Charles R. Whitlock, Appellant-Plaintiff,
Steel Dynamics, Inc., Appellee-Defendant
Appeal from the Hendricks Superior Court. The Honorable Stephenie LeMay-Luken, Judge. Case No. 32D05-1304-CT-64.
ATTORNEY FOR APPELLANT: James E. Ayers, Wernle, Ristine & Ayers, Crawfordsville, Indiana.
ATTORNEYS FOR APPELLEE: J. Joseph Tanner, John T. Schlafer, Faegre Baker Daniels LLP, Indianapolis, Indiana.
Vaidik, Chief Judge. Friedlander, J., concurs. May, J., dissents with opinion.
Vaidik, Chief Judge.
[¶1] 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.
[¶2] 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.
[¶3] 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
[¶4] 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 Hendricks
Regional Health in Danville. Whitlock was " [a]lert and oriented" at the hospital, and he self-reported no vomiting or loss of consciousness. Appellant's App. p. 65 (Ex. 1). Whitlock was able to use " correct words with no slurring" and had no problems talking to the doctors or understanding what they said to him. Id. at 56-57. A head CT revealed no bleeding in the brain and no fractures.
[¶5] 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. Whitlock himself signed consent forms authorizing his transfer to Methodist Hospital and the procedure on his eyelid. Id. at 72 (Ex. 2), 60. Whitlock was " [a]wake, 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, which is the highest level of functioning and indicates no deficiency in neurological activity. Id. at 78-79.
[¶6] Whitlock was not admitted to either hospital and went home that same day, April 15, with a prescription for Vicodin. Notably, Whitlock was not diagnosed with a concussion or any other brain injury. Whitlock's mother-in-law, Dorothy Gaultney, 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.
[¶7] Whitlock filed a complaint against Steel Dynamics on April 23, 2013--eight days after the two-year statute of limitations expired--alleging that Steel Dynamics was responsible for the alleged faulty crane switch that caused his injuries. Whitlock claimed that his injuries " incapacitated" him such that he was " disabled for a substantial period" following the accident, including April 15, 2011, to April 24, 2011, " and extending afterward." Id. at 18. Steel Dynamics filed a motion for summary judgment alleging that Whitlock filed his complaint eight days after the statute of limitations expired. Id. at 26. Steel Dynamics claimed that " the undisputed evidence shows that [Whitlock] was not injured in a manner sufficient to excuse his failure to file his Complaint within the two-year statute of limitations." Id. Whitlock responded and designated affidavits from his wife, Kristina Whitlock, and his mother-in-law, Gaultney. Kristina's affidavit focuses on Whitlock's physical disability as a result of his injuries with some mention of his mental state:
[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.
[¶8] Gaultney also submitted an affidavit describing her interaction with Whitlock 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 ...