Articles Posted in Indiana Laws

In many personal injury lawsuits, one of the most important decisions that must be made is which parties to name in the lawsuit. Indeed, in many lawsuits, the at-fault party is not the only defendant named in the case. Depending on the facts surrounding the accident, the at-fault party’s employer is often named as an additional defendant.

In Indiana, when an employee’s actions cause someone injuries, there are two types of claims that can be brought against their employer. The two types of claims are negligent hiring and respondeat superior. While each of these claims allows an injured party to hold an employer responsible, they are very different and, in Indiana, mutually exclusive of one another.

A respondeat superior claim is a form of vicarious liability, meaning that it allows for an accident victim to hold an employer accountable for the negligent employee’s actions. The doctrine holds the employer liable because the employee is seen as the employer’s agent, so to speak. Thus, to prove a respondeat superior claim, a plaintiff must be able to show that the negligent employee’s actions were within the scope of their employment. Otherwise, an employee may be held individually liable for a plaintiff’s injuries, but the employer cannot be liable.

Drunk driving is still a widespread issue throughout the country, which is why many states have developed strict laws to try to address it. In Indiana, the state’s Dram Shop Act (the Act) holds providers of alcoholic beverages liable in Indiana personal injury cases where the providers knowingly serve alcohol to a visibly intoxicated person. In those cases, the providers can be held responsible for any reasonably foreseeable consequences.

There are both criminal and civil penalties under the Act. A provider can be held liable for damages in a civil case if the provider furnishes an alcoholic beverage, and the provider has actual knowledge that the person was visibly intoxicated at the time the alcoholic beverage was provided. The person’s intoxication must also be a proximate cause of the plaintiff’s injuries. This also means that if a person is injured because of the person’s own voluntary intoxication, the person may be able to recover from the provider who furnished the person an alcoholic beverage.

Actual knowledge means that the provider knew that the person was visibly intoxicated. Of course, a provider will not always admit to knowing that, so courts will make reasonable inferences based upon the evidence presented in the case. This might include how many drinks the person consumed and during what period, and the person’s behavior at the time. Experts are often used in these cases because they can provide information about at what point a person would show signs of visible intoxication.

Recently, an Indiana news report covered a fatal car accident that occurred on I-70. According to Indiana State Police, the accident victim was driving on the highway when he swerved into another car. The driver died on impact, and the other driver was taken to the hospital for life-threatening injuries. Investigations revealed that the accident victim was not wearing a seat belt at the time of the accident.

In Indiana, seat belt use is a mandatory requirement that can help to protect many accident victims from severe injuries or death. Seat belts help drivers and passengers by preventing them from flying through their vehicle’s windshield, smashing into the dashboard, or falling out of the car. Seat belts are proven to mitigate the injuries and damages that accident victims suffer during a car accident.

When an individual is involved in an accident with a negligent driver, the other driver may try and limit their liability by pointing to the victim’s failure to wear their seat belt. Insurance companies and defendants might claim that the plaintiff’s injuries and damages would not have been as severe had they were wearing a seat belt. Although this may be true, Indiana law does not allow defendants to use evidence of an accident victim’s seat belt non-use as a factor in a comparative negligence determination.

As a general rule, when one party’s negligence results in another’s injury, the injury victim can file an Indiana personal injury lawsuit against the negligent party in hopes of obtaining financial compensation for their injuries. However, the Indiana state legislature has carved out several exceptions in which certain activities cannot legally be the basis for a personal injury action. Equine activity is one such area of the law.

Equine activity is that which is related to horses and similar animals. Commonly, equine activities refer to boarding, caring for, showing, and riding horses. Under Indiana Code section 34-31-5-1, “an equine activity sponsor or equine professional” cannot be liable for the injury or death of any participant resulting from the risks inherent with the activity. A recent state appellate case illustrates the type of issues that can come up in an Indiana horseback riding accident.

According to the facts of the case, the plaintiff was watching a youth horse race. While the area where the race was held provided a space for spectators, the plaintiff watched the race from a different vantage point. Specifically, the plaintiff chose to watch the race by a barn that was closer to the exit of the area. From where the plaintiff watched the race, she was between five and 15 feet from the track.

