Lead Opinion
Case Summary
Indiana Code section 34-11-6-1 provides that a “person who.is under legal disabilities when the cause of action accrues may bring the action within two (2) years after the disability is removed.” Legal .disability includes mental incompetence.
In this case, Charles R. Whitlock— who was injured when a crane failed to stop and struck him in the face, causing lacerations to his forehead and eyelid— filed his complaint eight days after the two-year statute of limitations expired. He claims, however, that he was mentally incompetent when the cause of action accrued. The trial court granted summary judgment in favor of Steel Dynamics, Inc., on grounds that Whitlock filed his complaint after the statute of limitations expired.
We find that the designated evidence in this case is not sufficient to establish a material dispute of fact because Whitlock’s affidavits address the central issue of the case—whether Whitlock was mentally incompetent—without giving details sufficient to support the conclusory statements. We therefore affirm the trial court.
Facts and Procedural History
On April 15, 2011, Whitlock was an employee of Trivetts Construction Company and was working at Steel Dynamics in Hendricks County, Indiana. That day, Whitlock was injured when a crane failed to stop and struck him in the face, causing lacerations to the center of his forehead and his left eyelid. Whitlock was taken by ambulance to the emergency room at Hen
Whitlock was transferred by ambulance to the emergency room at Methodist Hospital in Indianapolis because he required stitches to his eyelid, and Hendricks Regional Health did not have an eye surgeon to perform that procedure. Whit-lock himself signed consent forms authorizing his transfer to Methodist Hospital and the procedure on his eyelid. Id. at 72 (Ex. 2), 60. Whitlock was “[ajwake, alert, and appropriate” at Methodist Hospital. Id. at 76. Indeed, Whitlock distinctly recalled a conversation with the eye surgeon, who was upset because he thought Hendricks Regional Health should have been able to stitch his eyelid. Id. at 60-61. In addition, Whitlock scored a 15 on the Glasgow Coma Scale,
Whitlock was not admitted to either hospital and went home that same day, April 15, with a prescription for Yicodin. Notably, Whitlock was not diagnosed with a concussion or any other brain injury. Whitlock’s mother-in-law, Dorothy Gault-ney, removed Whitlock’s stitches at his Greensburg home on April 24 because Whitlock did not want to return to Indianapolis. Whitlock never received any other medical care for his injuries.
Whitlock filed a complaint against Steel Dynamics on April 23, 2013—eight days after the two-year statute of limitations
[W]hen I got him home [on April 15] I had to help him out of the truck into the house and I got him on the couch, at that point he was pretty much totally done for. He had to have help to be moved around at all times he could not even get up to go to the bathroom by himself without having to be helped and if he got. up and went to the bathroom he would go back to the couch and go straight back to sleep. He was disoriented, when he would wake up you would try to talk to him and he would have to think a long time about what he was saying before he said it, like he was forgetting, and this went on for probably 15 to 20 days before he actually started kinda [sic] acting more like himself. Even now at this point, when you are talking to him, in the middle of a conversation he’ll forget what he is talking about and he never done [sic] that before. He was down for two weeks he didn’t get up and do anything, he was still disoriented and incoherent, after that couple of weeks he started moving around on his own. His lack of movement was on account of the head injury and the headaches and the pain After the accident I would say that for the first 2 to 3 weeks he was clearly disabled, then he started getting up and moving around and started doing things for himself, I didn’t have to help him to the bathroom, but those first few weeks, when he got up, he would go to stand up off the couch and he would get dizzy and he would just sit back down and I would go over and help him up off the couch and I would walk with him to the bathroom and I would have my hands on him at all times even when he was in there using the bathroom. I stayed in there with him and kept my hands on him so he would not fall down. He was talking but you could tell that he was not all there, he would change the subject in the middle of what you were talking about and forget what you were talking about and just quit talking.... [E]ven now, sometimes he will be in the middle of a conversation and he will forget what he is talking about....
Id at 108-09.
Gaultney also submitted an affidavit describing her interaction with Whit-lock when she removed his stitches on April 24, 2011, nine days after the accident. This affidavit provides, in part:
5. I was asked by my daughter to come to their house on Sunday April 24, Easter Sunday, to remove stitches from the wound on his face and head.
6. At that time Charles was not yet able to speak coherently, his balance was such that he had to be assisted from the bed to the couch and to his bathroom. If he was awakened and required to move around he would then immediately doze off again. He did not recognize me at first, and at that time he was not fit to care for himself or to understand what was going on around him.
7. I saw him again on about the 28th, by then he was some better, but not much. He could move around by himself and was able to keep his balance with difficulty. His speech was still slurred and he could not concentrate for very long.
8. It was not until about six (6) weeks after the injury that he was able to function without hurting himself.
Id at 113.
In March 2014 the trial court granted summary judgment in favor of Steel Dynamics “on the basis of the statute of limitations....” Id. at 118 (capitalization omitted). The court thus dismissed Whit-lock’s claims against Steel Dynamics with prejudice. Id
Whitlock now appeals.
