Indiana Law Review


XVII. Torts

SusANAH M. Mead*

A. Negligence

1. Affirmative Duty to Control Actions of Another. — The Indiana
Courts of Appeals had several occasions during the survey period to

address the aspect of duty in a negligence case. Of particular interest

are the cases involving affirmative duties to act. The factual cir-
cumstances in Estate of Mathes v. Ireland^ presented to the fourth

district court of appeals an unusual context in which to consider the

affirmative duty to control the actions of another. Kenneth Pierce

abducted Brenda Mathes at knifepoint and drowned her in the St. Joe
River. Brenda Mathes' husband brought a wrongful death action

against Pierce, Pierce's mother, father, grandparents, and two
psychiatric centers, one which formerly had Pierce in custody and one

which had tested and evaluated him. At the time of the incident. Pierce
lived with his mother and grandparents.

Mathes alleged that the mother and grandparents with whom
Pierce lived knew he was insanely violent and that they had a
responsibility to supervise him and control his activities. Mathes also

claimed in his complaint that the staff at the psychiatric center, which

had the killer in custody, and the staff at the psychiatric center, which

had been responsible for testing and evaluating him, violated a duty

if they knew or should have known it was dangerous to release him
without providing extended treatment.^ The trial court dismissed all
the complaints, except the one against Pierce, for failing to state a

claim upon which relief could be granted.^ The court of appeals,
complying with the rule enunciated in State v. Rankin,^ held that all

the claims except as to Pierce's father, who lived elsewhere, were
prematurely dismissed.^

Mathes argued that because Pierce resided with his mother and
grandparents, they knew Pierce to be violent and dangerous and they
therefore had a responsibility to supervise Pierce and control his

activities. The court agreed and, quoting from the Restatement (Second)

Assistant Professor of Law, Indiana University School of Law — Indianapolis. B.A.,
Smith College, 1969; J.D., Indiana University School of Law — Indianapolis, 1976.

^419 N.E.2d 782 (Ind. Ct. App. 1981).

Ud. at 785.

'See Ind. R. Tr. P. 12(b)(6).

*260 Ind. 228, 294 N.E.2d 604 (1973).

^419 N.E.2d at 784. The court expressed at the outset its doubts as to whether
the plaintiff would ultimately be able to prove his case and made clear that it reversed
because of the holding in State v. Rankin. In Rankin, the supreme court held that "[a]
complaint is not subject to dismissal unless it appears to a certainty that the plaintiff

would not be entitled to relief under any set offacts . . . ." 260 Ind. at 230, 294 N.E.2d

at 606 (emphasis in original).

377



378 INDIANA LAW REVIEW [Vol. 16:377

of Torts section 319, stated that "[o]ne who takes charge of a third
person whom he knows or should know to be likely to cause bodily
harm to others if not controlled is under a duty to exercise reasonable
care to control the third person to prevent him from doing such

harm."^ The court was careful to point out that although the situa-
tion in Mathes involved a mother and grandparents, the duty does

not rest upon any familial relationship but upon the assumption of

care and control of one known by the third person to be dangerous
and likely to commit bodily harm.^

The court recognized, however, that families should not be
discouraged from taking responsibility for "the treatment of less for-

tunate members of the family" and thus stressed that the injured party
must show not only an actual taking charge of the dangerous in-
dividual, but also a knowledge of the likelihood he will cause harm.^

In this regard, the custodians' reasonable reliance on medical advice

may relieve them of responsibility.^
In adopting this novel approach, the court failed to note that this

theory of liability has never been recognized in Indiana or that this

decision is a dramatic departure from the basic common law premise
of every man for himself; that is, in the absence of a special relation-
ship, there is no affirmative duty to control the conduct of others/^

However, the court was careful to state that "only under the most
unusual set of circumstances" would the result be a successful ver-

dict for the plaintiff." Although the adoption of a theory of liability

based on a duty to control another may be startling, the future ap-

«419 N.E.2d at 784 (quoting Restatement (Second) of Torts § 319 (1977)).
^419 N.E.2d at 784.

'Id.

'Id.

^"At common law a parent was not responsible for his child's torts. See Moore
V. Waitt, 157 Ind. App. 1, 298 N.E.2d 456 (1973). Certain exceptions developed in the

case law, and in 1957 the Indiana legislature enacted a statute which allowed victims

to recover up to $750 from the parents of a tortious child for "any and all damage
proximately caused by the injury to or destruction of any property, real, personal or

mixed by the intentional or wilful or malicious act or acts of such minor." Ind. Code

§ 31-5-10-1 (1976) (repealed 1978) (current version at Ind. Code § 34-4-31-1 (1982)).
However, any exceptions, whether derived from case law or statute, only applied when
the child was a minor. Mathes, 419 N.E.2d at 787 (Hoffman, J., dissenting). In Mathes,
Pierce was twenty years old, and the rule enunciated by the majority is neither based
upon nor limited by the parent-child relationship.

The dissenting judge in Mathes objected to the majority's decision because it might
result in a violation of due process in that Mathes' complaint does not allege that an

adjudication of Pierce's insanity was ever made. Id. at 788. Before one can be involuntar-

ily subjected to the control and custody of another, he is entitled to a court deter-

mination of insanity. Id. {See Ind. Code §§ 16-14-9.1-1 to-18 (1982)).
"419 N.E.2d at 784.



1983] SURVEY-TORTS 379

plication of such a theory is likely to be limited to the family custody

situation.

In discussing the potential liability of the psychiatric centers, the

court found that if the centers had actually taken charge of Pierce

within the meaning of section 319 and had actual knowledge that he

was dangerous, then they had a duty to exercise reasonable care.^^

The court thus clarified an aspect of the new duty which was
ambiguous in the court's discussion of the duty of the mother and

grandparents. Although section 319 requires only a constructive

knowledge of a likelihood to do harm, in Indiana imposition of the duty

apparently requires a finding of actual knowledge of danger. ^^

The first district court of appeals had an opportunity to consider
the affirmative duty to control the actions of another to prevent in-

jury to a third person in Sports, Inc. v. Gilbert.^^ In Sports, Inc., the

defendants who are owners and operators of the Sportsdome Speed-
way employed off-duty police officers and special deputies for traffic
and crowd control. On August 9, 1975, Thomas Riggs drove his pickup
truck into the parking lot of the Sportsdome and had a minor acci-

dent with another car. When security guards arrived, they found Riggs
hiding in a nearby lot. Although he was intoxicated, Riggs was
cooperative and the guards did not arrest him. Instead, the guards

found two relatives who drove Riggs in his truck away from the
Sportsdome. Shortly after Riggs left the Sportsdome and had regained

control of the truck, he collided with the Gilberts' car, killing two of
the occupants and injuring the others. The Gilberts sued Sports, Inc.
for wrongful death of their two children and for their own personal
injuries, and, at the trial, the jury found for the plaintiffs. Defendants

appealed, claiming they owed no duty to the Gilberts to prevent the
intoxicated Riggs from driving away from the Sportsdome. The court
of appeals agreed with the defendants and reversed.^^

The court in Sports, Inc. systematically rejected the plaintiffs'
various contentions that the defendant owed a duty of care in this
situation. Plaintiffs relied on two Indiana cases which stand for the
proposition that a duty may arise out of knowledge of a situation and
a violation of this duty would constitute negligence. ^^ The court found
these cases factually distinguishable.^^ In addition, the court found that

'Ud. at 785-86.

