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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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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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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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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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Medical malpractice cases can be brought under a number of different theories. For example, surgical errors and misdiagnoses are two common types of Indiana medical malpractice cases. Another theory of liability under the medical malpractice umbrella is called medical battery.

Operating Room ErrorMedical battery is based on the idea that a doctor can only perform a procedure on a patient who consents to that procedure. In the eyes of the law, a surgeon who performs a procedure without a patient’s consent is no different from a person who attacks a victim with a knife against their will. Thus, for any medical procedure, doctors must obtain informed consent.

The term “informed consent” can be a tricky one and often requires more than the doctor asking the patient if they are aware of the risks and then proceeding with the procedure. In most situations, doctors must first educate the patient on what their current ailment is, how the surgery is meant to fix it, how it will be performed, and what the likelihood of complications will be. A recent case out of Oklahoma explains that the doctor should also tell the patient whether any non-doctor assistants will be helping the doctor.

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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, 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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In a recent opinion, a federal appellate court dismissed a case filed by an employee who claimed that he developed health issues after being exposed to a toxic substance. The employee was working on his employer’s roof and was exposed to fumes of a glue that contained methylene diphenyl diisocyanate (MDI). The employee brought a claim against the glue manufacturer, alleging that the exposure to MDI caused him neurological and psychological problems, and he was not properly warned of the health risks.

GlueAfter the parties engaged in discovery, the court dismissed the claim. It found that under Indiana law, a toxic tort claim required an expert on the issue of causation, and the employee did not provide such evidence. He only identified an expert on the language warnings but did not provide an expert on causation.

The employee argued that six treating physicians who provided reports were experts, even though they were not identified as experts in discovery. However, the court found that the employee was required to disclose who he planned to offer as an expert witness. In addition, the physicians’ reports the employee attached only summarized the employee’s symptoms and suggested a course of treatment. The court determined that the experts did not discuss causation and failed to state that they believed the MDI caused the employee’s health issues or explain why the glue may have caused his neurological and psychological problems. In contrast, the defendant provided an assessment from the World Health Organization, stating that MDI can irritate lung tissues and cause asthma-like symptoms, but it is not associated with other bad outcomes. As a result, the court dismissed the case.

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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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