Indiana Law Review


360 INDIANA LAW REVIEW [Vol. 10:360

could not fix the value of property on an appeal from the Board,
since the proper procedure is to remand the matter to the Board
for reassessment.

'°^

XVIII. Torts

James J. Brennan*

The purpose of this discussion is to highlight selected judicial
decisions in the area of tort law. Not all tort cases decided during
the survey period have been discussed, but an effort has been made
to note recent developments and significant clarifications and
affirmations of Indiana law. Because this discussion is synoptic in

nature, it does not purport to provide either extensive coverage

or extensive analysis of the cases.

A. Limitations on Duty

1. The Guest Statute

The Indiana guest statute' withstood a vigorous equal protec-
tion challenge during the survey period. In Sidle v. Majors,^ a

guest passenger who was injured in an automobile driven by the
defendant appealed the dismissal of her negligence complaint on

the ground that the guest statute violated the fourteenth amend-
ment to the United States Constitution and article 1, sections 12
and 23 of the Indiana Constitution. The Seventh Circuit Court of
Appeals, before addressing the questions of federal law, certified

the questions of state law to the Indiana Supreme Court pursuant
to Rule 15 (N) of the Indiana Rules of Appellate Procedure.

In an opinion couched with judicial restraint,^ the supreme

^^See IND. Code § 6-1.1-15-8 (Burns Supp. 1976) ; Indiana State Bd. of
Tax Comm'rs v. Pappas, 302 N.E.2d 858 (Ind. Ct. App. 1973).

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

The author wishes to express his appreciation to Lynn Brundage for
her assistance in the preparation of this comment, and to J. Randall Aikman
for his work in authoring the section on damages.

'Ind. Code §9-3-3-1 (Burns 1973).
^536 F.2d 1156 (7th Cir.), certifying questions of state law to 341 N.E.2d

763 (Ind.), cert, denied, W7 S. Ct. 366 (1976). Dempsey v. Leonherdt, 341
N.E.2d 763 (Ind. 1976) was a companion case to Sidle. This case is also
discussed in Marsh, Constitutional Law, supra at 133. For an analysis of
Sidle, see 9 Ind. L. Rev. 885 (1976).

^341 N.E.2d 763 (Ind. 1976). The extent to which the supreme court acted
with restraint is exemplified by the following excerpt from the opinion:



1976] SURVEY—TORTS 361

court, speaking through Justice Prentice, held that the guest stat-
ute bore a fair and substantial relationship to at least three per-
ceived legitimate state interests: (1) The fostering of hospitality
by insulating generous drivers from lawsuits instituted by ungrate-
ful guests, (2) the elimination of the possibility of collusive law-

suits, and (3) protection of insurance companies and the public
from the "benevolent thumb syndrome,'* a novel theory based upon
the belief that jurors will assume that the real defendants in guest-
host suits are insurance companies, and that juries will weigh
their benevolent thumbs together with evidence of the host's neg-
ligence, all of which would result in increased insurance pre-
miums/ For these reasons, the court concluded that it was not at
liberty to substitute its judgment for that of the legislature, and
held that the guest statute did not contravene article 1, sections

12 and 23 of the Indiana Constitution.
The Seventh Circuit Court of Appeals was not as charitable

to the legislature's judgment when, after receiving the supreme
court's ruling, it was presented with the question of whether the
guest statute violated the fourteenth amendment to the United
States Constitution/ Reviewing the constitutionality of the statute

under the rational basis test,* the court found that each justifica-

tion for the statute advanced by the Indiana Supreme Court was
indefensible, and that Silver v. Silver/ sl 1929 United States Su-

preme Court decision upholding the constitutionality of a guest
statute, was invalid in light of changed social conditions. The pur-
pose of fostering hospitality was not furthered by the guest stat-
ute, the court reasoned, because "widespread liability insurance

In approaching a consideration of the constitutionality of a
statute, we must at all times exercise self restraint. Otherwise, under
the guise of limiting the Legislature to its constitutional bounds, we
are likely to exceed our own. That we have the last word only
renders such restraint the more compelling. We, therefore, remind
ourselves that in our role as guardian of the constitution, we are
nevertheless a court and not a "supreme legislature." We have no
right to substitute our convictions as to the desirability or wisdom
of legislation for those of our elected representatives. We are under
a constitutional mandate to limit the General Assembly to its lawful
territory of prohibiting legislation which, although enacted under the
claim of a valid exercise of the police power, is unreasonable and
oppressive. Nevertheless, we recognize that the Legislature is vested
with a wide latitude of discretion in determining public policy.

Id. at 766.

""Id. at 768-72.

*536 F.2d 1156 (7th Cir.), cert, denied, 97 S. €t 366 (1976).
*"[S]tatutory classifications violate the Equal Protection Clause if they

are not rationally related to 'some legitimate, articulated state purpose.' " Id.
at 1157, quoting from McGinnis v. Royster, 410 U.S. 263, 270 (1973).

'280 U.S. 117 (1929).



362 INDIANA LAW REVIEW [Vol. 10:360

has eliminated any notion of ingratitude that may have formerly
adhered to a suit by a guest against his host."® Equally unim-
pressed by the so-called anti-collusion purpose of the statute, the
court determined that, in fact, the statute encourages "odious

perjury" and artfully drafted pleadings, and that any relationship
that exists between the statute and the purpose of preventing
collusive lawsuits "is so attenuated that it is unreasonable to elim-

inate causes of action of an entire class of persons merely because
an indefinite portion of a designated class may file fraudulent
lawsuits/" Finally, in apparent reference to the "benevolent thumb
syndrome," the court concluded that "[d]efendant has not demon-
strated that our invalidation of this statute would increase pre-
miums for such insurance." '°

Despite its considered view that the guest statute was an
"anachronistic monument to the insurance industry" that bore
no rational relationship to a legitimate state interest," the court
sustained the validity of the statute because two years ago the
United States Supreme Court, in Cannon v. Oviatt,^^ summarily
dismissed the appeal of a decision of the Utah Supreme Court up-
holding the constitutionality of a guest statute. In view of the

Supreme Court's recent holding in Hicks v. Miranda^ ^ that sum-
mary dispositions of appeals are binding precedents upon lower
courts, the Seventh Circuit held that it was bound by the summary
affirmance of Cannon and was required to sustain the constitu-

tionality of the guest statute.

The United States Supreme Court denied certiorari over the

vigorous dissent of Justice Brennan, in which Justice Marshall

joined.'^ Noting that the courts of no less than seventeen states

have examined or reexamined their guest statutes over the past

five years, and that almost one-half of those courts have deemed

their states' guest statutes to be unconstitutional, Justice Brennan

stated that "[t]his conflict of view might reasonably lead bench

and bar to expect that this Court would grant review of a case

that afforded an opportunity to reexamine [Silver v. Silver'} in

light of today's rationality standard." ^^ He reasoned that:

^536 F.2d at 1157.

^Id. at 1158.

''Id, at 1159.

'^419 U.S. 810, dismissing appeal for want of a substantial federal ques-

tion, 620 P.2d 883 (Utah 1974).

'M22 U.S. 332 (1975).
'^97 S. Ct. 366 (1976).

'*/d. at 367.



1976] SURVEY—TORTS 363

[H]ad the Court foreseen that [Hicks v. Miranda] ...
would convert the [Cannoii v. Oviatt] dismissal into an
ironclad holding compelling the Court of Appeals in this

case to abandon its own considered view of the merits,
it seems probable that at the very least the Court, because

of the doubts widely shared as to the continuing vitality

of Silver v. Silvery would have given more thought to
the propriety, even desirability, of a summary dismissal.'*

The denial of certiorari, according to Justice Brennan, left undis-

turbed "a decision upholding a statute whose constitutionality is

patently open to serious debate.""

2. Premises Liability

The common law rules of premises liability, like the guest
statute, create a special privilege to be careless toward particular

classes of persons. Sidle v. Majors made it clear that any reform
of the guest statute must be legislative rather than judicial. This

is not the situation, however, with the law of premises liability.

The common law rules, which define a landowner's duty of care
toward entrants according to whether the entrant is classified as

a licensee, invitee or trespasser, are judge-made. The rules were
created by judges at a time when the rules of negligence were
new and ill-defined, and when the notion that a landowner was
sovereign in his own domain was firmly rooted in our jurispru-
dence. '° By erecting rigid rules of duty, the courts, viewing the
emerging negligence doctrine with considerable distrust, reserved

the exclusive power to protect landowners from juries whose mem-
bers, as a general rule, belonged to **the class of potential visitors

rather than to that of landowners."''

It can no longer be said that the interest of human safety
must be subservient to the interest of property ownership. Since

the landmark case of Rowland v. Christian^° was decided by the
California Supreme Court in 1968, an increasing number of juris-
dictions have abolished the common law rules, and have required
possessors, like other members of society, to exercise reasonable

'*/d. at 368-69.

'Ud. at 369.

^^See F. BOHLEN, Studies in the Law op Torts 163 (1926).
"Marsh, The History and Comparative Law of Invitees, Licensees and

Trespassers, 69 L.Q. Rev. 182, 185 (1953).
=^°69 Cal. 2d 108, 443 P.2d 561, 70 Cal. Rptr. 97 (1968). See generally

Annot., 32 A.L.R.3d 508 (1970).



364 INDIANA LAW REVIEW [Vol. 10:360

care in their daily pursuits.^' New Hampshire," Wisconsin," and
New York^"* joined this growing minority during the survey period.

