Indiana Injury Lawyer Blog

March 19, 2020

Indiana Court Finds Bar Did Not Owe Patron a Duty to Protect Him Against Criminal Attack

by Parr Richey Frandsen Patterson Kruse LLP

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.

March 12, 2020

Indiana Personal Injury Lawsuits Against Negligent Government Employees

by Parr Richey Frandsen Patterson Kruse LLP

Recently, an appellate court released an opinion addressing when Indiana courts can impose individual liability on a government employee. The Indiana Tort Claims Act (ITCA), provides very few avenues of relief for individuals who wish to recover after suffering injuries that were caused by the negligent acts or omissions of a government employee. However, recovery is possible in certain types of accidents.

In this case, the Indiana State Police issued a trooper an unmarked Dodge charger, commonly referred to as the officer’s “commission.” As part of the officer’s responsibilities, he was required to maintain radio contact at all times, even while off-duty, abide by traffic laws, and to respond to emergencies as needed. On the day of the incident, the trooper completed his shift, and went home to change before his son’s baseball game. As he was driving to the game, he shifted from the northbound lane into the southbound lane to pass the vehicle in front of him. When he entered the southbound lane, he noticed an oncoming motorcycle, and he shifted back. However, in an attempt to avoid the officer, the motorcyclist swerved, causing the motorcycle to roll over, ultimately ejecting himself and his passenger.

The motorcyclist suffered serious injuries and subsequently filed a negligence lawsuit against the trooper. The trooper moved to dismiss the case, arguing that he was immune from suit because he was acting within the scope of employment while driving his vehicle. Lawmakers designed the ITCA to ensure that government employees can exercise their judgment without constant threats of litigation. Lawsuits against government officials can only succeed if the alleged negligent act or omission was clearly outside of the employee’s employment. These analyses are generally a question of fact; however, in some instances, courts may find that the act was not within the scope, as a matter of law.

March 6, 2020

Indiana Underride Semi-Truck Accidents

by Parr Richey Frandsen Patterson Kruse LLP

Indiana accidents between commercial truck drivers and passenger vehicles often cause serious and potentially fatal injuries. These accidents tend to be more severe than collisions between two passenger vehicles because of the sheer magnitude of semi-trucks. One of the most dangerous types of Indiana truck collisions is underride accidents. Rear underride accidents occur when a truck slows or suddenly stops, and the car behind the truck cannot stop in time. In these cases, the car slides underneath the truck, often resulting in the car’s roof sheering off. Side underride collisions occur when the smaller vehicle crashes into the side of the truck and slides underneath the truck. Front underride accidents involve a truck backing into and crushing a smaller car.

Many reasons heighten the risk of an Indiana underride accident. The most common cause of these accidents is inclement weather, sudden traffic changes, truck malfunctioning, and truck driver error. Truck drivers may be liable for the accident for engaging in negligent or unsafe driving behavior. Additionally, trucking companies, truck part manufacturers, shipping agencies, loading companies, and other drivers may be responsible. These parties may be liable for failure to follow federal regulations, manufacturing defective parts, mis-loading cargo, and other negligent behaviors.

To prevent these accidents, Federal regulations, require that commercial trucks have rear underride guards. The underride guard is designed to stop the smaller vehicle from sliding underneath the truck. However, underride guard material varies greatly, and it is not always sturdy enough to protect against these accidents. Additionally, there are no federal regulations mandating side underride guards.

February 25, 2020

Vicarious Liability in Indiana Truck Accidents

by Parr Richey Frandsen Patterson Kruse LLP

When someone is injured in an Indiana truck accident, they may have two avenues of recourse: one against the negligent driver who caused the wreck, and another against the driver’s employer. This second form of liability is what is called “vicarious liability.” There there are certain cases where an employer can be held liable for their employee’s actions if they were performed while doing work for the employer. Indiana accident victims may want to bring suit against both parties particularly in situations where the negligent driver might not have enough money to pay for the resulting damage on their own. If the total cost of the accident is $100,000, for example, but the defendant is only able to pay $50,000, the plaintiff may still end up in debt even after a successful suit. Thus, it is in plaintiffs’ best interests to always file a vicarious liability claim if they have one.

Because it is such a powerful doctrine, there are limitations to vicarious liability. Generally, the doctrine does not apply when the alleged “employee” is actually an independent contractor. A recent Illinois state case illustrates this point and its practical implications for Indiana plaintiffs. According to the court’s written opinion, a mother and daughter were driving in Illinois when they were severely injured after being rear-ended by a tractor-trailer that was en route to Indiana. Afterward, the two filed a civil negligence suit against the driver and the two companies that contracted with him, alleging vicarious liability. The defendant companies filed a motion for summary judgment in response, arguing that the driver was an independent contractor, not an agent of the company, meaning the suit against them had to be dropped. The lower court granted their motion, and the plaintiffs appealed.