'Ud. at 785.

'M31 N.E.2d 534 (Ind. Ct. App. 1982).

''Id. at 534-35.

''Id. at 536 (citing Snyder v. Mouser, 149 Ind. App. 334, 346, 272 N.E.2d 627, 634

(1971); Vandalia Ry. v. Duling, 60 Ind. App. 332, 344. 109 N.E. 70, 73 (1915)).

"Vandalia Ry. v. Duling, 60 Ind. App. 332, 109 N.E. 70 (1915) dealt with a railroad's

liability for injuries to animals who wander onto railroad tracks. Snyder v. Mouser,



380 INDIANA LAW REVIEW [Vol. 16:377

the prerequisites for a successful assertion of a duty to control third

persons, based on Restatement (Second) of Torts section 319, did not

exist here, because section 319 contemplates a situation in which a

third person is in the custody of the one charged with controlling him.^*

To further buttress this finding, the court noted that the comment
section to Restatement (Second) of Torts section 319 addresses situations

in which the dangerous person is actually in a custodial setting such

as a state mental hospital/® Therefore, the court concluded that this

section was not intended to apply to the factual context olSports, Inc}^
The first district distinguished the recent fourth district's decision

which had relied on section 319, Estate of Mathes v. Ireland,^^ on the

basis that the relationships in Mathes were well established and con-

tinuing, whereas the relationship between Sports, Inc. and Riggs was
"brief and accidental."^^ It is worthy of note, however, that the "tak-

ing charge" of a third person as contemplated in Mathes was not
custodial in the sense that those in charge had a legal obligation to

keep the killer in custody.^^

The Sports, Inc. court also disagreed with the plaintiffs' conten-
tion that Restatement (Second) of Torts section 324A should apply. That
section reads:

One who undertakes, gratuitously or for consideration, to
render services to another which he should recognize as

necessary for the protection of a third person or his things,

is subject to liability to the third person for physical harm
resulting from his failure to exercise reasonable care to pro-

tect his undertaking, if

(a) his failure to exercise reasonable care increases the risk

of such harm, or

149 Ind. App. 334, 272 N.E.2d 627 (1971) dealt with a welfare worker's duty to warn
foster parents of a child's homicidal tendencies. The court distinguished these cases
on the basis that neither dealt with the liability for the negligence of the third party.

431 N.E.2d at 536.

^^Restatement (Second) of Torts § 319 (1965) states: "One who takes charge of a
third person whom he knows or should know to be likely to cause bodily harm to others
if not controlled is under a duty to exercise reasonable care to control the third per-

son to prevent him from doing such harm." Id.
'«431 N.E.2d at 536.

''Id.

^^419 N.E.2d 782 (Ind. Ct. App. 1981). For a discussion of this case, see supra notes
1-13.

^H31 N.E.2d at 536 n.2.

""'Mathes, 419 N.E.2d at 787-88 (Hoffman, J., dissenting). The killer in Mathes had
attained the age of majority and thus his parents were no longer legally responsible
for his actions. Further, the killer had never been adjudicated mentally ill which could

give rise to a duty to control. Id. at 787-88.



1983] SURVEY-TORTS 381

(b) he has undertaken to perform a duty owed by the other
to the third person, or

(c) the harm is suffered because of reliance of the other
or the third person upon the undertaking.^*

The court found that section 324A did not apply because there was
no indication that Sports, Inc.'s actions increased the risk of harm to
the plaintiffs, that the plaintiffs relied on Sports, Inc., or that Sports,

Inc. undertook a duty owed by Riggs.^^ However, it cannot be denied
that if Sports, Inc. had taken the intoxicated Riggs into custody, the

accident would have been prevented. Under this view. Sports, Inc.'s
action, or inaction, would certainly have increased the risk of harm
to the Gilberts. Thus, the proper inquiry here should be whether fail-

ing to do so was a failure to exercise reasonable care.
The court also refused to accept the plaintiffs' theory of negligent

entrustment of a chattel to an incompetent based upon Restatement

(Second) of Torts section 390.^^ The court found that the rule enun-
ciated in section 390 applies only to those who own or have a right
to control the chattel in question, and Sports, Inc. had no right to

control Riggs' truck.^'

The court in Sports, Inc. also failed to find the special kind of
relationship between the defendant and Riggs necessary for an im-
position of duty based upon the Restatement (Second) of Torts section

315. Section 315 states that there is a duty to control the conduct

of a third person to avoid harm to another only if *'(a) a special rela-
tion exists between the actor and the third person which imposes a

duty upon the actor to control the third person's conduct, or (b) a
special relation exists between the actor and the other which gives

to the other a right to protection."^®

Although the court conceded that an owner of land has a duty
to protect business invitees from the acts of third persons if the danger

to the invitee is foreseeable, it aptly pointed out that this theory did

not apply in Sports, Inc. because the plaintiffs were not patrons of
the Sportsdome.^ Furthermore, any statutory liability imposed on one

^^Restatement (Second) of Torts § 324A (1965).
2^431 N.E.2d at 537.

''Id.

'Ud. at 537. Restatement (Second) of Torts § 390 (1965) provides:
One who supplies directly or through a third person a chattel for the

use of another whom the supplier knows or has reason to know to be likely
because of his youth, inexperience, or otherwise, to use it in a manner in-
volving unreasonable risk of physical harm to himself and others whom the
supplier should expect to share in or be endangered by its use, is subject

to liability for physical harm resulting to them.
''^Restatement (Second) of Torts § 315 (1965).

2M31 N.E.2d at 537-38.



382 INDIANA LAW REVIEW [Vol. 16:377

who supplies alcoholic beverages under the Indiana Code^° was inappli-
cable because Riggs did not consume alcohol at the Sportsdome.

