Articles Posted in Personal Injury Litigation

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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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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Most people are aware that when a drunk driver causes an Indiana car accident, that driver can be held responsible for any injuries that occur as a result of the accident through an Indiana personal injury lawsuit. What may come as a surprise to some readers is that, under Indiana’s Dram Shop law, if the drunk driver was served by a bar or restaurant to the point of intoxication, that establishment may also be named as a defendant in the drunk driving lawsuit.

CocktailDram Shop laws are present in some form in most states. Essentially, Dram Shop laws allow for victims of a drunk driving accident to hold an establishment that over-served a drunk driver financially responsible for their injuries. In Indiana, an establishment may be liable if the person who served the driver had actual knowledge that the driver was intoxicated. It also must be shown that the driver’s intoxication was the proximate cause of the accident victim’s injuries. When it comes to proving actual knowledge that a driver was intoxicated, courts will look at all of the surrounding circumstances, such as the number of drinks the driver was served, the manner in which the driver was acting, and any eyewitness accounts of the interactions between the driver and employees of the establishment. A recent case out of Florida illustrates how one court applied the state’s Dram Shop law.

The Facts of the Case

The plaintiff was the surviving loved one of a man who was killed in a drunk driving accident involving another driver. The at-fault driver had just come from the defendant golf course, where he played a round of golf while enjoying several alcoholic drinks. The plaintiff filed a wrongful death lawsuit against the golf course.

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Anyone who has been involved in an Indiana car accident knows that dealing with insurance companies in the wake of the accident can be a real headache. While insurance is mandatory in all states and should act to provide compensation to car accident victims, the reality is that insurance companies are for-profit companies that are financially incentivized to pay out as little as possible for each claim.

Smashed WindshieldIn many cases, insurance companies will approach an accident victim early in the recovery process in hopes of getting to them before they speak to an attorney. An employee of the insurance company may try to act like they know what is best for an accident victim, and they will often explain that the claim is worth a certain amount and offer to settle the claim. However, accident victims should be careful when discussing their claims with anyone from the insurance company because in most cases, the offers made to an unrepresented accident victim are low-ball offers to settle claims that may be worth much more.

In other cases, insurance companies will outright deny an accident victim’s claim. This is especially the case when there are unusual facts surrounding the accident. In such cases, the accident victim may be left with no choice but to file a personal injury lawsuit, seeking to compel the insurance company to cover the claim. That is exactly what happened in a recent car accident case in Rhode Island.

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Earlier this month, a state appellate court issued a written opinion in a lawsuit that was brought by the parents of a young girl who was injured while playing on a zip-line at her school’s playground. The case required the court to determine if the zip-line constituted a “dangerous condition” under the state’s government immunity statute. Finding that it did not, the court dismissed the plaintiff’s lawsuit against the school.

Zip LineThe Facts of the Case

The plaintiff’s daughter was playing on a zip-line in her school playground when she fell to the ground, fracturing her wrist and arm. The parents filed a premises liability lawsuit, claiming that the school was negligent in placing the zip-line in the playground, where children could access it without the assistance of an adult.

Before the case reached trial, the school filed a motion for summary judgment, asking the court to dismiss the case based on the school’s asserted government immunity. The state statute at issue provided that a government entity is entitled to immunity from any personal injury lawsuit unless an exception applies. One such exception is the recreational area waiver, which removes immunity when an injury was caused by a “dangerous condition” of any public facility.

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Earlier this month, an appellate court in West Virginia issued an interesting opinion involving the potential liability of a government entity in a dog bite case. The case required the court to determine if a city may be held liable for a plaintiff’s injuries sustained after being attacked by a dog when the plaintiff had made the city aware of the dog and the dangers it posed. The court ultimately decided that a jury should be able to decide if the city should be held liable.

Pit Bull MixThe Facts of the Case

The plaintiff’s husband was viciously attacked by several dogs and later passed away due to his injuries. The dogs were not in any way owned or managed by the city. However, the plaintiff filed a wrongful death claim against the city’s dog warden, claiming that the warden was reckless in failing to address the dangerous animals.

Evidently, the plaintiff had called 911 to report the dogs on at least one prior occasion. In response to her calls, the dog warden told the plaintiff that “the county would take care of it.” The plaintiff also presented evidence that the dog warden knew of the dogs’ dangerous temperament. Specifically, the dog warden had been out to the owners’ home, and one of the dogs that attacked the plaintiff’s deceased husband jumped on the warden’s car. The warden later issued the owner a citation for failing to keep the dog caged or chained.

