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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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Recently, an Indiana news report covered a fatal car accident that occurred on I-70. According to Indiana State Police, the accident victim was driving on the highway when he swerved into another car. The driver died on impact, and the other driver was taken to the hospital for life-threatening injuries. Investigations revealed that the accident victim was not wearing a seat belt at the time of the accident.

In Indiana, seat belt use is a mandatory requirement that can help to protect many accident victims from severe injuries or death. Seat belts help drivers and passengers by preventing them from flying through their vehicle’s windshield, smashing into the dashboard, or falling out of the car. Seat belts are proven to mitigate the injuries and damages that accident victims suffer during a car accident.

When an individual is involved in an accident with a negligent driver, the other driver may try and limit their liability by pointing to the victim’s failure to wear their seat belt. Insurance companies and defendants might claim that the plaintiff’s injuries and damages would not have been as severe had they were wearing a seat belt. Although this may be true, Indiana law does not allow defendants to use evidence of an accident victim’s seat belt non-use as a factor in a comparative negligence determination.

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Swimming pools provide Indiana residents with an enjoyable way to spend time with family and friends. However, as with many recreational activities, swimming pools can pose significant dangers to users. In fact, according to the United States Consumer Product Safety Commission, Indiana swimming pool accidents rate among the highest in the country for drownings involving children under 15 years old.

Swimming pools pose various hazards and dangers to their users, including, drowning, slip and falls, and injuries because of pool drains. In many instances, these accidents occur because there are a lack of safety features and devices such as fences and flotation devices. Moreover, many times, owners fail to employ lifeguards and maintain railings and ladders. Swimming pool owners and operators can take simple steps to prevent common pool and spa hazards. Owners should install fences around their pool. They should also ensure that there are proficient adult lifeguards and swimmers on site. Moreover, owners and operators should keep up with pool maintenance.

In many cases, owners can be liable for injuries that people sustain while using their pools. Liability depends on the owner and the visitor’s legal classification. Generally, visitors are designated into three categories, either an invitee, licensee, or trespasser. An invitee may be a guest who uses a public pool. Typically, the owner must maintain and repair the pool to prevent injuries. Licensees, are commonly social guests using a pool on private property. In these cases, the owner must warn their guests of hazards that may not be obvious. Lastly, owners must not intentionally harm trespassers, but they do not owe them any other duty unless the pool is an attractive nuisance.

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When a person slips, and falls on another’s property in Indiana, the fall victim may be able to collect damages for the injuries they sustained. Indiana premises liability law establishes when a property owner is responsible for an accident victim’s injuries. Thus, it is important that slip and fall victims understand the state’s statute of limitations, duties, defenses, and damages before filing a lawsuit against a negligent property owner.

Under Indiana Code section 34-11-2-4, personal injury complainants must comply with the state’s two-year deadline. The statute of limitations applies to all negligence, intentional tort, and defamation lawsuits in Indiana. There are certain exceptions to the two-year deadline, such as if the injured party was under 18 years old at the time of the accident or they are mentally incapacitated. An exception may also apply if the culpable party leaves the state or attempts to conceal their identity.

Indiana slip and fall victims must be able to establish that the property owner owes the plaintiff a duty to exercise reasonable care from foreseeable hazards on the property. However, it is essential to note that the law does not require property owners to ensure a person’s safety while they are on the property. Typically, a property owner will be liable if they had knowledge of the dangerous condition, or if it was present for enough time that the owner should have discovered the hazard and prevented the injury. Indiana property owners must inspect and keep their property in a reasonably safe condition.

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Indiana arbitration agreements are commonplace, and many people agree to the terms without fully understanding what arbitration entails. Arbitration is an out-of-court method to resolve disputes among parties. It is designed to cut costs and allow the parties to reach an agreement without a trial. However, arbitration clauses generally favor the businesses that include them in their contracts. And it is important to know that there are instances where an arbitration agreement is not valid, or arbitration is not appropriate.

For example, in a recent opinion, a state appellate court addressed issues that commonly arise in Indiana nursing home lawsuits where a defendant is trying to compel arbitration. According to the court’s opinion, a nursing facility attempted to compel arbitration after a plaintiff asserted claims of negligence, willful misconduct, elder abuse, and wrongful death against the facility. The plaintiff’s mother was suffering from various ailments and required nursing home care. When the woman entered the facility, the plaintiff signed but did not date an arbitration agreement. Sometime after her admittance, the woman was transferred to a hospital where doctors discovered, among other things, that her leg required amputation. Sadly, the woman died shortly after. The plaintiff filed a lawsuit claiming that the nursing home withheld care, and recklessly disregarded her mother’s health and safety. The nursing home tried to compel arbitration based on the admittance contract.

The defendant argued that arbitration was appropriate because a facility representative witnessed the mother provide the daughter with express authority to sign the agreement on her behalf. The daughter countered that the facility fabricated the circumstances surrounding the execution of the contract. She explained that her mother did not provide her with authorization to sign the agreement on her behalf, and she was not in the room during admittance. Ultimately, the court concluded that the agreement was both procedurally invalid and substantively unconscionable.