In a somewhat surprising decision by the Indiana Supreme Court last month, the Court reversed two lower Courts’ rulings that a Plaintiff’s medical malpractice suit was not filed within the statute of limitations. In the case of Moryl v. Ransone, the Indiana Supreme Court accepted the Plaintiff’s argument that a medical malpractice suit shall be considered filed when the complainant delivers the complaint to a commercial courier service (i.e. UPS or FedEx), and not when the defendant receives the complaint. This appears to be a minor distinction, but in this case it meant everything to the Plaintiff’s case.The Case

On April 20, 2007, the Plaintiff’s husband died while under the care of the Defendant doctors and hospital. The circumstances of the death were suspicious to the Plaintiff, and she pursued a medical malpractice claim against the Defendants. The statute of limitations for an Indiana medical malpractice claim is two years, meaning that a medical malpractice complaint must be filed no more than two years after the alleged malpractice occurred or else it must be dismissed. Here, the Plaintiff mailed the complaint to the Indiana Department of Insurance, using FedEx overnight, on April 19, 2009 – one day before the statute of limitations expired. The Defendant received the complaint on April 21, 2009, or one day after the statute had expired.

The Trial Court’s Decision

When the case was heard by the District Court, the Defendants argued that under Indiana’s Medical Malpractice Act (“the Act”), a complaint is considered filed only when it is sent by US Postal Service Registered or Certified mail. If a complaint is sent any other way, the Act states, it is to be considered filed upon receipt by the Defendant. Because the text of the Malpractice Act is clear that a complaint is only considered filed upon mailing by Certified or Registered mail, and the Defendants received the complaint one day after the statute of limitations expired, the District Court dismissed the complaint under the Act.
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In a recent decision, the federal court for the Northern District of Indiana denied an insurance companies’ request to throw out a plaintiff’s Indiana personal injury lawsuit. In Kopey v. Brown (South Bend Division, 3:11 CV 477), the insurance company argued that because the plaintiff had injuries from a prior accident, that they could not collect damages from a subsequent accident that may have aggravated those prior injuries.A Terrible Accident
The plaintiff was coming to a stop at an intersection in Mishawaka, Indiana in August 2010 when she saw a car speeding towards her in her rear view mirror. She had little time to brace for impact, and was rear-ended by a car being driven by the defendant. The plaintiff was injured in the accident, and previous injuries she had from a 2007 accident were also aggravated. The defendant was not insured, so the plaintiff filed a claim with her own insurance company, Progressive, to cover the expenses related to the accident under her uninsured motorist protection.

Refused Coverage By Her Own Insurance Company
In response to the plaintiff’s insurance claim, Progressive refused to cover the charges. The company argued that she could not show that it was the second accident that caused her injuries and not the first accident or something else entirely. The plaintiff then filed this suit, claiming that her injuries should covered by her policy. In response to her request to bring the case to trial, the insurance company argued that the plaintiff had not presented any evidence of causation, and moved for summary dismissal of the suit.
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Drunk driving claims the lives of hundreds of Indianans each year. Despite that fact, and the known dangers of drunk driving, people continue to drive drunk as a matter of habit. In response, some have suggested that Indiana should follow the lead of several other states and implement a new requirement that all first-time drunk driving offenders have an ignition interlock system installed on their vehicle.What Is An Ignition Interlock Device?

An ignition interlock system is a small box, usually attached to the steering column of the car, that a driver must blow into in order to start the vehicle. If the driver is sober, the car starts as normal. If the driver has alcohol on his or her breath, the ignition locks and that data is recorded and sent to the appropriate authorities.

The device also requires random testing while driving, as to prevent drivers from starting the car sober and then having a drink mid-ride. If a driver fails one of these random tests, the vehicle’s horn will continuously go off until the vehicle is stopped.
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Earlier last week, an iron worker in an ArcelorMittal plant died from blunt force trauma when a blast oxygen furnace rubble pit wall shield fell on top of him. According to a report by the Post-Tribune, the deceased was working alongside two other men to disassemble the large wall shield-measuring 6 x 20 feet-when it came loose and fell on the men.The men had performed the same task before without incident. However, this time after the shield had been freed, it was resting on a hoist chain that was not designed to support the shield’s entire weight. Eventually it began to come free. Two of the men were able to run out from under the falling wall shield in time to avoid the brunt of the impact. These two men suffered cuts and broken bones. However, the third man was unable to get out from under the falling shield and was crushed as it came down atop him.