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Earlier this month, an appellate court in California issued a written opinion in a car accident case that was brought by a woman who was run over by a truck as she was on location fighting a wildfire. The court ultimately determined that since the woman’s injuries were caused in the course of her employment as a firefighter, she was not able to pursue a case against the driver of the vehicle that ran her over.

FiremenThe Facts of the Case

The plaintiff was a firefighter who was called out to assist in fighting a particularly serious wildfire. The team of firefighters had set up a base camp in the middle of a race track, where there were restrooms and showers. Most of the firefighters camped a short distance from the racetrack. However, by the time the plaintiff arrived at the camp, all of the sites were taken, and she had to search for another place to sleep.

The plaintiff sought permission from her supervisor to set up camp in the middle of the race track, near where base camp was set up. She was granted permission and set up camp. However, on the second night staying there, a truck that was driven by a government contractor ran over the plaintiff as she was sleeping. She sustained serious injuries and filed a personal injury lawsuit against the truck’s driver and several other government entities.

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Last month, a state appellate court issued a written opinion in a premises liability case brought by a man who claimed he slipped and fell in a fast food restaurant. The case presented the court with the opportunity to discuss how lower courts should handle summary judgment motions filed by the defendant when conflicting facts exists. Since summary judgment is only appropriate when the moving party is entitled to judgment as a matter of law, when a court is presented with conflicting or contradictory theories, summary judgment is not appropriate, and the case should be presented to a jury for resolution of the contested facts.

Slippery WarningThe Facts of the Case

The plaintiff slipped and fell as he was exiting the restroom in the defendant fast food restaurant. According to the plaintiff, he fell after he exited the restroom but before he could reach the back of the line. Evidently, as he planted his left foot to make a right turn, his foot slipped out from underneath him. He claimed an oily substance on the floor caused his fall.

The restaurant presented the court with video evidence of the line, as well as the cash-register area. The video showed a man, who appeared to be the plaintiff, slipping but not falling. The restaurant claimed that this showed that the plaintiff was lying about falling and asked the court to strike his testimony. In the alternative, the restaurant argued that the hazard allegedly causing the plaintiff’s fall was “open and obvious” because the lobby area in the video had recently been mopped, and an employee placed a “wet floor” sign near the area to warn customers.

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Earlier this month, an appellate court in Georgia issued a written opinion in a premises liability lawsuit brought by a number of people who were injured when the rear deck of a home owned by the defendant and rented to several of the plaintiffs disconnected from the home and fell to the ground. Ultimately, the court concluded that the landlord may not be held liable for the plaintiffs’ injuries because there was insufficient evidence showing that the landlord knew the deck may have been in need of repair. As a result of the court’s decision, the plaintiffs’ case was dismissed.

Wood DeckThe Facts of the Case

The landlord rented a home to several of the plaintiffs. Back when the landlord purchased the home in 1988, he hired an independent contractor to rebuild the home’s rear deck. In 2010, the landlord leased the home to several of the plaintiffs. At around the time when the plaintiffs took possession, the landlord visited the home, repaired a few boards on the rear deck, and inspected the deck for any visible defects. The landlord did not notice anything in need of structural repair.

A year after the plaintiffs moved in, they were hosting a barbecue when the rear deck pulled away from the home. The portion of the deck nearest to the home fell to the ground, injuring several of the people on the deck. A personal injury lawsuit was filed against the landlord, claiming that he was negligent in maintaining the deck.

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Earlier this month, a state appellate court issued a written opinion in a dog bite case requiring the court to determine if the lower court was proper to dismiss the case based on a lack of evidence of the defendant’s knowledge that the dog that bit the plaintiff was dangerous. Ultimately, the court determined that the lower court should not have dismissed the case because there was sufficient evidence to show that the dog’s owners may have had knowledge of the dog’s aggressive and dangerous nature.

Sleeping DogThe Facts of the Case

The plaintiffs were neighbors with the defendants and would routinely visit over at each other’s homes. About a week prior to the incident giving rise to this case, the defendants’ son moved back into their home, and they allowed him to bring his dog, Rocks. During Rocks’ first week with the defendants, he snapped at one of the defendants once while she was feeding him. Rocks also snapped once at the plaintiff’s husband while he was over visiting the defendants.

A few days later, the plaintiff came to visit the defendants. She entered through the backyard gate and saw the defendants’ son had Rocks on a leash. The plaintiff approached Rocks and extended her arm gently, and Rocks lunged at her. Rocks latched onto the plaintiff’s arm. The plaintiff attempted to run away, but Rocks then latched onto her leg. Eventually, the plaintiff was able to get away, but she sustained serious injuries as a result of the attack.

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