Premises Liability

April 18, 2016

Indiana Supreme Court Finds in Favor of Premises Liability Plaintiff against Municipality

by Parr Richey Frandsen Patterson Kruse LLP

Earlier this month, the Indiana Supreme Court issued a written opinion in a premises liability case involving a woman who broke her leg while crossing a street. In the case, City of Beech Grove v. Beloat, the court determined that the city was not entitled to governmental immunity because the act of maintaining the road was not “discretionary,” as defined by the Indiana Tort Claims Act.

The Facts of the Case

The plaintiff was walking from her home in the City of Beech Grove to the library, when she briefly stepped out of the crosswalk to avoid a parked car. As she did so, she heard a snap and realized that her foot was caught in a hole in the pavement. She remained there until two bystanders helped her out. When she was taken to the hospital a short time later, it was discovered that she had suffered a broken leg. She filed a premises liability lawsuit against the city.

In response, the city claimed that it was entitled to immunity from the lawsuit based on the Indiana Tort Claims Act, which grants immunity to the government and government employees when they are performing a discretionary function. The trial court denied the city’s motion to dismiss the case on this ground, and the city appealed.

April 11, 2016

Appellate Court Finds County Fair Not Responsible for Injury During Fireworks Display

by Parr Richey Frandsen Patterson Kruse LLP

Earlier this month, a North Dakota appellate court issued a written opinion finding that a county fairground was not legally responsible for the plaintiff’s injuries sustained during a free fireworks display. The court based its decision on the state’s “recreational use statute.”

The Facts of Woody v. Pembina County Annual Fair & Exhibition Association

The plaintiff in the case, Woody, was injured when she was attending a free fireworks display at her local fairground. Evidently, while Woody was looking for a seat to enjoy the show, she stepped on a rotted board and fell through the grandstand. As a result of her fall, she sustained serious injuries.

Woody filed a personal injury lawsuit against the Fair, alleging that the Fair’s negligence in failing to maintain the grandstands resulted in her injury. Prior to the beginning of the trial, the parties agreed to the facts, and the Fair asked the court to dismiss the case because it was entitled to immunity from the lawsuit, based on the state’s recreational use statute. The court determined that the Fair, as a non-profit and tax-exempt organization that opened up its land for the use and enjoyment of the general public at no charge, was entitled to immunity. Thus, Woody’s case was dismissed.

January 6, 2016

Court Discusses What Constitutes a “Medical Malpractice” Claim, Versus a Claim of Ordinary Negligence

by Parr Richey Frandsen Patterson Kruse LLP

Earlier this month, the Supreme Court of Texas decided the case of Galvan v. Memorial Hermann Hospital System, in which the court determined that the slip-and-fall accident that injured the plaintiff, although occurring at a hospital, was not subject to the expert requirement of medical malpractice lawsuits.

The Facts of the Case

In the case, Galvan v. Memorial Hermann Hospital System, the plaintiff was a woman who slipped and fell outside her loved one’s room in the hospital. The written opinion of the court indicates that the plaintiff was headed from the hospital pharmacy to her relative’s room when she slipped on a puddle of water that had accumulated outside a bathroom door. The woman filed a slip-and-fall lawsuit against the hospital.

In a pre-trial motion, the hospital requested that the court dismiss the case due to the plaintiff’s failure to submit an expert report, as is statutorily mandated for all medical malpractice lawsuits. The plaintiff contended that the lawsuit was not one of medical malpractice, but of ordinary negligence, for which an expert is not required under state law.

December 7, 2015

U.S. Supreme Court Weighs in on Foreign Sovereign Immunities Act

by Parr Richey Frandsen Patterson Kruse LLP

Earlier this month, the United States Supreme Court handed down a decision that discussed the application of the Foreign Sovereign Immunities Act (the “Act”) to personal injury cases brought against foreign governments. According to the Court’s decision, the “commercial activity” exception to the Act is limited to cases where the activity which constitutes the “gravamen” of the defendant’s allegedly negligent conduct is “based upon” commercial activity. More tenuous connections with commercial activity will not suffice.

The Foreign Sovereign Immunities Act

The Act is a U.S. statute that grants immunity to foreign governments in most situations, including those arising out of personal injury accidents. One exception to the Act’s grant of immunity is where the case is “based upon a commercial activity carried on in the United States by [a] foreign state.”

OBB Personenverkehr AG v. Sachs

In the case, OBB Personenverkehr AG (“OBB”) v. Sachs, the plaintiff was injured in Austria as she was boarding a train. The company that operated the railway, OBB, was wholly owned by the Austrian government. Prior to leaving for Austria, the plaintiff purchased a “Eurorail” pass online from a U.S.-based travel agent. After sustaining serious injury from the incident, the woman filed a lawsuit against OBB in federal district court.

