Indiana Injury And Family Lawyer Blog

April 5, 2017

Indiana Bicycle Accident Ruling Favors Defendant City

An Indiana bicycle accident claim will go no further after the Indiana Court of Appeals ruled the trial court was wrong to deny summary judgment favoring the defendant city.

According to court records in the case, the plaintiff, a mountain biker, suffered injuries to his kidney and spleen after falling from his bicycle on a portion of the Town Run Trail Park that runs through Indianapolis. The city contracts with a local mountain biking association to maintain the trails, which are rated based on difficulty and skill level required. In early 2011, an Eagle Scout designed and constructed a technical feature on the trail. The feature is best described as a berm. It created a banked wooden turn. Approaching riders would have three options: avoid it by staying on the dirt path, enter and ride on the low grade, or negotiate the turn and take the more challenging higher grade.

That summer, the plaintiff and his girlfriend went to the trail to ride for the first time since this new feature was constructed. He had about five years of experience riding, and he’d been on this trail before. However, he had not encountered this new feature. He noted in his deposition that he would usually try to get an idea of a trail’s technical requirements before riding, particularly if he was concerned about a potential danger.

March 16, 2017

Mandatory Bicycle Helmet Laws: Do They Help?

by Burton A. Padove

Many states have bicycle helmet laws, although many of those pertain solely to children under the age of 18. Indiana is not one of those states.

However, in the wake of an increasing number of bicycle accidents across the country, questions are being raised about whether bicycle helmets should be mandatory for all riders. It’s a controversial topic.

We know that people on bicycles are far more likely to suffer head injuries and traumatic brain injuries than people in cars. Cyclists are inherently more vulnerable than other road users, and the lack of a helmet leaves them without protection – and at greater risk of a serious injury – when they strike their heads on vehicles, pavement, or other objects. However, there are some who argue mandatory bicycle helmet laws only serve to drive down the number of people who choose to bicycle. Others say wearing a helmet makes cyclists more confident, more likely to take risks they wouldn’t otherwise.

March 2, 2017

Indiana Woman Injured in Fall Gets New Shot at Trial

by Burton A. Padove

The Indiana Court of Appeals recently reversed a trial court summary judgment favoring the defendant in a claim that originated as a premises liability lawsuit stemming from a trip-and-fall that seriously injured an 85-year-old woman.

According to court records in the case, the question was whether the trial court erred, even though the evidence tended to show the plaintiff, as a business invitee, knew about the dangerous condition on the floor.

The appellate court justices ruled there remained a genuine issue of material fact as to whether the owner of the property should have anticipated the plaintiff’s harm, despite her knowledge of the danger. Therefore, the trial court’s ruling was reversed and the case remanded for further proceedings.

February 16, 2017

Fair Stage Collapse Not Foreseeable, Indiana Appeals Court Rules

by Burton A. Padove

It’s been nearly six years since a deadly stage collapse at the Indiana State Fair killed seven concertgoers and injured 58 others in Indianapolis. Now, the Indiana Court of Appeals has ruled as a matter of law the company paid to provide security to the main event band, Sugarland, could not have reasonably foreseen the collapse of the stage. That ruling in a recent case is one of the last of several personal injury and wrongful death lawsuits filed against some three dozen defendants as a result of the horrific accident.

Back in 2014, attorneys for several of those injured and relatives of some killed reached a $50 million settlement against 19 of 20 defendants, including the state of Indiana, which paid $11 million. The details of how that settlement was paid out (which plaintiffs received what) was kept confidential. It was noteworthy not just for the size of the damages awarded, but also for the fact it was the first time in Indiana a lesbian widow received a settlement for the wrongful death of her wife.

The incident occurred in August 2011 when the opening act had just finished, and Sugarland was preparing to take the stage. A large gust of wind from an approaching severe thunderstorm hit the stage’s temporary roof structure, which caused it to collapse, landing on many in the crowd. The issue of foreseeability was raised because there were numerous reports, notices, and warnings throughout the day of the concert from the National Weather Service, indicating that severe thunderstorms were likely. These messages were received by state fair officials through the automated text messaging system.

February 2, 2017

Bike Accident Injury Victim Awarded $38M Verdict Against Valet Company

by Burton A. Padove

Attorneys for a severely injured cyclist have succeeded in securing a $38 million verdict against the valet service that employed a driver who reportedly took a shortcut and brazenly sailed illegally across two lanes of traffic. As a result of the crash, the 51-year-old cyclist suffered severe injuries, including traumatic brain injury, a shattered hip, broken ribs, and internal bleeding.

The bike accident occurred four years ago in downtown Seattle, but the circumstances could easily apply to any similar service in any city here in Indiana, where an increasing number of bicyclists occupy the roads. A recent report by Smart Growth America and the National Complete Streets Coalition, Dangerous by Design 2016, indicated that of the top 105 largest metro areas in the country, Indiana’s Indianapolis-Carmel-Anderson area ranked 50th. Comparing state-to-state rankings, Indiana ranked 22nd in the country for pedestrian danger index (PDI), which looks at the number of people who bike and walk to work relative to the number of injuries and fatalities of those travelers. Our rate was 46.3 in 2016, just beneath the national average of 52.5.

But of course, there is no safe state. Consider that Washington, where this devastating bicycle accident happened, ranked 36th on the state comparison list.