A frequent criticism of the common law classification system,
apart from its harshness and inflexibility, has been its proclivity
to breed confusion in the law." The courts have not been reluctant
to attenuate the common law rules or to emasculate them with
numerous exceptions in an effort to make them more consonant
with the now well-settled rules of negligence and the emerging
policy of the law to require all persons to behave reasonably. The
law of Indiana, particularly with respect to cases involving li-
censees, is a paragon of this confusion.^* Much judicial energy has
been expended over the past several years in efforts to determine

the duty of care owed to licensees in Indiana. The development
of the law in this area, in the words of one Indiana jurist, "has
been uneven, and characterized by confusing terminology such
as *active-passive', *willful and wanton', 'attractive nuisance', 'in-
herently dangerous condition', and *last clear chance'."^^

The first serious effort to eliminate some of this confusion
was undertaken by Judge Buchanan in Fort Wayne National Bank
V. Doctor.^^ Doctor presented the sole question of the duty of care

2'5ee Smith v. Arbaugh's Restaurant, 469 F.2d 97 (D.C. Cir. 1972), cert,
denied, 412 U.S. 939 (1973); Mile High Fence Co. v. Radovich, 175 Colo. 537,
489 P.2d 308 (1971) ; Pickard v. City of Honolulu, 51 Hawaii 134, 452 P.2d
446 (1969) ; Mounsey v. Ellard, 297 N.E.2d 43 (Mass. 1973) ; Peterson v.
Balach, 294 Minn. 161, 199 N.W.2d 639 (1972) ; Ouellette v. Blanchard, 364
A.2d 631 (N.H. 1976) ; Scurti v. City of New York, 40 N.Y.2d 433, 354 N.E.2d
794, 387 N.Y.S.2d 55 (1976); Mariorenzi v. Joseph DiPonte, Inc., 333

A.2d 127 (R.I. 1975); Antoniewicz v. Reszcynski, 236 N.W.2d 1 (Wis. 1&75).
The Rowland test was well stated in Mariorenzi v. Joseph DiPonte, Inc.,

SSS A.2d 127, 133 (R.I. 1975) :

Hereafter, the common-law status of an entrant onto the land of
another will no longer be determinative of the degree of care owed
by the owner, but rather the question to be resolved will be whether
the owner has used reasonable care for the safety of all persons
reasonably expected to be upon his premises. Evidence of the status
of the invitee may have some relevance to the question of liability
but it no longer will be conclusive. The traditional tort question of
foreseeability will become important,

"Ouellette v. Blanchard, 364 A.2d 631 (N.H. 1976).

"Antoniewicz v. Reszcynski, 236 N.W.2d 1 (Wis. 1975).
2^Scurti V. City of New York, 40 N.Y.2d 433, 354 N.E.2d 794, 387

N.Y.S.2d 65 (1976).

"5ee, e.g., Mariorenzi v. Joseph DiPonte, Inc., 333 A.2d 127 (R.I. 1976)

;

J. Page, The Law op Premises Liability (1976).
^''See generally Brennan, Torts, 1975 Survey of Recent Developments in

Indiana Law, 9 Ind. L. Rev. 340, 342-45 (1975) ; Note, Premises Liability: A
Critical Survey of Indiana Law, 7 Ind. L. Rev. 1001 (1974).

^^Swanson v. Shroat, 345 N.E.2d 872, 876 (Ind. Ct. App. 1976).
"149 Ind. App. 365, 272 N.E.2d 876 (1971).



1976] SURVEY—TORTS ZSb

owed to a licensee injured by a condition of the premises. Char-
acterizing the law of Indiana pertaining to the licensee-licensor
relationship as "snarled," the court overruled a line of cases hold-

ing that a possessor could be held liable to a licensee for active

negligence and gross negligence, and concluded that liability would
exist only for "positive wrongful acts," "entrapment," and "willful
and wanton conduct."" Doctor represented the high-water mark
of the common law rules in Indiana because the court concluded
that each of these tests was aimed at conduct transcending neg-
ligence, and that the law of negligence was irrelevant to the licensee-
licensor relationship.^^

As might have been expected of a decision disregarding mod-
ern tort trends and professing a faithful adherence to the common
law rules of premises liability, Doctor has not achieved its goal
of clarifying Indiana law. In Pierce v. Walters,^^ the Third District

Court of Appeals, without referring to Doctor, held that a posses-

sor was liable to a child licensee for "willful and wanton negli-
gence," a standard of care that defies definition.^^ Several years

later, in Surratt v. Petrol, Inc.," the First District Court of Appeals

engaged in a thorough review of Indiana law and declined to fol-
low Doctor to the extent that it held that a possessor could not be

held liable to a knovni trespasser for negligent conduct. It is argu-

able, on the basis of Pierce and Surratt, that the law of negligence

plays an important part in determining whether a possessor should

be held liable to licensees injured by "active conduct."^*

29/d. at 374-75, 272 N.E.2d at 882.

3' 152 Ind. App. 321, 283 N.E.2d 560 (1972).

"/d. at 325, 283 N.E.2d at 562. "Wilfulness and negligence are dia-
metrically opposite to each other." Barrett v. Cleveland, C.C. & St. L. Ry.,
48 Ind. App. 668, 671, 96 N.E. 490, 492 (1911). "[N]egligence and wilfulness
are incompatible, and the former cannot be to such a degree as to become the
latter." Stauffer v. Schlegel, 74 Ind. App. 431, 435, 129 N.E. 44, 46
(1920). "Negligence and wilfulness are as unmixable as oil and water. 'Will-
ful negligence' is as selfcontradictory as 'guilty innocence.* " Kelly v. Malott,

135 F. 74, 76 (7th Cir. 1905). "To speak of 'willful negligence' is like talking
of a 'black white' object." Eldredge, Tort Liability to Trespassers, 12 Temple
L.Q. 32, 33 (1937). See also Note, Premises Liability, supra note 26, at 1031.

"312 N.E.2d 487, aff'd on reheaHng, 316 N.E.2d 453 (Ind. Ct. App. 1974).
^^312 N.E.2d at 492, following Restatement (Second) of Torts § 336

(1965). See, e.g., Scurti v. City of New York, 40 N.Y.2d 433, 354 N.E.2d 794,
797, 387 N.Y.S.2d 55, 58 (1976). A major problem with the "active negligence"
exception is that the distinction between active and passive neglig^ence is
highly artificial and often difficult to make. See James, Tort Liability of
Occupiers of Land: Duties Owed to Trespassers, 63 Yale L.J. 145, 174-76
(1953) ; Brennan, supra note 26, at 346 (discussing Surratt). Compare Lingen-
felter v. Baltimore & O.S. Ry., 154 Ind. 49, 55 N.E. 1021 (1900) with Midwest
OU Co. v. Storey, 134 Ind. App. 137, 178 N.E.2d 468 (1961). The Indiana



a66 INDIANA LAW REVIEW [Vol. 10:360

The courts traditionally have found the common law rules of
premises liability more palatable in cases in which a licensee was
injured by a condition of the land rather than by active conduct
of the possessor." Thus, an even more significant erosion of Doctor
occurred in the recent case of Swanson v. Shroat,^^ in which the
strength of Doctor was considered in the context of an injury
occasioned by a condition of the defendant's land. The plaintiff in
Swanson was a ten-year-old boy who was injured when he fell
from a tree located in the defendant's backyard. The trial court
granted summary judgment for the defendant on the ground that
the undisputed facts failed to bring the case within any of the
exceptions enunciated in Doctor. The Second District Court of
Appeals affirmed the trial court's decision, but for a different

reason: the child was contributorily negligent as a matter of law
because he should have known and appreciated the risks inherent
in playing in a tree.^^ Before reaching this conclusion, however,

the court engaged in an analysis of the law of premises liability

—

an analysis rendered unnecessary by the court's ultimate disposi-
tion of the case—that casts serious doubt upon the precedential
value of Doctor.

Although the Swanson court cited various aspects of Doctor
with apparent approval throughout its opinion,^® the court's dis-

satisfaction with Doctor was obvious. Despite the effort made in
Doctor to clarify Indiana law, the court noted that "the conduct

which measures up to the requisite standard of care owed to a
licensee remains unclear."^' Engaging in an independent analysis

of the authorities, the court noted that liability has traditionally

Supreme Court has held, however, that there is no such thing as active negli-

gence. Indiana Harbor Belt R.R. v. Jones, 220 Ind. 139, 41 N.E.2d 361 (1942).

^^See James, supra note 34, at 158.

3^345 N.E.2d 872 (Ind. Ct. App. 1976).

^^Indiana courts have established rigid categories of conditions and

structures the danger of which a child is expected, as a matter of law, to

recognize and appreciate. Id. at 879. See, e.g., Neal v. Home Builders, Inc.,
232 Ind. 160, 111 N.E.2d 280 (1953) (falling from heights) ; City of Evana-
ville V. Blue, 212 Ind. 130, 8 N.E.2d 224 (1937); Anderson v. Reith-Riley

Gonstr. Co., 112 Ind. App. 170, 44 N.E.2d 184 (1942) (cave-ins of soil). A
child injured by such a condition is barred from recovery unless it is shown
that the danger was latent. Lockridge v. Standard Oil Co., 124 Ind. App.
257, 114 N.E,2d 807 (1953). The rule operates harshly. Compare id. with
Plotzki v. Standard Oil Co., 228 Ind. 518, 92 N.E.2d 632 (1950) (same pond
involved in drowning deaths one year apart). The rule has been justly criti-
cized. See Note, Landowner's Liability for Infant Drowning in Artificial Pond,
26 Ind. L.J. 266 (1950). See also Note, Premises Liability, supra note 26,
at 1020-21.

^»345 N.E.2d at 877.

"/d. at 876.



1976] SURVEY—TORTS 367

been found to exist in cases in which a licensee was injured by a
condition that he was unable to recognize or avoid. Because dangers
that may be obvious to an adult are often hidden to a child, the court
determined, on the basis of substantial precedent, that possessors
must exercise a greater quantum of care toward child licensees/^
For this reason, the court concluded that the trial court erred in
relying upon Doctor, which was limited by its facts to an injury
sustained by an adult licensee.

Having made this distinction, the court refocused its inquiry
upon the duty of care owed to both child and adult licensees, and
thus made the distinction one largely without a difference. View-
ing the duty of care owed to licensees more broadly than would
have been possible under a literal reading of Doctor, the court
adopted the rule set forth in the Restatement (Second) of Torts

section 342"' for determining when a licensee can recover from a
possessor for injuries brought about by a static condition of the
premises. In obvious dissatisfaction with the present state of the

law, the court stated that the Restatement "clearly and concisely"
sets forth the circumstances in which a possessor may be held liable
to a licensee, and provides a "coherent guide" for the determination

of liability "without the confusing terminology which has pre-
vailed in Indiana cases over the past 90 years."^^

The impact of Swanson upon Doctor and the law of premises
liability in general was best described in the concurring opinion
of Judge Buchanan, the author of Doctor. He concluded that
"[r]esort by the majority to the rule stated in section 342 of the
Restatement (Second) of Torts as the basis for its opinion, repre-

sents a subtle transition from established Indiana law of non-host
liability (with clearly defined exceptions) to a negligence stand-

ard . . . ."""^ Stating that this transition is "without authority or

justification in the law of this State," Judge Buchanan would have
affirmed the trial court's decision solely upon the basis of Doctor.'^^

Under the Restatement rule, a possessor is liable for injuries
caused to licensees by conditions of the land when: (1) He knows
or should know of the condition and should realize that it involves
an unreasonable risk of harm, (2) he should expect that licensees

will not realize or discover the danger, (3) he fails to exercise

reasonable care to make the condition safe or warn of the condi-
tion and the risks involved, and (4) the licensees do not know

^°Id. at 877. But see Neal v. Home Builders, Inc., 232 Ind. 160, 111 N.E.2d
280 (1953). Neal was limited to its facts in Swanson. 345 N.E.2d at 878.

