Indiana Law Review


340 INDIANA LAW REVIEW [Vol. 9:340

Indiana inheritance tax. In rejecting the State's interpretations,

the court of appeals preserved the expectations of the practicing

bar and public— expectations that followed from years of accepted
interpretations—and disavowed the piecemeal alteration of the
statutory inheritance tax scheme.

XVUI. Torts

James J, Brennan*

A. Tort V, Contract

In Strong v. Commercial Carpet Co.,^ the Third District Court
of Appeals, in an analysis premised upon the modern rules of
pleading,^ held that a plaintiff who brings an action predicated
on both breach of contract and negligence is not required to elect
his remedy and is entitled to seek recovery on both theories. The
court prefaced its holding with a helpful discussion of when a
claim will be actionable in both tort and contract. Following the
traditional distinction between misfeasance and nonfeasance,^ the
court stated that the total nonperformance of a promise is action-

able only as a breach of contract, while the misperformance of a
promise is actionable in tort as well as contract.^ Although the
line between misfeasance and nonfeasance is often difficult to
draw,^ the court concluded that the distinction provides a valid

means of determining when a breach of contract can be charac-
terized as a tort. While an action in tort generally is preferable
because of the availability of greater damages,^ Strong should be

*Member of the Indiana Bar. B.S., Purdue University, 1972; J.D., Indiana
University Indianapolis Law School, 1975.

The author wishes to express his appreciation to Phillip A. Terry for his
assistance in the preparation of this comment and his commendable work in
authoring the discussion of the new medical malpractice act.

'322 N.E.2d 387 (Ind. Ct. App. 1975).
^The court relied exclusively on Ind. R. Tr. P. 8 (E) (2), which permits a

plantiff to seek relief on alternate theories of recovery.

^Dean Prosser concludes "that there vdll be liability in tort for mis-

performance of a contract whenever there would be liability for gratuitous
performance without the contract . . . ." W. Prosser, Handbook of the Law
OF Torts § 92, at 617 (4th ed. 1971) [hereinafter cited as Prosser]. A leading
case in this area is Flint & Walling Mfg. Co. v. Beckett, 167 Ind. 491, 79 N.E.
503 (1906).

^322 N.E.2d at 390.
^See Prosser § 92, at 618.

^Contract damages are limited by the well-known rule of Hadley v. Baxen-
dale, 9 Ex. 341, 156 Eng. Rep. 145 (1854), that only those damages that were
in the contemplation of the parties can be recovered. See generally 6 A.



1975] SURVEY—TORTS 341

particularly helpful to plaintiffs who have no available remedy in
tort because of such barriers as the statute of limitations^ or the

problems of proof inherent in negligence actions.*

B, Malicious Prosecution

The most important element that a plaintiff must establish

to prevail in an action for malicious prosecution is that the de-

fendant caused the criminal proceeding to be initiated against

the plaintiff without probable cause.' Accordingly, an affirmative

showing that probable cause existed operates as a complete de-

fense to an action for malicious prosecution. The most expedient
way for a defendant to establish the existence of probable cause
is to prove that he sought the advice of counsel before initiat-

ing the proceeding, and, after a full disclosure of all material facts,

the counsel advised him that a reasonable basis for prosecution
existed. '° Advice of counsel operates as a complete defense only

if the advice is both sought and followed hy the defendant in good

faith. ^' Thus, it is not a defense when it appears that the de-
fendant sought legal advice as a subterfuge to shield himself

from liability for causing a groundless proceeding to be initiated.
While the existence of a collateral purpose for the plaintiff's

initiation of prosecution generally relates to the element of mal-

ice, it is properly considered in the context of probable cause when
the defendant raises the defense of advice of counsel. In Barrow
V. Weddle Brothers Construction,^^ the First District Court
of Appeals, exercising great deference to the inferences drawn
from the record by the trial court, held that a finding that the
defendant sought the advice of counsel in good faith was not pre-
cluded by a finding that the defendant offered to cause a criminal
charge that it initiated to be dismissed if the plaintiff would sat-
isfy a debt he owed to the defendant.'^ The court noted that the
defendant's alleged effort to use the criminal charge as a debt

collection device could have supported a finding of bad faith, but

CoRBiN, CORBIN ON CONTRACTS § 1007, at 70 (1950) ; C. McCoRMiCK, Law of
Damages § 137 (1935) [hereinafter cited at Mc?Cormick].

''The statute of limitations is 2 years for actions in tort, Ind. Code § 34-1-
2-2 (Burns 1973), 10 years for actions based on written contracts, id., and
6 years for actions based on oral contracts, id. § 34-1-2-1.

®For an excellent discussion of the consequences of choosing between a tort
and a contract remedy see Prosser § 92, at 618-22.

'^See, e.g., L. Green, Judge and Jury 341 (1930).
^^E.g., Indianapolis Traction & Terminal Co. v. Henby, 178 Ind. 239, 97

N.E. 313 (1912) ; L. Green, supra note 9, at 344-45; Prosser § 119, at 843.

"iSee case and authorities cited note 10 supra.
^^316 N.E.2d 845 (Ind. Ct. App. 1974).
'^Id. at 848.



342 INDIANA LAW REVIEW [Vol. 9:340

concluded that an inference of good faith could be drawn from
the record as a whole.

'^

The court, however, need not have been concerned with the
defendant's hostility towards the plaintiff. When the advice of
counsel defense is not interposed, the existence of a collateral

purpose has only slight significance to the probable cause issue.

Since probable cause is measured primarily by the reasonable-
ness of the defendant's belief in the guilt of the accused,'^ the

defendant need not have been ^'influenced by a desire to promote
the public good"'* to have had probable cause to initiate charges
against the plaintiff. Ill will is the basis of the element of malice,
and lack of probable cause cannot be inferred from malice.'^

C. Premises Liability

Few, if any, areas of Indiana tort law are more confused and
unpredictable than that which has been referred to as the law of
"premises liability.'* '° Indiana continues to adhere to the common
law rules by which possessors of land are held to a gradient duty
of care that depends entirely on the status attained by the injured
entrants. Other jurisdictions have rejected the common law clas-
sification system and require that possessors exercise reasonable
care toward all entrants, regardless of their status. ''

^^Id. at 852. A different result was reached in Yerkes v. Washington Mfg.
Co., 326 N.E.2d 629 (Ind. Ct. App. 1975), in which the First District Court of

Appeals, in ruling on the propriety of a summary judgment, was required to
resolve conflicting inferences in the plaintiff's favor. The defendant caused

criminal proceedings to be initiated against the plaintiff for a violation of

Indiana's "bad check" statute, Ind. Code § 35-17-5-10 (Ind. Ann. Stat. § 10-

3037, Bums Supp. 1975). The court held that the defendant was not entitled
to summary judgment on the basis of the advice of counsel defense because

affidavits submitted by the plaintiff gave rise to the inference that such ad-

vice was sought in bad faith. The affidavits alleged that the defendant had

accepted the check with knowledge that it was drawn on insufficient funds and

that he had agreed not to cash the check until the plaintiff's account was re-

plenished. 326 N.E.2d at 632.

''E.g., Yerkes v. Washington Mfg. Co., 326 N.E.2d 629 (Ind. Ct. App.

1975).

^*316 N.E.2d at 851, quoting from Benson v. Bacon, 99 Ind. 156 (1884).

'''Stivers v. Old Nat'l Bank, 148 Ind. App. 196, 264 N.E.2d 339 (1970);

L. Green, supra note 9, at 346.

"iSee generally Note, Premises Liability: A Critical Survey of Indiana
Law, 7 Ind. L. Rev. 1001 (1974).

'""See, e.g., Smith v. Arbaugh's Restaurant, 469 F.2d 97 (D.C. Cir. 1972);

Rowland v. Christian, 69 Cal. 2d 108, 443 P.2d 561, 70 Cal. Rptr. 97 (1968);

Mile High Fence Co. v. Radovich, 176 Colo. 537, 489 P.2d 308 (1971) ; Pickard

V. City of Honolulu, 61 Hawaii 134, 452 P.2d 445 (1969).



1975] SURVEY—TORTS 348

In Hammwnd v, Allegretti,''^ the first premises liability case
decided by the Indiana Supreme Court since 1962,^' the court

clarified Indiana law regarding the duty of care owed by posses-

sors to invitees. The court held that possessors must exercise rea-

sonable care under all circumstances for the safety of invitees

and that the courts should not attempt to diminish this duty by

erecting mechanical rules of law predicated on the existence of

one particular circumstance." Since Hammond dictates that cases
involving the possessor-invitee relationship be decided under the

ordinary principles of negligence law, this facet of the law of

premises liability should remain relatively free from confusion.

While Hammond establishes that the duty owed to invitees
will always be the same, the courts have been unable to agree on

a uniform definition of the duty owed by possessors to licensees
and trespassers. Although courts frequently have stated that the

only duty owed to trespassers and licensees is to avoid wilfully
or wantonly injuring them," the courts have created so many ex-
ceptions to the rule that this area of the law of premises liability

has become a "semantic morass."^^ The recent First District Court
of Appeals decision of PaUikan v, Mark"^^ indicates that this un-
fortunate situation may continue to exist until the supreme court
avails itself of an opportunity in a case involving a licensee or
trespasser to author a decision as lucid and as well reasoned as
Hammond,

In PaUikan an off-duty fireman was injured when he fell
into a large, weed-covered hole located on the defendant's prem-

ises. The trial court granted summary judgment for the defen-
dant on the issue of liability, and the court of appeals affirmed.
After examining the pleadings for a genuine issue of material

fact, the court of appeals found that there were no allegations

=°311 N.E.2d 821 (Ind. 1974).

2'Pier V. Schultz, 243 Ind. 200, 182 N.E.2d 256 (1962), was the most recent

of the supreme court's premises liability decisions prior to Hammond.
"311 N.E.2d at 827-28. The court reversed the holding of the court of

appeals that a landowner is under no duty to remove ice and snow from his
premises. Hammond was recently applied by the First District Court of
Appeals in Poe v. Tate, 315 N.E.2d 392 (Ind. Ct. App. 1974). Both courts
emphasized that their holdings were limited to cases involving private areas
rather than public areas, such as a public sidewalk.

"E.g,, Lingenfelter v. Baltimore & O.S.W. Ry., 154 Ind. 49, 55 N.E. 1021
(1900).

^'*The United States Supreme Court used the phrase "semantic morass**
to describe the common law rules of premises liability in a decision in which
the (^urt refused to extend these rules to the law of admiralty. Kemarec v.
Ompagnie Generale, 358 U.S. 625, 630-31 (1959). See Note, aupra note 18, at
1004.

"322 N.E.2d 398 (Ind. Ct. App. 1975).