Finally, the court in Sports, Inc. pointed out that the common
thread woven through all the theories of liability for failure to con-
trol a third person espoused by the plaintiffs was that of "a person
in need of special supervision . . . from someone who is in a superior
position to provide it."^^ Essential to this relationship is the right to

intervene or control. The court found such a right to intervene ab-
sent in Sports, Inc.^^ Because Sports, Inc. is a private entity, it had

neither the power nor the duy to arrest Riggs.^^ Although the securi-

ty force as off-duty police had the power to arrest, that power is con-
ferred by the state and not by a private employer. Sports, Inc. did

not "rent the state's police power" when it employed the off-duty
police.^'' Therefore, the official inaction of the security guards could

not be imputed to Sports, Inc.

The court's discussion of Sports, Inc.'s right to control its securi-
ty force is fraught with difficulties and ambiguities. The court found
that even though the security guards are employees. Sports, Inc. had

no authority to require the guards to use their power to arrest because

that power is conferred by the state. Thus, the employer/employee
relationship is not the determining factor and negligent failure to ar-

rest could not be imputed to Sports, Inc.

The court also pointed out, however, that the power to arrest is
discretionary so that even if the plaintiffs could establish that the

guards' negligent failure to enforce the law caused plaintiffs' injuries,

the guards could claim governmental immunity.^^ The court concluded
its discussion with the incredible statement that "[i]f the Sports

employees are immune from liability for their failure to use powers
granted to them by the State, their private employer is likewise
immune."^^ Is the court suggesting that a private employer of a moon-

lighting governmental employee can claim govermental immunity if
his employee negligently uses powers which can be seen as having

been granted by the state? Such a suggestion raises questions and

problems which are not within the scope of this Survey. However,

it appears the court put Sports, Inc. in the enviable position of being

^"iND. Code §§ 7.1-5-7-8, 7.1-5-10-15 (1982).
^>431 N.E.2d at 538.

^Ud. at 538-39.

^Ud. at 539. The court found that a private citizen could be liable for false im-
prisonment in arresting someone for a misdemeanor. Because Riggs had, at worst, com-

mitted a misdemeanor. Sports, Inc. had no duty to make a citizen's arrest. Id.
''Id.

'Ud. (citing IND. Code § 34-4-16.5-3(7) (Supp. 1980) which is currently codified at Ind.

Code § 34-4-16.5-3(7) (1982)).
^'431 N.E.2d at 539.



1983] SURVEY-TORTS 383

able to deny the employer/employee relationship to the extent that

it might produce liability and to invoke the employer/employee rela-

tionship to the extent that it would enable Sports, Inc. to escape liabil-

ity. This is rather unusual in light of the normal effect of the doc-

trine of respondeat superior. Suffice it to say that Sports, Inc.

benefited from a classic example of being given its cake and being

allowed to eat it, too.

Following close on the heels of Sports, Inc., the first district court

of appeals found a duty to control the actions of a third person in

Martin v. Shea.^'^ Martin is perhaps the most significant and certainly

the most startling case decided during the survey period. In Martin,

the court held that a social guest injured by another guest at a swim-

ming party stated a claim against the homeowner sufficient to with-
stand a motion to dismiss.^®

The Martins attended a pool party at the home of the Sheas in
June of 1979. Although Martin did not participate, some of the guests
took part in "horse play" around the" pool, and one of the guests struck

Martin from behind. Martin fell into the pool and struck his head on

the bottom. The fall injured Martin severely, and he sued the Sheas
claiming that the host had a duty to control the conduct of those us-

ing the premises. The Sheas filed a motion to dismiss that was granted
and Martin appealed. The court of appeals reversed and remanded.^^

The Martin court noted that there was a tendency to classify this
case among the long line of premises liability cases,^" but the court
refused to yield to such a classification. Rather, the court found that

premises liability cases generally involve injuries caused by physical

defects in the land, and the injury in this case was not a result of
such a physical defect.'*^ Therefore, the court in Martin concluded that

imposing a duty only according to the plaintiff's status as business

invitee, licensee or trespasser would be inappropriate."^ Thus, it did

not matter that Martin, as a social guest, would have been a licensee
under the premises liability classification system. Unfortunately, the

court cited no authority and did not give a satisfactory reason why
such a distinction should be made between injuries resulting from
dangerous conditions on the property and injuries resulting from

dangerous activities on the property. If, as the dissent suggests, the

^^432 N.E.2d 46 (Ind. Ct. App. 1982).

^Ud. at 49. Martin v. Shea was handed down just a week after Sports, Inc. v.
Gilbert. Not surprisingly, Judge Neal, the writing judge in Sports, Inc., dissented in
Martin v. Shea.

^M32 N.E.2d at 47. The defendant's original motion to dismiss was denied, but
upon reconsideration the trial court granted it.

*'Id.

''Id.

''Id.



384 INDIANA LAW REVIEW [Vol. 16:377

reason for finding a lesser duty owed to a licensee in a premises liabili-

ty case is that "[t]he licensee has no right to demand that the occupier

change his method of conducting activities for his safety,""^ then there

seems to be no good reason for distinguishing between types of

dangers.

Though considerable criticism has been levelled against the entire
concept of the classification system in premises liability,'*^ it has

generally been based on the rigidity and arbitrariness of the

categories.'*^ Perhaps the best approach would be to abolish the

classification system altogether as a number of jurisdictions have
done''^ rather that to carve out ill-considered exceptions as the court

did in Martin.

Having resisted any urge to classify this as a premises liability

case, the Martin court moved to the question of the nature of the
duty owed to Martin. Noting that duties may arise out of knowledge
of certain situations and that a court may create a duty to fit the
circumstances/^ the court proceeded to fashion a duty to fit the cir-

cumstances of this case. The court focused on whether a host at a
swimming party has a duty to control the conduct of one guest to
prevent injury to another guest and concluded that the answer is yes.
However, after making a point to remove this case from the area of
premises liability, the court used premises liability cases to support

its imposition of a duty in Martin.*^

*Ud. at 51 (Neal, J., dissenting) (quoting W. Prosser, Handbook of the Law of
Torts § 60 at 380 (4th ed. 1971)).

