Eichhorn & Eichhorn Attorneys At Law

Claim:

An Indiana Law Firm was sued by a former client who claimed that the firm had agreed to pursue a second premises liability claim on her behalf, which they denied. This second claim was not filed within the statute of limitations and the former client claimed attorney malpractice. The court granted the defendants' summary judgment, the plaintiff appealed.

Outcome:

Mr. Jensen argued on transfer to Indiana Supreme Court. The Indiana Supreme Court reversed the Court of Appeals decision.

Eichhorn & Eichhorn, LLP’s clients were Indiana lawyers who were sued by a former client who claimed that they had agreed to pursue a second premises liability claim on her behalf, which they denied. This second claim was not filed within the statute of limitations and the former client claimed attorney malpractice. The lawyers sought summary judgment pursuant to Indiana’s “trial-within-a-trial” doctrine, arguing that the alleged premises defendant, a local hospital, was not liable to their former client in the first place because the alleged defect, a telephone cord in her husband’s hospital room, was “open and obvious,” as defined in Indiana common law and §343A of the Restatement (Second) of Torts. This rule, when applicable, precludes liability on the part of a premises defendant.

The trial court agreed and granted summary judgment to the lawyers. The Court of Appeals reversed, however, and imposed a burden upon the lawyers which had never existed before in Indiana law - the lawyers were obligated to disprove the possibility that the former client forgot, or was distracted from, the “open and obvious” telephone cord. The Indiana Supreme Court then quickly granted transfer and vacated this rogue Court of Appeals opinion.

The former client first argued to the Supreme Court that the “Open and Obvious” rule was no longer viable in the wake of comparative fault. The court rejected this position outright and proceeded to apply the tenets of the rule to the facts of the case. The former client testified that she did not see the telephone cord immediately prior to the moment when she claimed that she tripped over it. For this reason, the lawyers argued instead that the telephone cord was “open and obvious,” because she did agree, after her fall, that she would have seen it and appreciated the risk had she looked. The Supreme Court agreed with the lawyers that this was the proper interpretation of Indiana’s “Open and Obvious” rule and, instead, decided the case upon whether, in fact, the telephone cord obvious, i.e., that it was situated in such a fashion that it was undisputed that she should have seen it. Unfortunately, the court found that this was a “close factual question” because the court speculated that the cord could have been in a different location than the location at which she said that she would have seen it had she looked. So the case will ultimately be tried by a jury, but at least with the proper premises liability law having been established.