344 INDIANA LAW REVIEW [Vol. 9:340

that the defendant took "positive action" to injure the plaintiff.'^*

For this reason, the court concluded that it could not be said that
the defendant had breached any duty that he owed to the plain-
tiff. The court relied primarily upon Woodruff v. Bowen^^ an
1893 decision in which the supreme court held that firemen were
licensees and that the only duty owed by possessors to licensees
is **to refrain from any positive wrongful act which may result
in [their] injury . . . ."^° Although the phrase "positive wrong-
ful act" arguably includes a positive negligent act, the courts of

appeals have been unable to agree whether the Boiven court in-

tended the phrase to denote negligent as well as wilful and wan-
ton acts.^'

By limiting its inquiry to a determination of whether the de-
fendant had alleged a positive wrongful act, the Pallikan court

disregarded several other standards that Indiana courts have used

to define the duty of care owed to licensees. Most significantly,

the court failed to consider the "concealed trap doctrine," which

provides that a possessor must disclose any concealed dangerous

conditions on the premises of which he has knowledge.^" Assum-

ing that the plaintiff in Pallikan alleged that the defendant knew
that the grass and weed-covered hole presented a foreseeable risk

of harm to persons entering the premises, it is arguable that the
concealed character of the hole created a situation "comparable

to entrapment."^' For this reason, summary judgment may have
been improvidently granted; the trier of fact should have been

allowed to determine whether the standard of due care required

that precautions be taken for the plaintiff*s safety.

Another significant aspect of Pallikan is the court's expressed

reluctance to overrule existing precedent absent legislative direc-

tion or the existence of "urgent reasons" to do so.^^ Some states,
indeed, have enacted legislation that requires all men to exercise

26/d at 399.

^nSG Ind. 431, 34 N.E. 1113 (1893).
"M at 442, 34 N.E. at 1117.
^'^Compare Fort Wayne Nat'l Bank v. Doctor, 149 Ind. App. 365, 272

N.E.2d 876 (1971) , with Surratt v. Petrol, Inc., 312 N.E.2d 487 (Ind. Ct. App.

1974).

=°iSee Carrano v. Scheldt, 388 F.2d 45 (7th Cir. 1967) (applying Indiana

law); Pier v. Schultz, 243 Ind. 200, 182 N.E.2d 255 (1962); Prosser § 60, at

380-82.

^^The "condition comparable to entrapment" language was used by the

Indiana Supreme Court in Pier v. Schultz, 243 Ind. 200, 182 N.E.2d 255 (1962),

in reference to the "concealed trap doctrine." Id. at 204, 182 N.E.2d at 257.

3=322 N.E.2d at 400.



1975] SURVEY—TORTS 846

reasonable care in their daily pursuits.'^ Nevertheless, Indiana

courts have not awaited legislative action in the past before abro-

gating traditional immunity doctrines.^^ It v/ould seem that the

confused state of the law in this area at least warrants a careful

and forthright examination, if not the abrogation, of the common
law rules of premises liability. Other reasons for abrogation have

been presented, the most important of which is the need to de-

velop a more rational method of imposing or denying the liabil-

ity of possessors to entrants.^^ "The policy reasons behind pro-

tecting the interest of land ownership with minimal regard for

the interest of human safety have lost their persuasive force.""^
Another important exception to the general rule that a posses-

sor cannot be held liable for negligence to entrants other than

invitees is the rule that a possessor must carry on his activities
with due care for the safety of licensees.^'' The "active negli-
gence" exception enjoyed the acceptance of Indiana courts^* until

it was overruled by the court of appeals several years ago in Fo7i:
Wayne National Bank v. Doctor.^^ Shortly after Doctor was de-
cided, however, the rule apparently resurfaced in Pierce v. WaU
ters^° under the guise of the paradoxical phrase "wilful and wanton
negligence." In the recent case of Surratt v. Petrol^ /nc.,'*' the

Third District Court of Appeals disregarded Doctor and, in the

course of determining by analogy the duty of care owed to a tres-
passer on a chattel, followed the Restatement rule that a possessor

"owes a duty of reasonable care to a discovered trespasser not to
injure him through active conduct."^^

^^^.fir., Cal. Civil Code § 1714 (West 1973). The'California Supreme Court
relied on this statute in abrogating the common law classification system in
Rowland v. Christian, 69 Cal. 2d 108, 443 P.2d 561, 70 Cal. Rptr. 97 (1968).

3^See, e.g., Campbell v. State, 259 Ind. 55, 284 N.E.2d 733 (1972) (tort
immunity of state) ; Brooks v. Robinson, 259 Ind. 16, 284 N.E.2d 794 (1972)
(interspousal immunity). But see Vaughan v. Vaughan, 316 N.E.2d 455 (Ind.
Ct. App. 1974) (court refused to abrogate parental immunity doctrine).

^^See generally Note, supra note 18.
2*/ci. at 1003.

^^See Prosser §60, at 379-80; Restatement (Second) of Torts §341
(1965).

26See Olson v. Kushner, 138 Ind. App. 73, 211 N.E.2d 620 (1965) ; Mills-
paugh V. Northern Ind. Pub. Serv. Co., 104 Ind. App. 540, 12 N.E.2d 396
(1938); Thistlethwaite v. Heck, 75 Ind. App. 359, 128 N.E. 611 (1920);
Cleveland, C.C. & St. L. Ry. v. Means, 59 Ind. App. 383, 104 N.E. 785 (1914)

;

East Hill Cemetery Co. v. Thompson, 53 Ind. App. 417, 97 N.E. 1036 (1912)

;

Note, supra note 18, at 1026.
39149 Ind. App. 365, 272 N.E.2d 876 (1971).
'*°283 N.E.2d 560 (Ind. Ct. App. 1972). For a discussion of Pierce see

Note, supra note 18, at 1030-31.
^^312 N.E.2d 487, aff'd on rehearing, 316 N.E.2d 453 (Ind. Ct. App. 1974).
"^^312 N.E.2d at 495, following Restatement (Second) of Torts § 336

(1965).



346 INDIANA LAW REVIEW [Vol. 9:340

On petition for rehearing, the defendant contended that the
coui-t's application of the active negligence rule was inconsistent
with Doctor,''^ Squarely addressing this contention, Judge Garrard

examined the authorities relied upon by the Doctor court and

held that they supported that conduct, whether characterized as

active, affirmative or positive, provides a basis for holding a

possessor liable to discovered trespassers for negligence/'* Al-

though Surratt cannot be considered a true premises liability case

since it involved liability to trespassers on chattels, the court's de-

cision is significant to the law of premises liability in at least two
respects. First, the court engaged in a well-reasoned analysis of

earlier Indiana decisions and concluded that in many of these de-
cisions the courts, in fact, applied the standard of due care under

the guise of other doctrines/^ Second, Surratt indicates that the

active negligence doctrine will continue to be used by at least
some Indiana courts to hold possessors of land to the standard of
reasonable care under the circumstances in cases involving li-

censees and trespassers. The obvious conflict between the courts
of appeals concerning the active negligence exception to the wilful-

wanton rule presents an issue seriously in need of resolution by
the supreme court. While the active negligence doctrine serves
the commendable purpose of circumventing the common law rules,
i^cognition of the doctrine could create as many problems as it
would solve. The distinction between active and passive negli-
gence is a fiction, the artificiality of which has the potential of
breeding confusion and perpetuating the common law classifi-
cation.'**

Although a landlord generally is under no duty to take af-

firmative steps to remedy defective conditions existing on leased
premises, he is responsible for maintaining those portions of the

premises over which he exercises possession and control.^^ The
'^possession and control** exception to the general rule of nonlia-
bility generally is applied in situations in which the dangerous
condition is located in an area where tenants could reasonably
be expected to be present, such as a common passageway or an

^^316 N.E.2d 453 (Ind. Ct. App. 1974).

^'Id. at 454-55.

''^For example, the court engaged in an excellent discussion of how earlier
courts used the **la8t clear chance" doctrine to hold possessors to a duty of

due care. 312 N.E.2d at 493. See also Note, supra note 18, at 1010-12.

"•^Since it is often difficult to distinguish between active and passive
negligence, a more logical approach would be to hold the possessor to a duty
of reasonable care under all circumstances. Cf. Hughes, Duty To Tresspassers,
68 Yale L.J. 633, 648-49 (1959) ; James, Tort Liability of Occupiers of Land:
Duties Owed to Trespassers, 63 Yale L.J. 145, 174-75 (1953).

^^Prosser § 63, at 405-08.



1975] SURVEY-^TORTS 347

approach/*^ In this situation, the landlord has an affirmative ol>
ligation to make reasonable repairs and inspections to prevent
tenants and other entrants from being exposed to unreasonable
risks of harm.

An unusual application of this exception to the general rule
of nonliability was made by the Second District Court of Appeals
in Parr v. McDade,'^'^ The plaintiff, a tenant of the defendant, was
injured when he jumped from his second story apartment to
escape a fire occasioned by a defective gas heater located in the

apartment of the defendant's resident manager. The proof showed
that both the defendant and his resident manager were aware of
the defective heater, and that the defendant previously had prom-
ised the resident manager that the defective heater would be re-
placed.^° The defendant appealed from a substantial jury verdict
on the ground that, inter alia, he was under no duty to the plain-
tiff either to repair the defective heater or prevent the defendant

manager from using it.
The court of appeals affirmed the decision below, relying on

two alternate grounds for establishing the defendant's negligence.
First, the court concluded that the employer-employee relation-

ship between the defendant and the resident manager placed the
resident manager's apartment, the situs of the defective heater,

within the possession and control of the defendant.^' On this basis,
the court approved the trial court's instruction that a landlord

must take reasonable steps to remedy known dangerous conditions
that exist in areas under his possession and control.

As an alternate basis for its decision, the Parr court looked

beyond the landlord-tenant relationship to find the existence of

a duty of reasonable care. The defendant had argued that, since

the resident manager used the gas heater for the sole purpose of

her comfort and enjoyment, the resident manager's negligent use

of the heater was an act outside of the scope of the employment

relationship, for which the defendant could not be held respon-

sible. The court rejected this argument, adopting the Restatement

view that, under certain circumstances, "a master is under a duty

to exercise reasonable care so to control his servant while acting

outside the scope of his employment as to prevent him from . . .
conducting himself as to create an unreasonable risk of bodily

harm to [others] . . . ."^^ Applying this rule, the court concluded

^^See Restatement (Second) of Torts §360, Comment d (1965).
^'314 N.E.2d 768 (Ind. Ct. App. 1974).
5°/<£. at 770.

5'/d. at 771-72.

^^Restatement (Second) of Torts §317, at 125 (1965).



