Indiana Injury Lawyer Blog

August 23, 2012

Settlement Negotiations Over Indiana State Fair Stage Collapse Lawsuit Fall Through; Settlement from State Government Still Pending

by Parr Richey Frandsen Patterson Kruse LLP

Victims of the stage collapse at the 2011 Indiana State Fair had until August 1, 2012 to approve a proposed settlement involving the State of Indiana, the owner of the collapsed stage, and the stage’s manufacturer. The stage owner rejected the settlement plan after the deadline, saying not enough plaintiffs had agreed. The Indiana Legislature approved two separate settlement amounts for the victims, but the state has not disbursed the second set of funds while the other settlement negotiations were in progress. Without a settlement of the plaintiffs’ claims, some of the defendants may attempt to file cross-claims against the state.

The stage collapse occurred at about 8:46 p.m. on August 13, 2011, as the country music band Sugarland was preparing to perform on the fair’s main stage, known as the Grandstand Stage. High winds from a nearby thunderstorm caused stage rigging and scaffolding to fall onto a crowd of fans. Seven people were killed, and more than fifty were injured. The Indiana State Fair Commission contracts private companies for many of the fair’s services. A private contractor produced the Grandstand Stage performances, and other contractors handled stage construction, sound and lighting, and other technical functions. An investigation by two engineering firms retained by the state concluded that the state could have been better prepared, that public safety protocols at the fair were not clear, and communication between fair officials and contractors regarding weather conditions was not good.
Continue reading

August 13, 2012

Indiana Department of Health Says 2010 Had Highest Number of Reported Medical Errors in Five Years of Collecting Data

by Parr Richey Frandsen Patterson Kruse LLP

The Indiana State Department of Health (ISDH) has collected medical error reports from hospitals, outpatient clinics, and other medical facilities since 2006. In that time, it has compiled data on medical errors and injuries and tracked trends. Reports from 2006 to 2010, the most recent year for which comprehensive data is available, indicate an increasing number of medical errors in the state. 2010 had more medical errors than any of the other years for which data is available.

Executive Order 05-10, issued by Governor Mitch Daniels on January 11, 2005, directed ISDH to implement a system for reporting medical errors. Among the stated purposes for the system was an increase in public awareness of “the problem of medical errors,” collection and analysis of data to identify areas needing correction, the availability of information and data to help both health care providers and patients understand how to reduce the number of errors, promotion of open discussion about the issue, and reduction of the cost of health care. ISDH created the Medical Error Reporting System (MERS), which requires medical error reporting by hospitals outpatient surgical clinics, birthing centers, and abortion clinics. The system began collecting data on January 1, 2006. MERS now covers 295 health care facilities around the state.
Continue reading

August 7, 2012

Paintball Injury Not Actionable, Court Rules

by Parr Richey Frandsen Patterson Kruse LLP

A boy injured during a paintball game may not recover damages from the boy who shot him, according to a Wisconsin appeals court. In Houston v. Freese, a boy who removed his helmet during a game, then suffered an eye injury when he was hit with a paint pellet, sued the boy who fired the pellet for negligence and recklessness. The appeals court found that state laws governing “contact sport” claims precluded a negligence claim, and that the defendant was not reckless as a matter of law.

Jacob Stelter, age 13, invited seven friends to play paintball in an outdoor course that his older brother Kyle had built near their house. Jett Houston and Alex Freese were among the friends who came over. Kyle, who was an experienced player, gave instructions to the group on safety procedures and equipment. Each boy had a mask with goggles for face and eye protection. Kyle instructed them to keep their masks on at all times in the game area, even if they had been eliminated from play. The boys played elimination rounds, in which players had to leave the game area when they were hit with a pellet. They called time-outs sometimes when a player was leaving the field.
Continue reading

July 26, 2012

Family of Woman Killed at Halloween Party Sue Hotel, Event Companies

by Parr Richey Frandsen Patterson Kruse LLP

The parents of a woman who died after falling from a staircase at a 2010 Halloween party have filed a lawsuit against the Chicago hotel and event companies that hosted the party. The suit alleges negligence against the party’s hosts for providing unlimited alcohol to the attendees, and failing to provide adequate security to keep them safe. The lawsuit draws on principles of premises liability and the Dram Shop law, but it may also have to contend with issues of comparative fault.

On October 30, 2010, 23 year-old Megan Duskey and friends went to a party at the Palmer House Hilton hotel in Chicago. Around two thousand guests were expected at the party, which was scheduled to go until 2:00 a.m. According to one of Duskey’s friends, they had been at the party for about thirty minutes when she stepped away for a moment. When the friend returned, her other friends told her that Duskey had fallen. Duskey had apparently tried to slide down a banister rail in a stairwell. She fell four stories and died instantly of head trauma. This occurred at about 10:30 p.m. The coroner’s office later ruled her death an accident.