''Restatement (Second) of Torts §342 (1965).
''=345 N.E.2d at 878-79.

*Ud. at 881.

*Hd.



368 INDIANA LAW REVIEW [Vol. 10:360

or have reason to know of the condition and the risk involved. The
Restatement approach borrows heavily from the law of negligence
and establishes a rule that is substantially more just than the
rules enunciated in Doctor, There is one drawback, however, to
making it a part of Indiana law. The Restatement continues to
recognize the common law classifications of invitee, licensee, and
trespasser, and thus will serve to perpetuate rather than eliminate
this outmoded terminology."**

The most interesting aspect of Judge Sullivan's opinion in
Swanson is his statement that "[i]t is believed that [plaintiff's]
argument for the elimination of the distinction between invitees
and licensees with respect to the duty owed by a landowner or
occupant is meritorious.""*^ Observing that the Indiana Supreme
Court impliedly recognized the common law rules in Hammond v,
Allegretti/^ a case involving the duty of care owed to invitees, he
concluded that it would be "presumptuous for [the court of ap-
peals] to strike down the traditional distinction" and that recon-
sideration of this area of the law "is best left to our highest court
in this case or in some future appeal in which, as here, the argu-
ment is squarely presented.""*®

There can be no doubt that the time has come for the supreme
court to engage in a careful and forthright examination of the
law of premises liability. Other than the landmark case of Ham-
mond V, Allegretti,'^'' in which the court made it clear that the duty
of care owed to invitees was not to be diminished by arbitrary
rules based upon the existence or nonexistence of particular cir-
cumstances, the court has not decided a premises liability case of

any moment since 1962,^° a year that predates the modern tort
trend to abrogate the common law rules. The court's inattention to
the law of premises liability has left this area clouded with uncer-

tainty. How the court would rule if given the opportunity to
modify or abrogate the common law rules cannot be predicted
with any degree of certainty. But, as noted by Justice Prentice

'^^See Hughes, Duties to Trespassers: A Comparative Survey and Re-
valuation, 68 Yale L.J. 633, 648-49 (1969) ; Note, Premises Liability, supra

note 26, at 1047 n.264.

^^345 N.E.2d at 875.
^'311 N.E.2d 821 (Ind. 1974).
^^345 N.E.2d at 875.
^'311 N.E.2d 821 (Ind. 1974).

^°Pier V. Schultz, 243 Ind. 200, 182 N.E.2d 255 (1962). Judge Sullivan

concluded in Swanson that Pier only made a "casual reference to the standard
of care owed to licensees . . . ." 345 N.E.2d at 878. Pier is significant for

its holding in regard to the attractive nuisance doctrine applied to child tres-

passers. See Note, Premises Liability, supra note 26, at 1015-23.



1976] SURVEY—TORTS 369

in Sidle v. Majors,^^ the court has not been hesitant to abolish tort
immunity doctrines when, "in [the court's] opinion, they were
determined to be no longer compatible in our society." Other courts,

when presented with this question, have concluded that, in today's
society, **[a] man's life or limb does not become less worthy of
protection by the law . . . because he has come upon the land of
another without permission or with permission but without a

business purpose.""

3. Sovereign Immunity

There has been much litigation concerning the parameters
of the doctrine of sovereign immunity since all but a vestige of
that doctrine was abrogated by the Indiana Supreme Court's 1972
decision in Campbell v. State.^^ This survey period has been no
exception. All sovereign immunity cases decided during the sur-
vey period involved the status of the doctrine during the post-

Camphell, pre-Indiana Tort Claims Act^* transitional period. These

decisions are important to the extent that they may be predictive
of how Indiana courts will construe the provisions of the Tort
Claims Act. Moreover, they are significant because it is likely that

there are many cases pending, at least before the appellate courts,
that will be controlled by Campbell and its progeny rather than
the Tort Claims Act.

There are substantial differences between the common law
under Campbell and the provisions of the Tort Claims Act." It is

very important, therefore, to determine whether or not a particular

case will be controlled by Campbell and its progeny or the Tort
Claims Act. In State v. Daley,^^ the Second District Court of Ap-
peals held the $300,000 damage ceiling of the Tort Claims Act
could not be applied retrospectively to reduce a $400,000 judgment

obtained by plaintiff before the effective date of the Act. As a
general rule, two questions must be resolved in the affirmative
before a statute will be applied retrospectively: Does the legisla-

ture have the power to apply retrospectively a statutory provision,
and, if so, did the legislature intend that the provision have retro-

spective effect?" The Daley court held that the legislature neither

^'341 N.E.2d 763, 770 (1976).
"Rowland v. Christian, 69 Cal. 2d 108, 118, 443 P.2d 561, 668, 70 Cal.

Rptr. 97, 104 (1968).
"259 Ind. 55, 284 N.E.2d 733 (1972).
*^IND. Code §§34-4-16.5-1 to -18 (Burns Supp. 1976).

^^See Foust, Torts, 197U Survey of Recent Developments in Indiana Law,
8 Ind. L. Rev. 264, 274-76 (1974).

^''332 N.E.2d 845 (Ind. Ct. App. 1975).

^'See Annot., 37 A.L.R.3d 1438, 1440 (1971).



370 INDIANA LAW REVIEW [Vol. 10:S60

intended nor had the constitutional power to limit the plaintiff's
previously obtained judgment. Relying upon substantial precedent,
the court determined that the plaintiff had a vested right by virtue
of the judgment rendered by the trial court, and held that the
legislature was prohibited by the Indiana Constitution from im-
pairing such a right by the subsequent enactment of legislation.^

°

As an additional basis for its decision, the court applied the
general rule of statutory construction that statutes are to be applied

prospectively unless their language clearly indicates that they

were intended to be retroactive,*' and concluded that the language
of the Tort Claims Act did not clearly indicate that the legislature
intended the Act to be applied to judgments rendered before the
Act's effective date. The court interpreted the loosely worded
appropriations provisions of the Act to mean that appropriations
had been made for the full satisfaction of past judgments.*° An-
other reason exists for applying the Act prospectively which was
not mentioned by the court. The Act contains an emergency clause
that made it effective on the date of passage.*' Had the legislature
intended the Act to apply retrospectively, it would have been
unnecessary to include the emergency clause. The inclusion of an
emergency clause is strong evidence that a statute was intended
to apply prospectively rather than retrospectively."

The precise holding of Daley is that the damage limitation
provisions of the Act cannot be applied retroactively to judgments

obtained before February 19, 1974, the effective date of the Act.

It is not entirely clear from the court's opinion whether the dam-
age limitations of the Act are also inapplicable to causes of action

that accrued before that date. This result would appear to be im-

plicit in the court's holding that the legislature is not at liberty

to deprive a person of a substantial portion of ai;i existing vested

right because it has long been recognized by the courts that an

accrued cause of action is a vested right.*^ Thus, it would seem

that the court's holding that the damage limitations apply only to

58332 N.E.2d at 849.

^'^See Malone v. Conner, 135 Ind. App. 167, 189 N.E.2d 590 (1963) ; 73

Am. Jur. 2d Statutes §350 (1974).
*°332 N.E.2d at 847-48.

*'Act of Feb. 19, 1974, Pub. L. No. 142, §4, 1974 Ind. Acts. 599.

"5ee Chadwick v. City of Crawfordsville, 216 Ind. 399, 24 N.E.2d 937

(1940); 73 Am. Jur. 2d Statutes §352 (1974).
"See Baltimore & O.S. Ry. v. Reed, 158 Ind. 25, 62 N.E. 488 (1902). See

also Stucki v. Loveland, 94 Idaho 621, 495 P.2d 571 (1972); Brennan v.

Electrical Installation Co., 120 111. App. 461 (1905) ; Minty v. State, 336 Mich.

370, 58 N.W.2d 106 (1953). Procedural changes, however, do not substantially

impair vested rights. E.g., Streepy v. State, 202 Ind. 685, 177 N.E. 897 (1931).



1976] SURVEY—TORTS 371

"claims obtained" after February 19, 1974 refers to causes of ac-
tion that accrue as well as judgments obtained after that date.*''

Among the most significant provisions of the Tort Claims
Act are those providing that a claim is barred unless notice is
served upon the appropriate person or governing body within 180
days after the loss occurs." Under pi-e-Tort Claims Act law, stat-
utory notice was required in all suits brought against counties*^
and municipalities.*^ Until recently, there seemed to be no ques-
tion that statutory notice requirements applicable to suits against

governmental entities were constitutionally valid. Recent decisions
of the Michigan" and Nevada*' Supreme Courts declaring such
provisions to be a denial of equal protection of the laws, however,

have spawned an increasing number of constitutional challenges.'°

The constitutionality of Indiana Code section 18-2-2-1, which re-
quired written notice in suits brought against municipalities, was
challenged in two cases decided by the appellate courts during
the survey period.

In Geyer v. City of Logansport/^ the Second District Court

of Appeals pinioned its holding upon other grounds and found it
unnecessary to pass on the constitutionality of the statute. In
Batchelder v. Haxby/^ however, the Third District Court of
Appeals, in a 2-1 decision, held that the statute did not contravene

the equal protection clause of the fourteenth amendment of the
United States Constitution or article 1, section 23 of the Indiana

Constitution. Judge Garrard, writing for the majority, concluded

that governmental units are different from private tortfeasors,
and stated, with little elaboration, that "we are unable to say the
classification [discrimination resulting from the statute] does
not rest upon any reasonable basis."^^ This holding is in accord
with the First District Court of Appeals' holding in Foster v.

'"'The Act was amended in 1976 to change and add provisions concerning,
among other things, the settlement of claims, the payment of defense costs
and liability under federal civil rights laws. Act of Feb. 18, 1976, Pub. L. No.
140, 1976 Ind. Acts 687. The amendment provides that it is retroactive "to the
full extent that it can be so applied constitutionally." Id. § 9, 1976 Ind. Acts
at 693. The amendment also contains an emergency clause. Id. § 11, 1976
Ind. Acts at 693.

"Ind. Code § 34-4-16.5-6 (Burns Supp. 1976) (claims against state)

;

id. §34-4-16.5-7 (claims against political subdivisions).

'''Ind. Code §17-2-1-1 (Burns 1974).
'^ND. Code §18-2-2-1 (repealed 1974) (replaced by Tort Claims Act).
*«Reich v. State Highway Dep't, 386 Mich. 617, 194 N.W.2d 700 (1972).
*'King V. Baskin, 89 Nev. 290, 511 P.2d 115 (1973).

^°See Annot., 59 A.L.R.3d 93 (1974).
^'346 N.E.2d 634, 642 (Ind. Ct. App. 1976).
^'337 N.E.2d 887 (Ind. Ct. App. 1976).
^Vd. at 889-90.