348 INDIANA LAW REVIEW [Vol. 9:340

that the defendant's failure to prevent his resident manager from
using the heater on the premises was actionable negligence.

D. Reasonable Care

Dean Prosser has stated that the standard of reasonable care
under the circumstances "is as wide as all human behavior.""
For this reason, the standard seldom, if ever, can be fixed by the

creation of absolute rules. The courts, nevertheless, have found
it helpful to establish certain formulas that are capable of being

adapted to jury instructions that fix the standard of care in re-

curring fact situations. Several of these formulas have been re-

ferred to by courts as "doctrines." Since the term "doctrine" sug-

gests the existence of a mechanical rule of uniform application,

it must be kept in mind that the duty to exercise reasonable care
is a full one that should not be diluted by rules of law based upon
the presence of one particular circumstance in a given case.^^

Accordingly, cases in which the courts have held that a particular

type of conduct represents negligence or contributory negligence

as a matter of law are often of dubious precedential value."

There are numerous decisions in which Indiana courts have
found a plaintiff contributorily negligent as a matter of law when
he voluntarily and intentionally exposed himself to a danger cre-
ated by the defendant's negligence.^* In two cases decided during
the survey period, the courts were urged by the defendants to
apply this so-called "equal knowledge doctrine" to remove the
issue of contributory negligence from the jury's consideration
and deny recovery as a matter of law. In both cases the courts
rejected the application of the "doctrine" and looked to the par-
ticular circumstances before them.

In Hobby Shops, Inc. v, Driidy,^^ a 13-year-old boy was
seriously injured when, while running through the defendant's
parking lot, he collided with a cable erected several feet above
ground level. The defendant argued on appeal from a jury ver-
dict that the plaintiff previously had seen the cable, and, there-
fore, possessed equal knowledge of its perils. In rejecting this
contention the Third District Court of Appeals reasoned that, al-
though the plaintiff may have known of the condition, he may not
have appreciated its dangers. Recognizing that both knowledge

"Prosser § 35, at 188.

'-^See Hammond v. Allegretti, 311 N.E.2d 821 (Ind. 1974).
^^Prosser § 35, at 188.

^*5ee, e.g., Stallings v. Dick, 139 Ind. App. 118, 210 N.E.2d 82 (1965).
See also Sullivan v. Baylor, 325 N.E.2d 475 (Ind. Ct. App. 1975) (incurred
risk).

5^317 N.E.2d 473 (Ind. Ct. App. 1974).



1975] SURVEY^TORTS 349

and appreciation of the risk are essential elements of contribu-

tory negligence, the court held that it was within the province

of the jury to find that the plaintiff, in light of his age, intelli-

gence and experience, did not appreciate the risk that the cable

presented/*

In Dreibelbis v. BenneW* the defendant was struck by a pass-
ing automobile as he attempted to place safety flares around a dis-

abled vehicle. The defendant argued on appeal that the plaintiff
was guilty of contributory negligence as a matter of law on the
basis of the "equal knowledge doctrine." The Third District Court
of Appeals rejected this argument by stating that the "doctrine"

is limited to cases in w^hich both the plaintiff and defendant v/ere

active participants in a dangerous activity/^ This seems to be

an artificial distinction, primarily because it is often difficult,

if not impossible, to determine whether particular conduct is

"active" or "passive."*' A more logical approach is found in the
Restatement, which provides that an intentional and unreasonable
exposure to a dangerous condition need not be considered contribu-

tory negligence "if such exposure is necessary to the safety of a

third person or to accomplish some end which is purely in the
public interest . . . ."^^ In Dreibelbis, the plaintiff's voluntary ef-

forts to erect the safety flares when others failed to do so seems
to have been of legal significance worthy of the court's express
recognition.

Another formula used by the courts to delineate the standard
of reasonable care in particular fact situations is the "sudden

emergency doctrine." In its simplest terms, this formula provides

that when an actor is confronted by a sudden emergency and is
required to make a hasty choice of which alternative course of
action to pursue, the emergency is one factor for the jury to con-
sider in determining whether his choice of available alternatives

was an unreasonable choice.*^ An important limitation on the
"doctrine," as recently recognized by the First District Court of
Appeals in Anderson v. Westem,^^ is that the existence of an
emergency cannot be considered in measuring the reasonableness

of the actor's conduct when the actor's own negligence has created
the emergency. The emergency cannot be considered in this situa-

"/d. at 479.

^'319 N.E.2d 634 (Ind. Ct. App. 1974).

*°/d. at 639.

*^iSee James, supra note 46, at 174-75.

"Restatement (Second) of Torts §466, Comment c, at 512 (1965).
*^For an approved "sudden emergency" instruction, see Baker v. Mason,

253 Ind. 349, 349, 242 N.E.2d 513, 514 (1968).
*^320 N.E.2d 759 (Ind. Ct. App. 1974).



350 INDIANA LAW REVIEW [Vol. 9:340

tion because it was not an existing circumstance at the time of
the actor's negligence.*^

When there is sufficient time for deliberation, the actor
is required to exercise greater judgment in weighing alternate
courses of action. The courts have characterized this weighing
process in a formula that has been referred to as the "choice of

ways doctrine."** In Easley v. Williams,*'^ the plaintiff, an elderly
pedestrian, was injured when she was struck by the defendant's
truck as the defendant backed it out of a driveway. A general
verdict was entered in favor of the defendant, but the trial court
granted the plaintiff's motion to correct errors on the ground

that, inter aliay it was error to instruct the jury on the "choice
of ways doctrine.*' The record showed that the plaintiff had ob-
served the defendant in his truck before she crossed the drive-

way and that several paths other than across the driveway were
available.*** Two of the First District Court of Appeals judges
agreed that the choice of ways doctrine was inapplicable because
the evidence did not show that the path chosen by the plaintiff in-
volved "a danger so great and apparent that an ordinary x>erson
would not have chosen that way"*' and that it would have been
too burdensome for the plaintiff, who walked with the assistance
of a cane, to select an alternate path.^° Judge Staton, in dissent,
viewed the record differently, stating that there was no evidence
that any of the alternative routes available to the plaintiff were
more devious than the route that she pursued or that an alterna-
tive route would have been unduly burdensome.^'

Two cases decided during the survey period involved the pro-
priety of potentially misleading jury instructions. In Chamber-
lain V. Deaconess Hospital^ Inc./'^ the trial court included the

phrase "proximate cause of the accidenV* in a contributory negli-

gence instruction. The term "accident," of course, technically re-
fers to a situation in which no one was negligent.^^ The First Dis-
trict Court of Appeals strongly disapproved the use of the term
in negligence cases, but, upon reviewing the instructions in their
entirety, concluded that the jury was not misled. Ironically, an-

^^Prosser § 33, at 169-70.

''''See, e.g.. City of Mitchell v. Stevenson, 136 Ind. App. 340, 201 N.E.2d
6« (1964).

*7321 N.E.2d 752 (Ind. Ct. App. 1975).
*®/c?. at 755 (Staton, J., dissenting).

''/d. at 754.

'""Id.

^'The existence of "more devious" alternate routes was one of the reasons
stated by the trial court for granting a new trial. Judge Staton concluded
that this finding was not supported by the record. Id. at 765.

"324 N.E.2d 172 (Ind. Ct. App. 1975).
^'^Prosser § 29, at 140.



1975] SURVEY--TORTS 351

other appellate panel liberally used the term **accident" in refer-

ence to a situation in which the negligence of a motorist appar-

ently contributed to the injury of the plaintiff/'*

In Spears v, Aylor^^ the trial court instructed the jury that

the existence of contributory negligence, "however slight/' would

bar a plaintiff's recovery. Instructions of this nature are not un-

common, for phrases such as "however slight" or "in any man-
ner" are often used by trial courts to dispel any notions of the

comparative negligence doctrine from the minds of jurors/* The
Third District Court of Appeals expressed strong disapproval of

instructions of this nature, but again concluded that the trial court

had not committed reversible error. The court's disapproval of
the phrase "however slight" is not surprising, for trial judges

occasionally have used it inadvertently to refer to the element of

causation rather than negligence.^^ Since a slight cause by defi-
nition cannot be a proximate cause, the confusion of slight causa-

tion with slight negligence has been held to be reversible error.^®

The prudent approach, therefore, would be to eliminate the phrase
"however slight" from all contributory negligence instructions.
As noted by the court in Spears, such a subtle reference to the
comparative negligence doctrine is unlikely to have its intended

effect on the jury.''
In Indianapolis Union Railway v. Walker,^° the First District

Court of Appeals set forth definitive guidelines for determining

when the absence or presence of warning devices at a public cross-
ing is a factor to be considered in determining whether a railroad
is liable for negligence. The rule has long been that railroads are
under a duty to exercise reasonable care in oi>erating their trains.®'

The Walker court held that since due care is measured in light
of the totality of circumstances, it is appropriate to consider the

presence or absence of warning devices in determining whether
a railroad operated its train in a negligent manner." This is a
sound approach, for persons operating a train ordinarily should
be required to take greater precautions when approaching un-
guarded crossings than would be necessary if warning devices
were present. On the other hand, a railroad cannot be held liable

^""See Dreibelbis v. Bennett, 319 N.E.2d 634 (Ind. Ct. App. 1974).
^^319 N.E.2d 639 (Ind. Ct. App. 1974).
^^Prosser § 65, at 421.

^'See Huey v. Milligan, 242 Ind. 93, 175 N.E.2d 698 (1961).
'"Id.

^'319 N.E.2d at 643.

»^318 N.E.2d 578 (Ind. Ct. App. 1974).

•'Pennsylvania R.R. v. Sherron, 230 Ind. 610, 105 N.E.2d 334 (1952).

"318 N.E.2d at 582, citing Pennsylvania R.R. v. Sherron, 230 Ind. 610,

105 N.E.2d 334 (1952).



352 INDIANA LAW REVIEW [Vol. 9:340

for its failure to erect and maintain warning devices at a public

crossing unless a statute or ordinance so requires or the crossing

is found to be ''extra-hazardous."®^ Only in these latter circum-

stances, can negligence specifically be predicated on the failure

to erect and maintain warning devices. While the common prac-
tice is to charge expressly that the crossing must be found to
have been extra-hazardous before such a duty could be imposed,

the Walker court held that an instruction permitting the jury to
consider the presence or absence of warning devices together with
the circumstances that could have rendered the crossing extra-

hazardous did not represent reversible error.^"^

E, Proximate Cause

In Surratt v. Petrol, Inc.,^^ the defendant left his car in an

allegedly high crime area without removing the ignition key. A
thief stole the vehicle and, shortly thereafter, disregarded a stop

sign and collided with another vehicle. The plaintiff, a passenger
in the stolen vehicle, brought an action against the defendant on
the ground that the failure to remove the key from the ignition
switch was actionable negligence. The trial court granted sum-
mary judgment in the defendant's favor on the issue of liability.

