Articles Posted in Personal Injury

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Recently, the Court of Appeals of Indiana issued an opinion in a personal injury case discussing the availability of emotional distress damages. Ultimately, the court found in favor of the plaintiff, allowing him to pursue emotional distress damages based on the loss of his wife as well as for the serious injuries his son suffered.

The Facts of the Case

The plaintiff in this case was a man who lost his wife in a tragic home explosion. His son was also seriously injured. According to the court’s opinion, Ceres, the defendant, refilled a propane tank at the plaintiff’s home. However, after filling the tank, Ceres failed to properly check the tank for leaks. The following morning, the plaintiff’s son turned a bedside lamp on, causing an explosion. The plaintiff’s son was able to escape the burning home through a basement window.

A few hours after the explosion, the plaintiff got off work and was driving home when he encountered a roadblock set up by a volunteer firefighter. The plaintiff could see his home was burning and obtained permission to proceed past the roadblock. He parked about 100 meters from his home and saw his son’s badly burned body on a gurney as he walked towards the home.

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In a recent opinion, the Indiana Supreme Court recently carved out an exception to the state’s longstanding negligent infliction of emotional distress rule. The change allows the parents of children who experienced sexual abuse by a caretaker to pursue emotional distress damages. According to the record, a mother filed a lawsuit against a school district after learning that an instructional assistant was abusing the woman’s profoundly disabled daughter. The woman filed a civil lawsuit alleging that she experienced emotional distress after the discovery. A lower court dismissed the claim based on the state’s archaic law that limits these damages to those who witness the injury or death of a loved one. While an appeals court permitted the economic damages to claim, they refused to expand the state’s law to allow the emotional distress claim.

Historically, the bystander rule for negligent infliction of emotional distress allowed recovery to those who experienced distress from witnessing a close family member’s sudden and unexpected death by the at-fault party. The Court loosened the rules in 2000, allowing lawsuits if a person observed the injury or death of family or its “gruesome aftermath.”

In this groundbreaking Indiana case, the Court held that the school owed a duty of care to the woman as a parent of a child at their school. The assistant confessed and pleaded guilty; however, the mother did not discover the abuse until after the confession. At which point, the mother suffered emotional distress, which included bouts of anger and the inability to control her emotions.

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We’ve all felt it—the anxiety of trying to pull out of a parking lot into a busy road. On days where the parking lot and the roadway are busy, the anxiety is even greater because others are waiting on you to find an opening so that they can also get on their way. In these instances, however, the utmost caution is required to avoid an Indiana car accident. Taking unnecessary risks in a busy roadway could lead to fatal consequences, both to the driver and those with whom they share the road.

According to a local news report, two fatalities were reported following an accident outside a gas station. Evidently, a Jeep was exiting a gas station parking lot when it collided with a motorcycle. The motorcycle was driven by a man, and there was a female passenger on the back. Local authorities later reported that both individuals died from their injuries after the crash. Law enforcement and police accident reconstruction are still investigating the cause of the accident and establishing a timeline of events.

Even before pulling out onto a busy road to exit a parking lot, the parking lot itself can be challenging for drivers. When navigating parking lots, drivers are truly tested on both their driving skills and their patience. Sometimes, however, even the most experienced and skillful drivers find themselves in a tough spot because others are distracted and driving carelessly. If an accident occurs in a parking lot, determining who is at fault may be a complicated question. The most common accidents involve (1) a driver backing out of a parking space and colliding with a car proceeding down the road or (2) a driver pulling forward out of a parking space into a car moving down the road.

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The Indiana Supreme Court recently issued a decision in a lawsuit filed by the estate of a deceased individual against an insurance company. The case arose after the individual suffered fatal injuries in an accident caused by two negligent drivers. On behalf of her estate, her personal representative settled the claims for $75,000 with the at-fault parties. Additionally, the personal representative received settlements of $25,000 under the underinsured motorist (UIM) coverage from the woman’s carrier.

The issue arose after the estate requested additional coverage under the woman’s parents’ insurance policy. Her parent’s policy provided coverage of up to $100,000 per person for bodily injury or death. The insurance company opposed the claim arguing that the woman was not a “resident relative” under the policy and in the alternative, even if she was a resident relative, the policy’s offset and anti-stacking provisions bar recovery.

Under the insurance company’s policy, a “resident relative” is a relative who actually resides in the insurer’s home with the intent to continue living there. In this case, the woman packed up her and her children’s belongings, moved them into her parents’ home, officially updated her address, and described the residence as her “new home.”

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When a person is injured and suffers injuries because of another’s negligence, state law allows the injured party to file an Indiana personal injury lawsuit against the negligent party. In instances where the injury occurred because of a government employee’s negligence or on government property, injury victims must deal with additional procedural hurdles. The Indiana Tort Claims Act (ITCA), identifies regulations that apply to individuals who seek compensation from the government. Indiana injury victims must submit a notice of the claim to Indiana city and county governments within 180 days from the date of their injury, and within 270 days if the claim is against the state.

Typically, the ITCA, allows injury victims to sue the government if the claim involves injuries from incidents such as medical malpractice from government health care providers, hazardous conditions at government buildings, motor vehicle accidents with government-owned cars, and other damages because of the government’s negligence.

For example, recently, the 7th Circuit issued an opinion stemming from an accident that occurred at a public swimming pond. In that case, a young girl visited a public swimming pond with her family when she ventured to the deep end and drowned. The public swimming pond was cordoned off by zones and monitored by lifeguards. However, despite these precautions, the young girl’s submersion went unnoticed.

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A trucker severely injured when his trailer contents fell on him as he opened  the trailer door won a partial legal victory when the Indiana Court of Appeals recently overturned a summary judgment against the trucking company whose employee loaded the trailer.

