Articles Posted in Torts

The Indiana Tort Claims Act (I.C. 34-13-3 et seq.) requires that notice must be filed before a plaintiff may bring a tort claim against any state agency or political subdivision. The timing of this notice is critical, as failing to file a tort claim notice within the applicable time limit will most likely bar an individual from seeking any remedy available under tort law. If an individual’s tort claim involves the State or any state agency, notice must be served upon the attorney general or the relevant state agency within 270 days of the incident occurring. I.C. 34-13-3-6(a). Where a tort claim is against a political subdivision, notice must be given to the governing body of such political subdivision, as well as with Indiana Political Subdivision Risk Management Fund, within 180 days of the event occurring. The definition of a political subdivision can be found at IC 34-13-3-22. In a case where an individual’s injury, or other circumstance, causes them to become incapacitated, or in the case where the injured party is a minor, the time limit tolls. I.C. 34-13-3-9. In such a case, the tort claims notice must be filed within 180 days after the incapacity ends, or in the case of a minor, 180 days after his/her 18th birthday.

It is important to note that whether a party is a state agency or a political subdivision is not always apparent. The Court of Appeals has held in one case that a state university is not an agent of the State, but rather a political subdivision subject to the 180 day tort claim notice deadline. Therefore, it is advisable that all tort claim notices be filed as soon as possible, ideally within 180 days.

James A. L. Buddenbaum has practiced law for more than 25 years with Parr Richey representing municipalities and businesses in utility, healthcare and general business sectors in both regulatory and transactional matters. Jim also has extensive experience in representing businesses in making large property damage and similar insurance claims.

On February 16, 2017, the Indiana Supreme Court issued an opinion regarding a sports participant’s duty owed to other participants in sports-injury tort cases. Megenity v. Dunn (No. 22D03-1309-CT-1354, decided Feb. 16, 2017). The Court affirmed the trial court’s ruling that a participant does not breach a duty owed to another participant by engaging in conduct ordinary in the sport, unless the participant intentionally or recklessly did so.

In Megenity, the plaintiff was a black belt in karate and attended classes at one particular studio for two years. At one session, she volunteered to hold a flying-kick bag while students practiced. The defendant was a green belt and accidentally executed a jump kick (both feet are off the ground) instead of a flying kick (one foot remains on the ground), which sent the plaintiff “flying and crashing to the floor”. The plaintiff suffered a knee injury, requiring surgery and months of physical therapy.

The plaintiff sued, arguing that the defendant breached a duty to her because a jump kick is never done during a flying kick drill. The trial court granted summary judgment for the defendant, finding a jump kick was an ordinary behavior during a kick-the-bag drill. The Supreme Court agreed, finding that “ordinary conduct” should be determined looking at the sport generally, not in the specific activity within the sport. As jump kicks are ordinary in the general sport of karate and the defendant did not intentionally or recklessly execute a jump kick, the defendant did not breach a duty even though the jump kick was contrary to protocol.

The Indiana Court of Appeals recently held in City of Evansville v. Magenheimer that the Indiana Tort Claims Act (“ITCA”) does not govern a claim under Indiana Code chapter 35-47-11.1, which prohibits political subdivisions from regulating firearms (“Indiana Firearms Preemption Act” or “IFP Act”).

In September of 2011, Benjamin Magenheimer and his family visited a city park in Evansville, Indiana. While at the park, Magenheimer openly carried a firearm, which he was licensed to do. The police were called and asked Magenheimer to leave the park pursuant to an Evansville municipal code prohibiting firearms in city parks. Magenheimer filed a complaint alleging that Evansville had violated the Indiana Firearms Preemption Act, which provides that “political subdivision[s] may not regulate . . . firearms . . . [their] possession [or] carrying.” The Act also creates a private right of action, which Magenheimer brought suit pursuant to. Evansville argued that it committed a tort by enforcing the ordinance and therefore, Magenheimer’s claim was essentially a tort and barred for failure to comply with the notice requirements of the ITCA.
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