Of all the personal injury clients we represent in Indiana, car and motorcycle accidents are the most common.  But this is Indiana after all, so winter time slips and falls due to snow and ice also happen all the time.  It’s been a mild winter in the Indianapolis area so far, but what happens if someone slips on your icy front sidewalk?  What if you slip on ice at the entrance to your local big box retailer?

Falls at homes

In Indiana there is no state law requiring you to shovel your sidewalks, however many counties and cities have implemented ordinances that require occupants of a home or business clear their sidewalks. Marion County, for example, has this kind of ordinance. It requires that snow be cleared off by 7 p.m. if the snow has stopped falling, or 9 a.m. the following day if the snow stops after 7 p.m. The penalty for failing to shovel the sidewalk is a $50 ticket.

Beyond a duty created by a law, homeowners still have some duty to keep their sidewalks in a generally safe condition.  Whether or not an occupant of a home shovels their sidewalk, if someone slips and falls there could be a case against that occupant, but it’s not as easy to prove liability as one might think. One issue that plaintiffs run into if they slip is that a landowner is not expected to remedy an unknown hazard.  Think of the example of when you shovel your sidewalk but then ice develops after you’ve done it.  A classic case of plausible deniability. It would be very difficult for a person who slipped and fell on black ice to prove that the landowner who shoveled the side walk knew the black ice was there.  The other issue comes down to whether the homeowner acted reasonably for the conditions.  If they run the snow blower & spread salt, they could have a good defense even if ice still developed because they could argue that they acted reasonably.

Falls at businesses

A business is more likely to be held liable for slip and falls on snow and ice.  Businesses have the highest standard of care they are supposed to provide to their customers and they generally have policies in place to address property hazards like snow & ice. There are, however, a couple of ways a business could escape liability. First, they could claim that they didn’t know about the icy/snowy conditions. Indiana courts have held that a landowner must have actual or constructive notice of the presence of snow or ice and a reasonable opportunity to clean it up. If a business is notified of snow and ice accumulating at the entrance of their store, that would be actual notice. If an employee looks outside and sees snow and ice falling from the sky that could constitute constructive notice that there will be slippery conditions at the entrance.

Once there is notice, a business has a reasonable amount of time to clean it. What is a reasonable amount of time? It depends on the circumstances. If it is really coming down should they wait until the snow ceases? One Indiana Appellate Court said no. A reasonable amount of time would likely be promptly cleaning up the snow and ice. On the other hand, it would be unreasonable in most circumstances to wait two or three days to clean it up. The business owner should also provide sufficient warning to visitors about the icy conditions.

The last hurdle that Plaintiff’s face is their own knowledge of the conditions.  Could you recover for seeing ice and getting hurt while intentionally running and sliding across it? Probably not. In that instance you should have a reasonable awareness for what conditions you may encounter.  What makes it difficult in places with a climate like Indiana’s, is that there is a general awareness that snow & ice happen in the winter.  That’s why it is important to contact an attorney to assess your premises liability case to give you an unbiased opinion about whether the available facts would support a claim.

In conclusion, if you are an occupant of a home, you have no statutory duty under Indiana law to shovel the snow, but your county may have ordinances requiring you to do so. If you are a victim of an unshoveled sidewalk, you could have a good case against the occupant of the property depending on the circumstances. Your chances may increase if the unshoveled property is a business, but you still have to have evidence that the business knew or should have known of the slick area. Regardless, if you do slip and fall this winter you need to consult an attorney to learn your rights because you should not be responsible for paying for someone else’s negligence.

Be safe out there.

On January 5, 2020 a semi driver, Matthew Small, was driving a his semi-tractor and trailer on I-65 on the northwest suburbs of Indianapolis when he struck a line of stopped traffic.  According to Small, he was talking on the phone using a hands free device and drinking coffee and he was not aware of the stopped cars until the crash had already begun.  The crash tragically injured several motorists and killed three young people, including a very young child. As a result of the crash and the deaths, the Boone County Prosecutor’s has charged Small with three counts of Reckless Homicide.