On appeal, the court affirmed the grant of summary judgment. The court relied heavily on the written contract between the driver and the companies contracting with him. Specifically, the contract explicitly stated that the driver had full control over his operational costs and equipment and was an “independent contractor.” Because the company did not have sufficient control over the driver, they could not be held liable for his negligent driving, meaning that summary judgment was appropriate. As a result, the plaintiffs could only seek compensation from the negligent driver.

February 13, 2020

Winter Weather Car Accidents in Indiana

by Parr Richey Frandsen Patterson Kruse LLP

Those who have lived through an Indiana winter know that driving during the winter months can be a challenging experience. As a whole, Indiana gets over two feet of snow per year; however, certain areas in the north part of the state can see over five feet of snow per year. On top of that, Indiana gets over 42 inches of rain each year. Combine these levels of precipitation with the cold temperatures of an Indiana winter, and the result are icy roads that can be difficult to navigate, even at slow speeds. Not surprisingly, according to the most recent state government statistics, most Indiana car accidents occur in January.

Notwithstanding the difficulties that nasty weather can present, Indiana drivers have an obligation to always drive carefully. Drivers must take into account the weather conditions when getting behind the wheel and adjust their driving tendencies accordingly. For example, motorists should slow down and give other vehicles more room during times of inclement weather or reduced visibility. Despite this requirement, there were over 8,200 Indiana car accidents in 2018, where the cause was listed as, “speeding too fast for weather conditions.” In fact, approximately 20 percent of all Indiana traffic accidents in 2018 occurred during some type of adverse weather event.

Motorists who have been involved in an Indiana weather-related car accident may be able to recover compensation for the injuries they sustained in the crash. By contacting a dedicated Indiana personal injury lawyer, accident victims can learn more about how to pursue a claim for compensation.

February 6, 2020

Expert Witnesses in Indiana Product Liability Lawsuits

by Parr Richey Frandsen Patterson Kruse LLP

Witnesses are an integral part of almost every Indiana personal injury lawsuit; however, in most cases, the law limits this testimony to what the individual personally saw or experienced. In instances where a witness attempts to answer a question beyond the scope of their experience, the opposing party will likely object. However, expert witnesses, serve as an exception to this rule and are an essential part of Indiana product liability lawsuits.

Under the Indiana Products Liability Act, plaintiffs almost always need to produce expert testimony to meet their evidentiary burden. These experts provide professional insight into whether a defendant was the actual or proximate cause of the plaintiff’s injuries. This is especially important in product hazard, recall, insufficient labeling and warning, and defect lawsuits. If a plaintiff does not meet this burden, the court will likely dismiss their case and grant summary judgment in favor of the defendant.

For example, in a recent opinion, a state appellate court recently affirmed an appellate court’s decision to grant summary judgment in favor of Johnson & Johnson, Consumer Inc. (JJCI), in a product liability case. In that case, the plaintiff alleged that she developed Mesothelioma after long-term use of JJCI’s cosmetic and baby powders. The woman filed a lawsuit against the company alleging, amongst other issues, that they were liable for negligence, intentional failure to warn/concealment, and loss of consortium. She argued that she developed Mesothelioma from asbestos in the company’s products. JJCI provided an expert witness who testified that the mines that JJCI sourced their talcum powder from did not contain asbestos. The court ruled in favor of the defendant because the plaintiff did not present any countering expert testimony to rebut the defendant’s expert.

January 29, 2020

Officials Determining if Tesla’s Autopilot Function was Activated During Fatal Indiana Accident

by Parr Richey Frandsen Patterson Kruse LLP

The National Highway Traffic Safety Administration (NHTSA) is beginning its investigation of whether a vehicle manufactured by Tesla had its autopilot function activated immediately before an Indiana car accident. According to a local news report, the Tesla driver and his wife were driving on 1-70 when they slammed into the rear of a firetruck that was stopped with its emergency lights on in the passing lane. No firefighters suffered injuries in the accident; however, the driver sustained critical injuries, and his wife died as a result of the accident.

According to Tesla, their autopilot system is an advanced driver-assistance tool that allows vehicles to center lanes, self-park, automatically change lanes, autonomously navigate road conditions, and summon the car. Tesla representatives advise drivers to remain alert, keep their hands on the steering wheel, and prohibit the use of this system if the vehicle presents a warning symbol. Tesla’s CEO, Elon Musk, claims that the company’s data suggests that drivers using their autopilot system remain safer than those who do not. However, there have been conflicting reports on the efficacy of their system and data. For example, although the CEO claims that drivers should keep their hands on the wheel, he has posted videos depicting users operating this feature without their hands on the wheel. Moreover, the NHTSA has investigated several accidents that occurred during the use of this system. Officials urge drivers to use extreme caution when using this system because many accidents were a result of user error and the system’s design.

