Articles Posted in Personal Injury

Recently, a state appellate court issued a written opinion in a personal injury case that raises an interesting issue confronting many Indiana car accident plaintiffs. The case required the court to determine if the plaintiff’s insurance company was required to provide underinsured motorist coverage in an accident involving a horse-drawn carriage. Ultimately, the court took a close look at the insurance policy’s language before determining that the policy did not cover the accident.

The Facts of the Case

The plaintiff was a passenger on a horse-drawn carriage that had just finished participating in a Christmas parade. After the parade, and while on the way back to the plaintiff’s vehicle, the carriage was rear-ended by another vehicle. The plaintiff sustained serious injuries as a result of the collision.

The plaintiff filed a personal injury lawsuit against several parties, but relevant to this discussion, a claim was filed against his own insurance policy under the policy’s underinsured motorist clause. That clause provided coverage for an accident involving “a land motor vehicle or trailer of any type” with inadequate insurance coverage. The policy also defined the term “trailer” as a vehicle that was designed to be pulled by a car, truck, or van.

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Earlier this month, a federal appellate court issued a written opinion in a personal injury case requiring the court to determine if a plaintiff’s case against a ski resort could proceed toward trial despite the fact that she had signed an accident-release waiver prior to her injury. After reviewing the applicable law, the court concluded that the release waiver was enforceable and that the plaintiff’s lawsuit was barred as a matter of law. The case presents important issues for Indiana personal injury plaintiffs, since accident-release waivers are commonly used as a defense in certain Indiana negligence cases.

The Facts of the Case

The plaintiff arranged to take a ski lesson at the defendant resort. Prior to getting out on the mountain, the plaintiff was presented with an accident-release waiver and asked to sign it. The waiver essentially stated that the plaintiff understood and appreciated the risks involved in skiing, that she accepted the risks, and that she agreed not to hold the resort liable in the event she was injured.

The plaintiff was later issued a lift ticket, which contained similar language on the reverse side of the ticket. The plaintiff proceeded with her lesson.

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Earlier this month, a state appellate court issued a written opinion in a car accident case that illustrates an important point for Indiana car accident victims. The case involved the plaintiff’s appeal after a jury found that the defendant was liable for the car accident but did not award the plaintiff any compensation for future medical expenses. Ultimately, the court concluded that the testimony of the expert witness presented by the plaintiff was equivocal in stating that the plaintiff’s need for future medical treatment was due to the car accident.

The Facts of the Case

The plaintiff was injured in a car accident that was undisputedly caused by another driver. The at-fault driver did not possess sufficient insurance to cover the plaintiff’s injuries, so the plaintiff filed an underinsured motorist claim under her own insurance policy.

The plaintiff’s insurance company denied the claim, taking the position that the injuries the plaintiff claimed she sustained in the accident were actually pre-existing at the time of the accident and thus were not covered under her policy. In support of her claim, the plaintiff had the orthopedic surgeon who treated and operated on her testify to the care he provided as well as his estimation of what the plaintiff’s future medical needs would be.

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Earlier this month, an appellate court in California issued a written opinion in a premises liability lawsuit that was brought by a man who was seriously injured while crossing the street after parking in the defendant’s off-site parking lot. The case presents an issue that often comes up in Indiana premises liability cases:  specifically, whether the defendant landowner owed the plaintiff a duty of care under the facts of the case.

The Facts of the Case

The plaintiff was a petitioner at the defendant church. On a rainy evening, the plaintiff drove to the church for an evening seminar. Upon arriving at the church, the plaintiff realized that the on-site parking lot was full. A church volunteer directed the plaintiff across the street, to the church’s off-site parking lot. The parking lot was located immediately across a five-lane road.

The plaintiff parked in the off-site parking lot. He exited his car and, rather than walk the 50 to 100 feet to the nearest intersection, attempted to cross right where he had parked. As he was partially across the road, he was struck by a passing vehicle.

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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.

Workplace 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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Earlier this month, an appellate court in Wyoming issued an opinion in a premises liability lawsuit brought by the parents of a middle-school student who fell while playing on a patch of ice with friends. The court ultimately affirmed the dismissal of the plaintiffs’ case, based on the fact that the allegedly hazardous condition that caused the boy’s fall was “obvious and natural” at the time of the accident. The fact that the school administration had applied snow-melt in the general area did not change the court’s analysis.