372 INDIANA LAW REVIEW [Vol. 10:360

County Commissioners^'^ that Indiana Code section 17-2-1-1, which
requires notice in suits brought against counties, is constitutional.

Judge Staton dissented in Batchelder and rejected the reasons
advanced by the majority in support of the special protection
afforded governmental tortfeasors by statutory notice provisions.
He reasoned that *'[a]ll tortfeasors have a similar interest in the
prompt investigation of claims, in settlement, and in the prepara-
tion of a defense," and concluded that "[t]he special treatment
afforded governmental tortfeasors, and the special burden placed
upon victims of governmental negligence, are arbitrary and with-
out rational basis and, therefore, violative of the equal protection

guarantee.""

The notice provisions of the Tort Claims Act, in some respects,
are more favorable to victims of governmental torts than the
prior notice statutes. The time for filing notice is longer'* and
special allowances are made for minors and incompetents.^' Unless
the view taken by Judge Staton in his dissent in Batchelder is
adopted by the supreme court at some later date, Foster and
Batchelder strongly indicate that the notice provisions of the Tort

Claims Act will pass constitutional muster.

If, as stated by Judge Garrard in Batchelder, the special status
of governmental entities justifies the disparate treatment afforded

victims of governmental torts, then it would hardly seem justifiable

to require that statutory notice be served upon governmental em-
ployees who are sued in their individual capacities for torts com-
mitted in the course of their employment. In Geyer, the Second

District, having additional grounds upon which to premise its
decision, declined to decide whether a governmental employee

could rely upon the lack of statutory notice as an affirmative

defense to an action brought against him personally.'° Neverthe-
less, the court noted the decision of the Seventh Circuit Court of

Appeals in England v. City of Richmond/'' in which it was held
that, under Indiana law, a municipal employee cannot claim the

benefit of the notice provision. A contrary holding would be inde-
fensible in light of the rationale relied upon in Batchelder to

justify the notice provision.

'^325 N.E.2d 223 (Ind. Ct. App. 1975).
'^337 N.E.2d at 891.
^*IND. Code §§ 34-4-16.5-6 and -7 (Bums Supp. 1976) establish a 180-day

period. Id, § 18-2-2-1 (repealed 1974) established a 60-day period, and id.

§ 17-2-1-1 (Burns 1974) contains no time period.

^^Id. §34-4-16.5-8 (Burns Supp. 1976). Minors are considered incompe-

tents. Incompetents must file notice within 180 days after incompetency is
removed.

'»346 N.E.2d at 639.
^'419 F.2d 1156 (7th Cir. 1969).



1976] SURVEY—TORTS 373

The statutory notice provisions of sovereign immunity stat-
utes have fittingly been described as traps for the unwary.*° At
one time, Indiana courts demanded strict compliance with the pre-
Tort Claims Act notice provision governing suits against munic-

ipalities. The leading case in this regard was Touhey v. City of
Decatur,^^ in which the supreme court held that actual notice to a
municipality through detailed newspaper coverage of the event
giving rise to the claim was insufficient notice. The court based
its decision on the erroneous premise that the liability of munic-

ipalities was statutory, and that there could be no liability unless
the terms of the notice statute were strictly followed."^ Later cases

have recognized that municipalities are subject to liability under

the common law, and that the notice requirement is merely a stat-
utory limitation on the common law right to sue.*^

The strength of the strict compliance doctrine enunciated in
Touhey was slowly eroded in cases in which it was held that the
form and content requirements of the statutory notice provision
were satisfied by substantial compliance. In Galbreath v. City of
Indianapolis,^'^ the supreme court, relying upon its previous deci-
sion in Aaron v. City of Tipton,^^ rejected Touhey and applied the
substantial compliance doctrine to a case in which the plaintiff

failed to notify the appropriate government official. The basis
of the court's holding was well stated by Justice Hunter: "The
purpose of the notice statute being to advise the city of the acci-

dent so that it may properly investigate the surrounding circum-
stances, we see no need to endorse a policy which renders the
statute a trap for the unwary where such purpose has in fact been
satisfied."^^ Broadly read, Galbreath suggested that Touhey was
no longer good law, and that strict compliance was not required
in cases in which the plaintiff's error was harmless and the munic-
ipality was not prejudiced by less than strict compliance with
the statute.®^

Two cases decided during the survey period seem to have left
open the question of how broadly Galbreath should be read. In
Batchelder v. Haxby,^^ the Third District Court of Appeals, relying

°°Galbreath v. City of Indianapolis, 253 Ind. 472, 479-80, 255 N.E.2d 225,
229 (1970).

«'175 Ind. 98, 93 N.E. 540 (1911).
"/d. at 100-01, 93 N.E. at 541-42. See 46 Ind. L.J. 428, 431 (1971).
"Thompson v. City of Aurora, 325 N.E.2d 839 (1975) ; 46 Ind. L.J. 428,

430 (1971).
°''253 Ind. 472, 255 N.E.2d 225 (1970).
»^218 Ind. 227, 32 N.E.2d 88 (1941).
»'253 Ind. at 479-80, 253 N.E.2d at 229 (emphasis added).
^^See 46 Ind. L.J. 428, 437 (1971).
ee337 N.E.2d 887 (Ind. Ct. App. 1975).



374 INDIANA LAW REVIEW [Vol. 10:360

upon Touhey v. City of Decatur,^'' held that knowledge acquired
by a municipality independently of the plaintiff was insufficient
notice under the statute. The court concluded that Touhey was
still good law because "the statutory purpose of providing oppor-
tunity to investigate is not fully realized except when notice is had
in the context that one is claiming municipal liability for injury."'®

The court did not disclose in its opinion whether the municipality,
in fact, investigated the incident, or whether it was prejudiced by
the plaintiff's failure to give formal notice. Batchelder, like the

First District Court of Appeals' earlier holding in Foster v. County
Commissioners,'^^ indicates that there cannot be substantial com-

pliance when formal written notice is not filed, and that the doc-
trine of substantial compliance primarily concerns a relaxing of
statutory requirements pertaining to the form and content of notice
and the public officials upon whom notice should be served.

A more liberal view of the doctrine of substantial compliance
was taken by the Second District Court of Appeals in Geyer v.
City of Logansport."^^ In Geyer, formal v^ritten notice was not
given, but it was clear that the municipality had actual notice of
the incident and a prompt investigation was conducted by county
law enforcement officials and the insurance carrier of the munic-
ipality. The court criticized Touhey, and recognized that the
Touhey court's holding that actual knowledge constituted insuffi-
cient notice has been seriously undermined by recent cases.'^ Judge
Sullivan's well-reasoned opinion in Geyer indicates that a plaintiff

who has not strictly complied with the notice requirements will
not be denied a remedy unless the governmental entity is preju-
diced, and that governmental entities will not be permitted to take
refuge in the technicalities of the notice requirements when the
purpose of those requirements, in fact, has been satisfied.

Batchelder and Foster indicate a contrary result.

Another aspect of Geyer and Batchelder appears to be of

significance to the practitioner. The Geyer court stated in a foot-

note that, although Indiana Code section 18-2-2-1 only required

notice of the occurrence, the analogous provision of the Tort Claims

Act requires notice of a claim.''* Perhaps the court intended this

to be a warning that, in future cases arising under the Tort Claims

«n75 Ind. 98, 93 N.E. 540 (1911).
9°337 N.E.2d at 890.

"325 N.E.2d 223 (Ind. Ct. App. 1975).
'=346 N.E.2d 634 (Ind. Ot App. 1976).
'^/d. at 642.

'Vd. at 639 n.l, citing Ind. Code §34-4-16.5-7 (Bums Supp. 1976). But
see Thomann v. City of Rochester, 256 N.Y. 165, 176 N.E. 129 (1931).



1976] SURVEY—TORTS 376

Act, it will require that written notice specify, as the Act requires,'*
that a claim of liability is being asserted. If such is the case, mere
notice of the occurrence will not be sufficient to constitute sub-
stantial compliance with the notice requirements of the Tort Claims
Act. The Third District in Batchelder seemed to read the same
strict requirement into Indiana Code section 18-2-2-1,'* although
as noted by the Second District in Geyer, that statute appears to
require only notice of the occurrence. The Third District indicated
in Batchelder that not only is a municipality entitled to notice of
the occurrence, but it also is entitled to notice that the plaintiff,

in fact, is claiming liability.

In Board of Commissioners v. Briggs,''^ the First District
Court of Appeals undertook the task of interpreting Campbell v.
State''^ "to delineate the bounds of protection . . . afforded to the

State and its subdivisions by the doctrine of sovereign immunity
[in pre-Tort Claims Act cases] ."" The plaintiff in Briggs was in-
jured when his motorcycle left the highway at a "Y" intersection
that was not marked by warning signs. The evidence adduced at
trial demonstrated that a warning sign had been erected by state
officials, but it had fallen into a state of disrepair. Without deciding

whether the initial decision to erect the warning sign was a dis-
cretionary act for which sovereign immunity would attach, '°° the
court held, on the basis of substantial precedent, that "[o]nce

the decision was made to place the signs at the intersection, the
subsequent placement and maintenance of the signs was a purely
ministerial act," the negligent performance of which would give

rise to liability.'^'

In an effort to clarify existing law, the court concluded that

the "last vestige" of sovereign immunity referred to in Campbell
was dependent upon and coextensive with the personal immunities
that traditionally have been conferred upon governmental entities

and is to be determined under the doctrine of respondeat superior

'^IND. Code § 34-4-16.5-9 (Burns Supp. 1976) requires, among other things,
a short and plain statement of the amount of damages sought.

'^337 N.E.2d at 890.
'^337 N.E.2d 852 (Ind. Ct. App. 1975).
'«259 Ind. 55, 284 N.E.2d 733 (1972). See Note, Sovereign Immunity In

Indiana—Requiem? 6 Ind. L. Rev. 92 (1972) ; Foust, supra note 65, at 274-76.
''337 N.E.2d at 860.

'°°7d. at 863. Later in its opinion, however, the court indicated that a

city was duty-bound to place warning signs at "inherently dangerous" inter-
sections. Id. at 874, It would appear that a city has no discretion in this

regard.

'°'Id, at 863, citing Adams v. Schneider, 71 Ind. App. 249, 255, 124 N.E.
718, 720 (1919).



376 INDIANA LAW REVIEW [Vol. 10:»50

in accordance with those standards.
'°^ The court reasoned that the

Campbell court's failure to abrogate sovereign immunity in its
entirety was a recognition that governmental entities should not
be held liable in situations in which their employees are protected
by personal immunities. Significantly, the court equated its hold-
ing with the tests of liability set forth in the Tort Claims Act.'°^

Thus, prior case law regarding the personal immunities of govern-
mental employees should be important precedents in cases arising

under the Tort Claims Act.

