Articles Posted in Premises Liability

On November 29, 2023, the Indiana Court of Appeals published its Opinion in Brummett v. Bailey, 23A-CT-683, slip op. Brummett is the latest case in a string of Indiana Court of Appeals decisions following the Indiana Supreme Court’s Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 389 (Ind. 2016). In these cases, the courts have been grappling with the question of whether a landowner or businessowner owes a duty of care to its invitees (what the law calls customers) for the criminal acts of other parties. The key determining factor in these cases has consistently been whether the owner knew or had reason to know of the imminent harm.

On the evening of January 4, 2020, at a bar in Muncie, Indiana, Plaintiff Bailey was pushed off his bar stool following an altercation with another patron. Bailey filed a lawsuit against the bar, its owner, and employees, claiming they were negligent because of their employees’ acts and failures to act to prevent the harm. The bar defendants moved for summary judgment claiming that it and its employees did not owe a duty to Bailey to protect him from an unforeseeable act. The trial court denied the bar defendants’ motion and the defendants appealed.

In its decision, the Brummett court pointed to analysis from Singh v. Singh, 155 N.E. 3d 1197 (Ind. Ct. App. 2020), which discussed the recent Indiana Supreme Court holding from Cavanaugh’s Sports Bar & Eatery, Lt. v. Porterfield, 140 N.E.3d 843 (Ind. 2020). As these cases discuss, an owner must “take reasonable precautions to protect invitees from foreseeable criminal attacks.” Rogers v. Martin, 63 N.E.3d 316, 326 (Ind. 2016). In determining whether an owner has a duty for the criminal act at issue, the Court focuses on the foreseeability of the attack which requires “an evaluation of (1) the broad type of plaintiff and (2) the broad type of harm.” Id. at 325. “In other words, a court looks at foreseeability globally for the purpose of determining whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm suffered such that a duty—and thus liability—may be imposed on the negligent party.” Godfread v. Martin’s Super Markets L.L.C., 120 N.E.3d 234, 240 (Ind. Ct. App. 2019)

Landlords, like all property owners, have a duty to ensure that the houses and apartments they rent to tenants are safe.  Whether it is the driveway being plowed after a snowstorm or handling potentially dangerous maintenance issues, tenants often have certain expectations for their landlord. If a person is hurt because of their landlord’s negligence, Indiana law allows them to hold the landlord liable for their injuries.

In a recent state appellate opinion, the court was tasked with deciding whether a landlord could be held liable for a tenant’s slip and fall outside of the apartment complex. According to the court’s opinion, the tenant was severely injured exiting the apartment building, slipping on a patch of ice in the driveway. While the landlord normally hired a snow plow contractor to keep the driveway safe, they failed to do so this particular winter. The plaintiff sued his landlord for not keeping the property safe and not removing the snow and ice from the driveway, the cause of his injury.

In this case, the court noted that a tenant who slips on ice can bring a negligence claim against a landlord who failed to exercise reasonable care in removing the ice, unless the plaintiff is more than fifty percent responsible for their injuries. Here, the court ruled that the landlord was negligent as he did not attempt to remove the snow or ice. However, the court also held that the tenant’s injuries were more attributable to his own error than the landlord’s. Thus, the court found that the landlord was not liable for the plaintiff’s injuries.

International travel can present travelers with some unique legal issues, including jurisdictional conflicts. In some cases, the claims may involve a different country or a foreign airport or airline. The Montreal Convention addresses the inherent issues that many Indiana personal injury victims face after these types of accidents. The Montreal Convention is a multilateral treaty adopted by many counties to establish standards for the international transport of passengers, baggage, and cargo. It covers all international flights between counties that are a party to the treaty.

A significant portion of the treaty includes what rights passengers have when they suffer injuries on a flight, experience a flight disruption, or an adverse situation with their luggage or cargo. At its core, the treaty makes an airline strictly liable for injuries or death that a passenger experiences, because of an “accident” that occurs while embarking or disembarking the aircraft.

Issues often arise over the circumstances surrounding an “accident,” and what the term covers. Courts tend to agree that the term “accident” is vague, but that it does include injuries resulting from terroristic activities, passenger assaults, and an airline’s failure to treat passengers who are experiencing a medical event adequately. Further complications develop when the harmful event occurs outside of the aircraft. In these situations, courts will evaluate whether the incident happened when the victim was in the “operation” of boarding or exiting the plane. This inquiry involves looking at the victim’s actions when the event occurred and the exact location of the incident.

As the weather warms up and summer rolls in, flocks of people will begin to make their way to water parks around Indiana where they can enjoy time with family and cool off, or seek the thrill of a roller coaster or a water slide. While most of these trips are packed with fun memories, these parks are often unable to guarantee visitors’ safety, and should be held accountable if a ride or attraction causes a visitor’s injuries.

