Indiana Injury Lawyer Blog

February 10, 2016

Woman Sues Department of Transportation for Poor Highway Condition

by Parr Richey Frandsen Patterson Kruse LLP

Recently, a woman sued the Iowa Department of Transportation after her husband was killed on a local highway. However, before she was able to bring her suit in court, she was required to file a claim with her state’s appeal board, an administrative agency.

According to the court’s written opinion, the woman’s husband died in a motorcycle accident. She filed a claim alleging that the drop-off between the paved highway and the gravel shoulder was too steep, and that the Department of Transportation failed to maintain the highway in a safe condition. She asserted that the state Department of Transportation was negligent in maintaining the highway, and that the road’s condition caused her husband’s death.

The state appeal board did not take any action on the woman’s claim for over six months. She then withdrew her claim and filed suit in a court of law. The district court dismissed her suit, stating that the woman did not exhaust her administrative remedies before filing suit as the administrator of the estate, as required by state law. However, the state’s supreme court heard her case and held that she had properly exhausted her administrative remedies, allowing her case to proceed to trial without having the Department of Transportation rule on the issue.

February 3, 2016

Court Holds that Dog Owner May Be Liable Even if Dog Never Touched Plaintiff

by Parr Richey Frandsen Patterson Kruse LLP

Dog owners have to be vigilant with their dogs. That is because if a dog bites another person, owners are often liable for damages. One court recently found that an owner may be liable even if a dog never touches the other person.

In a recent case, Grammer v. Lucking, a court considered whether or not a dog owner could be held liable when an owner’s dogs ran toward a pedestrian who then fell over and was injured. According to the court’s written opinion, the plaintiffs were walking near the defendants’ home when the defendants’ dogs ran toward the plaintiffs, barking and growling. One dog was on a chain, and the other was free. In backing away from the dogs, one of the plaintiffs stumbled and fell. However, neither of the dogs ever touched either of the plaintiffs.

The plaintiffs sued the dog owners for damages relating to the victim’s injuries. The applicable law made owners liable for damages caused by their dogs “killing, wounding, injuring, worrying, or chasing any person or persons.” The plaintiffs argued that the owners were liable for damages caused by their dog “chasing” or “injuring” the pedestrian. The trial court granted summary judgment for the defendants. However, that state’s supreme court reversed the trial court’s decision because it said that the trial court had to consider every relevant definition of the words “chase” and injure.”

January 27, 2016

University Protected by Immunity After Student Is Killed on Bike Path

by Parr Richey Frandsen Patterson Kruse LLP

Sometimes government entities such as public universities are protected from lawsuits due to immunity. In Burgueno v. Regents of the Univ. of Cal., a court found that a university was protected by immunity when a student was killed on a bike path that ran through the school. According to the court’s written opinion, the University of California, Santa Cruz student was living in an off-campus apartment and commuted to school on his bike. He was killed in a bicycle accident on the Great Meadow Bikeway, a paved bike path that ran through part of the school’s campus. The student’s family sued the school after his death, alleging that the school was liable because the path was dangerous. There had been a number of bicycle accidents on the path prior to the student’s death, and the family sued based on a dangerous condition of public property and wrongful death.

However, the trial court found that the claim was barred because the school was protected by immunity. A state code precluded governmental liability for injuries caused by the condition of any trail that provided access to recreational or scenic areas. The purpose of the law was to allow public entities to open their property for public recreational use. The idea was that if the public entities could be sued for poor road conditions, most paths would probably close.

The court found that the law applied to the Great Meadow Bikeway path because it was a path that provided access to recreational or scenic areas. It stated that even though the trail may have been used for both recreational and non-recreational purposes, the school was still protected by immunity. In this case, since the school was a public university, it had absolute immunity from any claims arising from injuries due to poor conditions on the path.

January 20, 2016

Indiana Legislature Proposes Increase in Medical Malpractice Cap

by Parr Richey Frandsen Patterson Kruse LLP

Indiana’s state legislature has proposed an increase in the state’s cap on medical malpractice payments. The proposed bill would increase the state’s limits on how much compensation malpractice victims can receive. The new bill would increase the limit to $1.65 million. According to one new source, if passed, the increase would be the first in 17 years. In addition, the bill would increase the limit on what a health care provider must pay from $250,000 to $450,000. If an award exceeds that, the remainder of the money is paid by the state. The proposed bill would also limit increases to every four years based on the national inflation rate.