The court further attempted to determine whether the "pri-
vate duty" test referred to in Campbell was merely a restatement
of the "ministerial-discretionary" test, or whether a plaintiff was
required to prove both the breach of a private duty and the mis-
performance of a ministerial act to defeat the defense of sovereign
immunity. '°^ In an analysis abounding with circumlocution, the

^ court concluded: (1) An act performed in furtherance of a public
duty is usually considered a discretionary act,'°^ (2) a governmental

entity is immune only when its agents are shown to have been exer-
cising their governmental discretion in the performance of a purely

public duty,'°* (3) a governmental entity is not immune when its
agents are shown to have breached a private duty, irrespective of
whether the agents were engaged in acts committed to the dis-

cretion of their office, '°^ and (4) the state is not immune in the
present case because its agents negligently performed a ministerial

actJ°° It would appear from this analysis that the private duty
test and the ministerial-discretionary test are essentially inter-

changeable, and that the labels to be used will vary from case to
case. Any distinctions between the tests are likely to be so fine-
spun as to be unworkable. Fortunately, the Tort Claims Act speaks

only of "discretionary functions."
^°'

'°^Thls approach previously had been suggested by the commentators.

See Foust, supra note 55, at 274-75 ; Note, Sovereign Immunity, supra note 98.

The court noted that governmental employees traditionally have been con-
sidered immune from liability when they are found to have been acting in
good faith and within the scope of their authority while performing a dis-

cretionary function. 337 N.E.2d at 861.
^0^337 N.E.2d at 862-63, quoting from Foust, supra note 55, at 274-76.

^°'*This question was initially raised in Foust, supra note 55, at 275.
'°^337 N.E.2d at 862.
^°^Id. The court emphasized the word "purely" and thus suggested that

there are situations in which both a public and private duty exist.
^°^Id. at 862-63. The court emphasized that an act involving the exercise

of discretion, as that word is commonly defined, is not necessarily a dis-
cretionary act in a legal sense. See W. Prosser, Law op Torts § 132, at 990
(4th ed. 1971).

'°°337 N.E.2d at 862. See note 101 and accompanying text.
'°'IND. Code §34-4-16.5-3(6) (Burns Supp. 1976).



1976] SURVEY—TORTS 377

It was also not clear from Campbell what the court meant by
"private duty.""° Addressing this question, the court in Briggs

reasoned that the phrase was either a reference "to some general
private duty test that must be met to escape the application of the
sovereign immunity doctrine, or ... to the specific duty that must
be shown as a matter of law in every negligence case.'"" The court
appears to have placed the latter interpretation on the private duty

test. Concluding that "if there is any duty owed by the County in
this case, it must be the common law duty to use reasonable care
under all circumstances,""^ the court held that:

[A] duty on the part of the County to use reasonable care
in maintaining its streets and highways will arise when-
ever it can be shown that an intersection is inherently
dangerous because of the absence of a warning sign, or
when it can be shown that the county has foreclosed the
issue of inherent danger by failing to maintain a sign that

had previously been placed at the intersection . . . ."^

A similar interpretation appears to have been placed upon the
private duty test in Elliott v. State,^^"^ in which it was held that a
private duty existed because the state had a "general duty to exer-
cise reasonable care in the design, construction and maintenance
of its highways . . . ."

Finally, in City of Indianapolis v. Bates,^^^ the Second District

Court of Appeals held that a municipality cannot be held liable

under the doctrine of strict liability for injuries sustained by

a plaintiff as a proximate result of a defective traffic signal. The

"°The Campbell court stated: "Therefore, it appears that in order for
one to have standing to recover in a suit against the state there must have
been a breach of a duty owed to a private individual." 284 N.E.2d at 737.

The Briggs court accurately observed that there is no easy way to define
public and private duty. Earlier cases are not very helpful in this regard.
In Simpson's Food Fair, Inc. v. City of Evansville, 149 Ind. App. 387, 272
N.E.2d 871 (1971), the court held that the duty to provide police protection

was a public rather than private or special duty. In Roberts v. State, 307
N.E.2d 501 (Ind. Ct. App. 1974), the court held that public officials have a
private duty to exercise reasonable care for the safety of prisoners, and in
Scott County School District v. Asher, 312 N.E.2d 131 (Ind. Ct. App. 1974),
the court held that school officials owed a private duty to exercise reasonable
care for the safety of students using inherently dangerous shop equipment.
No clear guidelines for differentiating public duties from private duties have
emerged from these cases.

"'337 N.E.2d at 862. See Miller v. Griesel, 308 N.E.2d 701, 706 (Ind.
1974).

"=337 N.E.2d at 873.
"=»/d. at 874.
"'^342 N.E.2d 674, 676-77 (Ind. Ct. App. 1976).
"^343 N.E.2d 819 (Ind. Ct. App. 1976).



378 INDIANA LAW REVIEW [Vol. 10:360

plaintiff stipulated that the city had neither actual nor construc-
tive knowledge that the signal was defective, which precluded
recovery for negligence. The court carefully limited its holding to
the facts, and declined to decide whether, in any circumstances,
recovery could be premised upon the doctrine of strict liability."*

-4. Medical Malpractice

The two-year statute of limitations governing medical mal-
practice actions, under both the new medical malpractice act"^
and its predecessor special statute of limitations,"® begins to run
from the date of the physician's wrongful act or omission. The
statute is carefully drafted to prevent the courts from extending
the two-year period by applying the general rule of tort law that
the statute of limitations does not begin to run until the date that
a cause of action accrues, which may be long after the date of the
wrongful act or omission."' It has been said that there are only

two exceptions to the malpractice statute of limitations: the doc-
trine of fraudulent concealment and the grace period afforded
minors because of their legal disability.' ^° In view of the recent
legislative effort to emasculate the latter exception,'^' the doctrine

of fraudulent concealment has become the most important device
for circumventing the statute.

The doctrine of fraudulent concealment is based upon the
theory of equitable estoppel. It is a judge-made doctrine recognizing

"that one who practices deceit or fraud, and conceals material
facts and thereby prevents the discovery of the wrong, should not

be i)ermitted to take advantage of his own deceit or concealment
by asserting the statute of limitations."'^^ The doctrine had its

''''Id. at 822 n.2.

'^^ND. Code §§16-9.5-3-1, -2 (Burns Supp. 1976) (within two years of
negligent act or omission).

''®/d. §34-4-19-1 (Burns 1973) (within two years of act, omission or
neglect)

.

'""See Toth v. Lenk, 330 N.E.2d 336, 338 (Ind. Gt. App. 1975).
'^°/d. at 342 (concurring opinion).
'2iin Chaffin v. Nicosia, 261 Ind. 698, 310 N.E.2d 867 (1974), the

supreme court held that the Indiana legal disability statute, Ind. Code
§34-1-2-5 (Burns 1973), applied to malpractice actions. See Foust, supra note

55, at 273-74. The new malpractice act, which was enacted after Chaffin was
decided, provides that a child under the age of six may file suit any time
before his eighth birthday. Ind. Code § 16-9.5-3-1 (Bums Supp. 1976). The
clear intent of this provision is to nullify Chaffin. The constitutionality of
this provision is subject to serious question. See Mallor, A Cure for the Plain^
Uff's III? 51 Ind. L.J. 103, 116-17 (1975) ; Brennan, supra note 26, at 360-61

n.l43; Note, A Constitutional Perspective on the Indiana Medical Malpractice
Act, 51 Ind. L.J. 143, 153 (1975).

'2=Guy V. Schuldt, 236 Ind. 101, 107, 138 N.E.2d 891, 894 (1956).



1976] SURVEY—TORTS 379

genesis in Indiana in Guy v. Schuldt.'^'' The plaintiff in Gmj alleged
that a physician left a broken drill bit in his leg and negligently-
failed to disclose this condition during three years of treatment.

The plaintiff discovered this condition eleven years after the physi-
cian-patient relationship terminated, and filed suit against the
physician within two years of that date. The trial court sustained
the defendant's demurrer to the complaint on the ground that the
statute of limitations had run. Reversing this decision, the supreme
court held that the fiduciary relationship between a physician and
his patient imposes a duty upon the physician to disclose all ma-
terial facts, and the failure to disclose such facts may constitute
fraudulent concealment.'^'* The court remanded the case with in-
structions to overrule the demurrer and give the plaintiff an op-
portunity to plead fraudulent concealment by way of reply.

In the recent case of Toth v. Lenk,^^^ the Third District Court

of Appeals considered the question of when a fraudulent conceal-
ment begins and ceases to toll the statute of limitations. The plain-
tiff suffered a hip injury and was treated for this condition by the
defendant for approximately five months. Suspecting that his con-

dition had not improved satisfactorily, he consulted two other
physicians, and was advised by them that the defendant had im-
properly diagnosed the condition. Suit was filed less than two years
from the date he consulted the last physician, but more than two
years from the date of the alleged wrong. The Third District Court
of Appeals rejected the plaintiff's contention that the statute

would be unconstitutional unless it were construed to mean that
it did not begin to run until actual discovery of the injury, and fur-
ther declined to construe the statute as including an implied provi-
sion that the time period did not begin to run until plaintiff had
a reasonable time to to discover the injury.'^' By applying the
doctrine of fraudulent concealment, however, the court achieved a

result similar to that which would have been achieved had the latter
construction been adopted.

The court held that a constructive fraud occurs when a phy-
sician fails to disclose to his patient that which he knows or in the
exercise of reasonable care should know.'^^ It would appear that,

'"/d. at 107, 138 N.E.2d at 895. See generally Annot., 74 A.L.R. 1317

(1931); Annot, 144 A.L.R. 209 (1943); Annot, 80 A.L.R.2d 323 (1961);
Annot., 80 A.L.R.2d 368 (1961).

'"330 N.E.2d 336 (Ind. Ct. App. 1976).
'"/d. at 338-39.

'^^/d. at 339. The court's use of the pronoun "that" apparently refers

to "material information." See Guy v. Schuldt, 236 Ind. 101, 109, 138 N.E.2d
891, 895 (1966).



380 INDIANA LAW REVIEW [Vol. 10:360

under this analysis, the doctrine of fraudulent concealment re-
quires neither an affirmative misrepresentation nor scienter, and
that mere silence coupled with a duty to disclose will toll the statute
of limitations. The logical import of the court's holdings is that
fraudulent concealment will exist, at least during the period of
treatment, '^° in every case involving a legitimate claim of malprac-

tice because, as recognized by Judge Garrard, a physician who is
guilty of negligence a fortiori "should have known" of the facts
that he failed to disclose to his patient.'^' Although the construc-
tive fraud theory is clearly a fiction, it has the significant effect of

equating negligent concealment with fraudulent concealment.