Munster personal injury attorneys will note that while this was a work-related injury, which presumably would entitle the truck driver to workers’ compensation from his own employer, such third-party lawsuits to cover the full cost of losses is not uncommon in Indiana.

The trial court in this case held that both the engine parts manufacturer whose cargo was stowed in the truck, and the trucking company contracted to facilitate transport, did not owe a duty of care to the over-the-road-truck driver, whose employer was contracted by the trucking company to deliver the materials over longer distances. The state appellate court last month reversed this decision, at least as it pertained to the trucking company that contracted with the driver’s employer.

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Indiana businesses may want to take note and review their customer safety and security policies and procedures given a recent appellate court ruling which affirmed a bar owner’s legal duty to be proactive in protecting patrons after a customer was seriously injured in a brawl.

Civil cases like this fall under the umbrella of premises liability. Assuming a person is not trespassing and has a right or invitation to be there (paying customers especially), those who own/control property generally have a duty to exercise reasonable care to shield against known or foreseeable hazards. Whether a property owner can be held liable in these situations varies greatly depending on a host of factors, chief among them whether there is a prior history of dangerous incidents that effectively places the business on notice that more stringent safety measures are needed. The big questions are usually: what constitutes “reasonable” and “foreseeable”, especially when an incident involves a criminal attack by a third-party.

In a recent decision, the main point of contention before the Indiana Court of Appeals was whether the bar owed any duty at all to a patron, given that the fight that resulted in serious injury occurred in the parking lot after closing.

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When our Indiana personal injury lawyers first read the headline referencing a “food truck” and an “explosion,” we assumed the latter was a figure of speech intended to punch up a story on the proliferation of the increasingly popular mobile cuisine, which took off around 2007 amid the economic recession. The industry grew 9 percent annually between 2010 and 2015. Unfortunately, the headline was referring to an actual explosion involving a food truck in June 2015 as it was stationed in the parking lot of an auto salvage yard in Indianapolis, where customers – including plaintiff – were being served.

The case history here is extensive, but the crux of the Indiana Court of Appeals’ decision in the defendants’ favor was that plaintiffs failed to prove defendant property owner could have reasonably foreseen the possibility of a food truck blowing up on-site. At first glance, that seems a reasonable position. However, it turns out there have been a number of serious – and even deadly – food truck explosions across the U.S. in recent years.

In June 2014 – a year almost to the day of the Indiana food truck explosion – a propane tank on a food truck in Philadelphia exploded while customers were being served. Local news reports indicated that the force of the blast sent the metal tank 50 feet into a nearby backyard and flames shooting up 200 feet into the air. As a result of that incident, a 42-year-old woman and her 17-year-old daughter who were inside the truck, were killed after suffering major burns across much of their bodies. Three bystanders – including a little girl – also sustained serious burns and others were hit by debris. An investigation later revealed the 70-year-old propane tank was improperly filled, resulting in a gas leak and ultimately the explosion. Continue reading

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In a workplace injury lawsuit relevant to future Indiana work injury claims, the U.S. Court of Appeals for the Seventh Circuit ruled that a company responsible for equipment maintenance could not be held liable for a forklift injury resulting from failure to warn an employer about the risk of not installing an alarm. There was no question the forklift wasn’t designed, manufactured or shipped to the original purchaser with a backup alarm. Further, as of the date of the accident (in mid-2013) there was no regulation that required the equipment to have one. Defendant did service the forklift several times prior to an accident (during which the heavy machinery rolled over a worker’s foot). The most recent had been just a few months prior. The technician couldn’t recall if the forklift had a backup alarm, but if it did, he didn’t make note of it in his report.

After the accident, the injured worker’s employer asked another company to install a backup alarm. That company’s technician affirmed there was no alarm already on it.

Although workers’ compensation is the exclusive remedy a worker has for an Indiana work injury (same goes for workers in Illinois, where this accident occurred), what is allowed is third-party liability. As Munster work injury attorneys can explain, this means that if a third-party – someone other than an employer or co-worker – was responsible for causing an injury that occurred in the course and scope of  employment, that party can be held liable for negligence. Workers aren’t compensated twice, but a third-party negligence claim may entitle injured workers to collect more than they would otherwise be able to collect from workers’ compensation (which is generally limited to a portion of lost wages and medical bills).

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Indiana work injuries have been on the decline in recent decades, with roughly 60 percent fewer non-fatal occupational injuries and illnesses reported statewide since 1992. Still, a recent annual report by the Indiana Department of Labor reveals there were still 84,300 reported work injuries in Indiana, with nearly half requiring one or more days away from work or days with job transfer or restriction.

If you are an employee injured at work, your exclusive remedy against your employer is usually workers’ compensation, outlined in IC  22-3-2 through IC 22-2-6, which gives you just 30 days to submit notice to your employer and 2 years in which to formally file a claim for benefits. This assumes, of course, that you are actually an employee and not an independent contractor (a designation on which your employer doesn’t have the last say and which is often legally disputed). It also assumes your injury occurred in the course of and arose out of the scope of your employment. Workers’ compensation is meant to cover all related and reasonable medical expenses, a portion of lost wages, funeral expenses and other benefits, depending on the circumstances. However, securing full benefits to which you are entitled is often a challenge. In some cases, workers may have grounds to pursue a personal injury lawsuit for third-party liability if someone other than an employer or coworker was at-fault. An experienced work injury lawyer in Gary can best help protect your rights following a serious on-the-job injury.

The Indiana Department of Labor reports the most hazardous industries in the state for work injuries include agriculture and forestry, healthcare and social assistance, manufacturing, waste management, transportation and warehousing, arts/recreation/entertainment, accommodation and food service.  Continue reading

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