The Facts of the Case

The plaintiffs were the parents of a middle-school student who was playing on a patch of ice in the school parking lot with some friends when he slipped and fell, breaking a tooth and fracturing his nose. According to the facts as discussed in the court’s opinion, the patch of ice was large and noticeable. In the days before the accident, there were trace amounts of snow and rain.

After the accident, the boy’s parents filed a premises liability lawsuit against the school, arguing that it was negligent in allowing the ice to accumulate. Evidence presented showed that school employees cleared snow or ice from the parking lot daily and applied snow-melt when necessary.

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Many personal injury cases require the testimony of at least one expert witness. Expert witnesses are used to establish certain facts that are beyond the common knowledge of lay witnesses. For example, in medical malpractice cases, expert witnesses are commonly used to explain to the jury what the standard procedures are in certain medical situations.

The selection of an expert witness is critical for several reasons. First, a selected expert should appear credible to both the judge and the jury, rather than looking like a “hired gun.” After all, many personal injury cases come down to a “battle of the experts,” in which each side has competing experts offering diametrically opposed opinions on the same subject. Second, an attorney should have a fairly good idea of what an expert’s opinion will be before retaining that expert. A party’s failure to know what an expert’s opinion will likely be can result in wasted time and expense. Furthermore, as a recent case indicates, careless expert selection can potentially provide favorable evidence to the opposing party.

Malashock v. Jamison:  The Defendant Seeks to Depose the Plaintiff’s Unused Expert

Malashock was injured in an accident involving the utility vehicle he was operating. He filed a personal injury lawsuit against the company that sold him the vehicle. Before the trial began, Malashock identified several expert witnesses by name and indicated the subject of their testimony. At no point was any of the experts’ reports provided to the defense.

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Earlier this month, an appellate court in Delaware issued an opinion in a personal injury case brought by the family of a young girl who was struck by a car while she was about to board her school bus. The case presented the court with an interesting question:  whether the school bus’ insurance company could be responsible for the girl’s injuries when the bus driver was not at all involved in the physical collision, but he told the girl to board the bus moments before she was struck.

State Farm Mutual Automobile Insurance Co. v. Buckley

The plaintiff was a young girl who was waiting at the bus stop on her way to school. The bus arrived, and the driver signaled for the girl to board the bus. However, as she was about to board, another car – the driver of which is not named in this lawsuit – struck the girl, causing her serious injuries. This case involves the claim made by the girl against the company that insured the school bus.

The defendant claimed that the insurance policy should not be triggered because there was no accident involving the school bus. On the other hand, the plaintiff argued that the young student was merely following the school bus driver’s instructions when she boarded, and this fits within the definition of an accident under state law.

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Earlier this month, the Supreme Court of Utah issued an opinion in an interesting case considering the age at which young children can be held legally responsible for their own negligent actions. In the case, Neilsen v. Bell, the court was not provided the opportunity to consider whether the parents were liable, and it had to look solely at the individual liability of the young child.

The Facts of the Case

The case arose when the Bells’ four-year-old son injured his babysitter. According to the court’s written opinion, Neilsen was the woman the Bells chose to watch their son while they were away. On the day of the incident, the four-year-old boy threw a toy at Neilsen’s face, striking her in the eye. This ultimately caused her to completely lose sight in that eye.

Neilsen filed a lawsuit against the boy and his parents. The first claim alleged that the parents were negligent in their supervision of the child. This claim failed in the lower court, most likely since the child was in the plaintiff’s control at the time of the incident, and she agreed to assume care of the boy.

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Earlier this month, the Supreme Court of Mississippi dismissed a case brought by the husband of a woman who died while in the care of the defendant because the plaintiff re-filed the case after the applicable statute of limitations had expired. In the case, Thornhill v. Ingram, the plaintiff alleged that the defendant’s failure to diagnose and treat his wife led to her early death. Accordingly, he filed suit against several of the treating medical professionals, as well as the facility where his wife was cared for.

However, although the case had been filed shortly after the passing of his wife, the plaintiff did not make appreciable efforts to bring the case to trial. Eight years later, the defendant asked the court to dismiss the case for lack of prosecution.

After considering both sides, the trial court agreed with the defendant and dismissed the case without prejudice. This meant that the plaintiff would be able to re-file the case if and when he chose to do so.

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