Sadly, we’re all too familiar with this exact series of events.  As car accident attorneys in Indianapolis, we see it a lot actually.  What we don’t see very often is an at-fault driver being charged with Reckless Homicide for causing needless injury and death.

So, we wanted to take this opportunity to dive into what exactly reckless homicide is, how it is proven, and some examples of conduct that Indiana courts have said was and was not reckless homicide involving car crashes.

The most common kind of personal injury cases involve injuries arising from a car accident. Very rarely are those accidents also pursued criminally, absent the person causing the accident being intoxicated. Most of the time the at-fault driver is considered negligent, which means they didn’t treat the situation with the due care it deserved.  Common examples of this are following too closely, speeding, or running a red light.  The statute for reckless homicide, however, requires that the at-fault individual acted recklessly, not just negligently.

In Whitaker v. State a semi driver was convicted of reckless homicide in Gibson County, Indiana. Whitaker was following too closely and collided with the rear end of a vehicle, causing a crash that killed the other driver. The Indiana Court of Appeals reversed his conviction of reckless homicide because there was no evidence that his conduct rose to the level of recklessness.  Negligent?  Absolutely.  But the court took the time to note that the Indiana legislature has not created the crimes of “negligent homicide” or “vehicular homicide.”  It takes something more to rise to the level of reckless homicide.

Reckless conduct as set out by the Indiana Code states that:  “A person engages in conduct ‘recklessly’ if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct.” In Whitaker did the driver know that he was following too closely? Did he know that driving over five miles over the speed limit might result in the death of another driver?  And even if he did, was it so inherently dangerous that it could have supported a criminal conviction for reckless homicide?  The Indiana Court of Appeals apparently believed that it would not.

The second prong of recklessness involves “a substantial deviation from acceptable standards of conduct.” The Indiana Driver’s Manual states that it is a good idea to follow other cars at a distance of two to three seconds. Is this rule followed with prudence during rush hour? Not that we see. Traffic would be more backed up than it already is if every driver followed this general rule. It could be said that an acceptable standard of conduct is two to three seconds behind another vehicle, but is 1.5 seconds in stop and go traffic a substantial deviation? Probably not.  Is 1.5 seconds at 70 mph on I-465 a substantial deviation?  Could be, but there aren’t any bright lines here.

The Court in Whitaker also noted that proof that an accident arose out of inadvertence, lack of attention, forgetfulness, of from an error of judgement will not support a charge of reckless homicide. Below are some examples of these cases where reckless homicide did not stick:

  • attempting to pass another vehicle when the defendant’s view was obstructed, in violation of the reckless driving statute
  • driving through a light that freshly turned red when the driver is unable to stop in time
  • rear-ending a vehicle absent a showing that the driver knew he was following too closely and continued driving too closely anyway

It certainly is possible to convict an at-fault driver for reckless homicide, however.  Here are a few instances where the court ruled in favor of reckless homicide:

  • driving while intoxicated and substantially across the centerline for an extended period of time
  • a police officer driving through a flashing yellow light at 100 miles per hour without his lights or siren activated
  • driving 50 miles per hour down a narrow residential street with a 30 mile per hour speed limit and cars parked on both sides, while another person was standing on a running board, holding onto the driver’s side mirror
  • operating a vehicle on a very dark highway during the early morning hours without headlights
  • consuming alcohol and later driving around a corner at approximately 100 miles per hour
  • driving “erratically” and forty to fifty miles per hour where speed limit was thirty-five but snow and ice made twenty miles per hour the maximum safe speed
  • intentionally crossing the centerline for the purpose of greeting a friend according to a local custom

Tragic events similar to the one that took place on Sunday January 5, happen all the time, especially with semis. Big truck accidents often lead to big injuries and wrongful death.  Drivers need to be prudent and defensive. Always maintain a safe following distance.  And ALWAYS, ALWAYS, ALWAYS be on the lookout, especially when in a traffic backup on the highway, and.

Be safe out there.