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Earlier this month, a 26-year-old man was killed in a tragic car accident in Indiana County. According to a local news report covering the accident, the crash occurred around 3:00 a.m. at the intersection of Ofman and Shellbark Road in West Wheatfield Township. The driver, who is presumed to have been driving too fast, failed to stop at an intersection and then drove into a wooded area. The car then hit several trees and rocks, and as a result, the car’s passenger was thrown through the windshield, and the car landed on him. Police believe that the driver was driving under the influence of alcohol, adding an extra layer of tragedy to the accident.

Many car accidents are unavoidable, but in some situations, the driver is actually able to avoid certain risk factors that contribute to the accident, including intoxicated driving. Unfortunately, however, intoxicated driving remains a leading cause of Indiana car accidents. Most often, these cases involve alcohol intoxication, although the law does not distinguish between alcohol intoxication and intoxication from other substances. No matter what form, intoxicated driving puts the driver, the passengers, and others on the road at risk.

Driving while intoxicated is against the law, and when a fatal accident occurs as a result of an intoxicated driver, criminal charges are always possible. These charges may come with fines or jail time for the driver, depending on the nature of the crash and the injuries. However, these criminal charges do little to help the accident victim’s family deal with the expenses they occurred, or the tragic loss they suffered as a result of the accident.

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Earlier this month, a husband and wife were killed in a fatal Indiana dump truck accident involving a total of eleven vehicles. According to a recent news report covering the tragic accident, the crash occurred near the intersection of U.S. 36 and South County Road 625 East, at around 3:30 in the afternoon.

Evidently, the dump truck rear-ended an SUV that was stopped in traffic. After the initial collision, the dump truck drifted across the center median and collided with a minivan head-on. The driver and passenger of the minivan were both killed in the accident. In all, a total of eleven vehicles were involved in the accident, including a school bus. Thankfully, no children were on board at the time. An additional victim in one of the other cars suffered serious injuries, including spinal cord injuries and fractures to her femur, pelvis, and spine.

After police arrived on the scene, they conducted a field sobriety test on the driver of the dump truck, which he failed. The driver then admitted to police that he had snorted heroin earlier in the day. The driver was arrested and charged with several serious crimes, including reckless homicide and causing death operating a vehicle while intoxicated. Police officers also noted that there was a white powdery substance lining the inside of the driver’s nostrils, which they believe to have been heroin.

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Understanding the limitations of Indiana personal injury law is essential. A lack of understanding can result in filing a claim that is a waste of time and money. A state appellate court recently dismissed a personal injury case that the court found was filed two years too late. According to the court’s opinion, in June 2016, the plaintiff filed an amended complaint for damages that he claimed he sustained on about June 6, 2012.

Evidently, the plaintiff was climbing an attic ladder in a residential home in order to repair a leak when the ladder collapsed. The plaintiff alleged that the defendant construction company that built and sold the home and was negligent in failing to ensure that the ladder was secure and properly installed. The defendant argued that the suit was barred by the applicable ten-year statute of repose. Similar to statutes of limitations, statutes of repose limit the time during which a claim can be filed. Yet, unlike statutes of limitations, statutes of repose are construed more strictly to provide a finite period of time during which the claim must be filed.

The defendant claimed that in July 2003, it entered into an agreement with the home’s original owners, agreeing to build and sell the home to the owners. The construction was completed around April 30, 2004, and the owners took possession of the home on May 7, 2004. The plaintiff argued that the claim was not founded on the “construction of an improvement to real property.”

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Nursing homes have been under fire lately for the poor level of care they provide to residents. Indeed, by some estimates, one in ten nursing home residents suffer some type of abuse or neglect. In theory, the legal system allows for the victims of Indiana nursing home abuse and neglect to sue the offending nursing homes. However, many Indiana residents are not able to do so because they signed arbitration agreements.

An arbitration agreement is a type of contract by which the parties agree not to file a case in court if a conflict within the scope of the agreement arises. Typically, nursing homes present residents with these agreements at the time of admission. While Indiana skilled care facilities will not necessarily force a resident to sign the agreement, it is not often apparent to the resident that they can decline to sign. If valid and enforceable, an arbitration agreement can prevent a nursing home resident from filing a case in court, forcing them to resolve the matter through the arbitration process.

The enforceability of arbitration contracts is currently a hot topic, and the subject of many court opinions. A recent case illustrates how courts analyze and give effect to arbitration agreements. According to the court’s opinion, the plaintiff filed a wrongful death claim against the defendant nursing home after his father died while in the home’s care. Before the plaintiff’s father was admitted into the home, he signed an arbitration agreement. The agreement contained a “delegation provision” under which the specific arbitrator would determine whether any claim fell within the scope of the arbitration clause.

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Parr Richey is pleased to announce that attorneys Paul Kruse and Tony Patterson have been named to the 2020 Edition of The Best Lawyers in America for their work in Personal Injury Litigation.

Best Lawyers is the oldest and most respected peer review publication in the legal profession. Best Lawyers uses a transparent peer review methodology to determine leading lawyers in their profession. The process is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical region and legal practice areas.