According to a recent appellate opinion, a plaintiff brought a products liability suit against a local water park after he was injured while going down a water slide. The plaintiff inadvertently slipped from a seated position on an inner tube onto his stomach, and when he entered the pool below, his feet hit the bottom and he fractured his pelvis and hip. Despite the evidence of injury presented by the plaintiff, the trial court ruled in favor of the defense on the products liability claim.

On appeal, the defense argued that the plaintiff’s product liability claims should fail because the water park provides its patrons with a service, rather than a product. The park argued that guests pay admission to obtain a “service” involving the use of water slides rather than paying a fee to primarily use the water slides. Thus, according to the defendant, the plaintiff’s product liability claim was not a viable theory of recovery.

Like many other states, Indiana premises liability law generally allows those injured on someone else’s property to file a civil negligence suit against the property owner. For example, if someone slips and falls on a wet floor in a grocery store, or trips on an uneven sidewalk in front of someone’s house, they likely have a potential negligence suit against the owner of the grocery store or house property. However, Indiana also has what is called a recreational-use statute, to insulate certain landowners from such claims. The law, which is in Indiana Code section 14-22-10-2, provides that landowners who allow those to use their property for recreational purposes—such as swimming, camping, or sightseeing—without charging a fee are not liable for the injuries occurring on the property.

For an example of a personal injury suit that would likely be barred by this statute, take a recent appellate opinion from Georgia, a state with a similar law. According to the court’s written opinion, a public park was used by a University to set up a free concert series. On the night in question, the plaintiff attended the concert with her sister, but as she was leaving, she fell backward on a staircase with no handrails, sustaining serious head injuries and ultimately dying. Her estate filed a wrongful death suit against the University group that held the concert, but the defendants claimed their suit was barred by the Georgia recreational use statute.

The question in the case was whether the defendant invited people to the park for recreational or commercial purposes. The plaintiffs attempted to argue that the concert served a commercial purpose, since the defendant invited vendors to sell food and drinks, and allowed sponsors to erect tents with their logos to promote their businesses. However, the defendants were able to convince the court that the purpose was recreational despite these facts, since concert-goers were not required to purchase food or drinks and could bring their own, and there was no fee charged for the concert. As a result, the deceased’s estate could not recover in a wrongful death suit against the University group, and in fact could not even bring the suit to court.

The Court of Appeals of Indiana recently issued an opinion in a lawsuit stemming from injuries a woman suffered after she fell and hit her head outside of her apartment complex. According to the court’s opinion, the plaintiff filed a lawsuit against the apartment complex and rental company, alleging that they breached their duty of keeping the public walkways and entry areas safe from dangerous conditions. In response, the apartment company filed a motion for summary judgment and a motion to strike the plaintiff’s expert report. The trial court granted the defendant summary judgment, and the woman filed an appeal arguing that there was a genuine issue of material fact regarding whether the apartment complex breached its duty to the plaintiff.

Under Indiana law, summary judgment is designed to terminate litigation when there is no dispute as to a genuine issue of material fact. A material fact is one that is relevant to the ultimate resolution of an issue in the case. In the context of negligence cases, summary judgment is frequently inappropriate because the cases are often fact-specific and governed by a “reasonable person” standard. However, the court may grant summary judgment motions when an undisputed piece of material evidence eliminates a critical element of a negligence claim. Plaintiffs who want to recover from a landlord must show that the landlord breached a duty that they owed the plaintiff. Moreover, typically, plaintiffs cannot succeed on a negligence claim merely by showing that they fell and suffered injuries; they must generally show that the landlord knew or should have known about the hazard.

In this case, the plaintiff argued that the apartment company failed to remove hazardous ice, which caused her to slip and fall. Further, in addition to evidence of her fall, the plaintiff testified that on the day of the accident, she tried to avoid a slippery area by walking on the service ramp. Although, she could not see the ice on the service ramp, she assumed she slipped because of the ice. The defendants maintain that the ramp was not icy, and they bolstered their position by pointing to the plaintiff’s statement that she did not see the ice. The court reasoned that because the plaintiff’s claim was not based on inferential speculation, there remained a genuine issue of material fact regarding whether the apartment company breached its duty to maintain a safe walkway. Ultimately, the court reversed the trial court’s ruling and remanded the case for further proceedings.

Earlier this month, a state appellate court issued a written opinion in an Indiana premises liability case discussing if a bar owed the plaintiff, who was a patron of the bar, a duty of care. Specifically, the case required the court to determine if the bar’s duty to the plaintiff extended to an attack carried out by a third party. Ultimately, the court concluded that the bar could not be held liable for the plaintiff’s injuries because the bar did not know that the fight was impending.