"See W. Prosser, Handbook of the Law of Torts § 62 (4th ed. 1971); F. Harper
& F. James, The Law of Torts § 27.1-27.14 (1956); C. Morris & C. Morris, Morris on
Torts 139 (2d ed. 1980); Note, Tort Liability of Owners and Possessors ofLand—A Single
Standard of Reasonable Care under the Circumstances Toward Invitees and Licensees,

33 Ark. L. Rev. 194 (1979); Comment, The Common Law Tort Liability ofOwners and Oc-
cupiers of Land: A Trap for the Unwary"?, 36 Md. L. Rev. 816 (1977); Comment, Torts-
Abolition of the Distinction Between Licensees and Invitees Entitles all Lawful Visitors

to a Standard of Reasonable Care, 8 Suffolk U.L. Rev. 795 (1974).

*^See, e.g., W. Prosser, ^pra note 44, § 58, 62 at 357, 398-99.
*'See id. § 62.

*^432 N.E.2d at 48 (citing Snyder v. Mouser, 149 Ind. App. 334, 272 N.E.2d 627

(1977)).

'*432 N.E.2d at 48-49. The court first cited Glen Park Democratic Club, Inc. v.
Kylsa, 139 Ind. App. 393, 213 N.E.2d 812 (1966). Glen Park involved a patron at a bar
who was injured by other patrons. The case was obviously decided on the basis of
a premise liability theory and turned upon the fact that the plaintiff was a business
invitee. The court also cited Cory v. Ray, 115 Ind. App. 50, 55 N.E.2d 117 (1944) in
which it was held that the operator of a place of public entertainment may be held
liable for injuries to his patrons if reasonable care is not taken to keep the premises

safe. The only case cited by the court that stands squarely for the proposition asserted
here is the New York case Majione v. Dimino, 39 A.D.2d 128, 332 N.Y.S.2d 683 (1972).
Although this case is factually close to Martin, it obviously has no mandatory preceden-

tial effect.



1983] SURVEY-TORTS 385

The Martin court also referred to the distinction made in some
jurisdictions between conditions of the premises and conduct of the
defendant as one between passive negligence on the one hand and
active negligence on the other."^ The former excuses liability, and the
latter does not. However, presumably the former would fall into

Indiana's well-established principles of premises liability in which the

extent of a landowner's duty is based on the status of the plaintiff.

Additionally, the court pointed to the "general principles of law

in regard to a duty to control conduct"^" found in the Restatement (Sec-

ond) of Torts section 318 which reads:

If the actor permits a third party person to use land or

chattels in his possession otherwise than as a servant, he is,

if present, under a duty to exercise reasonable care so to con-

trol the conduct of the third person as to prevent him from

intentionally harming others or from so conducting himself as

to create an unreasonable risk of bodily harm to them, if the
actor (a) knows or has reason to know that he has the ability
to control the third person, and (b) knows or should know of
the necessity and opportunity for exercising such control.^^

However, the court did not mention whether there was any indica-
tion that the defendant could have controlled the third person, that

the defendant knew of the necessity for control, or that the defendant
even knew who the third person was. The court apparently ignored
the general common law principle which finds no duty to control the
conduct of another. As the dissent aptly pointed out, normally such
a duty only exists in the presence of a special relationship between
defendant and plaintiff, or between defendant and the active
tortfeasor.^^ The relationship of host and social guest has not been
one which has given rise to this duty in the past.^^ Following in the

footsteps of Estate ofMathes v. Ireland,^ the Martin court has greatly

*M32 N.E.2d at 49.

'"Id.

^'Restatement (Second) of Torts § 318 (1965).

'M32 N.E.2d at 50 (Neal, J., dissenting) (citing Sports, Inc. v. Gilbert, 431 N.E.2d

534 (Ind. Ct. App. 1982) and Restatement (Second) of Torts § 315 (1965)). Judge Neal
in his dissent pointed out a number of the weaknesses and inconsistencies in the major-
ity's opinion, claiming that there is no reason in sense or law to distinguish this case

from the traditional premises liability case. However, some of the authorities Judge
Neal uses to support his position are no more germane to the situation in the present
case than those used by the majority. Swanson v. Shroat, 169 Ind. App. 80, 345 N.E.2d
872 (1976) and Pierce v. Walters, 152 Ind. App. 321, 283 N.E.2d 560 (1972) do not deal
with the problem of a landowner controlling the actions of another for the protection

of a licensee. However, Judge Neal's opinion is certainly more in keeping with the
traditional approach in the area.

^432 N.E.2d at 50 (Neal, J., dissenting).

^419 N.E.2d 782 (Ind. Ct. App. 1981).



386 INDIANA LAW REVIEW [Vol. 16:377

enlarged the concept of duty to control the conduct of others in

Indiana.

2. Affirmative Duty Imposed by Gratuitous Undertaking. — The court
of appeals for the fourth district dealt with another aspect of the af-

firmative duty issue in Board of Commissioners v. Hatton.^^ The fourth

district noted that Indiana has previously recognized that "a duty may
be imposed upon one who by affirmative conduct or agreement

assumes to act, even gratuitously, for another to exercise care and

skill in what he has undertaken."^^ However, in Hatton, the court

qualified this rule holding that "liability for nonfeasance in connec-

tion with a gratuitous or voluntary undertaking may arise only where
beneficiaries have relied on its performance.""

The plaintiff in Hatton was injured when her bicycle was struck
by a truck, as the truck rounded a curve that was flanked by natural
growth coming within six inches of the road and reaching a height
of approximately ten feet. Hatton filed a complaint against the county

alleging that its negligence in maintaining the growth around the curve

failed to open the view of the curve in question and was thus the
proximate cause of her injuries. The jury returned a verdict for Hat-
ton, and the county appealed contending that Hatton failed to establish

that the county had a duty to maintain the roadside. The court of
appeals agreed and reversed the lower court decision.^^

In Hatton, the plaintiff argued that the county had both a com-

mon law and a statutory duty to keep the area adjacent to the road
cleared.^^ She claimed the common law duty existed both because of
the counties' maintenance of the area and because of a broader duty

to protect the users of the highway from inherent dangers. The court
of appeals did not reach the second contention because the plaintiff

had not objected to the jury instruction which predicated the common
law duty on Hatton's ability to prove either that the county owned
the adjacent land or had assumed responsibility for its maintenance.
The plaintiff offered no evidence that the county owned the adjacent
area, and the county had offered evidence to the effect that neither

a record of ownership nor a description of the road itself could be

^^427 N.E.2d 696 (Ind. Ct. App. 1981).

^7d. at 699 (citing Clyde E. Williams & Assoc, v. Boatman, 375 N.E.2d 1138 (Ind.

Ct. App. 1978)).
"427 N.E.2d at 700.

''Id. at 703.

^7d at 703. The court agreed with the State's claim that the trial court should

have granted the State judgment on the evidence on the issue of statutory duty. Ind.