The accident is being investigated by ArcelorMittal in conjunction with United Steelworkers. In addition, because there was a fatality, the Indiana Occupational Health and Safety Administration has launched an investigation of its own.
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In most cases, Indianans do not use realtors to buy houses, but rather to lease homes. People put their hopes and dreams in the purchase of their home, their castle, to keep their family safe. But what happens when your dream house is not as advertised, when it’s deadly?This July, a negligence lawsuit has been filed by an Indianapolis couple against their realtors after their infant daughter was poisoned by the lead paint used in their rented home. The realty company, Indiana Realty Partners, leased the home, located on North Keeling Avenue, to the couple in 2012. The couple’s daughter, a newborn, began to exhibit some health symptoms after they moved in.

This spring, the couple had their home inspected and medical tests run on their daughter. The inspection of the home revealed “hazardous” levels of lead in the paint, in the soil, and air. Tests conducted on child indicated the she had lead levels in her blood, which the CDC marks as the “reference level which public health actions be initiated.”

The couple’s suit alleges the realtors were negligent and “should have known”, based upon the condition of the home, that the family was being exposed to dangerous lead levels. Furthermore, the allegations recognize Indiana Realty Partners’ failure to provide the EPA’s lead hazard information disclosure. The lawsuit was filed in Marion Superior Court and the realty company has yet to publicly respond to the suit.

The damages sought are undefined, as the injuries caused by lead exposure can include brain damage and other long-term health problems.

This suit comes as another Indiana realty company just moved to dismiss the Indiana attorney general civil lawsuit against the firm for their allegedly fraudulent rent-to-own scheme. A Madison Circuit Court will likely hear arguments alleging that the defendants failed to pay property taxes and insurance premiums for properties advertised and instead used the money for groceries, restaurants, personal expenses for the realty husband-wife team.

No one should have to go through what these families went through, but each year lawsuits in Indiana are filed for fraud and negligence through the purchase of a home. Indiana Code 34-11-2-7(4) allows for a six year statute of limitation action for fraud, but obviously you will want to consult with an attorney once a problem is detected. The legal battle will involve an extensive discovery process because the case hinges upon evidence of the realtor’s knowledge of the defect. It is consequently most advisable to contact a skilled and experienced Indiana personal injury attorney to help ensure a higher likelihood of a more positive outcome for your case.

Furthermore, in instances where it is appropriate for a suit to be filed against a realtor, oftentimes a suit may also be successful against the home inspector and home seller, as realty companies rely on the home inspector’s report. The home inspector’s or seller’s purposeful misinformation can lead to an award based on fraud, plus their unintentional failures to properly inspect could lead to an award for negligence.
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Every month in America, plenty of bizarre lawsuits get filed (like suing Jessica Simpson for baby snatching) but Indiana has had one strange May, with three ‘unique’ cases making national headlines.

Funny Fuzz

The ACLU is stepping up to represent a Greenfield, Indiana police corporal attempting to exercise his constitutional right of speech. The police officer was attempting to exercise this freedom on his license plate through a vanity plate. Corporal Rodney Vawter had a sense of humor when he bought the vanity license plate “0ink” with the obvious humorous self-referencing slang “pig” for police officers. Vawter actually had acquired the license plate years ago, but only was recently denied renewal under a statute referencing Indiana Bureau of Motor Vehicles’ (BMV) right to refuse vanity license plates for “offensive or misleading content”.

The suit beginning with Vawter has developed into a full class action suit against the BMV. The vague content restriction is not constitutional, according to Vawter’s attorney. In furtherance of confusion and unfair enforcement, Vawter’s choice to use a zero for the “o” in oink was as a result of “oink” already have been taken by another Indiana driver.

Archaic Law’s Last CallNot all lawsuits in themselves are bizarre; rather, some attempt to take down the bizarre status quo. One does not need to live in Indiana for long to become familiar with the rather odd way the state of Indiana micro-manages beer sales. The temperature of beer to be sold has long been regulated by Indiana, with cold beer being banned to consumers. However, chilled wines, containing higher levels of alcohol could be sold cold. This archaic unnecessary statute has recently been modified to permit liquor stores to sell beer cold. With this one-sided exception, the Indiana Petroleum Marketers and Convenience Store Association has initiated a lawsuit to be treated equally.

Currently, alcohol ranks third for items purchased at convenient stores. However, according to store owners, if they are allowed to sell beer cold, the item would leap to the number two spot. This would lead to great gains for convenience stores, simplicity for consumers, constitutional fairness, and simply the abolishment of an outdated, silly law (Oklahoma is the only other US state which puts any sort of regulation on the temperature of beer).
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