Articles Posted in Premises Liability

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.

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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.

Chemical PlantWorkplace 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 Alabama issued a written opinion in a premises liability case that was brought by an accident victim against a local city that owned and operated the park where the plaintiff’s injury occurred. The case presented the court with the opportunity to discuss recreational-use immunity and what a plaintiff must show to overcome this immunity. Ultimately, the court concluded that the plaintiff failed to establish a crucial element of her claim in that she did not show that the city had actual knowledge of the hazard that caused her fall.

FireworksThe Facts of the Case

The plaintiff was visiting a park owned and operated by the defendant city. The plaintiff arrived at the park on July 4, in the morning hours. After parking her vehicle, the plaintiff made her way around a set of vertical poles that established the parking area without any problem. However, hours later, when the plaintiff made her way back to her vehicle, she tripped and fell on a diagonal cross-bar that connected two of the vertical poles. Evidence presented to the court suggested that while the area was lit by overhead street lights, the general condition of the lighting was “poor.”

The plaintiff filed a premises liability lawsuit against the city, claiming that the lack of lighting combined with the condition of the vertical poles created a dangerous hazard. In response to the lawsuit, the city had a maintenance supervisor testify that the city had no actual knowledge of the dangerous condition and that there had never been a similar accident reported nor any report of a dangerous condition.

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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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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 in Michigan, one boy was killed and 14 others hospitalized after they were all exposed to what was believed to be carbon monoxide while at a hotel’s indoor swimming pool. According to a local news source covering the tragedy, many of the injured guests were found unconscious in the pool area, which evidently did not have a carbon monoxide detector.

Smoke DetectorResponding authorities took a sample of the air in the indoor pool area and found that there were 800 parts per million of carbon monoxide. The standard for one-hour exposure is just 35 parts per million.

Authorities investigating the accident told reporters that the hotel was not technically required to have a carbon monoxide detector installed. Michigan law requires all new buildings built before December 1, 2009 to have carbon monoxide detectors installed before they are opened to the public. However, older buildings like the hotel were given until April 20 of this year to comply with the requirements.

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An axiomatic law of appellate procedure is that an appellate court can only rule on an issue on which the trial court had the opportunity to rule below. Thus, any argument that a party fails to make during a trial will considered to be waived for the purpose of appellate review. This rule is very important for personal injury plaintiffs to keep in mind, since it means that a thorough investigation must be conducted and the case properly prepared prior to trial to ensure that all available evidence is gathered and effectively presented to the court.

Baseball DiamondA recent opinion in a slip-and-fall case illustrates how a plaintiff’s failure to adequately gather all of the evidence and present it to the trial court prevented that party from using the evidence on appeal.

The Facts of the Case

The plaintiffs were the parents of a young boy who was injured while playing a game of baseball in a park that was owned by the defendant city. At the pre-trial motion for summary judgment, the city argued that it was entitled to immunity under the state’s recreational use statute. The plaintiffs issued a very broad objection to the applicability of the recreational use statute but did not offer any argument as to why the application of the statute was not appropriate. The judge granted summary judgment in favor of the defendant, and the plaintiffs appealed.

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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.

IceThe 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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Last month, a Georgia appellate court issued a written opinion in a premises liability case that required the court to determine if the plaintiff’s allegations of what caused her fall were sufficient to survive a summary judgment challenge by the defense. Ultimately, the court determined that the plaintiff’s version of how her injuries were caused was “mere speculation” and did not create a triable issue of fact for the jury. Thus, the lower court’s decision to dismiss the case was affirmed.

Wet FloorThe Facts of the Case

The plaintiff was injured as she was entering a fast-food restaurant. According to the court’s opinion, the restaurant’s entrance had two sets of doors. Evidently, the plaintiff entered through the first set of doors without a problem, but then she was unable to open the second set of doors. The plaintiff shook the door, trying to open it, and then fell to the ground. The plaintiff was seriously injured as a result of the fall.

The plaintiff filed a premises liability lawsuit against the restaurant’s manager, claiming that the manager’s negligent maintenance of the premises resulted in her fall. During her deposition, the plaintiff explained that after she fell, she noticed that the floor was damp. When asked if she remembered what caused her fall, she explained that “it happened so fast. . . I just remember pushing on the door, and the next thing I remember is just sitting there.”

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