Code § 32-10-5-1 (1976), which imposes a duty to mow, requires grass to be cut to five

feet. Because Hatton's visibility would not have been improved even if the grass were

cut to five feet, violation of the statute could not have been the proximate cause of

the ijijury. 427 N.E.2d at 703.



1983] SURVEY-TORTS 387

found. Although the county policy was to mow a three-foot wide strip
along the highway twice a year, residents testified that the growth

had not been cut by anyone since 1972. This testimony, accepted by

the plaintiff as fact, indicated that the county did not assume
responsibility for maintenance of the area. The court pointed out that
such evidence might show lack of due care if a duty existed, but the
establishment of a legal duty must necessarily precede the issue of
due care.^°

Although the court resolved the common law duty issue by find-
ing no evidence that the county had assumed the responsibility to
mow, the court qualified the rule pertaining to gratuitous assumption
of responsibility. Looking to case law in other jurisdictions, the court

concluded that 'liability for non-feasance in connection with a

gratuitous or voluntary undertaking may arise only where beneficiaries
have relied on its performance."^^ The testimony by residents that no
one had mowed the roadside in at least seven years indicated that
reliance was not present.

In Perry v. NIPSCO,^^ the court of appeals for the fourth district

may have enlarged the perimeters of the affirmative duty to come
to the aid of another. NIPSCO entered into a contract with Babcock
& Wilcox Company (B. & W.) for the construction of equipment at
NIPSCO's Michigan City generating station. In April of 1972, a B. &
W. foreman ordered Perry, a B. & W. employee, to do some welding
twenty feet above ground. No scaffolding or other safety equipment
was available. Perry complained to his B. & W. foreman and to a
NIPSCO employee standing nearby. The NIPSCO man told Perry he
had no control over what Perry did for B. & W. Perry ultimately
attempted to do the job, fell, and was seriously injured. Perry sued
NIPSCO for personal injuries claiming that NIPSCO owed a duty to
exercise reasonable care relative to job safety, and the trial court

granted NIPSCO's motion for summary judgment. Perry appealed, and
the court of appeals reversed on the issue pertaining to NIPSCO's
assumption of job site safety .^^

The court of appeals began its analysis of the duty question by
stating that in this area the general rule is that liability for the acts

of another normally does not apply in the absence of a master-servant

relationship.^" The court then quoted at length from the venerable case

«"427 N.E.2d at 700.

®7d. (emphasis in original) (citing Chisolm v. Stephens, 47 111. App. 3d 999, 365

N.E.2d 80 (1977); Johnson v. Souza, 71 N.J. Super. 240, 176 A.2d 797 (App. Div. 1961);

Florence v. Goldberg, 44 N.Y.2d 189, 375 N.E.2d 763, 404 N.Y.S.2d 583 (1978)).

'HSS N.E.2d 44 (Ind. Ct. App. 1982).

'Ud. at 50.

'*Id. at 46.



388 INDIANA LAW REVIEW [Vol. 16:377

Prest-0-Lite Co. v. Skeel^^ apparently to find that B. & W. was an in-
dependent contractor rather than an employee.^^ However, the court
recognized that several exceptions have evolved to the general

nonliability of independent contractors.^^ The plaintiff in Perry claimed
that two of these exceptions applied in the instant case because

the contract required performance of intrinsically dangerous work, and

NIPSCO was charged by contract with providing safety on the job.^®
The court found that the first exception asserted by plaintiff did

not apply because "an undertaking is not intrinsically dangerous if

the 'risk of injury involved in its use can be eliminated or significant-

ly reduced by taking proper precautions.' "®® Here, the use of scaf-

folding would have greatly reduced the potential for injury.

Based on the mandate from Prest-0-Lite that contracts be read

as a whole in order to glean their "spirit and essence", the NIPSCO
court further found that the contract between NIPSCO and B. & W.
read as a whole did not reserve to NIPSCO the control of job site
safety for B. & W.'s employees.'"

Plaintiff, relying on Mullins v. Easton,''^ claimed that NIPSCO as
owner of the property was required to provide a safe place for Perry
to work. The court distinguished the Mullins case on its facts. In
Mullins, the plaintiff was injured by a defect in the property itself,
whereas here, plaintiff's injury had nothing to do with the condition

of the property. Thus NIPSCO, as owner of the property, breached
no duty to Perry.'^

Though the court rejected Perry's arguments regarding NIPSCO's
responsibility to the employee of a subcontractor and acknowledged

the general rule that there is no duty to protect or aid others even

if the actor should or does realize such action is necessary, the court

did rule that "one who assumes supervision of safety at a construc-
tion site has a duty to use due care in the enforcement of safety

regulations."'^ Here, the court found a special relationship between

''182 Ind. 593, 106 N.E. 365 (1914) (contractor's worker was injured when building
owned by Prest-0-Lite Co. collapsed; the court concluded that Prest-0-Lite was not
liable because the contractor was found to be an independent contractor).

'M33 N.E.2d at 47. The court made no specific preliminary statement that B. &
W. was an independent contractor, but it is obvious that the opinion was based on
that assumption. Perhaps the parties stipulated to that fact in their briefs.

'Yd (quoting Denneau v. Indiana & Michigan Elec. Co., 150 Ind. App. 615, 620,
277 N.E.2d 8, 12, (1971)).

'«433 N.E.2d at 47.

''Id. (quoting Hale v. Peabody Coal Co., 168 Ind. App. 336, 343, 343 N.E.2d 316,
322 (1976)).

'°433 N.E.2d at 48.

"376 N.E.2d 1178 (Ind. Ct. App. 1978).
^^433 N.E.2d at 49.

'Ud. (construing Clyde E. Williams & Assoc, v. Boatman, 375 N.E.2d 1138 (Ind.



1983] SURVEY-TORTS 389

NIPSCO and B. & W. regarding the safety of B. & W.'s employees.
By holding safety meetings and by having employees who gave the
appearance of supervising safety on the site, NIPSCO had ''assumed
the obligation to enforce safety measures."^^

In reaching its conclusion, the court quoted the Restatement (Sec-

ond) of Torts section 324A, which states in pertinent part:

One who undertakes, gratuitously ... to render services
to another which he should recognize as necessary for the pro-

tection of a third person ... is subject to liability to the third

person for physical harm resulting from his failure to exercise
reasonable care to protect his undertaking, if

(b) he has undertaken to perform a duty owed by the other
to the third person . . . J^

In light of NIPSCO's assumption of B. & W.'s obligation to monitor
safety at the job site, the court had no trouble in finding that section

324A applied.
Although the court in NIPSCO stated that the duty set out in

section 324A is nothing new in our law,^® it appears that after NIPSCO,
the limits of the affirmative duty to act in Indiana are those defined

in section 324A of the Restatement (Second) of Torts. The court quoted
Board of Commissioners v. Hatton as authority for the general pro-
position that Indiana recognizes duties imposed by assuming to act
for another,^^ but the court in NIPSCO made no reference to the Hat-
ton court's nonfeasance qualification to that rule. The fourth district
court's adoption of section 324A may mean that subsection (b), deal-
ing with the reliance factor, will supplant the nonfeasance/misfeasance

distinction found in Hatton.

