Articles Posted in Personal Injury

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.

Being involved in an Indiana workplace accident is a stressful experience. Not only must the injured employee worry about physical recovery after the accident, but injured employees must also take time away from work. On top of this, there are often mounting medical expenses that must be paid.

Depending on the circumstances surrounding the accident, an Indiana workplace accident victim may be able to pursue a claim for compensation. However, it is essential that an Indiana workplace accident victim understand the two types of claims that can be made after a workplace accident, as well as the differences between the two claims.

First, an employee who is injured on the job can file an Indiana workers’ compensation claim. The Indiana Workers’ Compensation Act creates a no-fault system, meaning that an employee will not be required to show that their employer was at fault to obtain benefits. However, the benefits that are available through an Indiana workers’ compensation claim are limited, and only include benefits for medical expenses and wage loss.

All Indiana motorists are required to maintain a certain amount of auto insurance to drive legally. Lawmakers’ idea behind creating such a requirement was to ensure that an at-fault motorist had sufficient assets to cover the costs incurred by the victims of their negligence. Thus, even if an at-fault motorist has no assets themselves, their insurance company will defend the case on their behalf and compensate the accident victim up to the policy limit.

In reality, however, dealing with an insurance company after an Indiana car accident can be a major headache. For one, insurance companies are for-profit companies that rely on taking in more money each month in premiums than they pay out in claims. Thus, it is in an insurance company’s interest to pay as little for each claim as possible. Thus, insurance companies routinely deny coverage in hopes that the accident victim is unfamiliar with the process and doesn’t ask any questions. However, insurance companies who deny coverage can be challenged through an Indiana personal injury lawsuit.

A recent case illustrates one plaintiff’s successful attempt to get an insurance company to cover his injuries.

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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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