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Before an Indiana premises liability lawsuit reaches trial, the plaintiff’s case will likely be challenged by the defendant through a process called summary judgment. Summary judgment is a procedural mechanism by which a court can summarily rule in one party’s favor when there are no factual disputes in the case, and the moving party is entitled to judgment as a matter of law.

Fallen TreeIn order to survive a defense motion for summary judgment, a plaintiff must establish that there is a factual dispute that requires a fact-finder to make the ultimate determination. This likely means presenting evidence that contests some assertion made by the defense. For example, evidence showing that a traffic light was green when the defendant claims it was red may give rise to a factual dispute that needs resolution. Alternatively, if no factual dispute is present, a motion for summary judgment may be defeated by showing that the defendant is not entitled to judgment under the applicable law. A recent personal injury case illustrates how courts apply the summary judgment standard.

The Facts of the Case

The plaintiff was a tenant in the defendant’s apartment complex. During a storm, a tree on an adjacent piece of property fell onto the apartment building where the plaintiff lived. The plaintiff attempted to get the defendant to remove the tree, but the defendant was not responsive to the plaintiff’s request. Eventually, the plaintiff contacted a fellow resident of the complex whom she knew to help the defendant out with maintenance around the complex.

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Before any Indiana personal injury case reaches trial, the parties must go through the pre-trial discovery stage. During the discovery phase of a personal injury lawsuit, the parties are required to exchange relevant evidence, including documents, witness names, and other information, that is requested by the opposing party.

DocumentsSome relevant evidence that is otherwise discoverable, however, is exempt from the rules of discovery if it is covered by one or more privileges. A privilege attaches to a certain class of evidence and is usually based on some public policy concern. For example, the attorney-client privilege protects correspondence between an attorney and his client, based on the idea that a client should trust that he can be honest with his attorney without risking the attorney disclosing the substance of the conversation.

A recent appellate court opinion in a nursing home negligence case upheld the nursing home’s asserted privilege that was based on a state statute.

The Facts of the Case

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All Indiana personal injury cases must be filed within a certain amount of time, or the case will be dismissed and the plaintiff will be without any means of recourse. In Indiana, the statute of limitations for most personal injury cases is two years from the date of the injury. However, this time period can be extended in certain situations.

Cleaned-Out GarageEarlier this month, an appellate court in Georgia issued a written opinion in a premises liability lawsuit raising the question of which of two potentially applicable statutes of limitations applied to the plaintiff’s case. The case goes to show the lengths to which defendants will go to get a case dismissed when there is a potential statute of limitations defense.

The Facts of the Case

The plaintiffs were the parents of a young boy who was injured after a wall collapsed on him while he was living at a home owned by the defendant and rented to the boy’s parents. After their son’s injury, the plaintiffs filed a personal injury case against the defendant. However, while that case was pending, the plaintiffs’ son turned 18. At that point, the plaintiffs agreed to withdraw their case against the defendant so that their son could proceed on his own behalf.

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When someone intends on filing an Indiana wrongful death lawsuit, a thorough investigation must be conducted to determine all of the proper parties that should be named in the lawsuit. In situations in which a government entity is discovered to be one of the potential defendants, Indiana law requires that certain additional steps be taken when naming that entity as a defendant.

RollercoasterUnder the Indiana Tort Claims Against Governmental Entities and Public Employees Act, plaintiffs intending on filing lawsuits filed against government entities must first provide notice of the claim to the government entity. This notice is due either 180 or 270 days after the incident. If a party fails to provide the government entity with notice of the claim and proceeds to file the claim, the court will dismiss the plaintiff’s case.

A recent wrongful death case illustrates the importance of conducting a thorough investigation.

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Earlier this month, a federal appellate court issued a written opinion that will likely be of interest to anyone considering an Indiana product liability lawsuit against a vehicle manufacturer. The case presented the court with the opportunity to answer two questions. First, it addressed whether the lower court was proper in dismissing the plaintiff’s case against the defendant vehicle manufacturer based on a perceived inconsistency in the jury’s verdict. And second, it addressed the issue of, if the plaintiff’s case was sufficient as a matter of law, whether the $1 million damages that the jury awarded him were adequate. Ultimately, the court resolved both questions in favor of the plaintiff.

VW VanThe Facts of the Case

The plaintiff was injured in a roll-over accident when the van he was operating rear-ended another vehicle on the highway. While the initial collision was minor, the plaintiff was seriously injured when the van rolled, and he hit his head on the roof of the vehicle. After the accident, the plaintiff was permanently paralyzed from the neck down.

The plaintiff filed a product liability lawsuit against the vehicle’s manufacturer, making several claims. The plaintiff presented evidence showing that the manufacturer did not conduct any safety testing on the seatbelt mechanism in the van. The plaintiff also had an expert witness testify that, had testing been conducted, the results would have indicated that the seatbelt mechanism was unsafe, and the manufacturer would have likely used a safer mechanism in its place.