B. Proximate Cause

In Bridges v. Kentucky Stone Co.,''^ the Indiana Supreme Court
dealt with that elusive concept, proximate cause. The plaintiff in
Bridges was injured and his minor son killed in an explosion of a bomb
at his residence. The bomb was made from explosives stolen from the

Ct. App. 1978) where court found that if engineering firm assumed the supervision

of safety at a construction site, a relationship would exist that would create a duty

to supervise the project in the manner of a reasonably prudent man).

'M33 N.E.2d at 49 (emphasis in original).

''Ud. at 50 (quoting Restatement (Second) of Torts § 324A (1966)).
^«433 N.E.2d at 50 (citing Nelson v. Union Wire Rope Corp., 31 111. 2d 69, 199

N.E.2d 769 (1964)).

^^33 N.E.2d at 50 (quoting Board of Comm'rs v. Hatton, 427 N.E.2d 696 (Ind. Ct.

App. 1981)). For a discussion of Hatton see supra notes 55-61 and accompanying text.
^«425 N.E.2d 125 (Ind. 1981), rev'g 408 N.E.2d 575 (Ind. Ct. App. 1980).



390 INDIANA LAW REVIEW [Vol. 16:377

defendant's plant. Bridges sued, claiming that the defendant negligent-

ly stored the dynamite so that it could be stolen and that this negligent

act was the proximate cause of his damage. The trial court granted
the defendant's motion for summary judgment holding as a matter
of law that negligent storage of the dynamite was not the proximate
cause of plaintiff's injuries.^^ The court of appeals for the fourth
district reversed the trial court decision. In reviewing the legislative

history and statutory purposes of federal laws controlling storage of

explosives, the court of appeals found that "reasonable minds could

differ as to whether the defendants reasonably should have foreseen

that negligent storage of dynamite could result in its theft and

misuse."^" The Indiana Supreme Court granted the defendant's peti-
tion for transfer, vacated the decision of the court of appeals, and

reinstated the trial court's decision to grant the defendant's motion

for summary judgment.*^
The supreme court noted the great disparity in approaches to the

proximate cause question in cases involving the storage of explosives*^

and cited as examples of the divergent points of view, Bottorjfv. South

Construction Co.^^ and Yukon Equipment, Inc. v. Firemen's Fund
Insurance.^^ In Bottorff, a fourteen-year-old child stole explosives from

a dilapidated shed and gave them to a twelve-year-old who injured
himself. The Indiana Supreme Court sustained a demurrer in Bottorff
finding that the larceny of the child, not the negligent storage, caused

the injury.^ By contrast, in Yukon Equipm£nt, when extensive damage
was done to neighboring homes because thieves broke into the de-
fendant's magazine and ignited great quantities of dynamite, the

Alaska Supreme Court found the defendant absolutely liable based
on the court's conclusion that storing explosives is an ultrahazardous

activity.*^

The supreme court in Bridges disagreed with the Alaska court's
conclusion in Yukon Equipment that storing dynamite is an ultrahazar-
dous activity that should result in a per se rule of liability.*^ Instead,

the court adopted the Restatement (Second) of Torts section 520

approach** and concluded that the question of whether storage of

''Id. at 126.

«°408 N.E.2d 575, 578 (Ind. Ct. App. 1980).
«^425 N.E.2d at 125.

'^Id. at 126.

n84 Ind. 221, 110 N.E. 977 (1916).
^''585 P.2d 1206 (Alaska 1978).

^^84 Ind. at 227-28, 110 N.E. at 978.
««585 P.2d at 1211.

«'425 N.E.2d at 126.

^^Restatement (Second) of Torts § 520 (1977) reads in pertinent part:
In determining whether an activity is abnormally dangerous, the follow-



1983] SURVEY-TORTS 391

dynamite is an ultrahazardous activity should be determined on a case-

by-case basis.*®

Unfortunately, the court in Bridges dropped its discussion of

**ultrahazardous activities" without any statement as to whether the

storage of dynamite in this case amounted to an ultrahazardous
activity. Apparently, the court concluded that it did not because the

court moved to a discussion based on a theory of negligence.®"
Although unwilling to accept that storing dynamite will always

result in liability if someone steals and misuses it, the Bridges court

expressed dissatisfaction with the approach in Bottorff also. The court
pointed out that since the Bottorff decision, there have been exten-

sive regulations enacted regarding the storage of explosives.®^ This

is indicative of a policy to encourage care. Thus, the court declined

to follow the holding in Bottorff that the theft of explosives would

always be a superseding cause which would relieve one who negligent-
ly stored them of liability.®^ Rather, the court looked to the particular

ing factors are to be considered:

(a) existence of a high degree of risk of some harm to the person, land
or chattels of others;

(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on;

and

(f) extent to which its value to the community is outweighed by its

dangerous attributes.
*®425 N.E.2d at 126. The court apparently assumed that if the activity is deemed

ultrahazardous so as to justify the imposition of strict liability, the issue of proximate

cause is no longer relevant. A logical argument can be made for the view that for
strict liability to apply, the activity must be so hazardous and likely to cause harm
that the foreseeability aspect of proximate cause as a limitation on liability is un-

necessary. However, courts regularly interject limitations on strict liability on the basis

of something in the nature of proximate cause. This is particularly true if an interven-

ing cause, such as the act of a third person, plays a part in plaintiff 's damage. Although

extensively discussed by legal scholars, the problem has never been satisfactorily

resolved. One noted torts scholar stated that, "[i]t is stuff like this that drives a torts pro-

fessor mad and which convinces his students at the threshold of their professional
training that the law is a crazy mess." Gregory, Trespass to Negligence to Absolute Liabili-

ty, 37 Va. L. Rev. 359, 379 (1951). For various approaches to the problem see J. Fleming,

The Law of Torts 311-13 (3d ed. 1965); W. Prosser, Handbook of the Law of Torts §
79 (4th ed. 1971); Harper, Liability Without Fault and Proximate Cause, 30 Mich. L.