Although Whitlock filed his complaint after the two-year statute of limitations expired, he tries to preserve his late-filed claim by alleging that he was “incompetent from April 15, 2011 to sometime well after April 24, 2011,” thereby giving him extra time to file his complaint. Appellant’s Br. p. 12.
The standard of appellate review of a summary-judgment ruling is the same as that used in the trial court: summary judgment is appropriate only where the evidence shows that there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Boggs v. Tri-State Radiology, Inc.,
[13] In addition, Indiana Trial Rule 56(E) provides that “[supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Affidavits must comply with Indiana Evidence Rule 701, which provides:
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception; and
(b) helpful to a clear understanding of the witness’s testimony or to a determination of a fact in issue.
The witness must set forth enough facts to allow the trial court to find, pursuant to Evidence Rule 104(a), that the opinion is rationally based on the witness’s personal perceptions. Ackles v. Hartford Underwriters Ins. Corp.,
In cases involving injuries more severe than those sustained by Whitlock, this Court has found that those injuries did not render the plaintiff incompetent. For example, in Indiana Department of Highways v. Hughes,
We held that Nancy was not incompetent just because she had a badly broken leg and ankle that required a two-month hospital stay. Rather, the evidence showed that:
[Nancy was] mentally alert at virtually all times from the day of the accident forward. She paid her bills, signed consent forms, received visitors, discussed the accident, and contemplated legal action—all within a few weeks of the accident. Moreover, while she was obviously physically impaired and could not independently perform all acts regarding her personal care and property, there simply was no evidence it was unreasonable for her to have to comply with ITCA’s notice provisions.
Id. at 678-79; see also Overton v. Grillo,
In contrast, this Court found a genuine issue of material fact regarding whether the plaintiff was mentally incompetent in Hayes v. Westminster Village North, Inc.,
Hayes argued that Section 34-11-6-1 operated to extend the statute of limitations because Dorothy was mentally incompetent when she was allegedly harmed by Westminster’s negligence and transferred to the hospital for medical treatment. Id. Specifically, Hayes designated medical records showing the following: (1) Dorothy was diagnosed with senile dementia; (2) when she arrived at the hospital on December 3, Dorothy was unable to provide her medical history or respond to commands; (3) Dorothy exhibited a “[d]e-ereased level of consciousness”; (4) a doctor noted that on December 4, Dorothy was “not responsive” and could not provide any medical history; and (5) Dorothy was “aphasie,” which is defined as the partial or total loss of the ability, to articulate ideas in any form, resulting from brain damage. Id. Westminster, however, highlighted other entries in Dorothy’s medical records that indicated she was sufficiently conscious to respond to medical providers’ questions and that she had never been adjudicated mentally incompetent in a legal proceeding. Id. We found that the “evidence [wa]s sufficient to establish a material dispute of fact as to whether [Dorothy] was mentally incompetent at the time that she was allegedly harmed by Westminster’s negligence and was transferred from Westminster to the hospital for emergency treatment.” Id.
Consistent with the case law in this area and for the reasons set forth below, we find that the designated evidence in this case does not rise to the level necessary to avoid summary judgment on the issue of whether Whitlock was mentally incompetent, as he alleges, “from April 15, 2011 to sometime well after April 24, 2011.”
Steel Dynamics designated evidence that Whitlock had no fractures and no concussion or other brain injury. He also had no deficiency on the Glasgow Coma Scale. Indeed, the only medical treatment that Whitlock received was stitches. Whitlock was “awake,” “alert,” and “oriented” at both hospitals, and he was able to communicate with his medical providers and sign consent forms. He was not admitted to either hospital and went home the same day with a prescription for Vicodin. He never received any further medical treatment for his injuries.
[21] Whitlock designated affidavits from his wife and mother-in-law. These affidavits address Whitlock’s alleged mental incompetence and physical limitations. As for Whitlock’s physical limitations, the affidavits address the following concerns:
• Whitlock required help to move around
• He slept a lot
• He had headaches and pain
• He got dizzy when standing up
• He had difficulty talking when he first woke up
These allegations, however, do not create a genuine issue of material fact that Whit-lock was mentally incompetent.
[22] The affidavits also list specific instances of mental problems. In particular, the affidavits allege:
• Whitlock was forgetful at times
• He dozed off
• He was disoriented when he woke up
Again, because of the nature of these allegations, they are not sufficient to create a genuine issue of material fact that Whit-lock was mentally incompetent.
[23] Finally, the affidavits give general opinions without designating objective bases for the opinions. The affidavits in this regard allege:
• Whitlock was disoriented and incoherent, without giving specific instances of how he was disoriented and incoherent6
• He did not understand what was going on around him, again without giving specific details
• He did not recognize his mother-in-law “at first,” but without specifying when he did recognize her
• He was not “all there”
Since these opinions addressed the central issue of Whitlock’s mental competence, greater detail was required. In other words, the affiants—rather than merely setting forth conclusory statements—were required to give specific details which they perceived to be the basis for their conclusions that Whitlock was mentally incompetent. Instead, their opinions were only one step removed from simply saying that Whitlock was mentally incompetent. • More is required under Evidence Rule 701.