Indiana’s Senate President Pro Tem David Long said that he believes the cap has helped limit the state’s medical costs but also that it needs to increase to meet growing costs. Also, the current limit is being challenged in court, and Long commented that he believes that not allowing for limit increases could mean that the current state law would be deemed unconstitutional by a state court. Some other states’ caps have also been found unconstitutional.

Medical Malpractice Damages Caps

Medical malpractice damages caps limit the amount of money a plaintiff can receive from a medical malpractice lawsuit. Generally, the caps place a limit only on non-economic damages. Economic damages include the cost of medical bills and lost wages, whereas non-economic damages include pain and suffering, mental distress, and loss of companionship. However, some states have laws on all types of damages, including both non-economic and economic damages. Indiana’s current and proposed law includes all types of damages.

January 13, 2016

Indiana Supreme Court Suggests Possible Expansion of Employer Liability for the Actions of Employees

by Parr Richey Frandsen Patterson Kruse LLP

In a decision that was released last month by the Indiana Supreme Court, the dismissal of a negligence lawsuit against a security company that employed a man who shot and paralyzed a woman while on the job was reversed, and the security company may be found liable for the woman’s injuries through a settlement or jury trial. This ruling appears to expand the breadth of claims that Indiana courts will allow to proceed to trial, possibly allowing Indiana personal injury and wrongful death victims to pursue more avenues to obtain compensation for their losses.

Resident Who Had Relationship With Security Officer is Shot After an Argument With Him While on Duty

The appeal in Knighten v. Davis Security Service was filed based on an incident in East Chicago, Indiana, that occurred on August 7, 2010 when a security officer employed by a company that was hired to provide security for the housing complex shot a woman whom he had previously dated after the two had an argument that appeared to be related to personal issues between them. Before the shots were fired, the woman had damaged the entrance gate to the complex.

As a result of the shooting, the woman is now paralyzed from the waist down, and she filed a lawsuit against the man who shot her, the security company that employed him, and the housing authority that contracted with the company to provide security. At the center of the recent ruling was the woman’s claim against the security company that employed the man, and whether the company can be held financially accountable for the man’s conduct.

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 21, 2015

Malpractice Plaintiff Gets Case Dismissed for Giving False Testimony in Deposition

by Parr Richey Frandsen Patterson Kruse LLP

In a split decision, the Mississippi Supreme Court has affirmed the dismissal of Ferguson v. University of Mississippi Medical Center, a wrongful death by medical malpractice lawsuit that was filed against medical providers who allegedly caused the death of the plaintiff’s brother shortly after he was taken by ambulance to a hospital for treatment in September 2008. In this most recent ruling, which the court ruled 6-2 to affirm the dismissal of the case, the sole remaining plaintiff and brother of the decedent was denied recovery for giving false testimony in a deposition that was taken before he was added as a plaintiff to the case. Because of this ruling, nobody will be able to recover any damages based on the alleged negligence of the defendants.

Before His Death, the Man Waited for Hours without Receiving Treatment

The case was initially filed after the death of the plaintiff’s brother, who experienced a medical emergency in September 2008 and was taken by ambulance to the defendant hospital, unable to feel his legs. According to the ruling, the decedent waited for hours at the defendant hospital but received no treatment despite his serious condition. The man was eventually taken to a different hospital, where he immediately received treatment, but he died two days later of kidney failure, which could have allegedly been prevented had the man had received timely treatment at the first hospital.

December 14, 2015

The Dual Dangers of Pharmacy Errors

by Parr Richey Frandsen Patterson Kruse LLP

Whenever someone takes a prescription medication they receive from their doctor to a pharmacy, they trust that the medication provided to them is exactly what the doctor ordered. However, that is not always the case. Pharmacy errors are shockingly common across the United States and vary in severity from those that are caught before the medication is ingested to those resulting in serious injury or even death in some cases.

The possibility of a pharmacy error resulting in serious injury or death depends on several variables. Two of the most important of those are what medication is mistakenly given to the patient and what medication the patient should have been prescribed. These two variables can explain most of the injuries that occur after a pharmacist’s mistake.

Whenever a person is given a medication that they were not prescribed, there is a chance that their body will not react well to the new and unprescribed medication. For example, a doctor has not evaluated the patient’s tolerance to that drug, and it is very possible that there could be an adverse reaction to the prescribed medication.

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.