Plaintiff’s Appeal Dismissed for Failure to Raise Issue at Trial

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.

The Facts of the Case

The plaintiff was injured while he was being shown a home for sale by the defendant realtor. The realtor had inspected the property, including the empty swimming pool in the backyard, and had the pool professionally serviced. During the plaintiff’s tour of the home, he stepped on the diving board adjacent to the pool to peek over the fence. As the plaintiff placed his weight on the board, it broke, resulting in a serious injury to the plaintiff.

The plaintiff filed a premises liability lawsuit against the realtor, claiming that the realtor was negligent in the maintenance of the diving board. At trial, the plaintiff was unable to produce any evidence that the diving board was visibly defective, and judgment was entered in favor of the realtor.

The plaintiff appealed, arguing that the swimming pool itself was a dangerous condition, which was clearly visible, and that the realtor was negligent in properly securing and maintaining the pool. The appellate court refused to consider the plaintiff’s alleged claim of error because the complaint listed the diving board as the dangerous condition, whereas the appeal listed the swimming pool as the dangerous condition. Since the lower court was not presented with the argument about the swimming pool being a dangerous condition, the court held that it would be improper for it to consider the argument on appeal.

Have You Been Injured in an Indiana Slip-and-Fall Accident?

If you or a loved one has recently been injured in an Indiana slip-and-fall accident, you may be entitled to monetary compensation. The skilled Indiana personal injury attorneys at the law firm of Parr Richey Frandsen Patterson Kruse have extensive experience handling a wide range of Indiana personal injury cases, including premises liability cases. We are careful to include all possible theories of liability in order to avoid an unnecessary delay or dismissal. Call 888-532-7766 to schedule a free consultation with an Indiana personal injury attorney today.

Related Posts:

Case Claiming Toxic Exposure to MDI Dismissed for Failure to Retain Expert on Causation, Indiana Injury Lawyer Blog, July 6, 2017

How Indiana’s Dram Shop Law Can Help Victims of Drunk Driving Accidents, Indiana Injury Lawyer Blog, August 8, 2017