The Third District Court of Appeals affirmed the trial court,
holding that the owner's negligently leaving his ignition key in a
parked automobile "could not be considered the proximate cause
of injuries later resulting from the negligent operation of the
stolen automobile by a thief."®* The court based its holding on
the earlier decision of Kiste v. Red Cab, Inc.,^^ in which the
court held that the failure to remove the ignition key from an
unattended automobile, whether it be deemed common law negli-
gence or negligence per se,''^ could not be considered the proxi-
mate cause of the plaintiff's injuries because the negligent driv-
ing of the thief was an effective intervening cause that super-
seded any negligence of the defendant.®' The Surratt court re-
jected the plaintiff's contention that Kiste created an exception

"318 N.E.2d at 582-83, citing Central Ind. R.R. v. Anderson Banking Co.,
252 Ind. 270, 247 N.E.2d 208 (1969).

«^318 N.E.2d at 583.
«^312 N.E.2d 487, affd on rehearing, 316 N.E.2d 453 (Ind. Ct. App. 1974).
«*312 N.E.2d at 490.

^^122 Ind. App. 587, 106 N.E.2d 395 (1952).

®^IND. Code § 9-4-1-116 (Burns 1973) provides that it is illegal to leave
a motor vehicle unattended without first removing the ignition key. Neither

the Kiste nor the Surratt court considered whether a violation of this statute

constituted negligence per se, although the respective plaintiffs appear to

have relied on this theory as well as on common law negligence.
S9122 Ind. App. at 596, 106 N.E.2d at 399.



1975] SURVEY—TORTS 353

to the general rule of nonliability in cases in which the automo-

bile was left unattended in a high crime area.'°

Although the result reached in Surratt is in accord with the

majority view,'' the court's reliance on proximate cause to deny

recovery seems to have thwarted its apparent attempt to foreclose

the possibility of recovery in future **key theft" cases.'' Since

foreseeability is the ultimate test of proximate cause,'^ it logically

follows that proximate cause should be a question for the jury

when the consequences of one's failure to remove the ignition keys
from his unattended vehicle are foreseeable. It is submitted that

if a future case were to arise in which the plaintiff could show

that it was foreseeable that a thief would steal the vehicle and

that he would drive it negligently, the proximate cause rationale

relied on in Surratt would dictate that recovery not be denied as

a matter of law. Such a showing seems entirely possible, since

recent studies support the conclusion that a thief is more likely

to drive an automobile negligently than the average motorist.''*

The courts have not been reluctant to submit the issue of
proximate cause to the jury in cases in which the negligent driv-

ing of another was a foreseeable risk. In Dreibelbis v, Bennett''^
the defendant was involved in an automobile-truck collision on a
two lane highway. Although the disabled vehicles were blocking
a major portion of the highway, the defendant left the area to
notify the police. The plaintiff, who had stopped at the scene of
the collision for the purpose of providing assistance if it were
needed, posted several warning flares around the defendant's ve-
hicle when it became apparent that the defendant had not done
so. While attempting to rekindle a flare that had been extin-

'°Dicta in Kiste suggest that such a result would follow if it were also
foreseeable that a thief would drive the stolen vehicle negligently.

'''See Prosser § 44, at 283.

'^The Kiste court, upon examining numerous decisions from other juris-
dictions, selected the proximate cause rationale over several other theories as

a means of denying recovery. The court stated that future "key-theft" cases
could be adjudicated "most decisively" on this basis. 122 Ind. App. at 594,
106 N.E.2d at 398. Apparently, the court believed that a high probability of

crime was a reality in other jurisdictions, but would never be a foreseeable cir-
cumstance in Indiana. Id. at 596, 106 N.E.2d at 399. Perhaps changing social
conditions dictate that this premise of fact be re-examined.

93See, e.g., Dreibelbis v. Bennett, 319 N.E.2d 634, 638 (Ind. Ct. App. 1974).

''^See Peck, An Exercise Based upon Empirical Data: Liability for Harm
Caused by Stolen Automobiles, 1969 Wis. L. Rev. 909. The Surratt court
held that it was harmless error, at most, for the trial court to refuse to con-
sider the plaintiff's offer to prove that the vehicle was stolen in a high crime
area. 312 N.E.2d at 490. There is no indication in the opinion that the

plaintiff attempted to prove the foreseeability of the thief's negligent driving.
'^319 N.E.2d 634 (Ind. Ct. App. 1974).



354 INDIANA LAW REVIEW [Vol. 9:340

guished by a passing vehicle, the plaintiff was struck by a pass-
ing motorist who was attempting to avoid colliding with the de-
fendant's vehicle.

The plaintiff brought an action against the defendant on
the ground that he violated an Indiana statute that requires drivers

of disabled vehicles to display luminous warning devices about

their vehicles under certain circumstances.''^ The jury returned a
verdict for the plaintiff, and the defendant appealed on the ground

that the trial court erred when, inter alia, it submitted the issue

of proximate cause to the jury. The Third District Court of Ap-

peals rejected the defendant's contention that the negligent driv-

ing of the motorist was an effective intervening cause and held
that it was reasonably foreseeable that the negligence of the
motorist would concur with that of the defendant to proximately

cause the plaintiff's injuries.''' This holding is in accord with the

general view that a risk created by one's negligence may include
the foreseeable intervention of the negligence of others.'®

F. Damages

The recent enactment of legislation in many states requiring
the installation of seat belts in automobiles'' has prompted defense
attorneys to maintain that a plaintiff's failure to have his seat
belt fastened at the time of an automobile collision should be con-
sidered contributory negligence. ^*^ This view has uniformly been
rejected since the failure to use seat belts cannot be considered

the proximate cause of the collision that caused the initial dam-
age. ^°' Some courts and commentators, however, have taken the
position that the failure to use seat belts can be relied on to re-
duce the amount of a plaintiff's recovery under the doctrine of
avoidable consequences. ^°^ The doctrine of avoidable consequences,
like the doctrine of contributory negligence, is premised on the

9^lND. Code §9-8-6-42 (Burns 1973).
9^319 N.E.2d at 637-38.

'®5ee, e.g., Prosser § 44, at 274.
''5ee, e.g., Ind. Code §§ 9-8-7-1 to -3 (Burns 1973). It is interesting to note

that an Indiana trial court once held that this statute implied the mandatory
use of seat belts and fined a motorist for his failure to wear them. See
La Porte Herald-Argus, Dec. 3, 1964, at 6, col. 1-2; 16 De PAUL L. Rev. 521,
523 (1967).

^°°See Kleist, The Seat Belt Defense—An Exercise in Sophistry, 18 Hast-
ings L.J. 613 (1967) ; Comment, Seat Belts and Contributory Negligence, 12
S.D.L. Rev. 130 (1967).

^°^See Note, The Seat Belt Defense: A New Approach, 38 FORDHAM L.
Rev. 94, 97 (1969).

'°2See Barry v. Coca Cola Co., 99 N.J. Super. 270, 239 A.2d 273 (1967);
Comment, Seat Belts and Contributory Negligence, 12 S.D.L. Rev. 130 (1967).



1975] SURVEY—TORTS 355

notion that a plaintiff must exercise due care for the protection
of his own interests before he can shift to a negligent defendant
the loss for damage to those interests. However, unlike contribu-
tory negligence, which is an absolute bar to the plaintiff*s recov-

ery, avoidable consequences bars recovery only to the extent that

the plaintiff's damages could have been avoided through his exer-

cise of due care. For this reason, the doctrine of avoidable conse-

quences often has been referred to as a rule of damages rather

than as an affirmative defense.
^°^

The effect of a plaintiff's failure to fasten his seat belts was
recently considered by the Third District Court of Appeals in

Birdsong v. ITT Continental Baking Co.^^* The plaintiff in Bird-
song had stopped his automobile and was preparing to turn when
he was struck from the rear by the defendant. The plaintiff ap-
pealed from a jury verdict in the defendant's favor on the ground

that a nebulous "seat belt" instruction tendered to the jury by
the trial court constituted reversible error. '°^ Judges Staton and
Lybrook agreed that the instruction was erroneous in that it was
misleadingly couched in language referring to both contributory

negligence and the apportionment of damages. They disagreed,
however, on whether the instruction was an attempt to apply the
doctrine of avoidable consequences or the doctrine of comparative

negligence.

Judge Staton considered the instruction an attempt to invoke
the comparative negligence doctrine since it allowed the jury to

reduce the plaintiff's damages in proportion to the degree of neg-
ligence the jury assigned to the plaintiff's failure to fasten his

seat belts. ^°* He reasoned that the instruction was inconsistent
with other instructions, stating that contributory negligence op-
erates as a complete bar to recovery, and presumed that it misled
the jury.

Judge Lybrook, in a concurring opinion, agreed that, if taken
out of context, the phrase "contributory negligence" could have
misled the jury. He placed greater emphasis, however, on lan-
guage limiting the jury's consideration of the plaintiff's failure
to fasten his seat belts to the issue of damages. '°^ His analysis
of the instruction was premised on the trial court's attempt to
apply the doctrine of avoidable consequences. Judge Hoffman ap-

^°^McCORMICK § 34.
^°^312 N.E.2d 104 (Ind. Ct. App. 1974).
'°^/d. at 105-06 (instruction set forth).

'°*Judge Staton also set forth a helpful footnote detailing the status of
the comparative negligence doctrine and modifications thereof throughout
the country. 312 N.E.2d at 106-07 n.l.

'°'/d. at 108.



356 INDIANA LAW REVIEW [Vol. 9:840

parently agreed with this analysis of the instructions. He concluded
in his dissenting opinion, in obvious reference to the doctrine,

that the tendering of the instruction was harmless error since
the jury, in finding for the defendant, never reached the issue

of damages.^
°°

The primary problem with applying the doctrine of avoid-
able consequences is that it is difficult to prove that a separable

part of the plaintiff's injury would not have occurred but for the

fact that the plaintiff had left his seat belt unfastened. '°' At
the present time this seems to be an insurmountable burden for the
plaintiff in a ''seat belt" case. In a case similar to Birdsong, the

Indiana Supreme Court refused to apply the doctrine in spite of
expert testimony that the plaintiff would not have suffered an
eye injury had he been wearing his seat belts.' '° Nevertheless,

Indiana courts seem to have recognized that the doctrine has
merit in appropriate circumstances.' '' Despite Judge Lybrook's
skepticism that an avoidable consequences instruction could ever
be drafted properly,"^ it seems likely that the doctrine would be
applied by the court if a case were to arise in which a separable
portion of the plaintiff's damages could be shown to a reasonable
degree of certainty to have been caused by his lack of due care.

