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Court rules on liability in nursing home accident

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The Indiana Court of Appeals today turned to an issue that has been dealt with few times in state court history:

What happens when a nursing home facility brings a local string band to play for the residents, and one of those volunteers arrives on the property and drives into the building before the performance, jumping a curb and striking a nursing home resident on the front porch before crashing into the building itself?

An answer comes today in Albert Gilbert, an incapacitated adult, by his guardians Viola Parsley, et al. v. Loogootee Realty LLC d/b/a Loogootee Nursing Center, No. 29A02-0912-CV-1188, in which the appeals panel affirmed a judgment from Hamilton Superior Judge Daniel Pfleging.

The Hamilton Superior case involves the 24-hour Loogootee Nursing Center that often encourages volunteer groups and individuals to visit the center and provide entertainment. One of those groups is the local string band known as the Charles Bruner Band, in which Carroll Ledgerwood was a singer and bass player for several years at the time of this incident in April 2007. Scheduled to perform at the nursing center, Ledgerwood drove to the facility to unload his equipment but his foot slipped off the brake and hit the accelerator when backing into a parking space. That led to his car traveling across the front porch and hitting a moderately mentally disabled Loogootee resident, Albert Gilbert, who was sitting on a front porch swing. The car ultimately crashed through the building’s wall, and as a result of the accident Gilbert suffered injuries that rendered him unable to walk and dress himself for several months. The man’s guardians filed a complaint for damages on his behalf, suing both Ledgerwood who was driving and Loogootee for not adequately protecting Gilbert from one of its gratuitous servants.

After various motions and court hearings, Judge Pfleging late last year determined that Ledgerwood fit the definition of a “gratuitous servant” as defined by a 1983 Indiana Court of Appeals decision, but that the driver wasn’t acting in that capacity when behind the wheel of his own vehicle and so the nursing facility wasn’t vicariously liable. The trial judge also found Loogootee didn’t owe Gilbert a duty because the accident wasn’t reasonably foreseeable.

In today’s 16-page decision, Judge Ezra Friedlander wrote for a unanimous panel that this issue hasn’t been dealt with inside the state.

“We find scant cases in Indiana that have discussed the doctrine of gratuitous servant. Although Gilbert cites numerous cases in support of his contention that the doctrine applies here, the only case cited that specifically discusses this principle is Trinity Lutheran Church Inc. of Evansville v. Miller, 451 N.E. 2d 1099, (Ind. Ct. App. 1983), (which) appears to be the first case in Indiana to recognize the doctrine and one of only two publicized cases that mentions it.”

Basically, the doctrine is a form of master-servant or principal-servant relationship, giving rise to liability if there’s no direct evidence of a traditional employment agreement between the two parties. Based on Trinity, the test to determine whether that relationship exists depends on the element of control and the facts of the case.

Finding that Loogootee exercised no control over the band or Ledgerwood in this situation, the appellate court found that the driver wasn’t a gratuitous servant at the time he drove into the nursing home and injured Gilbert.

The appeals judges turned to other employer-liability issues and again found that the nursing home wasn’t liable for what happened in this case, and that a common-carrier exception in another 1989 case didn’t apply here. That case was Stropes by Taylor v. Heritage House Childrens Ctr. of Shelbyville Inc., 547 N.E.2d 244 (Ind. 1989), and the appellate panel now analyzed it to determine the best interpretation of Heritage is that it’s understood to address liability of an employer for an employee’s conduct.

The panel didn’t agree with Gilbert on the other liability aspects of the appeal, but did note that it wasn’t deciding more than whether Ledgerwood was a gratuitous servant at the time of the injury-producing event.

“We can conceive of many foreseeable dangers inherent in living in a nursing facility such as Loogootee and from which Loogootee had a duty to protect its residents,” Judge Friedlander wrote. “We cannot agree, however, that a person driving a vehicle across the front porch and through the wall of the facility was one of them.”
 

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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