintiff proceeded with her lesson.

December 28, 2017

Court Finds Slip-and-Fall Plaintiff Presented Sufficient Evidence of Negligence Based on Expert Witness Testimony

by Parr Richey Frandsen Patterson Kruse LLP

Understanding the role of an expert witness in a personal injury lawsuit is critical to the success of many Indiana premises liability lawsuits. Generally speaking, an expert witness is used when the issues involved in the case are complex, scientific, or otherwise beyond the scope of an average juror’s common experiences.

Similarly, most medical malpractice cases require the testimony of an expert witness, and some car accident cases use the testimony of an accident reconstructionist. A recent case illustrates a slip-and-fall plaintiff’s successful use of an expert witness to survive a summary judgment challenge by the defense.

The Facts of the Case

The plaintiff took her trailer to the defendant tire shop for repairs. Upon arrival, the plaintiff entered the shop through the side entrance, approached the employee at the desk, and arranged for the repairs to be completed. The plaintiff then safely left the same way she had entered.

November 20, 2017

Procedural Requirements in Indiana Medical Malpractice Cases

by Parr Richey Frandsen Patterson Kruse LLP

Doctors, nurses, and other medical professionals all have a duty to provide a certain level of care to their patients. While not every adverse patient event will be a basis for a lawsuit, when someone is injured due to negligently provided medical care, they may be able to recover compensation for their injuries through an Indiana medical malpractice lawsuit.

These cases are unique in that they are subject to additional requirements over and above other Indiana personal injury lawsuits. For example, Indiana Code section 34-18-8-4 states that an Indiana medical malpractice plaintiff must first file a complaint with a medical review board prior to filing the lawsuit in a court of law.

Once the complaint is filed, a panel of four (consisting of one qualified attorney who practices in that area of the law and three qualified health care providers) will review the claim and determine whether it has merit. If the claim is determined to have merit, the plaintiff will be allowed to file a lawsuit, and the results of the claim will be admissible at trial. However, the results will not necessarily dictate the outcome of the case, since the defendant will also be able to present a defense if there is one.

October 25, 2017

Recreational Use Statute Prevents Plaintiff’s Lawsuit Following Rope-Swing Accident

by Parr Richey Frandsen Patterson Kruse LLP

Indiana landowners have a duty to make sure that their property is safe for the people whom they allow to enter and remain on their property. When a landowner fails to take adequate precautions to ensure a safe area, the injured party can generally seek compensation for their injuries through an Indiana premises liability lawsuit.

Indiana’s recreational use statute, however, limits a landowner’s liability in some situations. Indiana Code, Title 14, Article 22, Chapter 10, Section 14-22-10-2-5 outlines the state’s recreational use statute. Essentially, a landowner who allows others to use his property at no cost for recreational purposes cannot be held liable for any injuries that are caused as a result of the use of their land. Of course, this does not apply if the landowner acts maliciously or willfully causes an injury to someone using their land. A recent case illustrates how a state’s recreational use statute prevented the family of a young boy from recovering compensation for their son’s injuries.

The Facts of the Case

The plaintiff was the father of a boy who was injured while playing on a rope swing adjacent to a government-owned lake. The child was enjoying the rope swing with several friends, and they would take turns swinging from a nearby tree into the water. As the person swinging was in the air, the other children would try to slap his feet before he splashed into the water. When the plaintiff’s friend was swinging, the plaintiff attempted to slap his friend’s feet. However, the two boys collided, resulting in the plaintiff being seriously injured.

October 17, 2017

Summary Judgment in Indiana Premises Liability Lawsuits

by Parr Richey Frandsen Patterson Kruse LLP

Before an Indiana premises liability lawsuit reaches trial, the plaintiff’s case will likely be challenged by the defendant through a process called summary judgment. Summary judgment is a procedural mechanism by which a court can summarily rule in one party’s favor when there are no factual disputes in the case, and the moving party is entitled to judgment as a matter of law.

In order to survive a defense motion for summary judgment, a plaintiff must establish that there is a factual dispute that requires a fact-finder to make the ultimate determination. This likely means presenting evidence that contests some assertion made by the defense. For example, evidence showing that a traffic light was green when the defendant claims it was red may give rise to a factual dispute that needs resolution. Alternatively, if no factual dispute is present, a motion for summary judgment may be defeated by showing that the defendant is not entitled to judgment under the applicable law. A recent personal injury case illustrates how courts apply the summary judgment standard.

The Facts of the Case

The plaintiff was a tenant in the defendant’s apartment complex. During a storm, a tree on an adjacent piece of property fell onto the apartment building where the plaintiff lived. The plaintiff attempted to get the defendant to remove the tree, but the defendant was not responsive to the plaintiff’s request. Eventually, the plaintiff contacted a fellow resident of the complex whom she knew to help the defendant out with maintenance around the complex.

October 4, 2017

Court Resolves Statute of Limitations Argument in Favor of Defendant in Recent Premises Liability Lawsuit

by Parr Richey Frandsen Patterson Kruse LLP

All Indiana personal injury cases must be filed within a certain amount of time, or the case will be dismissed and the plaintiff will be without any means of recourse. In Indiana, the statute of limitations for most personal injury cases is two years from the date of the injury. However, this time period can be extended in certain situations.