Rev. 1001 (1932).

^"425 N.E.2d at 127. Having adopted section 520 as the proper approach to a case

involving the storage of dynamite, the court defers to the trial court for a determina-

tion on the issue of whether the storage here constituted an ultrahazardous activity.

See Restatement (Second) of Torts § 520 comment 1 (1977).
^'425 N.E.2d at 127 (citing Ind. Code § 22-1M3-1 to -28 (1976)).
'^425 N.E.2d at 127.



392 INDIANA LAW REVIEW [Vol. 16:377

facts of this case to determine that the trial court's grant of sum-
mary judgment on the issue of proximate cause was correct.

The relevant factors acting as a superseding cause precluding
liability of the defendant ifi Bridges were that the blast occurred nearly

three weeks subsequent to the theft, that the blast occurred at a loca-
tion over one hundred miles from the storage site, and that the dis-

appearance of the dynamite was reported to federal authorities pur-
suant to federal regulations.

In Bridges, the court recognized that negligence is the proximate

cause of injury if it is a natural and probable consequence that should

have been foreseen. Given the factual situation in Bridges, the court

found that reasonable minds could not differ on the question of

whether the damage to plaintiff was reasonably foreseeable.^^ However,
in light of the likelihood of injury when explosives are stolen and
misused, it is difficult to imagine how reasonable minds might not dif-
fer on the question of whether negligent storage and the resulting

theft of explosives could foreseeably result in the thief making and
exploding bombs regardless of how much later or how far away the
explosion. Perhaps the court felt a bit uncomfortable with its decision

because the court expressly limited the decision in Bridges to the

facts,®* making it difficult to assess the future impact of this case.®^
The court of appeals for the second district had occasion to ex-

plore the vagaries of proximate cause in Hiatt v. Brown.^^ In HiatU
a jet blast from a TWA airplane blew the plaintiff down as she walked
up a ramp at Indianapolis International Airport.

In 1964, the Indianapolis Airport Authority (lAA) had contracted

with defendant Brown, an architect, to design a plan for the expansion

of the airport's terminal building. The expansion plan included a TWA
arrival/departure gate near the ramp on which Hiatt was injured. The
original understanding between the parties was that all airlines would
use a nose in/nose out system of moving planes. With this system,
the planes kept their engines off, and tugs pushed the planes in and

pulled them out. In 1965, Brown learned that TWA intended to use
a taxi in/taxi out operation which would subject the unprotected ramps

to jet blasts from the arriving and departing planes. Although it was
unclear whether Brown learned of this change before or after he sub-
mitted his architectural plans for approval, the record indicated he

had time to make design changes during the construction.

'*Id.

'^Justice DeBruler in his short dissenting opinion expressed the view that what

happened here could have been foreseen and a jury question was presented. Id. at
128 (DeBruler, J., dissenting).

^422 N.E.2d 736 (Ind. Ct. App. 1981).



1983] SURVEY-TORTS 393

lAA accepted the completed terminal in 1967 with no jet blast
protection for the ramp. Though numerous incidents of property and
personal injury occurred, neither TWA nor lAA acted to warn
pedestrians on the ramp of the possible danger.

Hiatt filed suit against Brown, TWA, and lAA. TWA and lAA
settled, and Hiatt went to trial againt Brown. The trial court granted
Brown's motion for summary judgment on the ground that Brown was
relieved from liability because the conduct of lAA and TWA inter-
vened to break the causal chain between Brown's negligence and
Hiatt's injury .^^ When Hiatt appealed, the court of appeals reversed
the entry of summary judgment finding that a genuine issue of
material fact existed on the question of whether Hiatt's injuries were

proximately caused by Brown's negligence.^*

Before considering the proximate cause issue, the court addressed

the question of whether the Restatement (Second) of Torts section 385

should apply to relieve Hiatt from having to establish privity between

herself and Brown even though Hiatt was a stranger to the architect/
owner relationship.^^ The court briefly traced the downfall of the priv
ity requirement in contractor-owner relationships in numerous
jurisdictions^"" and finally pointed out that section 385 reflects this

trend. Although a fair reading of the case makes it appear as if the
court's ultimate destination was to specifically adopt section 385 as
law in Indiana, the court concluded that it did not need to adopt or

reject section 385 to resolve this case. The court found that Hiatt's
situation fell within an already well-recognized exception to the privity

requirement in Indiana which applies if "the architect's design was
done so negligently as to create a condition imminently dangerous to

third persons."^"^ Thus, even though the court in Hiatt decided not

^Ud. at 738. As an alternative reason for granting the summary judgment, the
trial court found that Brown's negligence in failing to investigate or design jet blast

protection merely created a condition which made plaintiff's injury possible and that
the conduct of TWA and lAA actually caused the injury. Id. However, the court on
appeal did not address this conclusion.

''Id. at 739.

'^Restatement (Second) of Torts § 385 (1965) provides:

One who on behalf of the possessor of land erects a structure or creates
any other condition thereon is subject to liability to others upon or outside

of the land for physical harm caused to them by the dangerous character

of the structure or condition after his work has been accepted by the
possessor, under the same rules as those determining the liability of one who
as manufacturer or independent contractor makes a chattel for the use of

others.

^^See generally Comment, Architect Tort Liability in Preparation of Plans and

Specifications, 55 Calif. L. Rev. 1361 (1967); Note, Liability ofDesign Professionals—The

Necessity of Fault, 58 Iowa L. Rev. 1221 (1973).
^"'422 N.E.2d at 740. One might take issue with the court's assertion that in Indiana

the privity barrier has "repeatedly collapsed" in the situation of architects who have



394 INDIANA LAW REVIEW [Vol. 16:377

to take the final step to adopt section 385 as law, nonetheless, the

court laid the groundwork for the adoption of section 385 should the
appropriate occasion arise.