Determining liability after an Indiana Tesla autopilot accident is complicated because accidents involving autonomous cars are an evolving area. For example, there may be several parties that are liable for these types of accidents depending on who was operating the vehicle, what went wrong, and whether there were any other contributing factors. For instance, if the accident was a result of faulty technology, the manufacturer of the car or technology may be liable. If the accident was because of driver error, such as the failure to read or follow by the operating manual, the driver could be responsible for damages related to the accident. Further, in some cases, the at-fault party may argue that the injured person somehow contributed to their losses. It is essential that injury victims consult with an Indiana attorney to ensure that their rights and remedies are addressed.

January 20, 2020

Failure to Warn Lawsuit Draws Attention to Indiana Products Liability Claims

by Parr Richey Frandsen Patterson Kruse LLP

The state of New Mexico has recently filed suit against major company Johnson & Johnson, alleging that the company misled consumers about the safety of its baby powder and other talc-based products. According to a New York Times article covering the lawsuit, the Johnson & Johnson products are allegedly contaminated with carcinogenic asbestos, but the company has continued to market them, especially to children and Black and Hispanic women, without any warning. Although the suit was filed by New Mexico, the allegations of Johnson & Johnson’s contaminated products have important implications for Indiana consumers as well.

The attorney general of New Mexico, who is leading the suit on behalf of the state, accused Johnson & Johnson of concealing the dangers of talc products, which are associated with lung disease, ovarian cancer, and mesothelioma. Companies, including Johnson & Johnson, have a legal duty to warn consumers about the dangers posed by their products. If they conceal potentially harmful information, or even just fail to disclose it, they can be held liable—sometimes in multi-million, or even billion, dollar lawsuits. Because the stakes are so high, companies typically invest significant resources into legal teams to help them avoid liability. Johnson & Johnson, for instance, reportedly set aside $190 million in the second quarter of 2019 to defend specifically against talc-related litigation. That money does not even include money spent on non-talc-related suits.

While it is helpful for those injured by Johnson & Johnson or other products to have a state bring suit on their behalf, such a case is incredibly rare. Typically, if a plaintiff wants to recover against a large company, they have to file a suit themselves. When the company spends millions on legal teams to squash such lawsuits, filing suit can be intimidating, and a plaintiff may even feel hopeless. However, with the assistance of a dedicated personal injury attorney, plaintiffs may be able to recover against negligent, fraudulent companies who caused them harm, leveling the playing field between plaintiffs and multi-million-dollar corporations. If successful, the company may owe the plaintiff money for lost wages, past and future medical expenses, pain and suffering, loss of companionship, and more.

January 14, 2020

Nursing Home Fraud Can Suspend the Statute of Limitations in Indiana Abuse and Neglect Cases

by Parr Richey Frandsen Patterson Kruse LLP

In Indiana, nursing home abuse and neglect victims have the right to sue a facility when injuries or premature death occur as a result of an employee’s negligence or abuse. However, potential plaintiffs should be aware of one common barrier to successful recovery in these suits: the statute of limitations. Indiana law allows plaintiffs to file suit for up to two years after the abuse or neglect occurs. Generally, if a plaintiff files suit even one day late their case is barred and there can be no recovery.

Because the statute of limitations is so strict, and has potentially devastating consequences on plaintiffs, parties often argue about when the statute of limitation period begins. For example, when did the abuse or neglect actually occur? This question is the source of much litigation, with nursing homes always wanting to argue that the period of time began earlier, in order to have a better chance at barring a plaintiff’s claim. However, there are some doctrines to protect plaintiffs from this behavior.

For example, if a nursing home uses fraud and deception to conceal an injury or incident after it happens, the plaintiff may not even know there is anything to file suit about. In this situation, the court might find that the statute of limitations began at a later date, or was paused for a period of time, to give the plaintiff meaningful time to file suit. This doctrine, while helpful to plaintiffs, can be difficult to establish.

January 5, 2020

The Two Theories of Employer Liability in Indiana Personal Injury Lawsuits

by Parr Richey Frandsen Patterson Kruse LLP

In many personal injury lawsuits, one of the most important decisions that must be made is which parties to name in the lawsuit. Indeed, in many lawsuits, the at-fault party is not the only defendant named in the case. Depending on the facts surrounding the accident, the at-fault party’s employer is often named as an additional defendant.

In Indiana, when an employee’s actions cause someone injuries, there are two types of claims that can be brought against their employer. The two types of claims are negligent hiring and respondeat superior. While each of these claims allows an injured party to hold an employer responsible, they are very different and, in Indiana, mutually exclusive of one another.

A respondeat superior claim is a form of vicarious liability, meaning that it allows for an accident victim to hold an employer accountable for the negligent employee’s actions. The doctrine holds the employer liable because the employee is seen as the employer’s agent, so to speak. Thus, to prove a respondeat superior claim, a plaintiff must be able to show that the negligent employee’s actions were within the scope of their employment. Otherwise, an employee may be held individually liable for a plaintiff’s injuries, but the employer cannot be liable.