Having established when a constructive fraud will begin to
toll the statute, the court determined when the tolling effect will
cease. In this regard, the court reasoned that a fraud can be con-
sidered to have been concealed only so long as the patient was
unaware of it or was unable to discover it through the exercise of
reasonable care. Reducing its holding to nonlegal terms, the court
stated: "[W]here the patient knows or concludes that something
is wrong in the diagnosis or treatment he has been given, he is
chargeable as a matter of law with the additional knowledge he
would have procured had he exercised diligence to discover it."'^°
Applying this rule, the court held that the plaintiff possessed

knowledge which, if pursued, would have led to the discovery of

the defendant's negligence more than two years before suit was
filed. The undisputed facts demonstrated that the plaintiff ceased
relying upon the professional judgment of the defendant because

he was convinced that he had not properly identified the condition
or provided proper treatment.'^'

In dictum, the court noted that the termination of the phy-

sician-patient relationship will also cease the tolling effect of a

fraudulent concealment.^ ^^ This additional qualification stems

from dictum in Guy v. SchuldV^^ that, once the physician-patient
relationship ends, there is no longer a fiduciary relationship upon

which to premise a duty to disclose, and mere silence cannot be a
constructive fraud absent a duty to disclose. The court accepted

this dictum without question, as did the Seventh Circuit Court of

^"^^See text accompanying notes 132-39 infra.
'29330 N.E.2d at 339 n.3.

^^°Id. at 341. Under Judge Garrard's analysis, it is "knowledge of the
injury rather than the reason for it" that destroys the estoppel. Id. at 340-41.

'^'/d. at 340. The court observed that "[u]ntil the patient learns some-

thing to the contrary he is entitled to rely upon the physician faithfully

discharging his duty." Id. n.4.

'32/d. at 339.

'"236 Ind. 101, 109, 138 N.E.2d 891, 8&5 (1956).



1976] SURVEY—TORTS 381

Appeals in a previous case.'^^ Under this analysis, the tolling effect
ceases when the patient has actual or constructive notice of the
injury, or when the physician-patient relationship ends, whichever
event occurs firsts

"

In va7i Bronckhorst v. TaubCy'^^ however, the Second District

Court of Appeals refused to apply the Guy dictum literally, and
held that, at least in cases involving affirmative misrepresenta-

tions, the termination of the physician-patient relationship does

not, as a matter of law, "commence the clock ticking on the statute
of limitations/"^^ The complaint in van Bronckhorst alleged that
the defendant physician performed surgery on plaintiff's eye, and
several weeks thereafter, he allegedly diagnosed plaintiff's condi-

tion as incurable glaucoma that would result in blindness within
ten years. The physician allegedly advised the plaintiff that addi-
tional surgery could not be performed until blindness occurred,
and that probably nothing could be done until that time. Dissatis-
fied with this diagnosis, the plaintiff consulted a second physician,

who initially stated that plaintiff was suffering the adverse con-
sequences of poorly performed surgery. Upon further consider-
ation, however, he allegedly advised the plaintiff that the first

physician's diagnosis and treatment were proper. Eight years
later, the plaintiff was encouraged by a friend to seek an addi-
tional diagnosis. The third physician allegedly advised him, in
effect, that he had been a victim of malpractice. Suit was filed
against the first two physicians within two years of that date.

In a forthright and well-reasoned opinion, the Second District,

per Judge Sullivan, held that the Guy court could not have meant
what its dictum suggested because the case was remanded to give
plaintiff an opportunity to plead fraudulent concealment approxi-

mately eleven years after the physician-patient relationship had
terminated. Judge Sullivan reasoned that the clear implication

of the remand order in Guy was that a fraudulent concealment can
continue to toll the statute long after the physician-patient rela-

tionship ends. "To interpret Guy otherwise," he reasoned, "is to
accuse our Supreme Court of knowingly sponsoring a needless
waste of litigation expense and judicial time by remanding for
further pleadings a complaint which no further pleadings could
save."''°

Having surmounted the Guy dictum, the court focused its
inquiry upon the question of reasonable reliance as the touchstone

'^^Ostajic V. Brueckmann, 405 F.2d 302 (7th Cir. 196S).
'"330 N.E.2d 336, 342 n.2 (concurring opinion).
'=^341 N.E.2d 791 (Ind. Ct. App. 1976).
'^'Id. at 798.

'^«/d. at 797.



382 INDIANA LAW REVIEW [Vol. 10:360

for determining when the tolling effect of a fraudulent conceal-
ment will cease. The determinative issue, the court reasoned, is
"whether, and when, if at all, the patient had a reasonable oppor-
tunity to discover his condition so that reliance upon the repre-
sentations of his former physicians became unreasonable."'^' Apply-
ing this rule, the court concluded that the defendants' alleged rep-

resentations to plaintiff that his glaucoma was incurable were
peculiarly capable of misleading him into avoiding further inquiry.
Whether the plaintiff's reliance was unreasonable, the court held,
is a question of fact for the jury.

Toth and van Bronckhorst are readily distinguishable because
Toth involved a failure to disclose and van Bronckhorst involved
affirmative misrepresentations. "*° Van Bronckhorst was surely
decided correctly because affirmative misrepresentations are ac-

tionable as fraud irrespective of whether there exists a duty to
speak arising from a fiduciary relationship. '"*' It is interesting to
note that the Third District declined to decide in van Bronckhorst
whether the statute of limitations could continue to be tolled be-

yond the termination of the physician-patient relationship in a
case involving the mere failure to disclose, '"^^ although the court
could easily have resolved this question on the basis of Guy and
Toth.

Neither Toth nor van Bronckhorst resolved the question of
whether, in cases involving silence amounting to a fraudulent con-
cealment, the entire physician-patient relationship must be termi-
nated before the statute of limitations begins to run, or whether

the termination of the relationship with respect to a particular

medical problem is the critical events. The majority opinions in

'^'/d. at 798. The holding in van Bronckhorst was phrased in terms of
reliance, while the holding Toth was phrased in terms of knowledge. Perhaps
this difference in semantics stems from the difficulty of proving reliance in

cases like Toth that involve nondisclosure. It has been held in other areas

of the law that reliance need not be shown in cases involving the nondisclosure
of material facts. See Affiliated Ute Citizens v. United States, 406 U.S. 128

(1972) (federal securities law).

'"^^The Toth court expressly noted that "[t]here is no allegation of

actual deliberate fraud," 330 N.E.2d at 340, although such was clearly the
case in van Bronckhorst.

'''^Prosser, supra note 107, § 106. The view that a fraudulent conce^-
ment ends with the termination of the physician-patient relationship has
been criticized. See Note, Malpractice and the Statute of Limitations, 32
IND. L.J. 528, 539 (1957). Verbal silence does not always preclude a finding

of active fraud. When a fiduciary represents by his conduct that he is
faithfullly performing his duties, such representations are considered active
fraud if they were purposefully made to gain an undue advantage. See
United States v. Mandel, 415 F. Supp. 997, 1009-10 (D. Md. 1976) (mail
fraud).

'«341 N.E.2d at 798.



1976] SURVEY—TORTS 383

both Toth and van Bronckhorst spoke broadly, although perhaps
inadvertently, in terms of the entire relationship.'^^ Judge Hoff-
man, concurring in Tothy carefully limited his statements to the
termination of the relationship with respect to a particular medi-

cal problem."*'*

B. Breach of Duty

The duty of care in negligence cases is always the same : both
the plaintiff and the defendant must conform their conduct to
the standard of reasonable care under the circumstances. Despite

the supreme court's unequivocal declaration in Hammond v. Alle-
grettV^^ that this duty should not be obfuscated by mechanical
rules based upon the presence or absence of one particular cir-
cumstance, it has not been uncommon for lower courts to charac-
terize factual questions that arise in negligence cases in terms of

duty. For example, in Thornton v. Pendery^"^^ the First District
Court of Appeals held that the trial court committed reversible

error by declining to give a specific jury instruction on the duty
of a motorist to maintain a lookout for bicycling children. This

holding appears to be unduly mechanistic in light of the trial

court's thorough jury instructions on the general rules of negli-

gence and the statement to the jury that the plaintiff premised
his contention of negligence, in part, on the failure of the defen-

dant to maintain a lookout.
'^^

Whether a motorist must maintain a lookout for bicycling
children is not a question of duty, but rather it is a question of

how a motorist must gauge his conduct to fulfill his duty to exer-
cise reasonable care under the circumstances. "*° The duty of due
care is as wide as all human behavior, and efforts to codify human
behavior into mechanical rules of duty are destined to fail.'^' As
noted by Dean Prosser, "the problems of *duty' are sufficiently

'^^341 N.E.2d at 796-98; 387 N.E.2d at 339. Some courts have held that
the contractual nature of the physician-patient relationship forms the basis of

a continuing negligence theory by which the statute is tolled until the entire
relationship is terminated. See Note, Malpractice, supra note 141, at 531.

Other courts, using the same theory, have held that the statute is tolled
until the date of the last negligent treatment. Id. Indiana courts have
recognized the theory of continuing negligence in some situations. See
Montgomery v. Crum, 199 Ind. 660, 161 N.E. 251 (1928). This theory was
considered in Toth, but was rejected with regard to malpractice actions. See
330 N.E.2d at 340.

'^^330 N.E.2d at 347-48.
^^^311 N.E.2d 821 (Ind. 1974).
'^*346 N.E.2d 631 (Ind. €t. App. 1976).
'""Ud. at 634.

'"^See, e.g., Foust, supra note 55, at 269.
'^'Prosser, supra note 107, § 35, at 188.



384 INDIANA LAW REVIEW [Vol. 10:360

complex without subdividing it [duty] in this manner to cover
an endless series of details of conduct." ^^° It is more properly said
that the duty of reasonable care will require a motorist to main-
tain a lookout for children when he knows or should know that
children are likely to be present in the area in which he is driving.