Duskey’s parents, Deborah and James Duskey, filed a lawsuit on July 24, 2012 in Cook County Circuit Court in Chicago, naming the Palmer House Hilton and its parent, Hilton Worldwide, as defendants, along with the event companies, Surreal Chicago and Adrenaline Y2K. The party’s hosts, according to the lawsuit, allowed ticket holders at the party to “consume unlimited amounts of alcoholic beverages,” but did not have security to protect partygoers. The lawsuit alleges ten total counts and seeks over $500,000 in damages from the defendants.
Continue reading

July 19, 2012

Indiana Court Allows Son’s Suit Against Father for Auto Accident Injuries to Proceed

by Parr Richey Frandsen Patterson Kruse LLP

The Indiana Supreme Court has ruled that a man who was injured when his father drove into him, pinning him between two vehicles, may sue for damages. A trial court dismissed the lawsuit in Robert L. Clark, Jr. et al vs. Robert L. Clark, Sr., based on a state law that bars suit between family members in certain circumstances. The Indiana Court of Appeals overturned the trial court’s dismissal based on a different reading of the state law, and the Indiana Supreme Court affirmed the appeals court’s decision.

Robert Clark, Sr. was driving a car on September 5, 2007, in which his son, 46 year-old Robert Clark, Jr., was a passenger. The son got out of the car when they got to their destination in order to direct his father into a parking spot. He stood several feet in front of the car and motioned his father forward into a parking space. Once the car was fully in the spot, the son motioned to his father to stop the car. The father pressed the accelerator instead of the brake pedal. The car lurched forward into Robert Clark Jr., pinning him between his father’s vehicle and the adjacent vehicle and causing extensive injuries to his legs.

Robert Clark, Jr. and his wife, Debra Clark, sued Robert Clark, Sr. for negligence. The trial court granted summary judgment for Robert Sr. based on his assertion of the Indiana Guest Statute as an affirmative defense. The Guest Statute bars suit for injuries against the operator of a vehicle by a family member of the operator, or a hitchhiker, provided the injury occurred while the person “was being transported without payment in or upon” the vehicle. The statute allows an exception for “wanton or willful misconduct” by the driver.
Continue reading

July 13, 2012

Liability of Drivers and Their Employers in Distracted Driving Accidents

by Parr Richey Frandsen Patterson Kruse LLP

Drivers have dealt with distractions since the invention of the automobile. The explosive growth in the use of cell phones, however, has compounded the risks presented by distracted driving. Drivers who use their cell phones to talk, send text messages, or even read e-mail or web pages cause thousands of accidents around the country every year. A member of the National Transportation Safety Board (NTSB), the federal agency that investigates accidents and recommends safety regulations, went so far as the call distracted driving an “epidemic.” People injured by a distracted driver generally have a clear claim for damages from that driver. While courts have rejected attempts to recover damages from cell phone companies, plaintiffs have recovered from drivers’ employers, when the driver was engaged in work-related activities.

Distracted driving accounted for as many as 3,092 deaths in traffic accidents in 2010, according to the federal government. It was a factor in up to eighteen percent of all injury accidents that year. The government identifies three types of distraction:

– Manual: where the driver takes one or both hands off the wheel.
– Visual: where the driver is not watching the road.
– Cognitive: where the driver’s attention (or mind) is not on the road.

Studies have suggested that even the use of a hands-free device like a headset does not improve overall safety, because it does not reduce cognitive distraction.

Indiana, like most states, has enacted laws restricting the use of cell phones while driving. Thirty-nine states, including Indiana, and the District of Columbia prohibit text messaging while driving. Indiana also prohibits drivers under the age of eighteen from any cell phone use while driving. Other laws include a ban on all handheld cell phone use (ten states and D.C.), and handheld cell phone use by school bus drivers (nineteen states and D.C.) No state has a ban on all cell phone use, including hands-free devices, although the NTSB recommended such a ban last year.
Continue reading

July 6, 2012

Study Ranking States’ Success at Injury Prevention Gives Average Scores to Indiana

by Parr Richey Frandsen Patterson Kruse LLP

Indiana ranks in the middle of the fifty states and the District of Columbia when it comes to injury prevention, according to a recent study. The study, entitled “The Facts Hurt: A State-By-State Injury Prevention Policy Report,” is the work of the Trust for America’s Health (TFAH), a health care policy organization, in partnership with the philanthropic Robert Wood Johnson Foundation. The study ranks states and D.C. based on ten “key indicators” relating to injury prevention laws or regulations. Indiana has five of the ten. It also ranks the states based on the total number of annual injury-related deaths per 100,000 people. With a rate of 60.4, Indiana ties Kansas for the twenty-seventh highest rate.