January 16, 2017

Wrongful Death Lawsuit: INDOT Liable for Fatal Indiana Crash

by Burton A. Padove

The widow of a man killed in a head-on collision in Indiana two years ago is suing the Indiana Department of Transportation, alleging the state agency is liable for her husband’s death, due to its failure to properly maintain the roadway.

According to The Daily Journal, the decedent was driving his truck on State Road 135 near Trafalgar in December 2014 when another truck came barreling toward him – in his lane – from the opposite direction. The plaintiff’s husband died as a result of the crash, while her son, who was a passenger, was seriously injured, as was the allegedly negligent driver of the other truck.

In a lawsuit filed in Johnson County Superior Court, the plaintiff asserts there is a history of car accidents along that section of roadway that gave the state’s transportation department actual or constructive knowledge that safety improvements were necessary. Specifically, state officials should have installed center-line rumble strips, widened the road, and installed warnings signs near the road curves at the site of the fatal crash.

January 2, 2017

Hudgins v. Bemish – Vicarious Liability of Employer in Indiana Car Accident

by Burton A. Padove

Indiana car accident lawsuits in many cases involve more than just the drivers involved. If a driver was acting in the course and scope of employment or was operating an employer’s vehicle, the company could find itself facing claims of vicarious liability.

Corporate responsibility in such cases is based on the legal theory of respondeat superior, which is Latin for “Let the master answer.” What this means is that one can establish a claim of liability against an employer for the negligent acts of an employee carried out in the scope of employment – even if the employer did not engage in any negligent act. This is an important issue because it can directly affect how much compensation you may be able to collect for your injuries. The key determination that has to be made in order for respondeat superior to apply is whether the employee was acting in the scope of employment. Courts have generally broken this down into a four-part test: whether the conduct is similar to that which the employee was hired to perform, whether the action occurred mostly within the authorized spacial and temporal limits of employment, whether the action furthered the employer’s business, and whether the conduct, although unauthorized, was foreseeable in view of the employee’s duties.

In the recent case of Hudgins v. Bemish, the Indiana Court of Appeals held that a trial court erred in granting summary judgment to a business defendant that argued it was not liable for the negligent acts of its employee. The appellate justices decided there were conflicting facts and inferences that could be drawn as to whether the driver was acting in the course and scope of his employment. Also, the defendant company hadn’t met its initial proof burden for summary judgment on the issues of negligent hiring and retention (which are direct liability claims).

December 15, 2016

Escamilla v. Sheil Sexton Co. – Undocumented Injured Worker to be Compensated in Pesos?

by Burton A. Padove

Undocumented immigrants who are injured on the job in Indiana are entitled to receive workers’ compensation benefits under state law. They are also entitled to pursue third-party compensation from any other liable parties. However, should they be paid in U.S. dollars or in the currency of their native country? That’s the question before the Indiana Supreme Court in Escamilla v. Shiel Sexton Co.

While the question of currency may seem a trivial one, it actually may have a significant impact on how much companies pay workers hurt on the job. Those who argue all workers injured in the U.S. need to be paid in U.S. dollars say that to do otherwise would allow companies that flout the law by hiring undocumented workers to receive an incentive by giving them a means to pay less in compensation in the event of an injury.

Those who are arguing in favor of being allowed to pay in the injured worker’s native currency say it’s not fair that a worker should be allowed to recover damages for lost wages that they can’t legally earn. Furthermore, if those wages were to be paid in the future, they should be based on what the worker might earn in their own country, rather than what they make in the U.S.

December 1, 2016

Indiana Supreme Court Weighs Collateral Source Statute and Government Payers

by Burton A. Padove

Most Indiana personal injury lawsuits involve a claim for reimbursement of medical expenses – past and future. Thus, a central point of contention for some litigants is “what is the reasonable cost of medical care?”

Many courts have accepted that the amount billed for services can be taken at face value as “reasonable” for services rendered. However, defendants are increasingly challenging these amounts, saying they should not be taken at face value as “reasonable.” One thing that constrains this rebuttal, however, is the collateral source rule. Jurisdictions vary greatly on the collateral source rule application and scope, and the law is constantly evolving. Indiana is no exception, as shown in the recent case of Patchett v. Lee, before the Indiana Supreme Court.

In general, American case law prevents the admission of evidence that a plaintiff or victim in a personal injury lawsuit received compensation from a source other than damages sought by the defendant. Thus, for example, if you are injured but had private health insurance that covered a substantial portion of your medical costs, that information would not be subject to review by the jury. The idea is that this could unfairly affect the jurors’ perception of the compensation to which a plaintiff is entitled.

November 16, 2016

Rogers v. Martin – Indiana Supreme Court Weighs Duty of Care for Party Hosts

by Burton A. Padove

The estate of an Indiana man who died following a fistfight at a house party won a partial victory before the Indiana Supreme Court recently, paving the way for at least one wrongful death claim to proceed to trial.

In Rogers v. Martin, the plaintiff alleged the defendant, who co-hosted a house party at which alcohol was served, breached her landowner-invitee duty to exercise reasonable care to protect those on her property and also violated the state’s Dram Shop Act, resulting in harm to another person.

This case highlights the duty of care party hosts owe to their guests, which is an important consideration especially as we’re nearing the holidays, when there tends to be an increase in large gatherings.

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