ILNews

Justices reverse, reinstate wrongful death claim against nursing home

Back to TopCommentsE-mailPrintBookmark and Share

The estate of a woman who died in a nursing home after an attack by another resident may pursue a wrongful death claim, the Indiana Supreme Court ruled Tuesday. The family was initially told the woman suffered a fall but learned of the attack years later.
Justices reversed a trial court grant of summary judgment for the nursing home in Virginia E. Alldredge and Julia A. Luker, as Co-Personal Representatives of the Estate of Venita Hargis v. The Good Samaritan Home, Inc., 82S01-1305-CT-363. Vernita Hargis lived at Good Samaritan Home in Evansville in November 2006 when a daughter received a call from a nurse saying that Hargis was ill after suffering a fall. Hargis was hospitalized later that day and died a few days later from the head injury she sustained.

A nurse told one of Hargis’ daughters almost three years later that Hargis had been attacked by another resident. In December 2010, the family sued, and the nursing home was granted summary judgment in Vanderburgh Superior Court on its argument that the complaint was time-barred, and that even if fraudulent concealment occurred, that could not extend the statutory two-year filing period.

The Court of Appeals reversed and remanded, giving plaintiffs an opportunity to prove common-law fraud, but holding that the Fraudulent Concealment statute could not apply because it was enacted after the Wrongful Death Act.

Though an issue of first impression, Justice Mark Massa wrote for the court, “Based upon our review of the historical and precedential records, we conclude that if a plaintiff makes the necessary factual showing, the Fraudulent Concealment Statute may apply to toll the Wrongful Death Act’s two-year filing period. In so holding, we break very little new ground."  

“Public policy considerations further bolster our conclusion. Were we to hold otherwise, we would be incentivizing fraud and thus thwarting the obvious purpose of the Fraudulent Concealment Statute,” Massa wrote. “And our decision today is consistent with that of courts in other jurisdictions, which have routinely found fraud may toll a statutory filing period even when it is a condition precedent to the existence of the claim rather than a statute of limitation.”

The opinion traces statutes, common law and caselaw dating back more than 200 years to find numerous examples tolling in similar Indiana cases. The opinion opens with the final opinion written by Indiana’s fifth justice, Stephen C. Stevens – Raymond v. Simonson, an 1835 ruling –  in which he laments “the labyrinth of difficulties, discriminations, technicalities and shades that have gathered around the statute of limitations.”

In a footnote, Massa notes a biography of Stevens says after he resigned from the bench he returned to private practice. “(T)hirty-three years later, after losing his fortune in a bad railroad investment, he died destitute in the Indiana Hospital for the Insane.”

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

ADVERTISEMENT