Indiana Injury Lawyer Blog

In Pfenning v. Lineman et al., 2010 Ind. App. LEXIS 164, the Court of Appeals of Indiana, expanded the doctrine of no duty from one participant in a sporting event to another to include not just the players, coaches and those sitting on the bench to also include volunteers at the sporting event.

16 year old Cassie Pfenning was asked by her grandfather, Jerry Jones, to accompanying him to a golf tournament at which Mr. Jones had volunteered to drive a beverage cart. Mr. Jones ended up playing in the tournament so he left Cassie with his sister. His sister too decided to play in the tournament so she was left in the care of yet another person, Christie Edwards. Cassie drove the cart while Ms. Edwards severed beer to the golfers. While Cassie was on the 18th hole cart path, she was hit by an golf ball which was the result of an errant drive from the 17th tee. As a consequence, Cassie sustained serious personal injuries.

Cassie's mother sought to recover on behalf of Cassie, under a number of different theories, against the golf course, the tournament sponsor and her grandfather. The trial court granted summary judgment as to all defendants. On appeal, the Court of Appeals of Indiana affirmed the trial court. In doing so, the Court of Appeals of Indiana wrote: "Although not a player herself, she clearly was 'part of the sporting event. . . involved,' and we hereby expand the language in Geiersbach to include sporting event volunteers such as Pfenning. Geiersbach 807 N.E.2d at 120.

Under Indiana's Child Wrongful Death Act (I.C. 34-23-2-1) a parent may recover for the loss of child killed by the negligence of another. There is no cap under the Child Wrongful Death Act. There is however, a cap under the Adult Wrongful Death Act (I.C. 34-23-1-2) for love and companionship at $300,000. Because of this cap, the question of when a "child" is a "child" for wrongful death purposes becomes important.

The Child Wrongful Death Act defines a child as an unmarried individual without dependents who is either less than 20 years of age or less than 23 years of age and is enrolled in a post secondary educational institution or a career and technical education school or program that is not a post secondary educational program.In the case of Howard v. E&B Paving, Inc., et al 2010 Ind. App. LEXIS 55, the Court of Appeals of Indiana decided what was meant in the statute by "enrolled in a post secondary educational institution".

Amber Howard was over 20 but under 23 years of age when she died from injuries which she received an automobile crash on November 13, 2002. Amber's parent's filed a wrongful death claim under the Child Wrongful Death Act. The issue was whether Amber a "child" under the Child Wrongful Death Act.

Amber had taken classes at Ivy Tech in the summer and fall of 2000. She took time off in the spring of 2001. Amber re-enrolled during the fall semester of 2001 and continued through the spring semester of 2002. Amber did not enroll or register for classes in the summer of 2002 or during the fall of 2002. She did not register for any classes for the spring of 2003. About one month after registration began for the spring 2003 semester at Ivy Tech, Amber died. Amber's parents indicated that Amber had intended to register for classes for the spring of 2003. Because Amber had not registered as a student for classes at Ivy Tech before she died she was not considered to be a "child" within the meaning of the Act. The Court held that the mere intention to enroll was not sufficient.

On January 27, 2010, the Indiana Supreme Court held that the period of time that the immunity for loses caused by temporary weather lasts is "at least until the weather condition has stabilized". The high court also held that during this time period, the governmental unit is immunized for liability for alleged flaws in its remedial steps. In the case of Bules v. Marshall County, 2010 LEXIS 62, Robert Bules and his son Brian were injured in a single truck crash when Robert drove into high water on a road and lost control of his truck. Robert and Brain sued Marshall County alleging negligent warning of the dangerous road conditions. There was a sign placed close to the water on the road. Robert claims that the sign was too close to the hazard to make a difference. The trial court granted summary judgment in favor of the county. The Court of Appeals reversed the trial court. The Supreme Court granted transfer.

Justice Boehm, in writing for the Court, indicated that the statute in question, I.C. 34-13-3-3(3), ["A governmental entity or an employee acting within the scope of the employer's employment is not liable if a loss results from: (3) The temporary condition of a public thoroughfare. . .that results from weather."] requires that the loss result from a condition that is both "temporary" and "caused by weather." The Court noted that during the time that the government is in the process of responding to a weather condition, this immunity "extends to all claims caused by that condition during the period of reasonable response, whether the alleged injury occurred early or late in the response."