Earlier this month, an appellate court in Georgia issued a written opinion in a premises liability lawsuit raising the question of which of two potentially applicable statutes of limitations applied to the plaintiff’s case. The case goes to show the lengths to which defendants will go to get a case dismissed when there is a potential statute of limitations defense.

The Facts of the Case

The plaintiffs were the parents of a young boy who was injured after a wall collapsed on him while he was living at a home owned by the defendant and rented to the boy’s parents. After their son’s injury, the plaintiffs filed a personal injury case against the defendant. However, while that case was pending, the plaintiffs’ son turned 18. At that point, the plaintiffs agreed to withdraw their case against the defendant so that their son could proceed on his own behalf.

September 26, 2017

Government Organization Potentially Evades Responsibility in Wrongful Death Lawsuit Due to Parties’ Procedural Missteps

by Parr Richey Frandsen Patterson Kruse LLP

When someone intends on filing an Indiana wrongful death lawsuit, a thorough investigation must be conducted to determine all of the proper parties that should be named in the lawsuit. In situations in which a government entity is discovered to be one of the potential defendants, Indiana law requires that certain additional steps be taken when naming that entity as a defendant.

Under the Indiana Tort Claims Against Governmental Entities and Public Employees Act, plaintiffs intending on filing lawsuits filed against government entities must first provide notice of the claim to the government entity. This notice is due either 180 or 270 days after the incident. If a party fails to provide the government entity with notice of the claim and proceeds to file the claim, the court will dismiss the plaintiff’s case.

A recent wrongful death case illustrates the importance of conducting a thorough investigation.

September 6, 2017

Plaintiff’s Appeal Dismissed for Failure to Raise Issue at Trial

by Parr Richey Frandsen Patterson Kruse LLP

Once a judge or a jury renders a verdict in an Indiana personal injury case, that verdict is final unless one of the parties involved decides to file an appeal to a higher court. Importantly, Indiana appellate courts will not revisit factual determinations of a judge or jury. This means that issues of credibility are not appealable. However, legal claims of error, such as evidentiary issues, can be appealed if the issue is properly raised and preserved below.

Indiana appellate courts receive thousands of appeals each year, and they employ a strict set of procedural rules to ensure that only the most diligent parties with meritorious claims of error are heard. One of the most commonly encountered rules of appellate procedure is the requirement that a claim of error must be raised at trial in order for an appellate court to consider the alleged error on appeal.

Due to this rule, a party’s failure to raise and preserve an issue at trial will almost certainly prevent that party from bringing the issue to the attention of an appellate court. A recent personal injury case involving a serious slip-and-fall accident illustrates how this rule affected one plaintiff’s ability to recover compensation for his injuries.

August 21, 2017

Workplace Personal Injury Lawsuit Dismissed Based on Plaintiff’s Knowledge of Potential Dangers

by Parr Richey Frandsen Patterson Kruse LLP

Last month, a state court in Georgia issued a written opinion in a workplace accident that is of interest to those considering bringing an Indiana personal injury lawsuit, especially for incidents that occurred in the workplace. The case presented the court with the opportunity to decide if a company should be liable for injuries to an independent contractor that occurred when the independent contractor stepped in a puddle of hazardous chemicals. Ultimately, the court determined that the contractor was fully warned about the risks involved with working at the facility and that the company successfully discharged its duty to the contractor.

Workplace Injuries and Workers’ Compensation Claims

As a preliminary matter, it is important to understand the difference between personal injury cases occurring at a job site and workers’ compensation claims. Workers’ compensation claims are technically brought against an employer, and, when appropriate, they often are the sole remedy available to the injured employee. However, when an employee’s injury is due to the negligence of a third party, the employee may have an additional claim for compensation through an Indiana personal injury lawsuit against that third party.

The Facts of the Case

The plaintiff was employed by an independent contractor that performed insulation work. The defendant employed the company for which the plaintiff worked to perform insulation work on chemical tanks. The defendant company required the independent contractors to complete specialized safety training prior to beginning work.

July 11, 2017

Court Upholds City’s Government Immunity in Recent Slip-and-Fall Case

by Parr Richey Frandsen Patterson Kruse LLP

Earlier this month, an appellate court in Alabama issued a written opinion in a premises liability case that was brought by an accident victim against a local city that owned and operated the park where the plaintiff’s injury occurred. The case presented the court with the opportunity to discuss recreational-use immunity and what a plaintiff must show to overcome this immunity. Ultimately, the court concluded that the plaintiff failed to establish a crucial element of her claim in that she did not show that the city had actual knowledge of the hazard that caused her fall.

The Facts of the Case

The plaintiff was visiting a park owned and operated by the defendant city. The plaintiff arrived at the park on July 4, in the morning hours. After parking her vehicle, the plaintiff made her way around a set of vertical poles that established the parking area without any problem. However, hours later, when the plaintiff made her way back to her vehicle, she tripped and fell on a diagonal cross-bar that connected two of the vertical poles. Evidence presented to the court suggested that while the area was lit by overhead street lights, the general condition of the lighting was “poor.”

The plaintiff filed a premises liability lawsuit against the city, claiming that the lack of lighting combined with the condition of the vertical poles created a dangerous hazard. In response to the lawsuit, the city had a maintenance supervisor testify that the city had no actual knowledge of the dangerous condition and that there had never been a similar accident reported nor any report of a dangerous condition.