In Rieth-Riley Construction Co, v. McCarrell,^^^ the First Dis-

trict Court of Appeals held that "the mere fact that a plaintiff
was unemployed at the time of his injury does not, in and of
itself, preclude the value of recovery for the value of time lost

from the date of injury to trial.''' '^ The court prefaced this hold-
ing with an instructive discussion of the damage component gen-
erally referred to as "impaired earning ability.""^ Relying pri-

marily upon secondary authority to support its decision,"* the
court separated "impaired earning ability" into two distinct ele-
ments: loss of time and decreased earning capacity. The loss of
time element, the court reasoned, refers to the value of the time

that the plaintiff lost before trial because of his injury. Decreased

earning capacity refers to the impairment of the plaintiff's future
earning capacity and is measured by the extent to which the
plaintiff's ability to earn money in the future has been diminished.

^°°/d. at 109 (Hoffman, J., dissenting).
'°'Prosser § 65, at 422-24.

'^°Kavanagh v. Butorac, 140 Ind. App. 139, 221 N.E.2d 824 (1966).
'''See id.

'^=312 N.E.2d at 108-09.
^'^325 N.E.2d 844 (Ind. Ct. App. 1975).
''^Id. at 849.

"Ud. at 847.
''*The court quoted extensively from 22 Am. Jur. 2d Damages §100

(1965).



1975] SURVEY—TORTS 357

The holding in Rieth-Riley is in accord with the generally
accepted view that the true basis of recovery for the impairment

of earning ability experienced between the date of injury and the

date of trial **is the Value' of the plaintiff's time, that is, what
his services would have brought in the labor market, of which

actual wages would merely be evidence.""^ As recognized in Rieth-
Riley, however, other courts, including the Indiana Court of Ap-

peals,''® have held that damages can be claimed and recovered
solely on the basis of the actual wages that the plaintiff had lost

up to the date of trial."' It has been suggested that no practical
or theoretical difficulties would arise if plaintiffs were permitted
to select either the value of lost wages or the value of lost time
as their basis of recovery.' ^° It is arguable that either basis of

recovery is now acceptable in Indiana.

Rieth-Riley also seems to have resolved a question left un-

answered by the court of appeals in Cooper v, High,^^^ In Cooper
the court expressly declined to decide whether work performed
on an exchange basis could be considered in awarding damages
for impaired earning ability. The Rieth-Riley court plainly stated
that homemakers and persons who perform services gratuitously
can recover for the value of lost time and the impairment of
future earning capacity. '^^ This result logically follows from the
court's conclusion that "a plaintiff has a right to his own time
which cannot be taken from him by a tortfeasor without com-
pensation . . . ."'" The court set forth the caveat, however, that
persons who were not earning wages at the time of injury can
expect to encounter difficulty in proving their damages to the
requisite degree of certainty. Accordingly, the non-wage-earner

plaintiff must remove the amount of damages he seeks to recover
from the realm of speculation by introducing evidence of his "age,
life expectancy, health, training, experience, intelligence, and tal-
ents, as well as the nature of the injury."' ^^

In Scott County School District 1 v. Asher,^^^ the Indiana Su-
preme Court held that an unemancipated minor as well as his
parents can recover the value of medical expenses incurred for

^'^McCoRMiCK §87, at 310.
'»Scott V. Nabours, 296 N.E.2d 438 (Ind. Ct. App. 1973).
'"^See McCORMiCK §87, at 309-10.

'^^303 N.E.2d 829 (Ind. Ct. App. 1973), aff'd, 317 N.E.2d 177 (Ind.
1974).

'2=325 N.E.2d at 848, citing 22 Am. Jur. 2d Damages § 100 (1965).
^"325 N.E.2d at 848, quoting from 22 Am. Jur. 2d Damages § 100 (1965).
'2^^325 N.E.2d at 849.
'"324 N.E.2d 496 (Ind. 1975).



358 INDIANA LAW REVIEW [Vol. 9:340

the treatment of injuries inflicted upon him by a tortfeasor. Al-
though it has long been recognized that parents can recover such

expenses,'^* a conflict in the courts of appeals had developed over
whether a minor's recovery was limited to medical expenses in-
curred after emancipation.'^^ The Asher court reasoned that a
minor is liable in contract for such medical expenses under the

rule that a minor's contract is not voidable when the contract is
for "necessaries." On this basis, the court held that when a minor
and his parents are both liable to the provider of medical services,

both should be entitled to compensation. A double recovery will not
be permitted, however ; and in a future action against a tortfeasor
seeking recovery of such expenses, the tortfeasor is entitled to raise,

by way of defense, a judgment previously paid to either the minor
or the minor's parents. It is interesting to note that the holding

in Asher is limited by its facts to past medical expenses. The
court's reliance on a New York case'" suggests that future ex-
penses likely to be incurred until the child attains the age of

majority are recoverable only by the child. The reasoning behind
the latter rule is that "the safety of the child will be promoted

by allowing the child to recover for the future cost of medical
expenses, rather than the parent, who may collect the amount
and then fail to devote it to the care of the child.'"''

G. Medical Malpractice

An act to regulate medical malpractice is one of the most
important pieces of legislation passed this year by the Indiana
General Assembly.' ^^ The Act, which applies only to claims aris-
ing out of an act of alleged medical malpractice occurring after
July 1, 1975,'^' sets limits on recovery under claims of medical
malpractice and provides a detailed procedure for the settlement
or litigation of these claims.

'2*5ee, e,g., Ind. Code §34-1-1-8 (Burns Supp. 1975); MoCormick §91.
'^^Compare Scott County School Dist. 1 v. Asher, 312 N.E.2d 131 (Ind.

Ct. App. 1974), with Allen v. Arthur, 139 Ind. App, 460, 220 N.E.2d 658
(1966).

^"Clarke v. Eighth Ave. R.R., 238 N.Y. 246, 144 N.E. 516 (1924).

'2'MoCORMiCK §91, at 329.

'3°lND. Code §§16-9.5-1-1 to -9-10 (Burns Supp. 1975) [hereinafter
referred to as the Act]. Indiana is not the only state to have confronted the
medical malpractice dilemma. At the time of this writing at least fourteen
other states have passed legislation this year dealing with some aspect of
medical malpractice: California, Florida, Idaho, Iowa, Louisiana, Michigan,

Missouri, New York, Nevada, North Carolina, North Dakota, South Da-
kota, Washington, and Wisconsin.

'3'/d. §16-9.5-1-7.



1975] SURVEY---TORTS 359

1, Limitations on Recovery

Those medical professions sheltered by the Act are denomi-

nated "health care providers." A health care provider is defined
as follows:

A person, corporation, facility or institution licensed by
this state to provide health care or professional services

as a physician, hospital, dentist, registered or licensed

nurse, optometrist, podiatrist, chiropractor, physical ther-

apist or psychologist, or an officer, employee or agent

thereof acting in the course and scope of his employ-

ment.'"

The health care provider must be "qualified" under the Act in

order to enjoy its protection.'" Qualification is not, however,

very difficult to attain; all a health care provider need do to

qualify is to obtain liability insurance in the amount of $100,000
per occurrence and pay a special surcharge assesised by the com-
missioner of insurance to finance a state sponsored patient com-

pensation fund.'^^

If the health care provider is qualified, his potential maxi-

mum liability for any act of malpractice is $100,000.'" Any award
or settlement exceeding $100,000 is paid from the state's patient
compensation fund.'^* In no event, however, may any award or
settlement exceed the statutory maximum recovery of $500,000*^"

'"/d. §16-9.5-1-1 (a).

'^Vd. §16-9.5-1-5.

'3^/d. § 16-9.5-2-1.

'^^/d. § 16-9.5-2-2 (b). Several other states have also placed a lid on
the medical practitioner's liability. N.D. Cent. Code § 26-40-11 (Supp. 1975)
($500,000) ; Act of May 20, 1975, ch. 75-9, § 15, [1975] Fla. Sess. Law Serv.
No. 1, at 17-18 (West 1975), to he codified as FLA. Stat. § 627.353(1) (b)
($100,000) ; ch. 162, §§ 4, 5, [1975] Idaho Sess. Laws 422 ($150,000 for in-
jury or death to one patient, $300,000 for injury or death to more than
one patient) ; Act of Aug. 4, 1975, No. 817, § 1, [1975] La. Sess. Law Serv.
No. 4, at 1383 (West 1975), to he codified at La. Rev. Stat. §40:1299.42(8)

(2) ($100,000); Act published July 23, 1975, ch. 37, § 10, [1975] Wis. Legis.
Serv. 48-49 (West 1975), to he codified ds Wis. Stat. §655,23 ($200,000 per
occurance/$600,000 per year).

'=»*IND. Code § 16-9.5-2-2 (c) (Burns Supp. 1975). State sponsored funds
have been created to pay the amount in excess of the health care provider's lia-
bility in at least three other jurisdictions. Act of May 20, 1975, ch. 75-9, § 15,
[1975] Fla. Sess. Law Serv. No. 1, at 18-19 (West 1975), to be codified as
Fla, Stat. §627.353(2); Act of Aug. 4, 1975, No. 817, § 1, [1975] La. Sess.
Law Serv. No. 4, at 1383-84 (West 1975), to be codified as La. Rev. Stat.
§40:1299.42(B)(3); Act published July 23, 1975, ch. 37, §10, [1975] Wis.
Legis. Serv. 50-53 (West 1975), to be codified as Wis. Stat. § 655.27.

'^^^ND. Code § 16-9.5-2-2 (a) (Burns Supp. 1975). Similar legislation has
been passed in other states. Act of Aug. 4, 1975, No. 817, § 1, [1975] La.
Sess. Law Serv. No. 4, at 1383 (West 1975), to be codified as La. Rev. Stat.



360 INDIANA LAW REVIEW [Vol. 9:340

The Act also limits attorney's fees. As to amounts payable by
the health care provider's insurer, the plaintiff's attorney may
charge any percentage to which he and his client agree.' ^® As to
amounts received from the patient compensation fund, the plain-
tiff's attorney may not collect a contingency fee in excess of
15 percent.^ ^' However, a contingency fee is not obligatory. The
claimant may compensate his attorney on a mutually agreeable
per diem basis. ^'^ The plaintiff's election to pay on a per diem
basis rather than on a contingency fee basis must be in writing.'^'

The Act also contains a special statute of limitations. For
claims arising after July 1, 1975, the claimant must commence
an action within two years of the negligent act or omission. '^^

If the injured patient is a minor below the age of six, he or his
representative has until the child's eighth birthday to instigate

an action. '"'^ No legal disability, besides minority, has any tolling
§40:1299.42(B)(1) ($500,000); Act of July 23, 1975, ch. 37, §10, [1975]
Wis. Legis. Serv. 52 (West 1975), to be codified as Wis. Stat. §655.27(6)
($500,000, but only if the commissioner finds that certain conditions exist).