The Court found that there was no issue that the water on the road was caused by weather. It allowed, however, that there was a closer question about whether the road/water condition was temporary or had stabilized. The Court found that the since the water was still rising, the condition had not yet stabilized and was therefore still temporary. The Court found that the County attempted to address the flooding at the road site. Importantly, the Court found that the period of reasonable response "lasts at least until the condition stops worsening, in this case when the Yellow River crested." As a consequence, the Court held that because the accident occurred during this period, immunity applies, regardless of the inadequacies in the County's initial responses at the crash site.

The Supreme Court of Nevada in the case of Lioce v. Cohen et al., 149 P3d 916 (Nevada 2006) held that the defense attorney's arguments based upon jury nullification, personal opinion regarding the justness of a plaintiff's case and invoking the golden rule argument amounted to attorney misconduct.

In four different personal injury trials in Nevada, a defense attorney made similar arguments during the trial. These arguments included an attempt at "jury nullification" [the Nevada Supreme Court defined jury nullification as "[a] jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness." Black's Law Dictionary 875 (8th ed. 2004). Examples include arguments that these cases wasted taxpayers' money and jurors' time. The defense attorney also argued that the cases were examples of people "looking for an excuse to sue someone at the drop of a hat" and that society now believed that "Americans have become a society of blamers."

The Court also found that the defense attorney impermissibly injected his personal opinion about the justness of plaintiffs' causes when he said that he had "a real passion for [these] case[s] and cases like [them]," because these were the types of cases that cause people to be distrustful of lawyers and legitimate plaintiffs and lead to what the defense attorney argued was the public's negative perception of the legal system.

Finally, the Court ruled that the defense attorney's closing argument, which contained a statement to the jurors, "You send your son or daughter" to a friend's house, where he or she was injured, and questioned, "[D]oes that mean you just go out and sue[?]" (Emphasis added.) invited the jurors to make a decision as if they and their children were involved in his hypothetical situation-a situation that somewhat paralleled the scenario of the plaintiff's daughter's injuries. The Court found that this question indicated that the jury could make a decision based on the personal hypothetical designed to trivialize the daughter's injuries instead of deciding the case on negligence law and the evidence.

This case underscores the obligation of defense attorneys to defend cases based only on the evidence and the law. The problem with defending against such unscrupulous tactics is the requirement of making timely objections to such argument. Most trial lawyer do not wish to make objections during the trial. This problem is actuated when the offending attorney makes repeated objectionable comments after an objection has been sustained. In cases where the comments rise to the level of "plain error" the Nevada Supreme Court created an exception of the need to object.

One method to deal with this type of conduct is to address it within the context of a motion in liminie prior to trial. In that way it is possible for the trial counsel and the court to be reminded of the rules before the "heat of battle".

Despite the Indiana Supreme Court's recent decision in Glotzbach v. Froman, 854 N.E.2d 337 (Ind.2006), in which the Court held that there is no third party cause of action for spoliation against an employer of the injured party, Indiana still recognizes the cause of action of third party spoliation cases. The right of an injured party to bring claim for third party spoliation was first recognized by the Indiana Court of Appeals in Thompson v. Owensby, 704 N.E.2d 134 (Ind.1998) trans. denied. The Thompson case is particularly important to me because I was the attorney who argued before the Indiana Court of Appeals and then the Indiana Supreme Court that Indiana Insurance Company, whose adjuster lost the dog leash which was the subject of a product claim, should be liable for Nicole's inability to prove her product claim against the manufacturer.

In Thompson, Nicole was severely bitten by a neighbor's dog as she rode her bike down her street. The dog had a history of being vicious. That is the reason that his owners had leashed him inside a fenced yard. The dog broke the leash, ran out of the fenced yard, onto the street and attacked Nicole. Indiana Insurance Company, the insurer for the dog owners, took control of the defective leash when it learned of Nicole's claim. During the course of the investigation, it lost the leash. We added the insurance company to the tort action against the property owners and claimed that to the extent Nicole was unable to prove her case of a defective product against the manufacturer due to the fact that the product was no longer available, then the insurance company should be responsible for what Nicole's case would have brought had the absent leash were present.

The Indiana Court of Appeals found that there was a special duty on the part of the insurance company to preserve evidence. To do so, the court found that there was a special relationship between the claimant and the insurance company, that the harm involved in loss of evidence was foreseeable and that the recognition of duty is consistent with Indiana's policy of accountability. The court wrote "[liability insurance carriers are no strangers to litigation, and it strains credulity to posit in a motion to dismiss that a liability carrier could be unaware of the potential importance of physical evidence.."

The Indiana Supreme Court, has a 2-2 tie vote on whether to accept transfer on Thompson. As a result, Thompson became the law in Indiana.

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