Indiana courts, like the courts of most jurisdictions, have
demonstrated a proclivity for submitting the issue of contributory

negligence or incurred risk to the jury whenever **enough uncer-
tainty can be conjured up to make an issue as to what the rea-
sonable man would have done"'^' under the circumstances. In cases
in which a strong argument can be made that the plaintiff know-
ingly and intentionally exposed himself to the dangerous conduct
of the defendant, the courts frequently have been confronted with

the argument by defense counsel that, on the basis of the so-called
**equal knowledge doctrine," a finding that the defendant was
negligent a fortiori requires the finding that the plaintiff was
contributorily negligent. The equal knowledge doctrine is premised
upon the theory that when a plaintiff and defendant have equal
knowledge and appreciation of a danger presented by the defend-
ant's conduct, and each has an opportunity to take reasonable
precautions, they are equally responsible for any resulting dam-
age. '^^ It has been applied in several Indiana cases to bar a plain-

tiff's recovery as a matter of law.^"

The reluctance of the courts to invade the province of the
jury, and the dubious precedential value of appellate court de-

cisions holding that certain types of conduct constitute contribu-

tory negligence or incurred risk as a matter of law,'^"* have led to

much judicial effort to distinguish the "equal knowledge" cases
from cases under consideration. During the previous survey period,
the Third District Court of Appeals held that the equal knowledge

doctrine was limited to situations in which both the plaintiff and
the defendant were active participants in a dangerous activity.^"

In the recent case of Hi-Speed Auto Wash, Inc. v. SimeHf^^^ the

Third District Court of Appeals placed additional limitations upon

the doctrine by holding that it applies only to cases in which the

''°Id. §53, at 324.

'5^/d. § 65, at 420.

'^^Hi-Speed Auto Wash, Inc. v. Simeri, 346 N.E.2d 607, 608-10 (Ind. Ct.
App. 1976).

'"Hunsberger v. Wyman, 247 Ind. 369, 216 N.E.2d 345 (1966) ; Hedge-
cock V. Orlosky, 220 Ind. 390, 44 N.E.2d 93 (1942) ; Stallings v. Dick, 139

Ind. App. 118, 210 N.E.2d 82 (1965).
^^"^See Prosser, supra note 107, § 35, at 188; Brennan, supra note 26, at

348.

'"Dreibelbis v. Bennett, 319 N.E.2d 634 (Ind. Ct. App. 1974).
'"346 N.E.2d 607, 610 (Ind. Ct. App. 1976).



1976] SURVEY—TORTS 385

plaintiff "was engaged in some act whereby, with respect to the
defendant, he precipitated his own injury," and in which the
record contains no evidence from which the jury could find that
the plaintiff was entitled to assume that the defendant would
exercise reasonable care.

The standard of reasonable care under the circumstances is
generally an objective standard with respect to the mental capacity

of the actor. '^^ An important exception to this rule exists in cases
involving children. The standard by which the reasonableness of
a child's conduct is measured is the degree of care that would have
been exercised under the circumstances by a child of like age,
intelligence and experience. ^^° This rule, like most rules of negli-
gence, is readily translated into a jury instruction, and permits
the jury, whose members usually have had a wide range of experi-
ence with children, to determine the subjective capacity of the

individual child to recognize and appreciate unreasonable risks

of harm, and to determine objectively how a reasonable and pru-
dent child having like attributes would have behaved under the
circumstances.^^'

A child has been defined as "a person of such immature years
as to be incapable of exercising the judgment, intelligence, know-
ledge, experience and prudence demanded by the standard of the
reasonable man applicable to adults." '*° In practice, a person over
the age of sixteen rarely has been treated as a child, although the

flexibility of the rule would not preclude such a result.'*' In Moore
V, Rose-Hulman Institute of Technology^'^^ however, the First Dis-
trict Court of Appeals appears to have held that whether a person

is to be considered a child or adult in a negligence case is to be

determined by reference to Indiana's legal disability statute,

which defines an infant as a person under eighteen years of age.'"

The infinite variety of fact situations that can be expected to
arise in negligence cases and the desirability of maintaining

flexibility strongly militate against the establishment of a rule

that requires trial courts to charge the jury on the standard of

care applicable to children in every case in which the actor is

under eighteen years of age. It will be unfortunate if Moore is
read as establishing such a rule. There will be cases in which

^"Prosser, supra note 107, §32, at 154.

'^^E.g., Stewart v. Jeffries, 309 N.E.2d 443 (Ind. Ct. App. 1974);
Prosser, supra note 107, § 32 at 155; Restatement (Second) of Torts
§283A (1965).

'"Prosser, supra note 107, §32, at 155.
'^^Restatement (Second) of Torts § 283A, comment a (1965).

'"331 N.E.2d 462 (Ind. Ct. App. 1975).
'"Ind. Code §34-1-67-1 (Burns Supp. 1976).



386 INDIANA LAW REVIEW [Vol. 10:360

a person under the age of eighteen should be treated as an adult,
and cases in which a person over the age of eighteen should be
treated as a childJ *^ The courts should not be bound by fixed rules
laid down in advance without regard to the facts of the particular
case under consideration.

C Proximate Caicse
In State v. Dwenger'^^ the plaintiff was injured by a defective

surface condition of a bridge that was negligently designed and
constructed by agents of the State of Indiana. The proof adduced
at trial demonstrated that agents of the state routinely inspected
the bridge, at least for structural defects, but that no effort had
been made by them to cure the defective condition. A jury verdict
was returned for the plaintiff, and the state appealed on the
ground that, inter alia, the City of Indianapolis had a duty to main-
tain the surface of the bridge, and its breach of that duty was
sufficient intervening cause that superseded any negligence of the
state to cause the plaintiff's injury.

Rejecting this contention, the Second District Court of Appeals

held that the defective surface condition and the consequent injury
to plaintiff were foreseeable results of the negligent manner in
which the state designed and constructed the bridge. The court
further held that, assuming the city had a duty to maintain the
surface of the bridge, its failure to so " 'was not an intervening
cause that interrupted or turned aside the natural sequence of

events' resulting from" the state's negligence.'" No mention was
made by the court of the foreseeability of the city's intervening
negligence.

Dwenger is in accord with the Restatement and majority view
that **[w]here the negligent conduct of the actor creates or in-

creases the risk of a particular harm and is a substantial factor
in causing that harm, the fact that the harm is brought about
through the intervention of another force does not relieve the actor

of liability . . . ."'^^ Thus, the foreseeability of an intervening cause

'^'^Some courts have established rigid rules based upon the multiples

of seven contained in the Bible for determining when a child is capable of
negligence. See Prosser, supra note 107, § 65, at ISS-iSe. Indiana courts at

one time expressed this view. See Bottorff v. South Oonstr. Co., 184 Ind,

221, 110 N.E. 977 (1915) ; Kent v. Interstate Pub. Serv. Co., 97 Ind. App. 13,
168 N.E. 465 (1982) ; Note, Contributory Negligence of Children In Indiana:

Capacity and Standard Of Care, 34 Ind. L.J. 511 (1959) . See Harris v. Indiana
General Service Co., 206 Ind. 351, 189 N.E. 410 (1934) (18-year-old with

mental age of 6).
'"341 N.E.2d 776 (Ind. a. App. 1976).
''"'Id. at 779.

'^^Restatement (Second) op Torts § 442B (1965); Prosser, supra
note 107, § 44 at 286. But see Indiana Service Corp. v. Johnston, 109 Ind.



1976] SURVEY—TORTS 387

is not significant when the force operates to change the circum-
stances surrounding a plaintiff's injury, but produces a result

within the scope of the risk created by the defendant's conduct.

This rule is premised upon the belief that it is only a slight ex-

tension of the defendant's responsibility **to hold him liable when
the danger he has created is realized through external factors

which could not be anticipated.'"^* In occasional cases, the courts

have held that the passage of time between the original negligence

and the intervening negligence was sufficient to shift responsibility

from the first wrongdoer to the second.'*' This approach was not
considered in Dwenger, although a substantial period of time ap-

pears to have elapsed between the time the bridge was designed
and constructed by the state and the time of the plaintiff's injury.

In the majority of situations, reasonable foreseeability re-

mains the touchstone of proximate cause, and a foreseeable inter-

vening cause will not supersede a defendant's negligence and re-

lieve him of liability. Thus, in Childs v. RayburUy^^^ the defendant
was held liable for the death of an employee who was struck by
lightning while working in the defendant's open field. The de-
fendant contended on appeal that the lightning bolt was unpre-
dictable, and that his failure to foresee it and take precautions

against it could not have been the cause of his employee's death.

The evidence was conflicting, but several persons who were work-
ing near the field at the time in question testified that they saw
and heard an approaching storm.' ^'

After engaging in a general discussion of liability for injuries

brought about by acts of God, the Third District Court of Appeals

held that the defendant's permitting his employee to remain in

an open field, unprotected from the pending storm, could have
been considered the "immediate proximate cause'* of death.'" The
court's use of the phrase "immediate proximate cause" is unfortu-

nate because the concept of proximate cause is confusing enough

without the addition of excess baggage. Apart from its semantics,
however, Childs is concordant with the general rule that the duty

of reasonable care sometimes requires one to anticipate unusual

weather conditions, and the failure to do so may be negligence
when it has created or increased an unreasonable risk of harm to
someone within the scope of the duty.'^^

Indiana courts have held, at various times, that foreseeability

App. 204, 34 N.E.2d 157 (1941).
~"

'"Prosser, supra note 107, §44, at 286.

"'See id. at 289 n.&5.
'7°346 N.E.2d 665 (Ind, Ct. App. 1976).
'''Id. at 658.

"2/d. at 660.

'^^'Prosser, supra note 107, § 44, at 273, 275.



388 INDIANA LAW REVIEW [Vol. 10:360

is an element of duty rather than proximate cause. '^^ In Geyer v.
City of Logansporty^^^ the defendant police officer fired two bullets
at a bull roaming at large in a residential area. One of the bullets
ricocheted off the bull and struck the plaintiff, who was standing
at a ninety degree angle to the defendant's line of fire. Both the
plaintiff and defendant testified at trial that they did not antici-
pate that the bullet would ricochet as it did. Reasoning that what
is reasonably foreseeable must be measured by objective rather
than subjective standards, the court placed little credence in this

testimony and rejected the defendant's contention that the shoot-
ing was an unforeseeable freak accident. In a PalsgrafA\kQ an-
alysis, ''* the court held that the harm suffered by plaintiff was
sufficiently foreseeable to warrant the submission of negligence

to the jury. Although it may appear, at first blush, that the court
attenuated the concept of foreseeability, Geyer is in accord with
the general rule that "as the gravity of harm increases, the ap-
parent likelihood of its occurrence need be correspondingly less.'"''

D. Vicarious Liability

Dean Prosser has described the principle of vicarious liability
as a means by which the law accomplishes a deliberate allocation
of risk.''° The automobile has been responsible for numerous ex-
tensions of the principle of vicarious liability because "it is felt

that, since automobiles are expensive, the owner is more likely
to be able to pay any damages than the driver . . . and that the owner
is the obvious person to carry the necessary insurance to cover the

risk.'"'' Apart from the vicarious liability of a master for the
negligence of his servants, the three most common devices for
allocating losses arising out of automobile collisions are consent

statutes, the family purpose doctrine, and the joint enterprise

doctrine.

