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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANTS: FREDERICK R. HOVDE Hovde Dassow & Deets, LLC Indianapolis, Indiana

Nov 22 2010, 9:39 am

FILED
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE REID HOSPITAL & HEALTH CARE SERVICES: MARY K. REEDER JANELLE L. MCINTYRE Riley Bennett & Egloff, LLP Indianapolis, Indiana ATTORNEYS FOR APPELLEES INDIANA UNIVERSITY SCHOOL OF NURSING and THE TRUSTEES OF INDIANA UNIVERSITY: DAVID J. MALLON, JR. JENNY R. WRIGHT Ice Miller LLP Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
WILLIAM DELK and SANDRA DELK, Appellants-Plaintiffs, vs. REID HOSPITAL & HEALTH CARE SERVICES, INC., INDIANA UNIVERSITY SCHOOL OF NURSING, and THE TRUSTEES OF INDIANA UNIVERSITY, Appellees-Defendants. ) ) ) ) ) ) ) ) ) ) ) )

No. 89A04-1003-CT-208

APPEAL FROM THE WAYNE SUPERIOR COURT The Honorable Charles K. Todd, Jr., Judge Cause No. 89D01-0904-CT-8

November 22, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION BROWN, Judge

William and Sandra Delk (the "Delks") appeal the trial courts grant of summary judgment in favor of Reid Hospital & Health Care Services Inc. (the "Hospital"), the Indiana University School of Nursing, and the Trustees of Indiana University (collectively, "I.U.," and collectively with the Hospital, the "Appellees").1 The Delks raise one issue which we revise and restate as whether the trial court erred in granting the Appellees motion for summary judgment based upon a finding of contributory negligence. We affirm. The relevant facts most favorable to the Delks and as designated by the parties follow. On April 10, 2005, William was admitted to the Hospital for treatment of a "[h]eadache and numbness [on the] left side of the body," a condition associated with a

On September 22, 2009, I.U. filed a motion to join the Hospitals motion for summary judgment which stated:
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Comes now the Defendants, the Indiana University School of Nursing, and the Trustees of Indiana University ("IU"), by counsel, and moves the Court for leave for IU to join in the Motion for Summary Judgment ("Motion") based upon contributory negligence filed herein by [the Hospital] and, further, IU hereby joins in and adopts as its own the brief filed by [the Hospital] in support of its Motion and, further, IU hereby adopts as its own the Designation of Evidence in Support of Its Motion for Summary Judgment . . . . Appellees Appendix at 1. On October 23, 2009, the trial court granted the motion.

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past stroke and which had worsened. Appellants Appendix at 89.60, 89.69.2 William "was noted to have ,,complete hemiplegia on his left side," and this condition rendered him to be at "high risk for falls." Id. at 144. An MRI revealed that William had not had

another stroke but was experiencing a migraine headache. On the morning of April 15, 2005, while William was still admitted to the Hospital, William had to use the restroom, and Student Nurse Rita Crider and another nurse helped William into a rolling commode chair. Because of Williams size and disability, the nursing staff usually deployed "two to three people" and a "gait belt" to "pivot transfer" him safely from place to place. Id. at 131. After placing William in the chair, the other nurse whom William knew as Janette left, and Nurse Crider wheeled him over to the toilet. After positioning the commode over the toilet, Crider left William in the bathroom and closed the door to the hallway.3 After about ten minutes and without summoning a nurse to assist, William "leaned forward" in an attempt to reposition himself on the commode to "take a little pressure off one area and move it to another and try[] to find an area of comfort to some degree." Id. at 120. In the process, William fell from the commode chair and to the floor, sustaining injuries including a fractured hip. William did not ask for help beforehand or try to reach the "pull cord," which he knew was located over his right shoulder and could be used to

Page 89 of the appellants appendix consists of a packet of William s health records which are paginated. The number after the decimal point refers to the page number of the packet. 3 The designated evidence, including photographs of the bathroom area, reveals that there was a single door that functioned as the door to two separate doorways. The door may be used to close the bathroom within the patients room itself or to close the patients room to the hospital hallway.
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request help because he "just figured theres somebody going to be right back . . . ." Id. at 122. After hearing William scream out in pain, a nurse came to his assistance. William said that "it just happened," that "it wasnt anybodys fault," and that "I fell." Id. at 54. On April 20, 2006, the Delks filed a proposed complaint for damages against the Hospital with the Indiana Department of Insurance alleging negligence which caused William to sustain "a fractured left hip requiring a left hip replacement." Id. at 41. On October 17, 2007, the Hospital deposed William. At the deposition, William at one point stated: Ive had this fear when

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