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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. I will continue to pray that God keeps giving you the strength and courage to keep fighting for what is right and just so you are aware, you are an inspiration to those that are feeling weak and helpless as they are trying to figure out why evil keeps winning. God Bless.....

  2. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  3. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  4. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  5. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

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