December 1, 2015

Court Held Patron “Assumed the Risk” When Injured at Haunted Attraction

by Parr Richey Frandsen Patterson Kruse LLP

Earlier this month, a California appellate court decided a case that arose when a man was injured after he tripped and fell while fleeing from a chainsaw-wielding employee at a haunted attraction. In the case, Griffin v. The Haunted Hotel, Inc., the plaintiff was a visitor to one of the defendant’s several haunted attractions operated in the San Diego area.

According to court documents, the plaintiff had completed what he thought was the entire attraction, but there was one final scare that caught the plaintiff off guard. As a chainsaw-wielding employee jumped out to scare the plaintiff and his group, the plaintiff ran, tripping and injuring his wrist.

The defendant explained to the court that every group of patrons hears an announcement prior to entering the facility. It explains that no one will touch them but that some risks do exist when touring the facility. The plaintiff admitted that the announcement was made, but he didn’t recall hearing it on the day in question. The plaintiff also testified that he thought he and his group were finished with the attraction, and they were waiting in a “well-lit, even surface” when the chainsaw-wielding man approached him. The plaintiff testified that the man singled him out, and he got scared. He asked the man to stop and started to back away, but the employee was relentless, and eventually the plaintiff decided to run. He ran for an unspecified distance before tripping and injuring his wrist.

November 16, 2015

Recreational Use Statute Can Act to Limit Government’s Liability for Negligently Maintained Areas

by Parr Richey Frandsen Patterson Kruse LLP

Earlier this month, an appellate court determined that a woman who injured herself while on a government-owned playground was not entitled to compensation under a premises liability theory. In ruling against the plaintiff, the court cited the state’s “recreational use statute.”

The Facts of the Case

According to the court’s written opinion, the plaintiff was a young girl who injured herself while playing on a wooden jungle gym that was located in a state park. According to the plaintiff’s mother, the jungle gym “had deteriorated to the point where the wood was frayed, split and slivered.” After the incident, the woman contacted the Parks and Recreation Department and complained of the condition of the jungle gym and informed them of her daughter’s injuries. She soon afterward filed suit against the government as the owner and operator of the park.

The judge hearing the case determined that, under the state’s recreational use statute, the general rule is that the government cannot be held liable for injuries that occur on its land when the user is engaged in recreational activity. The court noted, however, that the rule is not absolute, and if the injured party can show that there was a “malicious or willful failure” to warn of a dangerous condition, liability may arise.

March 24, 2014

Indiana Harbor Steelworker Dies from Burns Sustained in February Accident

by Parr Richey Frandsen Patterson Kruse LLP

Last Friday, a 62-year-old steelworker who had been critically injured in a workplace accident died from his injuries. According to a report by the Chesterton Tribune, on February 8, the employee was working in a water treatment area at ArcelorMittal’s Indiana Harbor steel processing facility, and was seriously burned when he fell into a sinkhole of scalding water that had opened up near a boiler tank. He was hospitalized with severe burns, and eventually died.The Accident
The sinkhole was discovered in December of last year in an open area adjacent to a brine tank, and was the result of a leaking pipe nearby. The company placed barriers around the sinkhole, but coworkers say that the visibility in that area of the plant was often poor and obstructed by steam, and the worker may not have seen the hazard. Unfortunately, the man fell through the barrier and into the scalding water that had gathered in the sinkhole. The management, the United Steelworker’s Union, and OSHA have conducted a joint study into the cause of accident but the results have not yet been released.

It is unfortunate that the sinkhole was not filled when it was discovered, and instead it was allowed to grow larger until this tragedy occurred. Because the facility placed barriers around the hole before the accident, it is difficult to predict if the employer may be responsible for the accident until the investigation is complete. The deceased man’s family likely faces substantial medical expenses from his month long hospitalization, and his death will result in other expenses. In addition the man’s family has suffered substantial non-monetary loss in the death of their loved one.
Continue reading

April 11, 2013

College Claims to be Decided by Indiana Supreme Court

by Parr Richey Frandsen Patterson Kruse LLP

Soon, the Indiana Supreme Court is scheduled to hear the argument of a former Wabash student against Wabash College for injuries sustained during hazing incidents with his fraternity. The suit against Wabash College, and the on-school fraternity Phi Kappa Psi (otherwise known as Phi Psi), will hinge on whether either institution had the duty to ensure his safety.In 2007, the victim had suffered his injuries when his fellow Phi Psi members attempted to force him into a shower. The ritual of “showering” is revealed to pledges through distributed information packets and pledges are encouraged to uphold these traditions. During the struggle to force the victim into the shower, he was choked to the point of unconsciousness and hit his head on the bathroom floor. The victim suffered severe brain damage.

