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.”