Consent statutes generally provide that the owner of an auto-

mobile is liable for damages caused by any person driving the auto-

mobile with the owner's consent. '*° A modified consent statute
is found in Indiana Code section 9-1-4-32,'*' which provides, in

substance, that a person who signs a minor's driver's license appli-

'74^.^., Southern Ry. v. Harpe, 223 Ind. 124, 58 N.E.2d 346 (1944);

Galbreath v. Engineering Constr. Corp., 149 Ind. App. 347, 273 N.E.2d 121

(1971).
'7^346 N.E.2d 634 (Ind. Ct. App. 1976).
'^^Palsgraf v. Long Island Ry., 248 N.Y. 339, 162 N.E. 99 (1928).
'7'Prosser, supra note 107, §31, at 147.

178/d. § 69, at 459.

'"/d. §73, at 481.

"»°/rf. at 486-87.

'Ind. Code §9-l-4-32(c) (Burns Supp. 1976).jar



1976] SURVEY—TORTS 389

cation is jointly and severally liable with the minor for damages
caused by the minor's negligent operation of a motor vehicle. In
Wenisch v. Hoffmeister,^^^ the Second District Court of Appeals
held that this statute imputes liability only, and does not serve to
impute the contributory negligence of a minor to the person who
sponsored his driver's license application. The defendant in Wenisch
unsuccessfully contended that the contributory negligence of a

minor should have been imputed to his father, who signed the
driver's license application, to preclude the father from recovering
for damage caused to his automobile by the defendant. The court's
holding is supported by policy and reason. The statute was enacted
to protect the public from impecunious minors.'®^ It was not in-
tended to diminish the recovery of a person who fulfilled this
statutory purpose by agreeing to become vicariously liable for
damages arising from a minor's negligence.

Indiana does not follow the family purpose doctrine, which
is recognized by approximately one-half of the states.' ^'^ The family
purpose doctrine provides that an owner of an automobile who
permits a member of his family to drive his automobile for a
family purpose makes the family purpose a business purpose, and
the member of his family is considered to be his agent. '^^ Like
most states, however, Indiana follows the joint enterprise doc-
trine.'®^ Although this doctrine was precipitated by the search for
financially responsible defendants in automobile cases, it ironically

has evolved into a "defendant's doctrine" because it has been used

most frequently to impute the contributory negligence of another
to the plaintiff.'®^ Thus, it is not uncommon for a passenger in an
automobile to be barred from recovering from negligent third
persons because the driver of the vehicle in which he was riding
was guilty of contributory negligence. A joint enterprise is analo-
gous to a partnership, and the courts generally have required that

the undertaking be motivated by a common pecuniary purpose be-
fore a joint enterprise will be found to exist.' °° In the recent case

of Grinter v. Haag^^'' the First District Court of Appeals under-

scored the importance of a common pecuniary purpose, and indi-
cated that efforts to make the family purpose doctrine a part of

'°2342 N.E.2d 665 (Ind. Ct. App. 1976).
'«Vd. at 667. Cf. Prosser, supra note 107, § 73, at 486-87.

'^^E.g., Bryan v. Pommert, 110 Ind. App. 61, 37 N.E.2d 720 (1941);
Prosser, supra note 107, § 73 at 483.

'^^Prosser, supra note 107, § 73, at 483-86.
'^''E.g., Keck v. Pozorski, 135 Ind. App. 192, 191 N.E.2d 325 (1963);

Prosser, supra note 107, § 72.
187PR0SSER, supra note 107, §72, at 476.
'««/d. at 479.

'«'344 N.E.2d 320 (Ind. Ct. App. 1976).



390 INDIANA LAW REVIEW [Vol. 10:360

Indiana law under the guise of the joint enterprise doctrine will
meet with no success.

The plaintiff in Grinter was the owner of and passenger in
an automobile being driven by his spouse at the time of a collision
with the defendant's vehicle. The trial court instructed the jury-
on the joint enterprise doctrine on the ground that the trip was
undertaken for the pecuniary purpose of moving to plaintiff's new
place of employment, and the jury returned a verdict in favor of
the defendant. The defendant contended on appeal that the pur-
pose of the trip was to enhance family income, and that plaintiff's
spouse had a common pecuniary interest in the accomplishment
of that purpose because she was unemployed and dependent upon
the plaintiff for her support. Thus, according to the defendant,

it was proper for the jury to charge the plaintiff with the contrib-
utory negligence of his spouse. Rejecting this argument, the court

held that the application of the joint enterprise doctrine to the

marital relationship is limited to situations in which each spouse

directly and actively participates in a business venture. The pur-
pose for which the plaintiff's spouse made the trip, the court
reasoned, was the furtherance of the marital relationship, and any
pecuniary interest that she had in the trip was merely incidental. "°

E. Damages

In Nicholson's Mobile Home Sales, Inc. v. Schrammy^^^ the
First District Court of Appeals clarified Indiana's position on the

propriety of awarding punitive damages where the defendant may
be subject to criminal prosecution for the same act. In Schramm^
the circumstances of defendant's unlawful self-help repossession

techniques,''^ which included a trespass and assault and battery,

were found to be sufficiently aggravating to permit an award of
punitive damages. Defendants on appeal alleged error in the trial

court's refusal to instruct the jury that punitive damages cannot

be recovered where the defendant may be subject to criminal prose-
cution for the same act. The court, citing Taber v. Hutsony^'^^ con-
ceded that defendant had correctly stated the general rule in Indi-

ana. However, the court went on to list three exceptions to the

general rule of Taber. First, a defendant who may be subject to
_______ _
'"330 N.E.2d 786 (Ind. Ct. App. 1976), also discussed in Townsend,

Secured Transactions and Creditors' Rights, supra.

''^The repossession was unlawful because the plaintiffs' lien on the
seized property turned out to be superior to that of the defendant's. The

trespass and assault and battery were held to constitute a "breach of the
peace" under Ind. Code §26-1-9-503 (Burns 1974).

"^6 Ind. 322 (1854).



1976] SURVEY—TORTS 391

criminal prosecution may still be liable for punitive damages for
conduct which indicates a "heedless disregard of the conse-
quences.""'' Second, "if the statute of limitations has run on the
criminal charges, punitive damages may not necessarily be pre-
cluded.""^ Finally, a corporation, since it cannot be criminally

prosecuted, may be liable for punitive damages for the acts of
its agents."'" Concluding that all three of these exceptions were
applicable to the facts of this case, the court held that the trial

court had not erred in refusing the defendant's requested instruc-

tion."'

Childs V. Raybur-n^''^ also presented the court of appeals with

the issue of the proper jury instruction to be used for calculating

damages in a parent's action for wrongful death of his minor child.
The trial court had correctly instructed tbe jury that recovery
in such an action is limited to the actual pecuniary loss resulting

from the death of the child, but also instructed that in making
the calculation, elements of damage such as loss of care, loss of
love and affection, and loss of parental training and guidance

could be considered."' Despite the apparent inconsistency the court

"^330 N.E.2d at 791, citing True Temper Corp. v. Moore, 299 N.E.2d
844 (Ind. Ct. App. 1973); Capitol Dodge, Inc. v. Haley, 154 Ind. App. 1,
288 N.E.2d 766 (1972); Moore v. Crose, 43 Ind. 30 (1873).

"^330 N.E.2d at 791, citing True Temper Corp. v. Moore, 299 N.E.2d
844 (Ind. Ct. App. 1973) ; Cohen v. Peoples, 140 Ind. App. 363, 220 N.E.2d
665 (1966) (dictum).

"^330 N.E.2d at 791, citing Indianapolis Bleaching Co. v. McMillan, 64
Ind. App. 268, 113 N.E. 1019 (1916) ; Baltimore and O.S.W. R.R. v. Davis,
144 Ind. App. 375, 89 N.E. 403 (1909).

"^The court also held that the trial court had properly rejected defen-
dant's contention that punitive damages are not normally awarded in cases
involving real property, such as trepass actions. 330 N.E.2d at 791.

"«346 N.E.2d 655 (Ind. Ot. App. 1976), also discussed at text accom-
panying notes 170-73 supra.

'"The general rule is that the parent may recover:
the value of the child's services from the time of death until he would
have attained his majority taken in connection with his prospects
in life less the cost of his support and maintenance during that
period, including board, clothing, schooling and medical attention.
To this may be added, in proper cases, the expenses of care and
attention to the child, made necessary by the injury, funeral expenses
and medical services. Appellants also add that the jury may con-
sider the condition of the decedent's family and the pecuniary value
of all acts of kindness and attention which the deceased child might
reasonably be anticipated to render until its majority. But that the
parent has been deprived of the happiness, comfort, and society of
the child or has incurred physical or mental suffering or pain by
reason of loss of the child, may not be considered by the jury.

Id. at 633-63, quoting from Hahn v. Moore, 127 Ind. App. 149, 133 N.E.2d
900 (1956) (citations omitted).



392 INDIANA LAW REVIEW [Vol. 10:392

affirmed a verdict for the plaintiff, concluding that the instruc-
tions were not contradictory and, taken as a whole, were not preju-
dicially misleading.^*^° The decision seems somewhat suspect how-
ever, since in considering loss of love and affection the jury may
have awarded damages for the sorrow and mental distress of the
parents rather than the actual pecuniary loss resulting from the
death of the child.

XIX. Trusts and Decedents' Estates

Melvin C, Poland*

Although the development of case law in this area produced
no "landmark" decisions during the current survey period, two
cases involving claims against a decedent^s estate and one in-
volving the constitutionality of a family protection statute war-
rant review. This survey also contains a brief comment on new
sections of the Indiana Code, which are primarily concerned with
non-probate transfers. Creation of multi-party accounts under the
new statutes is of particular significance in administration of
estates.

A. Case Development

1, Claims Against Decedents' Estates

In Richardson v. Richardsony^ the court of appeals held that

funeral expenses are "unquestionably" a claim against a decedent's

estate but are not to be considered part of the expenses of ad-

ministration. The effect of this holding is to make claims for

Indiana adheres to the position (probably a minority one) that the

value of lost services and contributions from the child after he has reached
majority may not be recovered. This limitation has been criticized since the
parents have already incurred a large cost in raising a child who is approach-
ing majority and yet the child will often not become a financial asset to

his parents until he is near to or has reached majority. See C. McCORMiCK,
Law OF Damages § 101 (1935).

aoorpj^g court was willing to concede, however, that an instruction which
more closely follows the language of Hahn is preferable.

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 thanks Stephen J. Spoltman for his assistance in the prepara-
tion of this discussion.

'345 N.E.2d 251 (Ind. Ct. App. 1976). For another discussion of this
case, see Townsend, Secured Transactions and Creditors* Rights, supra at 333.