'^*The attorney, however, would be subject to ethical restriction regarding
the amount of his fee. ABA Code of Professional Responsibility, Disciplin-
ary Rule 2-106 (A).

^^'IND. Code §16-9.5-5-1 (Burns Supp. 1975). Other states have im-
posed restrictions on attorney fees. Ch. 162, § 13, [1975] Idaho Sess. Laws
422 (40% of the award) ; Act of June 30, 1975, house file 803, § 25, [1975]
Iowa Legis. Serv. No. 3, at 327 (West 1975), amending Iowa Code § 147.

"*°lND. Code § 16-9.5-5-1 (b) (Burns Supp. 1975).

^"^/c?. §§ 16-9.5-3-1, -2. The new medical malpractice statute of limitations
is very similar to an older statute of limitations. Id. § 34-4-19-1 (Burns 1973).
As with the new statute of limitations, the older one also limits the time in
which a suit based on medical malpractice may be brought. The only signifi-
cant differences between the two are that the new statute may protect a more
limited group than the older statute since the new statute applies only to
"qualified" health care providers, id. §16-9.5-1-5 (Burns Supp. 1975), and
the new statute places a time restriction not found in the older statute upon
suits based on injuries to minors.

Owing to the degree of similarity between the two statutes, the Indiana
courts probably will construe the new statute as they did the old. Therefore,
the limitation i>€riod under the new statute will not begin until the doctor-
patient relationship ends or until the patient discovers or reasonably should

have discovered the injury, whichever comes first. As to latent conditions,
the limitation period does not begin until the doctor-patient relationship ends

because the doctor has a continuing fiduciary duty to apprise the patient of

any potential harm caused by the doctor's acts or omissions. After the relation-
ship ends, the duty of disclosure also ends, and the statutory period will begin

to run. Ostojic v. Brueckmann, 405 F.2d 302 (7th Cir. 1968); Sheets v.
Burman, 322 F.2d 277 (5th Cir. 1963) ; Guy v. Schuldt, 236 Ind. 101, 138
N.E.2d 891 (1956). See Note, Malpractice and the Statute of Limitations, 32
Ind. LJ. 528 (1957).

'^^Ind. Code §16-9.6-3-1 (Bums Supp. 1975). The tolling of the statute
of limitations under the medical malpractice act for injuries occurring before



1975] SURVEY—TORTS HQ}

effect. For acts of malpractice occurring before the effective

date, the claimant must bring suit within the longer of two years

from the effective date, or the period prescribed for claims arising

after the effective date.'"^

2, Medical Review Panel

If the claimant is unwilling to settle, his first step under

the Act is to obtain an opinion on his claim from a medical re-
view panel. ''^^ No complaint may be filed in any court of the
state until a medical review panel has rendered its opinion.'^^ If

a physician is one of the defendants, the medical review panel

must be composed of three physicians who hold unlimited licenses
to practice medicine, and one attorney, who acts solely as a non-
voting chairman. ^"^^ Where a nonphysician is the only defendant
other than a hospital, two of the panelists must be from the same
class of health care providers as the defendant.'"*® Each side has
the right to select one medical member of the panel. The two

the age of eight limits the effect of section 34-1-2-8 (Burns 1973). This latter
section postpones the running of any statute of limitations so long as the
claimant is under a legal disability, such as minority. Under the case law
prior to the Indiana Supreme Court's decision in Chaffin v. Nicosia, 310 N.E.2d
867 (Ind. 1974), discussed in Foust, Torts, 197Jf Survey of Indiana Law, 8
IND. L. Rev. 264, 273-74 (1974), section 34-1-2-8 was inapplicable to the
medical malpractice statute of limitations contained in section 34-4-19-1

(Burns 1973). Therefore, the limitation period ran during minority. Burd v.
McCullough, 217 F.2d 159 (7th Cir. 1954). See also Guthrie v. Wilson, 240

Ind. 188, 162 N.E.2d 79 (1959). The supreme court in Chaffin, however,
changed the law so that minority would toll the statute of limitations.
By passing the new statute of limitations, the legislature clearly expressed
its intent to nullify the Chaffin rule, thereby partially excusing medical mal-

practice from the provisions of section 34-1-2-8. Exempting medical mal-
practice, or any other type of action, from the general tolling provision may,
however, be constitutionally questionable in Indiana. The supreme court sug-
gested in Chaffin that failure to exempt minors from the statute of limitations
would violate the Indiana Constitution's guarantee of open courts and redress
of grievances. Chaffin v. Nicosia, supra at 870, citing Ind. Const, art. 1, § 12.

^^^IND. Code §16-9.5-3-2 (Burns Supp. 1975).
'""'Id. §§ 16-9.5-9-1 to -10.

^^^Id. § 16-9.5-9-2. Legislation requiring the claim to be submitted to some
tjrpe of screening panel is also found in other recent medical malpractice
acts. Act of May 20, 1975, ch. 75-9, § 5, [1975] Fla. Sess. Law Serv. No. 1,
at 10-12 (West 1975), to be codified as Fla. Stat. §768.133; Act of Aug. 4,
1975, No. 817, § 1, [1975] La. Sess. Law Serv. No. 4, at 1387-89 (West 1975),
to be codified as La. Rev. Stat. § 40:1299.47 (B) ; ch. 802, §6, [1975] Nev.

Sess. Laws 409, 410; Act of May 21, 1975, ch. 109, § 11, [1975] McKinney's
Sess. Law News No. 4, at 138 (West 1975), to be codified as N.Y. Judiciary
§148-a; Act published July 23, 1975, ch. 37, § 10, [1975] Wis. Legis. Serv.
42-48 (West 1975), to be codified as Wis. Stat. § 655.02-.21.

'^^nd. Code § 16-9.5-9-3 (Burns Supp. 1975).
'*^Id, §16-9.5-9-3(6).



362 INDIANA LAW REVIEW [Vol. 9;340

panelists selected then select the third. '^' All panel members se-

lected must serve unless they are excused by a judge of a court

having jurisdiction over the claim.'''° To be excused, the panelist

must present the court v^rith an affidavit showing facts v^rhich

constitute good cause for exclusion.^
^'

The plaintiff begins the selection process by choosing his

candidate for the panel. Within 10 days after notification of the

proposed panelist, the defendant must make his selection.'*^ The
parties need not, however, accept their opponent's choice. A chal-
lenge without cause within 10 days of any selection will disqual-

ify the proposed panelist.'" If one side is challenged twice, the

judge appoints three potential panelists and allows each side to

strike one.'*^ The remaining panelist serves. '^^

The procedure for selecting the attorney-chairman is cum-
bersome. The Act requires the clerk of the Indiana Supreme Court
to make a random selection of five attorneys from the roles of
the court. Each side may then strike two names ;'^* the remain-
ing attorney serves. The Act, however, allows the parties to agree
on the attorney-chairman.'^^ In light of the complicated alterna-

tive means of selection, an agreement is probably the better
method.

After the panel is selected, the parties promptly submit their

evidence.'*® The evidence may be in written form only, but
may include charts, X-rays, lab tests, and excerpts from treatises,
as well as the depositions of the parties and witnesses.'*' The
panel has the responsibility of obtaining additional information

and, if necessary, to consult with other medical experts. '*° The
parties are allowed access to any material submitted to the panel.'*'

Either party, after all the evidence has been submitted, may
convene the panel for an informal meeting upon 10 days' notice
to the other side.'*'^ At this meeting, the parties may question the
panel members concerning any matter relevant to the issues which

'*^Id. § 16-9.5-9-3 (b).

'*^/d. § 16-9.6-9-3 (f).

'^'Id, § 16-9.5-9-3 (g).

'^Ud. § 16-9.5-9-3 (h).

'^^Id. § 16-9.5-9-3 (g).

'^^Id,

'^Hd, § 16-9.5-9-3 (d).

'^«/d. § 16-9.5-4-4.

'*^Id, § 16-9.5-9-6.

'"/d. § 16-9.5-9-5.



1975] SURVEY—TORTS 363

the panel may decide/" The panel must render an opinion within
30 days after the parties have presented their evidence and the

parties have had the opportunity, if they desire, to question the

panel.' *^ The Act provides four possible findings which the panel

may find separately or in combination:
(a) The evidence supports the conclusion that the

defendant or defendants failed to comply with the appro-

priate standard of care as charged in the complaint.

(b) The evidence does not support the conclusion

that the defendant or defendants failed to meet the appli-

cable standard of care as charged in the complaint.

(c) That there is a material issue of fact, not re-

quiring expert opinion, bearing on liability for consid-

eration by the court or jury.

(d) The conduct complained of was or was not a
factor of the resultant damages. If so, whether the plain-

tiff suffered: (1) any disability and the extent and
duration of the disability, and (2) any permanent im-

pairment and the percentage of the impairment.'"

The panel's findings in no way binds the parties; the claimant
may file a subsequent suit regardless of the panel's decision,'**
but the findings can be introduced as an expert opinion in court.

'*^

In addition, a party may, at his own expense, call any member
of the panel as a witness at trial ; a panelist so called is required

to appear and testify.''ifeS

3. Settlement Procedure

The legislature also provided a detailed settlement procedure
for those cases in which the insurer admits liability up to the

'*^/d. §16-9.5-9-7.

'*^/d. The possible findings do not specifically establish a standard appli-
cable to ^'informed consent" actions. Several states, however, have adopted

acts containing such standards. Thus, if the health care provider follows the

procedure outlined in the particular act, he will prevent successful suits

based on his alleged failure to disclose the risks of and alternatives to a med-
ical procedure. Act of May 20, 1975, ch. 76-9, § 11, [1975] Fla. Sess. Law
Serv. No. 1, at 14 (West 1975), to be codified as Fla. Stat. §§768.132(3),
-(4) ; Act of June 30, 1975, house file 803, § 17, [1975] Iowa Legis. Serv. No.
3, at 325-26 (West 1975), amending lowA Code § 147; Act of July 29, 1975,
No. 798, § 1, [1975] La. Sess. Law Serv. No. 4, at 1354-55 (West 1975), to be
codified as La. Rev. Stat. §§ 40:1299.40-.46; ch. 301, §§ 2, 3, [1975] Nev. Sess.

Laws 408, 409; Act of May 21, 1975, ch. 109, § 1, [1975] McKinney's Sess.
Law News No. 4, at 134-35 (West 1975), to be codified aa N.Y. Pub. Health
Law § 2805-d.

