Indiana Court Deals South Bend Fire A Minor Set Back

The Indiana Court of Appeals dealt a slight blow to the South Bend Fire Department last week with a ruling that will allow a case that had been decided in the department’s favor to return to trial court for further proceedings. For instructors and students in fire law classes, this case is a good one to use discuss the job of a judge versus the job of a jury when it comes to questions of fact.

The case involved a woman, Evelyn M. Gregory, who claims she was injured due to the negligence of firefighters from the South Bend Fire Department. The court lays out the facts as follows:

  • On June 16, 2013, Gregory felt dizzy and fell against a wall in her apartment.
  • On June 17, Gregory went to Dr. Christopher Hall’s office.
  • While walking to the bus stop after leaving Dr. Hall’s office, Gregory lost consciousness.
  • When Gregory regained consciousness, she was on the ground.
  • When South Bend firefighters and paramedics arrived, the firefighters helped Gregory stand and then walked with her to the ambulance.
  • While walking to the ambulance, Gregory lost consciousness again, and when she regained consciousness, the paramedics were carrying her-with one holding her by her feet and the other holding her under her arms.
  • Gregory has no recollection of what happened while she was unconscious on the way to the ambulance.
  • After being placed in the ambulance, Gregory noticed that one of her feet was twisted and swollen and one of her knees was also swollen.
  • Gregory later learned she had sustained a broken bone in that area of her body.
  • Gregory testified that the firefighters forced her to her feet when she wished to lie down.
  • She also testified that she did not have a twisted or swollen foot and knee or any fractures before the paramedics carried her to the ambulance on June 17, 2013, but she did have those injuries once she was in the ambulance and had regained consciousness

Gregory sued the city alleging the firefighters’ negligence cause her injuries. The problem is she had no proof of what negligence occurred, only conjecture. She was unconscious and had no witnesses.

The trial judge granted summary judgment in favor of the city, concluding Gregory was unable to establish it was the firefighters’ negligence that caused her injuries. Gregory appealed.

The essence of Gregory’s argument on appeal is a principle known as res ipsa loquitor (literally the thing speaks for itself). Gregory argues that she was not hurt before the firefighters arrived; she passed out in the care of the firefighters; and when she awoke she was injured. From that a jury could conclude the firefighters were negligent, despite their affidavits and testimony they did not drop her or cause her to fall. Therefore, Gregory argued that the trial judge should have left the question to the jury.

In wrestling with the decision, the court of appeals reversed the trial court. Don’t be confused by the awkward terms “Fire Dep’t designated evidence” and “Gregory designated evidence”. The court is merely differentiating between the evidence that each side claims supports its version of the story. Here is the reasoning in the court’s own words:

  • Here, the issue of material fact is whether the firefighters and/or paramedics dropped Gregory while carrying her to the ambulance, thus causing her injury.
  • The Fire Dep’t designated evidence-firefighter and paramedic affidavits- showing that they did not drop Gregory.
  • However, Gregory’s designated evidence-her deposition-showed that she did not have an injury before the Fire Dep’t employees carried her to the ambulance, she lost consciousness while being carried to the ambulance, and she did have an injury when she regained consciousness in the ambulance.
  • Thus, Gregory designated evidence from which a reasonable factfinder could conclude that the Fire Dep’t employees dropped Gregory while carrying her to the ambulance, causing her injury.
  • While the fact-finder in this case may ultimately determine that Gregory’s circumstantial evidence is not sufficient to overcome the Fire Dep’t’s evidence, that possibility does not justify summary judgment
  • [T]he mere improbability of recovery by a plaintiff does not justify summary judgment against him.
  • Rather, drawing all reasonable inferences in favor of Gregory, as we must, it is clear that there exists a genuine issue of material fact, making summary judgment inappropriate.

Here is a copy of the decision: Gregory v. City of S. Bend Fire Dep_t_ 2019 Ind. App. U

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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