Court rules on liability in nursing home accident

Back to TopE-mailPrintBookmark and Share

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.”


Sponsored by
Subscribe to Indiana Lawyer
  1. Great observation Smith. By my lights, speaking personally, they already have. They counted my religious perspective in a pro-life context as a symptom of mental illness and then violated all semblance of due process to banish me for life from the Indiana bar. The headline reveals the truth of the Hoosier elite's animus. Details here: Denied 2016 petition for cert (this time around): (“2016Pet”) Amicus brief 2016: (“2016Amici”) As many may recall, I was banned for five years for failing to "repent" of my religious views on life and the law when a bar examiner demanded it of me, resulting in a time out to reconsider my "clinging." The time out did not work, so now I am banned for life. Here is the five year time out order: Denied 2010 petition for cert (from the 2009 denial and five year banishment): (“2010Pet”) Read this quickly if you are going to read it, the elites will likely demand it be pulled down or pile comments on to bury it. (As they have buried me.)

  2. if the proabortion zealots and intolerant secularist anti-religious bigots keep on shutting down every hint of religious observance in american society, or attacking every ounce of respect that the state may have left for it, they may just break off their teeth.

  3. "drug dealers and traffickers need to be locked up". "we cannot afford just to continue to build prisons". "drug abuse is strangling many families and communities". "establishing more treatment and prevention programs will also be priorities". Seems to be what politicians have been saying for at least three decades now. If these are the most original thoughts these two have on the issues of drug trafficking and drug abuse, then we're no closer to solving the problem than we were back in the 90s when crack cocaine was the epidemic. We really need to begin demanding more original thought from those we elect to office. We also need to begin to accept that each of us is part of the solution to a problem that government cannot solve.

  4. What is with the bias exclusion of the only candidate that made sense, Rex Bell? The Democrat and Republican Party have created this problem, why on earth would anyone believe they are able to fix it without pushing government into matters it doesn't belong?

  5. This is what happens when daddy hands over a business to his moron son and thinks that everything will be ok. this bankruptcy is nothing more than Gary pulling the strings to never pay the creditors that he and his son have ripped off. they are scum and they know it.