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As a general rule, government entities cannot be held liable for Indiana accidents under the doctrine of sovereign immunity. The concept of sovereign immunity has been around since the formation of our country. Essentially, sovereign immunity provides total immunity to government entities and employees for their negligent acts. However, over the years, states have enacted various laws that create exceptions to this general rule, permitting some lawsuits against the government.

Manhole CoversIndiana’s version of this law is called the “Tort Claims Against Governmental Entities and Public Employees Act.” Under the Act, sovereign immunity is waived in some situations in which a government employee’s or entity’s negligent action caused someone’s injuries. However, the Act specifically excludes certain types of lawsuits, including accidents involving discretionary acts, the condition of unpaved roads and trails, and most weather-related accidents.

That being said, the Act permits lawsuits against the government for some common accidents, including car accidents caused by government employees and slip-and-fall accidents occurring on government property. Even when sovereign immunity is waived under the Act, however, the accident victim must comply with a strict set of rules in order for their case to be heard and considered. A recent case illustrates the difficulties one accident victim had when he failed to comply with the notice requirements under a similar act.

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Once a judge or a jury renders a verdict in an Indiana personal injury case, that verdict is final unless one of the parties involved decides to file an appeal to a higher court. Importantly, Indiana appellate courts will not revisit factual determinations of a judge or jury. This means that issues of credibility are not appealable. However, legal claims of error, such as evidentiary issues, can be appealed if the issue is properly raised and preserved below.

Swimming PoolIndiana appellate courts receive thousands of appeals each year, and they employ a strict set of procedural rules to ensure that only the most diligent parties with meritorious claims of error are heard. One of the most commonly encountered rules of appellate procedure is the requirement that a claim of error must be raised at trial in order for an appellate court to consider the alleged error on appeal.

Due to this rule, a party’s failure to raise and preserve an issue at trial will almost certainly prevent that party from bringing the issue to the attention of an appellate court. A recent personal injury case involving a serious slip-and-fall accident illustrates how this rule affected one plaintiff’s ability to recover compensation for his injuries.

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One of the most contested aspects in many Indiana medical malpractice cases is the element of causation. Simply stated, in order to succeed in a medical malpractice case, a plaintiff must not only show that the defendant medical provider was negligent but also show that their negligence was the cause of the plaintiff’s injuries. While this may seem simple in concept, the reality is that causation in medical malpractice cases is very complex. A recent medical malpractice opinion issued by a federal court of appeals illustrates one plaintiff’s difficulty in establishing causation.

SurgeryThe Facts of the Case

The plaintiff was the surviving spouse of a man who died from liver cancer. The plaintiff’s husband suffered from numerous medical conditions, including cirrhosis, and was treated by the local Veterans Administration (VA) hospital.

In 2011, the plaintiff’s husband showed signs of elevated liver function and had a CT scan performed. The VA doctor interpreting the scan results noted that the patient’s cirrhosis was stable but failed to make any other observations or diagnosis.

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Last month, a state court in Georgia issued a written opinion in a workplace accident that is of interest to those considering bringing an Indiana personal injury lawsuit, especially for incidents that occurred in the workplace. The case presented the court with the opportunity to decide if a company should be liable for injuries to an independent contractor that occurred when the independent contractor stepped in a puddle of hazardous chemicals. Ultimately, the court determined that the contractor was fully warned about the risks involved with working at the facility and that the company successfully discharged its duty to the contractor.

Chemical PlantWorkplace Injuries and Workers’ Compensation Claims

As a preliminary matter, it is important to understand the difference between personal injury cases occurring at a job site and workers’ compensation claims. Workers’ compensation claims are technically brought against an employer, and, when appropriate, they often are the sole remedy available to the injured employee. However, when an employee’s injury is due to the negligence of a third party, the employee may have an additional claim for compensation through an Indiana personal injury lawsuit against that third party.

The Facts of the Case

The plaintiff was employed by an independent contractor that performed insulation work. The defendant employed the company for which the plaintiff worked to perform insulation work on chemical tanks. The defendant company required the independent contractors to complete specialized safety training prior to beginning work.

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Indiana is among the several states that has a Dram Shop liability statute, which can act to impose civil liability on establishments that serve alcohol to patrons who later leave the establishment and cause a serious accident. Most commonly, Dram Shop cases involve a patron who leaves the establishment and causes an Indiana drunk driving accident; however, the Dram Shop statute is not limited to drunk driving accidents.

Golf CourseUnder the Indiana Dram Shop statute, an establishment may be held liable for any injury caused by a patron who was served by the establishment. In order to establish liability, the injured party must prove that the establishment knew the patron was intoxicated when they were served, and also the patron’s intoxication was a proximate cause of the accident. A recent case out of Florida illustrates how courts apply Dram Shop statutes to impose liability on establishments that over-serve alcohol.

The Facts of the Case

The plaintiff was the surviving husband of a woman who was killed in a drunk driving accident. The driver who caused the accident had just left a golf course, where he played a round while consuming several alcoholic drinks.

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