Passmore v. Multi-Management Services, Inc., 810 N.E. 2d 1022 (Ind. 2004) – Employee Referrals

This case arises as a result of a nursing home employee assaulting one of the nursing homes’ patients.  The nursing home hired the subject employee, in part based on a favorable recommendation from his former employer.  The patient asserts the former employer wrongly gave a favorable recommendation and therefore should be liable for her injury.  The trial court granted summary judgment in favor of the former employer, which the Court of Appeals affirmed, holding there is no basis for liability running to patients of other nursing homes for misrepresentations when referring an employee.  The Supreme Court affirmed the trial court’s ruling, but held former employers may be liable for knowing misrepresentations when referring an employee. 

The Supreme Court considered whether to recognize a cause of action allowing recovery for personal injury when it results from a reasonable reliance on a conscious or negligent misrepresentation. Previously, Indiana recognized liability for the tort of negligent misrepresentation, but only where there was a direct relationship between the plaintiff and defendant. The Supreme Court adopted the rule of Section 310 of the Restatement (Second) of Torts.  This section applies to misrepresentations which, though intended to mislead another, are not intended to cause physical harm, but where the actor should realize harm is likely to result from the action which the misrepresentation is likely to induce.  Liability is predicated on the unreasonable risk of physical harm which is involved in the misrepresentations, and not upon the fact the misrepresentations are intended to mislead.  The Supreme Court did not, however, adopt Section 311 of the Restatement, which would impose liability for injury caused by negligent employment references. 

Milledge v. The Oaks, 784 N.E.2d 926 (2003) - Course and Scope of Employment

Plaintiff twisted her ankle in her employer’s parking lot and brought a Workers’ Compensation claim. The dispute centered on whether the injury arose out of her employment. The Supreme Court held it arose out of her employment, as her employment placed her in the lot at the time of injury. Although this was only a Workers’ Compensation decision, plaintiff’s attorneys will likely try to extend it to other areas to expand vicarious liability.

Keene v. Marion Cty. Superior Court, 823 NE 2d 1216 (Ind. Ct. App. 2005) – Wrongful Termination

Plaintiff was employed by the defendant and received notice his employment would be terminated one month in the future.  One month later plaintiff’s employment was, in fact, terminated by the defendant.  Under Indiana law, the statute of limitations for filing suit claiming wrongful termination is two years.  Two years to the day after the plaintiff was terminated, he filed suit against the defendant for wrongful termination.  Plaintiff’s case was ultimately dismissed by the trial court because the complaint was not filed within the two year statute of limitations.  The trial court ruled the statute began to run on the date plaintiff received notice of the intention to terminate his employment.  The Court of Appeals agreed with the trial court and held the statute of limitations in a wrongful termination suit starts to run on the date the employee receives notice he or she will be fired, rather than the date his or her employment is actually terminated.

Binder v. Benchwarmers Sports Lounge, 833 NE 2d 70 (Ind. Ct. App. 2005) – Independent Contractors

Plaintiff was injured while working at Benchwarmers Sports Lounge when he attempted to break up a fight in the bar.  Over the years plaintiff worked in several different capacities at Benchwarmers Lounge, including as an employee for the owner, as an “independent contractor” working security for the owner, and as an “independent contractor” working security for a separate individual who routinely hosted events at the bar.  Believing he was working in his capacity as an employee at the time of the incident, plaintiff filed a claim with the Indiana Workers’ Compensation Board.  During the Workers’ Compensation litigation, and as the statute of limitations on any potential tort claim quickly approached, an issue arose regarding whether the plaintiff was an employee, or independent contractor, at the time of the incident.  Based on the discovery response of the defendant in the Workers’ Compensation action, plaintiff did not file a tort claim within the applicable limitations period.  Subsequently in a deposition after the expiration of the limitations period it became clear the plaintiff was in fact working as an independent contractor on the date of the incident.  Shortly after discovering this information, plaintiff filed a tort claim, which the defendant immediately moved to dismiss based on the statute of limitations. 

In this case, the Court of Appeals determined equitable estoppel may be used to bar a defendant from asserting a statute of limitations defense where a material misrepresentation is made, causing the plaintiff to miss the statute of limitations deadline for filing suit.  However, the Court of Appeals further restricted this determination finding the doctrine of equitable estoppel will not be applied where the party to which the misrepresentation was made had the means to discover the information on its own.  In this case, the Court allowed plaintiff’s claim to proceed determining the defendant’s misrepresentation directly resulted in the plaintiff’s failure to file suit in a timely fashion.