^**IND. Code §16-9.5-9-8 (Burns Supp. 1975).
"'Ud. § 16-9.5-9-9.



364 INDIANA LAW REVIEW [Vol. 9:340

policy maximum of $100,000. The procedure does not apply to
any settlement under this maximum; presumably, the legislature
did not intend to prescribe the manner in which the insurer and
the claimant reach out of court settlements for claims under

$100,000. However, the Act does apply to the two possible situa-

tions involving settltments above $100,000. The procedure ap-
plies if the settlement is for an amount above $100,000 and is
agreed upon by the claimant, the insurer, and the commissioner.

It also applies if the settlement is agreed upon by the claimant,
the insurer, and the commissioner as to the insurer's maximum
liability but is disputed as to any additional amount.

All additional payments, up to $500,000, come from the pa-
tient compensation fund after the insurer has admitted liability

up to his $100,000 maximum.' ^^ If the claimant seeks recovery
from the fund, he must file a petition with the court in which
the action is pending, or, if no action is pending, with the circuit

or superior court of Marion County. '^° Ten days before the filing
of the petition, the claimant must serve a copy upon the health
care provider, the insurer, and the commissioner.'^' If all the
parties have agreed to the damages owing the claimant from the
patient compensation fund, the petition must be filed to obtain
court approval of the agreement. '^^ If the parties cannot agree

on these damages, the petition must demand pajnnent from the
patient compensation fund.'" In either case, the complaint must
contain sufficient information to put the insurer and the com-
missioner on notice of the nature and amount of the claim.' ^"^

Even though the insurer admits liability up to the statutory
maximum, it still retains the power to approve or reject a settle-
ment that calls for payment from the patient compensation fund.
If either the commissioner or insurer objects to the amount of
damages sought in the claimant's petition, the court sets the mat-
ter for a hearing. '^^ Since the insurer has admitted liability up

^^'/d. § 16-9.5-2-2 (c).

'7°/d. §16-9.5-4-3(1).

'''Id. § 16-9.5-4-3(2).

'''Id, § 16-9.5-4-3(3).

''Ud. §16-9.5-4-3(4).

''*Id. §16-9.5-4-3(2).

''^Id. §16-9.5-4-3(4). The Act is confusing as to the correct procedure
to use if the claimant, the insurer, and the commissioner agree on a settle-
ment from the patient compensation fund. Subsection 16-9.5-4-3(4) provides:

The judge of the court in which the petition is filed shall set
the petition for approval or, if objections have been filed, for hearing,

as soon as practicable. The court shall give notice of the hearing
to the claimant, the insurer of the health care provider and the com-
missioner.

(Emphasis added).



1975] SURVEY—TORTS 865

to the statutory maximum, the liability of the health care pro-
vider is taken as established; the court, without a jury, thus

needs to decide only the amount of damages owing from the pa-
tient compensation fund.^^^ If the claimant, the commissioner,

and the insurer agree to the amount due from the patient com-
pensation fund, the court sets a hearing to approve the agree-

mentJ ^^ In this latter case, the parties still may submit evidence
to convince the court that the settlement should be approved.

''*

Subsection 16-9.5-4-3(5), however, states in part as follows:

At the hearing the commissioner, the claimant and the insurer
of the health care provider may introduce relevant evidence to enable
the court to determine whether or not the petition should be approved

if it is submitted on agreement without objections.
(Emphasis added).

Subsection (4) implies that the court has no discretion to exercise

if the petition is submitted without objection; subsection (5), on the other

hand, expressly grants the court discretion in such an instance. The legisla-
tive history indicates that the confusion arose after changes were made in
committee in House Bill 1480. The settlement procedure of the Act as con-
tained in the Engrossed House Bill 1460 was unambiguous. If the health
care provider and the claimant reached an agreement in excess of the health

care provider's maximum liability of $100,000, the claimant was to file a pe-
tition with the court. The commissioner of insurance then was given notice
and the opportunity to object to the agreement. Even if the commissioner
did not object, a hearing would follow, during which the commissioner and the
other parties could introduce evidence. If the court was convinced that the
petition should be approved, that the plaintiff probably would recover in excess

of $100,000 at trial, and that the settlement was fair, the court was to enter
judgment on the petition.

Interestingly, the Louisiana legislature adopted almost verbatim the

chapter of the Indiana act which contained subsection (4) so that a hearing
was always held, thereby removing the ambiguity found in the Indiana act.
Act of Aug. 4, 1975, No. 817, § 1, [1975] La. Sess. Law Serv. No. 4, at 1385
(West 1975), to be codified as La. Rev. Stat. §40:1299.44(0 (4). Based on
the legislative history and the Louisiana interpretation of the Indiana act,

the construction that the Indiana legislature probably intended is to require

a hearing regardless of whether the parties can agree upon the amount owing
the claimant from the patient compensation fund.

^7*lND. Code §16-9.5-4-3(5) (Burns Supp. 1975). The Indiana act, as
well as the medical malpractice acts of most other states, keeps the resolution
of claims completely within the court system. Louisiana and Michigan, how-
ever, have passed legislation designed to remove many malpractice disputes
from the courts and place them before arbitrators. Both acts encourage the
health care provider to present the patient with an arbitration agreement prior

to any professional services. Act of July 17, 1975, No. 371, § 1, [1975] La-
Sess. Law Serv. No. 4, at 650-52 (West 1975), to be codified as La. Rev.
Stat. §§9:4230-36; Act of July 9, 1975, No. 140, §§1-3, [1975] Mich. Lsgis,

Serv. No. 3, at 273-80 (West 1975), to be codified as Mich. Comp. Laws
§§ 600.5040 to .5066.

^^^ND. Code §16-9.5-4-3(4) (Burns Supp. 1975).

''^Id. §16-9.5-4-3(5).



366 INDIANA LAW REVIEW [Vol. 9:340

J^, Litigation

If the insurer of the health care provider does not agree to

settle at his maximum of $100,000, the plaintiff may file a com-
plaint in any court having jurisdiction and demand a trial by
jury.'^' A plaintiff may not ask for a specific amount of dam-
ages in his complaint, but rather may ask only for unspecified
damages that "are reasonable under the premises."'®^ If the jury

awards the claimant an amount in excess of the insurer's maxi-
mum liability of $100,000, the excess is paid from the patient
compensation fund up to a maximum total recovery of $500,000.'®^
Advance payments made to the claimant by the insurer or the
health care provider are not to be construed as an admission of
liability.'" However, if the court renders final judgment for the
claimant, the court must reduce the judgment by the amount of
the advances.'" If more than one defendant is found liable and
one of these defendants made advances in excess of his liability,
the court must make adjustments to equalize the burdens on the
various defendants. '^"^ In no case, however, must the claimant re-
pay an advance in excess of the final award. "*^

5. Policing the Health Professions

The Act also formulates a procedure designed to remove in-
competent practitioners from the health care professions. Under
this procedure, the health care provider or his insurer and the
plaintiff's attorney must report to the commissioner vnthin 60
days every malpractice claim, whether settled or adjudicated.'®*
The report must inform the commissioner of the nature of the

'''Id. §16-9.5-1-6.

^^/d. Several other states also have placed restrictions on the contents
of the plaintiff's complaint. Act of May 20, 1975, ch. 75-9, §§8, 9, [1975]
Fla. Sess. Law Serv. No. 1, at 13 (West 1975), to be codified as Fla. Stat.
§ 768.042; Act of Aug. 4, 1975, No. 817, § 1, [1975] La. Sess. Law Serv. No.
4, at 1383 (West 1975), to be codified as La. Rev. Stat. § 40:1299.41 (E).

^«^lND. Code § 16-9.5-2-2(c) (Burns Supp. 1975).
^"/d. §16-9.5-2-3.

'^'Id. §16-9.5-2-4.

'*^7d Other le^slatures also have passed provisions for adjusting awards
to account for advances made by the health care provider. Act of Aug. 4,
1975, No. 817, § 1, [1975] La. Sess. Law Serv. No. 4, at 1383 (West 1975),
to be codified as La. Rev. Stat. § 40:1299.41 (D) ; ch. 298, § 10, [1975] Nev.

Sess. Laws 405. Some states, however, go further, reducing awards by the
amounts received from collateral sources. Act of May 21, 1975, ch. 109, § 10,
[1976] McKinney's Sess. Law News No. 4, at 137-38 (West 1975), to be
codified as N.Y. Civil Prac. § 4010.

'«*IND. Code § 16-9.5-6-1 (c) (Burns Supp. 1975).



19763 SURVEY—TORTS 867

claim, the alleged injury, the damages asserted, the attorney fees

and other expenses incurred by both sides, and the amount of

any settlement.'®^ The commissioner, in turn, submits the name
of the health care provider to the appropriate professional board.'"

The professional board reviews the health care provider's fitness
to continue practice. The board may sanction the health care pro-
vider, if necessary, through censure, probation, suspension, or

revocation of his license.'®'

6. Risk Manager

The Act provides for a "risk manager," an insurance com-
pany appointed by the commissioner to provide insurance to those
health care providers who are unable to obtain coverage else-
where."° If a health care provider has been rejected by at least
two insurers, the health care provider forwards to the risk man-
ager an application for insurance along with proof of the prior
rejections.'" The risk manager may either accept or refuse to
issue a policy."^ If the risk manager refuses to insure the appli-
cant, the risk manager must send notice of the rejection to the
applicant together with the reason for the rejection."^ The ap-
plicant then has 10 days to file an appeal with the commissioner,
who will review the application and either uphold the risk man-
ager or order that it issue insurance."^ Awards against the risk
manager can be paid only from funds appropriated by the legis-
lature for that purpose or from money generated by premiums."^
The risk manager's own resources are not liable for any losses.''*

^^Id. §16-9.5-6-2 (a).

'°/d. § 16-9.5-8-3.

"/d. § 16-9.5-8-6.

''2/d. §16-9.5-8-7.

"Vd. § 16-9.5-8-3.
"*/d. Louisiana also has adopted the risk manager device to assure in-

surance coverage for health care providers. Act of Aug. 4, 1975, No. 817, § 1,
[1975] La. Sess. Law Serv. No. 4, at 1386-87 (West 1975) , to be codified as
La. Rev. Stat. § 40:1299.46. The majority of the states that have attempted
to make insurance available to health care providers have adopted the tempor-
ary joint underwriting association (JUA) concept. The JUA is a legislatively
mandated association of all personal liability insurers operating in a state. The
JUA is responsible for underwriting risks that cannot obtain coverage on the
voluntary market. E.g., Act of May 21, 1975, ch. 109, § 17, [1975] McKinney's
Sess. Law News No. 4, at 140-41 (West 1975), to be codified as N.Y. Ins. Law
§ 682. At least two states have created state-sponsored programs to provide
insurance. N.D. Cent. Code § 26-40-03 (Supp. 1975) ; Act of May 12, 1975,



368 INDIANA LAW REVIEW [Vol. 9:340

7. Constitutionality

Health care providers probably will continue to carry un-

limited insurance coverage until the courts ultimately decide the

Act's constitutionality. This section discusses some of the consti-

tutional issues respecting the Act which may arise in the near
future.