The study analyzed injury data, which it says account for 180,000 deaths per year in America. The lifetime costs of injuries in the U.S., which includes both immediate costs and ongoing care needs, as well as lost income and productivity, exceeded $406 billion in 2000. Injuries, as compared to communicable and non-communicable disease, are the leading cause of death for Americans between the ages of one and forty-four. At 97.8 njury-related deaths per 100,000 people, New Mexico has the highest annual rate. New Jersey, with 36.1, has the lowest. Indiana and Kansas, tied at twenty-seventh, are almost exactly in the middle.
Continue reading

July 6, 2012

Pre-Litigation Mediation and Settlement in Personal Injury Cases

by Parr Richey Frandsen Patterson Kruse LLP

Many personal injury victims are surprised to learn that they may settle their claims without needing to file a lawsuit. In fact, many personal injury cases are settled during the beginning stages of the claim (some lawyers would argue this is becoming more and more rare). Early settlement may occur when there is little or no question that the other driver is liable for causing injuries to the personal injury victim, such as when the driver has admitted responsibility. It may also happen when liability is still in question, but the personal injury victim’s injuries are especially severe, or if there is insufficient limits of liability coverage.

During the pre-litigation process, a victim’s personal injury lawyer can verify that the other person has insurance coverage, and also whether the victim’s own insurance policy provides coverage for the accident as well. A victim’s personal injury lawyer can also investigate the facts surrounding the accident. In doing so, he or she may review the police report, interview the witnesses, and inspect the scene of the accident in order to determine how the accident occurred and who is at fault. He or she will most likely review your current and prior medical records, to prove that your injuries stem from the accident and to understand how they relate to any preexisting medical conditions.

Once this has been done, a victim’s personal injury attorney can begin to determine what the victim’s legal claim may be worth financially. This is generally expressed as a range of values because of the uncertainty of settlement negotiations and trials. At some point, the personal injury attorney may propose a pre-suit settlement to the insurance company in an effort to get the compensation the victim is entitled to without having to file a lawsuit in the court system. Generally, the insurance company will respond with either an offer to settle or a request for additional information. That additional information may include a statement from the victim, copies of person’s medical records and tax returns, an independent medical examination and/or any other information the insurance company feels is important in understanding the victim’s case. Once the insurance company has all of the necessary information, it should be in a position to make a settlement offer.

June 12, 2012

Exploring the Limits of Indiana Rule of Evidence 702

by Parr Richey Frandsen Patterson Kruse LLP

More and more often, trial counsel try to impose the requirements of Indiana Rule of Evidence (“IRE”) 702 to limit and/or exclude expert testimony. Certainly, in the context of personal injury litigation, the parties can be expected to battle about who is qualified to render an expert opinion as to whether the collision, fall, etc. caused the plaintiff’s personal injuries. In recent cases handed down by the Indiana Supreme Court (Bennett v. Richmond, 960 N.E.2d 782 (Ind. 2012); Person v. Shipley, 962 N.E.2d 1192 (Ind. 2012)), we see challenges to expert testimony that went too far with arguments for more stringent requirements than are required under IRE 702. Fortunately, the Supreme Court has provided much needed guidance in this regard that will hopefully prevent unnecessary attempts to exclude proper expert testimony.

We have seen challenges to a psychologist/neuropsychologist’s qualification to testify as to the cause of a person’s brain injury. In Bennett, a psychologist testified that the plaintiff had a traumatic brain injury that was caused by the rear-end motor vehicle collision in which he was involved (plaintiff’s van was struck in the rear by a 42,000 pound truck). Defense counsel objected to this testimony, arguing the psychologist’s opinion was inadmissible under IRE 702.

It is clear that in Indiana a psychologist may testify as to the existence of a brain injury or the condition of the brain in general – the question addressed in Bennett was whether psychologists/neuropsychologists may testify as to the cause of a brain injury.

In Bennett, the Court of Appeals had agreed with the defense argument that psychologists who are not medical doctors, but otherwise qualified under IRE 702 to offer expert testimony as to the existence and evaluation of a brain injury, are not qualified to offer an opinion about causation without demonstrating sufficient medical expertise in determining the etiology of brain injuries. However, this standard goes beyond that which is required under IRE 702. Even though the psychologist did not have medical education or training regarding etiology of brain injuries, the Supreme Court held this was not fatal under an IRE 702 analysis because the psychologist demonstrated: his knowledge of how a brain injury might result from the whiplash motion experienced in a rear-ending accident; how such a brain injury results in symptoms similar to those experienced by the plaintiff; and how psychological and neuropsychological testing reveals the relationship between that brain injury and behavior.
Continue reading

March 11, 2012

Indiana Court of Appeals Awards Prejudgment Interest to Plaintiff in Lake County Auto Accident Case

by Parr Richey Frandsen Patterson Kruse LLP

In Kosarko v. The Estate of Herndobler (Cause No. 45A03-1012-CT-668), the Lake County trial court denied a motor vehicle collision plaintiff prejudgment interest. Margaret Kosarko (plaintiff) was injured in an automobile accident involving Daniel Herndobler. Kosarko sued Herndobler for her injuries arising from the crash.

Herndobler died while his case was pending and the administrator of his estate was substituted as the defendant. On March 18, 2008, Kosarko served the administrator with a settlement offer of $100,000 payable within sixty (60) days, but it was not accepted. Following a jury trial, a verdict was returned in favor of Kosarko in the amount of $210,000. Kosarko filed a motion with the trial court for prejudgment interest and the trial court denied the motion.
Continue reading