ILNews

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.”
 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

  2. Thank you for this post . I just bought a LG External DVD It came with Cyber pwr 2 go . It would not play on Lenovo Idea pad w/8.1 . Your recommended free VLC worked great .

  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

  5. I have no doubt that the ADA and related laws provide that many disabilities must be addressed. The question, however, is "by whom?" Many people get dealt bad cards by life. Some are deaf. Some are blind. Some are crippled. Why is it the business of the state to "collectivize" these problems and to force those who are NOT so afflicted to pay for those who are? The fact that this litigant was a mere spectator and not a party is chilling. What happens when somebody who speaks only East Bazurkistanish wants a translator so that he can "understand" the proceedings in a case in which he has NO interest? Do I and all other taxpayers have to cough up? It would seem so. ADA should be amended to provide a simple rule: "Your handicap, YOUR problem". This would apply particularly to handicapped parking spaces, where it seems that if the "handicap" is an ingrown toenail, the government comes rushing in to assist the poor downtrodden victim. I would grant wounded vets (IED victims come to mind in particular) a pass on this.. but others? Nope.

ADVERTISEMENT