Personal Injuries Come In All Shapes and Sizes In Indiana
But, not all injuries are entitled to a recovery of money in a court of law. There are a few hurdles to clear when an injured person is seeking compensation for an injury suffered in Indiana.
The right to recover for an injury is ruled by the "laws of torts" or commonly referred to as "negligence" case law.
"Negligence" simply means the injurious person or business did not act the way one is required to do by law. It is commonly referred to as "fault." Legally speaking, negligence refers to an individual's or entity's commission of a "tort", i.e., the failure to exercise reasonable care under the circumstances. To establish a case of negligence, or a tort, the plaintiff must present evidence showing:
- The defendant had a duty to conform his conduct to a standard of care
- The defendant breached that duty
- That breach of duty caused damages to the plaintiff.
Stratmeyer v. U.S., 67 F.3d 1340 (7th Cir. 1995).
In most cases, the existence of a duty to use care is apparent and nobody argues about it in a court of law. For example, it is unquestioned that a driver of a vehicle owes a duty of care to other drivers, his passengers, and pedestrians.
Duty is a question of law for a Judge. Generally, it is defined by the relationship between the parties and the existence of foreseeable harm.
In law school, we were taught various word games involving "duty." For example, we were asked if there was a duty for a man using a hammer on a windy day to fix something on his house when a 250+ MPH wind storm lifts the hammer from his hand and carries it two miles down the road, where it strikes a little old lady.
Certainly, we could all agree that 250+ MPH was unforeseeable (or an Act of God) and it was not foreseeable that the hammer would fly two miles and strike somebody and injure him. But, the law professor would add, what if the person using the hammer was in a crowd of people and the wind was only gusting 25+ MPH? Or that the man using the hammer knew it was going to be windy? Or that the hammer was extremely slippery because the man had been eating greasy food?
The point of the exercise was to get law students to decide what acts would foreseeably cause an injury and which ones could be be considered foreseeable. A Judge does the same intellectual exercise when deciding whether a duty existed by the Defendant to the injured Plaintiff if it is argued.
For example, a recent Indiana Supreme Court case, Goodwin v. Yeakle's Sports Bar and Grill, Inc., recently held that no duty existed to patrons of a tavern by the taven to be free from unforeseeable acts of violence by other patrons. Although most people could agree that a tavern can be a dangerous place, the Indiana Supreme Court held that a shooting in a neighborhood bar is not foreseeable as a matter of law.
In Goodwin, the three injured people were visiting with acquaintances in the defendant's tavern when another customer took offense by a remark of one of them. That customer pulled a gun and shot at the plaintiff who made the remark; the other two plaintiffs were accidentally shot by the gunfire. At the trial court, the defendant tavern asked for the case to be dismissed by "summary judgment" (meaning if all facts were true, then there was no way for the Plaintiffs to win because no "duty" existed by the tavern to them).The Court also held that a shooting in a neighborhood bar was not foreseeable as a matter of law and argued the shooter's criminal acts were unforeseeable; consequently, the bar did not owe a duty of care to the plaintiffs. The trial court agreed and entered summary judgment in favor of the bar.
Generally, a person owes a duty of care to others to avoid harm caused by his or her activities. In the use of vehicles, the legal duty of any motorist is most often established by laws, i.e., statutes and ordinances defining proper and improper operation of a vehicle. A breach of duty occurs when the motorist violates the terms of such statute.Cause
It is not enough to show a breach of a law (breach of duty).
In order to recover damages, an injured person must also establish "causation." This is a very difficult concept to understand fully.
But, in short, a plaintiff must also establish causation between the breach of duty and his or her injuries. In Indiana, only proximate, direct, or material causation will support a negligence action. Huey v. Milligan, 175 N.E.2d 698 (Ind. Ct. App. 1961). Proximate cause is defined as that cause which is in a natural and continuous sequence, unbroken by any efficient intervening cause, and which produces the results complained of. Ortho Pharmaceutical Corp. v. Chapman, 388 N.E.2d 541 (Ind. Ct. App. 1979).
For example, say a plaintiff is involved in a car accident, but develops a skin rash the next day. Even though he was involved in a car crash, there might not be a "causal" connection between the car crash and a skin rash. Oftentimes, doctors are asked if there was a link or cause between an accident and a breach of duty by the defendant. Many Indiana cases turn either for the Plaintiff or the defense based upon the doctor's answers in a deposition (sworn statement outside of court) or at trial.
Standard of Care
The standard of care owed to the plaintiff depends upon the capacities of the parties and is different depending upon various factors including whether the defendant was a minor, a parent, a business, a professional or violated a law the legislature considers so dangerous that mere participation imposes liability upon him or her.
When it comes to businesses, employers are liable for the negligent acts of employees committed during the scope and course of their employment. Consequently, a driver of a business van who runs a red light subjects the employer to pay damages to the injured person if it was done "on the job."
Semi-truck drivers and other professional drivers such as bus drivers are held to the standard of care of a "professional" driver and not someone who is a typical operator of a vehicle. After all, professional drivers are paid to follow the Commercial Driver's License Operator's Manual and know statutes, ordinances and other traffic laws because they are paid to do so.
Taverns are not allowed to "over serve" known intoxicated individuals and allow them to drive away causing car crashes or else that tavern can be held liable to the injured party in what is commonly called a "dram shop" case.
Doctors, lawyers, accountants and other professionals are held to the standard of care to act reasonably like other professionals in serving clients or else they can be held liable in what is commonly called a "malpractice" case.
Nursing Home Negligence cases involved a dangerous and growing trend in America today -- the understaffed and under-trained nursing homes that allow elderly patients and residents to develop pressure sores, get improper medications, suffer poor hygiene and nutrition and, worse, get sexually or physically abused by their caretakers or other residents while at a nursing home.
Dog owners must reasonably contain and control their dogs known to have violent tendencies towards others.
The following pages show some examples of the different types of personal injury cases handled efficiently by McKibben Shaw Law.
We will start our examples of personal injury cases with the one we do best -- premises liability cases involving slip and falls, trip and falls, negligent security or general premises liability injuries.
The other major area of cases we handle are business torts -- anytime you are hurt on business property or a business injures you or your company, we can assist you. McKibben Shaw Law is one of the few Indiana law firms that will take your commercial injury case (when a business breaches a contract with you or engages in unfair business practices that harms your business) on a contingency basis. This mean NO FEE UNTIL WE WIN.
“Not just the lawyers you need, but the lawyers you WANT.”- Tristen K