Justices To Consider Whether Failure To File Negligence Case Warrants Malpractice Claim

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Olivia Covington for www.theindianalawyer.com

The fate of a legal malpractice claim against a northern Indiana law firm is now in the hands of the justices of the Indiana Supreme Court, who must decide whether an underlying slip-and-fall case would have been more favorable to the plaintiff if the firm in question had not failed to file crucial documents.

According to the Lake Superior Court, the answer to that question was “No,” which was why the trial court granted summary judgment to Merrillville firm Thiros and Stracci, P.C. on Elizabeth Roumbos’ malpractice claim. Roumbos had hired the firm and now-suspended attorney Samuel G. Vazanellis to represent her after she tripped on wires on the floor of her husband’s hospital room and fell while visiting him.

The firm failed to file Roumbos’ negligence claim within the applicable statute of limitations, prompting her to file a malpractice claim against the firm. The Court of Appeals reversed summary judgment in favor of the firm and allowed the malpractice claim to proceed in a February decision,  then reaffirmed its decision on petition for rehearing in June.

The case of Elizabeth Roumbos v. Samuel G. Vazanellis, et al., 45S03-1710-CT-00635, then went before the high court on Thursday, when attorneys for both parties addressed only the issues related to the underlying negligence claim, not the legal malpractice suit.

Though the Court of Appeals ruled in Roumbos’ favor, her counsel, Jack Morris, challenged the court’s characterization of the facts that led it to overturn summary judgment for the firm. While the appellate court determined Roumbos knew of the wires but had stopped paying attention to them, causing her fall, Morris contended there was no evidence in the record or in Roumbos’ testimony that she had previously seen the wires before she tripped.

“The facts in this case have somehow taken on a life of their own, but there’s no evidence that she ever saw those wires,” Morris told the court.

Morris then argued summary judgment was inappropriate in this case under both the facts and the law. Looking to the facts, he told the justices the designated evidence created a question of fact as to whether the wires running along the floor was the actual cause.

Further, as an issue of law, Morris said the case could be viewed through the lens of Indiana’s Comparative Fault Act. Under that act, contributory fault can proportionally diminish the amount a party can recover in damages, but it cannot bar recovery unless the fault is found to be greater than the fault of others involved in the case.

But David Jensen, counsel for the law firm, said the case should be considered in terms of Section 343(A) of the Restatement (Second) of Torts (1965). That section holds that a land possessor is not liable for harm if the condition that caused the harm was known or obvious to the invitee.

To support his argument, Jensen pointed to a portion of Roumbos’ deposition in which she said that had she looked down at the floor, she “probably” would have seen the wires. Based on that statement, Jensen said the danger – here, the wires – met the “known or obvious” standard, making summary judgment to the firm appropriate. The trial court also relied on that portion of Roumbos’ testimony to rule in favor of the firm.

Each of the five justices had multiple questions for the attorneys. For example, Justice Steve David raised concerns about Jensen imposing a “super duty” on Roumbos to scour the floor in search of potential dangers.  But Jensen disagreed, arguing instead that he was addressing an element of premises liability with regard to a premises owner, not imposing a duty on a plaintiff like Roumbos.

The justices also raised concerns about Morris’ argument, asking him on multiple occasions to clarify what genuine issues of material fact precluded summary judgment. In response to such a question from Chief Justice Loretta Rush, Morris said there was a question as to whether cords were “open and obvious.”

David also took time to admonish Roumbos’ counsel for the sarcastic nature of their briefs, telling Morris he was distracted while reading the briefs and was not pleased with their tone. Morris apologized and agreed the briefs were “unnecessarily difficult.” His name was not signed to the briefs in question.

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