This suit makes its way to the State Supreme Court after the Indiana Court of Appeals ruled (2-1) against the plaintiff citing his failure to prove that either Wabash or Phi Psi violated Indiana’s codified hazing law (IC § 34-30-2-150). The plaintiff will now bring his action to the Supreme Court under civil negligence liability attempting to prove the college was negligent in failing to protect him from the hazing – a “reasonably foreseeable” danger.

As of 2000, the college has had to deal with a slew of hazing incidences, including two student deaths in 2007 and 2008. And unlike other colleges who have faced similar hazing claims, Wabash University owns the fraternity house where the injuries occurred, and it was aware of previous incidents of fraternity abuse. The ownership status may place premise liability on Wabash, which would require Wabash to protect certain guests from “reasonably foreseeable” dangers.

This will be the first Indiana case to examine the civil liability and the duty of colleges in connection with hazing of their students.

Professor Andrew Klein of McKinney School of Law described the ramifications this case will have on schools. “Institutions are going to need to understand that there could be greater consequences for their failure to more actively engage in the behavior of institutions that are on university-owned property.”

Schools are taking notice, and actions are being taken to limit liability in the wake of hazing incidences. This lawsuit comes the same month that another Indiana institution is dealing with hazing. Indiana University in Bloomington has suspended a chapter of the Omega Psi Phi after reports of providing an unsafe environment resulting in numerous hazing incidences.
Continue reading

January 24, 2013

Parents Sue Indiana School, Alleging Negligence for Failure to Prevent Sexual Abuse of Child by Other Students

by Parr Richey Frandsen Patterson Kruse LLP

The parents of an eight year-old child have filed suit against the child’s school, alleging negligence and violations of their child’s statutory and constitutional rights. Doe v. Ball State University, et al, No. 18C01-1208-PL (Circuit Court No. 1, Delaware County, Ind., Sept. 28, 2012), removed to No. 1:12-cv-01464 (S.D. Ind., Oct. 10, 2012). The suit claims that the school negligently failed to supervise its students, allowing several of the child’s classmates to commit repeated acts of sexual abuse against him. The parents claim the school had knowledge of the abuse, but failed to intervene or notify them. The suit is seeking compensatory and punitive damages.

The plaintiffs, identified in court papers as John and Jane Doe, enrolled their child, identified as Junior Doe, at Burris Laboratory School in Muncie, Indiana. Burris is a K-12 school operated by Ball State University. Junior Doe was eight years old and in the second grade at Burris in the fall semester of 2011. His parents received a telephone call from another student’s parent on December 5, 2011, informing them that Junior had been the victim of sexual abuse and harassment at the school.

The Does learned several days later, according to their complaint, that teachers and administrators at Burris knew of the abuse but did not inform them. At this time, the school told them about the extent of the abuse, which allegedly occurred in the restrooms, library, and one or more classrooms at the school. About four other second-grade boys allegedly touched Junior inappropriately in intimate areas and forced him to engage in other forms of sexual conduct. Students had largely unsupervised and unrestricted access to the restrooms, library, classrooms, and computer equipment. The Does allege that the students were imitating acts they saw in pornographic images and videos viewed on school computers and iPads. They claim that other students approached their teacher to report the abuse, but the teacher allegedly “told the students to sit down and stop ‘tattling'” on others. Complaint at 5.
Continue reading

December 28, 2012

Pedestrian Deaths Along Rail Lines Bring Few Legal Consequences in Indiana

by Parr Richey Frandsen Patterson Kruse LLP

Hundreds of people around the country die every year when they are hit by trains while walking on or along railroad tracks. Despite such a seemingly large number of fatalities, the issue received little attention by lawmakers or the justice system. Railroad companies view the issue as a matter of trespassing and take few, if any, measures to prevent deaths along their rail lines. Laws in many states, including Indiana, make it a crime to walk along the tracks, but put no responsibilities on railroads to avoid such incidents. The families of people killed by trains in this manner have little or no legal recourse.

Research by the St. Louis Post-Dispatch found that trains have killed over 7,200 pedestrians nationwide since 1997 and injured another 6,400. Trains kill more pedestrians each year than motor vehicles, when calculated based on number of miles traveled. On a single day, May 30, 2012, researchers found that trains killed four pedestrians in California, Illinois, Maryland, and Missouri. The death in Missouri, a fourteen year-old middle school student, was the twelfth fatality along that set of tracks since 1996, when another student from the same middle school was killed by a train there. The Missouri victim’s parents asked Union Pacific, the railroad operator, to install fences along the tracks or take other protective measures, but the railroad reportedly refused, even in the face of lawsuit threats.
Continue reading