According to the facts as laid out in the court’s opinion, the plaintiff and his friend were socializing at the defendant bar. When the bar closed, the plaintiff, his friend, and the remaining customers left. In the parking lot, the plaintiff and another man got into a fight, leaving the plaintiff permanently blind.

The plaintiff sued the bar, arguing that it was negligent in failing to take the necessary precautions to protect guests in an area that was known for criminal activity. The bar responded that it did not have a duty to protect the plaintiff from the unforeseeable criminal acts of a third party. The plaintiff claimed that the bar should have been aware of the dangers, because the police were called five times in the preceding year for fights occurring outside the bar between the hours of 3:00 and 3:30 a.m.

As much as one may try to avoid them, accidents and injuries are far too common, and Indiana residents may find themselves injured because of another person’s negligence. Although it does not undo the damage, Indiana law allows a victim to bring a lawsuit against the negligent party to recover compensation for medical bills, pain and suffering, lost wages, and more. In order to successfully recover, the plaintiff must prove in court that the accident was the defendant’s fault and that there was real harm suffered as a result. There may be some cases in which establishing liability in an injury case is straightforward, but typically the process proves to be more complex than it initially appears. To help with this process, a personal injury plaintiff may want to use expert witness testimony to support their case.

Unlike eyewitnesses, who saw the incident in question happen, expert witnesses were not present at the scene of the incident but have relevant expertise that can help explain what happened to the judge or jury. For example, an accident reconstructionist can help explain to the court how an accident happened, or a medical professional could testify as to the severity of the injuries and likely future medical costs. Since expert witnesses offer this valuable information, they are used in many personal injury cases across Indiana.

Due to the prevalence of expert witnesses in personal injury cases, many plaintiffs may think that they need expert witnesses to make their case and that they will lose without them. However, this is not the case. While expert witnesses are helpful, they are not necessary to win every personal injury case, and many cases can be won without them. A recent state case illustrates this fact. According to the court’s written opinion, the victim was an elementary school student who was assaulted and beaten by other students on the playground during recess one afternoon. The victim’s mother brought suit against the city and the Board of Education on her daughter’s behalf, alleging negligence in failing to supervise the schoolchildren during recess. A lower court had previously ruled that, without expert testimony establishing the standard of care that the defendants owed the plaintiff, the plaintiff could not prevail. The court reversed, finding that although there are some cases in which expert testimony may be necessary, it was not necessary in this particular case.

When an individual suffers an injury at an Indiana business, they should explore all possible avenues of relief against all potentially liable parties. In addition to the person or entity that is directly responsible for their injuries, Indiana injury victims should consider third-parties, who also contributed to the damages they sustained. In some cases, business owners may be accountable under a negligent entrustment theory when an injury results from a dangerous instrumentality.

For example, recently, a state appellate court issued an opinion in a case stemming from injuries a woman suffered at a grocery store. Among other issues, the woman filed a negligent entrustment claim against the grocery store when a customer driving a motorized cart struck her. The woman alleged that the grocery chain provided the cart to customers without any instruction or warnings and assumed that the drivers knew how to operate the cart. The lower trial court found in favor of the woman; however, the appellate court ultimately concluded that the woman did not meet the causation element of a negligent entrustment case. Further, they held that she could not prove that the store should have known that the driver would operate the cart negligently or recklessly.

An individual or entity may be liable under the theory of negligent entrustment when they allow a person to operate a dangerous instrumentality, and that person causes an injury to a third party while using that instrumentality. Often, these cases arise when a person entrusts someone with a vehicle or a firearm. Victims in these cases can prevail based on the idea that the person entrusting the item to the negligent party should have known that the person could harm others with the object based on the negligent party’s inexperience or age.

The Federal Tort Claims Act (FTCA) is a statute designed to allow private individuals a way to hold the government and their employees responsible for tortious acts that they commit. Before the passage of the FTCA, the government was immune from lawsuits based on the theory of sovereign immunity. However, the FTCA allows Indiana injury victims to hold the federal government responsible for their negligent and wrongful acts. However, the FTCA has 13 exceptions to the waiver of immunity, including the often-cited “discretionary function” exception.

The discretionary function exception bars lawsuits based upon claims that arose based on a government actor’s discretionary function or duty. Generally, the court will engage in a two-step inquiry when the government cites this exception. First, the court will look at whether the actions involve an element of judgment or choice, as opposed to a ministerial duty. If an element of choice or judgment exists, then the court will look to whether the judgment was the kind of decision that the exception was designed to shield.

For example, recently, two families sued the United States government under the FTCA when a tree limb fell, killing their sons at a national park. The families filed wrongful death claims against the government, arguing that the park safety officials knew or should have known about the danger of the tree and failed to warn visitors of the threat. The government successfully moved to dismiss the claims, stating that evaluating and responding to the hazard was a discretionary function which was entitled to immunity.

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