The restriction placed upon a claimant's maximum recovery
raises one possible constitutional problem. The Act potentially
violates the equal protection clause of the fourteenth amendment
by establishing a classification between persons injured by medi-
cal malpractice, whose potential recovery is statutorily limited,

and those injured by all other torts, whose recovery is not limited.
Whether any classification meets equal protection standards may
depend upon whether the classification discriminates against a
suspect class. Where a suspect class is involved, the state bears
the burden of proving that a compelling state interest requires

that the distinction be made between membership in the affected
and unaffected classes.' ^^ The class of persons injured by medical
malpractice, however, does not meet the accepted test for a sus-
pect class, since membership in the class is not immutable, as is
race or alienage,"® nor is the discrimination against the class of

long-standing duration. '''

If the class discriminated against is not suspect, the courts

apply a much lower level of scrutiny.^°° If the low scrutiny stan-
dard is used, the party contesting the statute bears the burden
of proving that the legislation is arbitrary and without a rational
basis.^^' Since the courts* role in questioning the constitutionality

No. 43, § 1, [1975] Mich. Legis. Serv. No. 1, at 90 (West 1975), to be codi-
fied as Mich. Comp. Laws § 500.2502.

''^Frontiero v. Richardson, 411 U.S. 677 (1973); Loving v. Virginia,
388 U.S. 1 (1987) ; Korematsu v. United States, 323 U.S. 214 (1944) ; Gunther,
The Supreme Court, 1971 Term—Foreword: In Search of Evolving Doctrine on
a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev.
1 (1972). See also Stroud, Sex Discrimination in High School Athletics, 6
IND. L. Rev. 661 (1973).

^98San Antonio School Dist. v. Rodriquez, 411 U.S. 1, 28 (1972); Graham
V. Richardson, 403 U.S. 365, 372 (1971) ; United States v. Carolend Prods. Co.,

304 U.S. 144, 152-53 n.4 (1938).

^"Frontiero v. Richardson, 411 U.S. 677 (1973); San Antonio School
Dist. V. Rodriquez, 411 U.S. 1 (1972); Indiana High School Athletic Ass'n v.
Raike, 323 N.E.2d 66 (Ind. Ct. App. 1975).

2°°San Antonio School Dist. v. Rodriquez, 411 U.S. 1 (1972) ; McGowan v.
Maryland, 366 U.S. 420 (1961) ; Indiana High School Athletic Ass'n v. Raike,
323 N.E.2d 66 (Ind. Ct. App. 1975).

^°^The rational basis test is satisfied if the legislature specifies the inter-

ests upon which an act is based. Stroud, supra note 197, at 633. In this in-
stance the courts could look to the original version of House Bill 1460, which
provides in relevant part:



1975] SURVEY-^TORTS 869

of le^slation is limited under low level scrutiny,^°^ the probabil-

ity is low that the courts will find irrational the legislative basis

for limiting medical malpractice liability and overturn the Act.

The more crucial issue is whether the Act violates the due
process clause of the fourteenth amendment by abrogating a
claimant's interest in a common law right without providing a
substitute. In upholding a workmen's compensation statute, the
United States Supreme Court in New York Central EailrooA Co,
V, White'^^^ stated in dicta:

The general assembly finds that:
(a) The number of suits and claims for damages arising from pro-
fessional patient care has increased tremendously in the past several

years and the size of judgments and settlements in connection there-
with have increased unreasonably.

(b) The effect of such judgments and settlements, based frequently
on now legal precedents, have caused the insurance coverage to uni-
formly and substantially increase the cost of such insurance coverage.
(c) These increased insurance costs are being passed on to the pa-
tient in the form of higher charges for health care service and fa-
cilities.

(d) The increased costs of providing health care services, the in-
creased incidents of claims and suits against health care providers,
and the unusual size of such claims and judgments, frequently out of
proportion to the actual damages sustained, has caused many liability
insurance companies to withdraw from the insuring of high risk
health care providers.

(e) The rising number of suits and claims is forcing health care
providers to practice defensively, viewing each patent as a potential

adversary in a lawsuit, to the detriment of both the health care

provider and the patient. Health care providers for their own pro-
tection, are often required to employ excessive diagnostic procedures

for their patients, unnecessarily increasing the cost of patient care.

(f) Another effect of the increase of suits and claims and the costs
thereof is that some health care providers decline to provide certain
health care services which in themselves entail some risk of patient
injury.

(g) The cost and difficulty in obtaining insurance for health care
providers discourages young physicians from entering into the prac-
tice of medicine in the state of Indiana, resulting in the loss of phy-

sicians to other states.

(h) The inability to obtain or the high cost of obtaining insurance
affects the medical and hospital services available in the state of
Indiana to the detriment of its citizens.

(i) Some health care providers have been forced to curtail the prac-
tice of all or a part of their profession because of the non-availability

or the high cost of liability insurance.

(j) The cumulative effect of suits and claims is working both to the
detriment of the health care providers and to the citizens of this state.

H.R. 1460, 99th Gen. Assembly, 1st Sess. § l(a)-(j) (1975).

^°^See cases cited note 200 supra.

2°3243 U.S. 188 (1917).



870 INDIANA LAW REVIEW [Vol. 9:340

[I]t perhaps may be doubted whether the state could
abolish all rights of action, on the one hand, or all de-

fenses, on the other, without setting up something ade-

quate in their stead.^°*

Although dicta, several courts have adopted the White rule.'^***

Even if this rule is applied to the medical malpractice law, the
Act may, nevertheless, be constitutional. The General Assembly
has not abolished all rights or all defenses in medical malpractice

actions; the Act only imposes limits on a claimant's recovery.

However, if the claimant must be compensated for the limits
placed upon his right of recovery, the Act may not be constitu-
tional since very little is given to the claimant in exchange for

this right."*

Even if the substitution provided for the limitation on the
claimant's right of recovery is found adequate or unnecessary,

the due process clause still requires that the Act not arbitrarily
infringe upon a person's interest."^ In addition, if, according to
the Supreme Court, the interest is a fundamental interest, the
state must show a compelling need to infringe upon it.^®* An in-
terest is fundamental if it is "explicity or implicity guaranteed

by the Constitution.""' A contestant of the Act may attempt to
bring within the definition of a fundamental right a claimant's
right to receive full recovery for a medical malpractice injury.
However, if a court does not find the claimant's right to be fun-
damental, the court will apply the same low judicial scrutiny used

204/d. at 201 (dicta).

205Kluger V. White, 281 So. 2d 1 (Fla. 1973) ; Manzanares v. Bell, 214
Kan. 589, 522 P.2d 1291 (1974) ; Pinnick v. Cleary, 360 Mass. 1, 271 N.E.2d 592

(1971); Montgomery v. Daniels, 367 N.Y.S.2d 419 (Sup. Ct., Kings County,
1975). But see Haney v. International Harvester Co., 294 Minn. 375, 201
N.W.2d 140 (1972).

206'pjjg ^g^ j^gy ji^ake expert testimony more available to the plaintiff.
Under Ind. Code § 16-9.5-9-9 (Burns Supp. 1975), the medical review panel's
findings can be used by the plaintiff at trial as expert opinion. In addition,
the same section requires any member of the panel to serve as a witness
at trial if called. Although the provisions of section 16-9.5-9-9 apply to both

sides of a malpractice suit, the plaintiff probably gains the most since he

may use the provisions to overcome the difficulty frequently encountered in
obtaining expert testimony from a health care provider against another
health care provider.

207Memorial Hosp. v. Maricopa City, 415 U.S. 250 (1974); Kusper v.
Pontikes, 414 U.S. 51 (1973) ; San Antonio School Dist. v. Rodriquez, 411
U.S. 1 (1972) ; Dunn v. Blumstein, 405 U.S. 330 (1972) ; Shapiro v. Thompson,
394 U.S. 618 (1969); Harper v. Virginia Bd. of Elections, 383 U.S. 663

(1966).

^°*See cases cited note 207 supra,

20'San Antonio School Dist. v. Rodriquez, 411 U.S. 1, 17 (1972).



1975] SURVEY—TRUSTS AND ESTATES 9^1

in equal protection cases to judge the reasonableness of the Act."**

If the Act is not found defective under the Federal Consti-

tution, at least one question arises under the Indiana Constitu-

tion, The right to trial by jury in civil matters"' may be violated
by Indiana Code section 16-9.5-4-3(5). This section makes the

issue of damages a matter for the court in those instances in

which the insurer has admitted liability up to the statutory maxi-

mum and the insurer, the claimant, and the commissioner of in-
surance are unable to agree on the additional amount, if any,

owing from the patient compensation fund. However, since the

Act compensates the claimant for the denial of a jury trial on

the issue of damages by establishing the health care provider's
liability as a matter of law,^'' a court may find the trade-off suf-
ficient to overcome the limited violation of the claimant's right.

XIX. Trusts and Decedents^ Estates

Melvin C, Poland*

During the current survey period there were no cases in the
trust area and only three in the decendents* estates area considered
worthy of comment. The most significant development during the
period was the enactment of Public Law 288.' A number of the
changes made by this legislation are minor and will receive little
more than comment in the footnotes. Other changes are quite
significant and will be dealt with to the extent space limitations
permit.

A. Case Developments

1. Will Contests

In Haskett v. Hasketf^ the principal issue on appeal was
whether a petition to determine heirship constituted a will contest

2'oSan Antonio School Dist. v. Rodriquez, 411 U.S. 1 (1972) ; Indiana
High School Athletic Ass'n v. Raike, 323 N.E.2d 66 (Ind. Ct. App. 1975).

= "IND. Const, art. 1, § 20.
*'2iND. Code §16-9.5-4-3(5) (Burns Supp. 1975).
Professor of Law, Indiana University School of Law—Indianapolis. B.S.,

Kansas State University, 1940; LL.B., Washburn University, 1949; LL.M.,
University of Michigan, 1950.

The author wishes to thank John W. Boyd for his assistance in the
preparation of this article.

'Ind. Pub. L. No. 288 (Apr. 22, 1975), amending scattered sections of
Ind. Code tits. 29, 32. The Act became effective January 1, 1976.

^827 N.E.2d 612 (Ind. Ct. App. 1975).