Because there is no evidence, either individually or collectively, that creates a genuine issue of material fact that Whitlock was mentally incompetent, the trial court did not err in entering summary judgment in favor of Steel Dynamics.
This case is distinguishable from the Indiana Supreme Court’s recent opinion in Hughley v. State,
In contrast to the affidavit in Hughley, in which the defendant set forth facts on the ultimate issue, here , the facts set out by Whitlock’s wife and mother-in-law are not sufficient to establish a genuine issue of material fact that Whitlock was mentally incompetent, and they attempted to give their opinions on the ultimate issue, and their opinions are inadmissible. • Accordingly, Hughley does not control this case.
Because we find that there is no genuine issue of material fact regarding Whitlock’s mental competence when the cause of action accrued, we affirm the trial court’s grant of summary judgment in favor of Steel Dynamics.
Affirmed.
Notes
. According to Whitlock, his wife told him that he lost consciousness, but she described it as "zonfingj in and zon[ing] out." Appellant’s App. p. 62. Whitlock said he still zones in and out “to this day.” Id.
. The Glasgow Coma Scale “is the most common scoring system used to describe the level of consciousness in a person following a traumatic brain injury.” Brainline, What is the Glasgow Coma Scale, http://www.brainline. org/content/2010/10/what-is-the-glasgow-coma-scale.html (last visited May 26, 2015).
. An action for injury to person “must be commenced within two (2) years after the cause of action accrues.” Ind.Code § 34—11— 2-4(a)(l). It is undisputed that the cause of action accrued on April 15, 2011.
Whitlock does not argue that this statute of limitations is unconstitutional or unconstitutional as applied to him. See, e.g., Martin v. Richey,
. Whitlock also designated portions of his medical records and deposition as well as photographs of his injuries. See Appellant's App. p. 97-98.
. The statute, which is currently codified at Indiana Code section 34-13-3-9, now uses the term "incapacitated” instead of "incompetent”:
If a person is incapacitated and cannot give notice as required in section 6 or 8 of this chapter, the person's claim is barred unless notice is filed within one hundred eighty (180) days after the incapacity is removed.
The Indiana Supreme Court has explained that ''incompetence” and "incapacity” are not the same thing. Polick v. Ind. Dep’t of Highways,
(2) is unable:
(A) to manage in whole or in part the
individual's property;
(B) to provide self-care; or
(C) both;
because of insanity, mental illness, mental deficiency, physical illness, infirmity, habitual drunkenness, excessive use of drugs, incarceration, confinement, detention, duress, fraud, undue influence of others on the individual, or other incapacity....
Unlike mental incompetence, incapacity includes physical limitations.
. This allegation is separate from the allegation that Whitlock was disoriented when he woke up.
Dissenting Opinion
dissenting.
“The issue of unsoundness of mind is ordinarily a question for the trier of fact.” Collins v. Dunifon,
Summary judgment is “not a summary trial.” Hughley v. State,
Thus, we must carefully review a summary judgment de novo and decide whether there are any genuine issues of material fact. Id. Factual issues are ‘genuine’ if “a trier of fact is required to resolve the parties’ differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences.” Id. (quoting Williams v. Tharp,
The majority holds the affidavits of Kristina and Gaultney were inadmissible under Evidence Rule 701 because “the affidavits give general opinions without designating objective bases for the opinion.” (Op. at 273.) I disagree with that characterization of the affidavits and believe the affidavits were admissible.
As for whether there were objective bases for the opinions, Kristina’s affidavit explains: “He was disoriented, when he would wake up you would try to talk to him and he would have to think a long time about what he was saying before he said it.” (Appellant’s App. at 108.) She also indicated “he was not- all there, he would change the subject in the middle of what you were talking about and forget what you were talking about and just quit talking.” (Id. at 109.) Those were “specific details,” (Op. at 272-73), to explain how she reached at least two of her “general opinions.” (Id. at 272.)
The affidavits also included factual assertions about Whitlock’s physical and mental limitations following his injury. (See id. at 272-73 (listing concerns discussed in affidavits).) After listing those factual assertions, the majority holds they “do not create a genuine issue of material fact” about his mental competence. (See id.) Those facts alone may not create a genuine issue of material fact about Whit-lock’s mental competence, but I would characterize that evidence about his physical and mental limitations as relevant to the opinions given about his mental competence. See, e.g., Chapman v. Burks,
Thus, I would reverse the summary judgment. See Chapman,
For all these reasons, I must respectfully dissent.
. The majority notes we have held “injuries more severe than those sustained by Whitlock ... did not render the plaintiff incompetent.” (Op. at 270.) However, Whitlock’s circumstances as described in the affidavits by Kristina and Gaultney were nothing like the circumstances faced by the plaintiff, Nancy Hughes, in the case cited by the majority. Indiana Dept, of Highways v. Hughes,