After disposing of the privity issue, the court in Hiatt focused

its consideration on the proximate cause question and inquired whether

the conduct of TWA and lAA, in recognizing the danger and failing
to rectify or warn of it, was an intervening cause which would relieve
Brown of liability /°^ Although the court recognized the policy behind
the rule that the conduct of an owner who learns of a dangerously
defective condition on his land but fails to remedy it is an interven-
ing cause which excuses an architect from liability, ^"^ the court, never-

theless, noted that "reasonable foreseeability is still the fundamental

test of proximate cause" and that intervening causes will excuse liabil-

ity only if they are not foreseeable.^"'^ The question in Hiatt was
whether Brown should have foreseen that TWA and lAA would
recognize the danger and fail to remedy it. Because the appellate court
found conflicting facts and inferences to be drawn from the record
on this question, it concluded that resolution of this issue should have

been left to the trier of fact and the trial court's grant of summary
judgment was reversible error.'105

C. Damages

1. Crops. — In Decatur County Ag-Services, Inc. v. Young,^^^ the In-
diana Supreme Court granted transfer to settle the method for measur-
ing damages for the destruction of growing crops having no ready
market value. The plaintiff Young's soybean crop was partially
destroyed as a result of defendant's negligent spraying for grass-

designed hazardous structures in light of the fact that all the cases cited by the court

involve contractors sued for negligent construction defects and not architects sued for

negligent design defects. The cases cited are: Davis v. Henderlong Lumber Co., 221
F. Supp. 129 (N.D. Ind. 1963); Gillam v. J. C. Penney Co., 193 F. Supp. 558 (S.D. Ind.
1961); Great Atlantic & Pacific Tea Co. v. Wilson, 408 N.E.2d 144 (Ind. Ct. App. 1980);
and Holland Furnace Co. v. Nauracaj, 105 Ind. App. 574, 14 N.E.2d 339 (1938). Arguably,

however, the reason for holding architects liable for negligent design in the absence

of privity is even stronger than that for holding contractors liable. In the cases cited

by the court, the contractors were merely following designs and specifications drafted

by someone else. The architect here, however, possibly created in his design "a condi-
tion imminently dangerous to third persons." 422 N.E.2d at 740.

^"^422 N.E.2d at 740-42.

^"^/d. at 740. Such a rule is necessary to protect an architect or builder who has
turned property over to an owner and no longer has the ability to modify the struc-
ture. If such a principle did not apply, architects would remain liable to third persons

with no power to cure the defect.
"^

'''Id. at 741.

^"^M at 741-42.

^°«426 N.E.2d 644 (Ind. 1981).



1983] SURVEY-TORTS 395

hoppers. After harvest, Young, as was his custom, stored what was
left of his beans and sold them after the planting period the next year
for $8.86 to $10.39 per bushel. The trial court awarded Young damages
of $10 per bushel for the difference between what his crop would have

yielded and what it did yield based on the market value at the time

he actually sold what remained of his crop. Defendant appealed claim-

ing, among other things, that the trial court erred in assessing the
value of the lost portion at the market price at the time Young sold
the crop rather than at the prevailing market price at the time of

harvest, and that the trial court erred in failing to reduce the award

by the amount Young saved by not having to harvest, cultivate, or
store the lost portion of the crop. The court of appeals for the first
district affirmed the damages awarded.^"^ The supreme court granted
transfer on the ground that the court of appeals decided erroneously

a new question of law.^°®
Quoting a Wisconsin case and citing authorities from numerous

other jurisdictions, the supreme court found that the proper measure

of damages for the destruction or partial destruction of a growing crop

to be "the difference between the value at maturity of the probable

crop if there had been no injury and the value of the actual crop at

maturity, less the expense of cultivation, harvesting and marketing

that portion of the probable crop which was prevented from
maturing."^"^ In adopting this method of valuation, the court fell in
line with the approach used in a majority of jurisdictions. ^^°

However, the circumstances of this case illustrate the difficulties

and possible inequities created by adhering to a hard-and-fast rule in

the area of calculating damages for injuries to crops. The court in
Young aptly pointed out that the purpose of damages is to compen-
sate the injured party for loss."^ The court further stated, though,
that the plaintiff, by electing not to sell at the harvest time, speculated

that the market value would be greater at a later date, and "[s]pecula-
tion about lost profits of this nature is not permitted.""^

If the purpose of damages is to compensate the injured party for
loss suffered, the remedy failed in this case. The plaintiff in Young
actually sold part of his crop at a later time because it was his custom,

'"^401 N.E.2d 731 (Ind. Ct. App. 1980).
'''M26 N.E.2d at 645.

'"Vd at 646 (quoting Cutler Cranberry Co. v. Oakdale Electric Cooperative, 78
Wis. 2d 222, 229, 254 N.W.2d 234, 238 (1977)).

""See D. DoBBS, Handbook on the Law of Remedies § 5.2 (1973). For a discussion
of the seemingly infinite variety of methods for assessing damages to growing crops,
see Note, Markets, Time, and Damages: Some Unsolved Problems in the Field of Crops,
14 Ind. L. Rev. 647 (1981).

"^426 N.E.2d at 646.

''Hd. at 647.



396 INDIANA LAW REVIEW [Vol. 16:377

and he would have sold the entire crop at this later date had it not

been damaged by the defendant. The amount of plaintiffs actual loss
was thus easily ascertainable; the formula was the difference between

what he received when he sold and what he would have received had
he been able to sell the entire crop. The practice of selling the crop at

a later time may have appeared speculative to the court, but, for this
particular plaintiff, evidence could have been introduced to show that

selling late constituted an established business practice. Thus, damages

calculated at the time of the actual sale would have been more com-

mensurate with this plaintiff's loss.

To avoid the inequities that occurred in Young, a few courts have
adopted a case-by-case approach in determining damages."^ A flexi-
ble rule that allows plaintiff and defendant to introduce evidence on

the extent of the plaintiff's actual losses has obvious appeal if com-

pensation for the loss suffered is the ultimate goal."* However, the
supreme court, by opting in favor of the majority rule, has foreclosed
this as a possibility in Indiana.

2. Nuisance. — The first district court of appeals held in Rust v.
Guinn^^^ that damages for personal losses, such as inconvenience and
injury to health, may be recovered in an action for an abatable private
nusiance. This would be in addition to damages for the interference
with and loss of use and enjoyment of property. The Guinns had
resided on an eighty-acre farm for four years prior to the establish-

ment of two chicken farms on an adjacent property. Because of the
proximity of the chicken farms, the Guinns suffered an increased

number of flies and repugnant odors. The Guinns brought suit against
Eggacres, Inc. (Eggacres) and were awarded $9,500 in the second part
of a bifurcated proceeding. Eggacres appealed from the judgment in

the damages suit assigning as error the trial court's jury instruction
on the measure of damages for an abatable private nuisance."^

Eggacres contended that the proper measure of damages for an
abatable private nuisance is limited to the reduction in the fair ren-

tal value of plaintiff 's real estate caused by the nuisance conditions.

The trial court instructed the jury it could include not only the damage
elements agreed to by Eggacres but also damages for actual expenses
incurred by plaintiff in attempting to mitigate the effects of the
nuisance and damages for injury to health caused by the nuisance.

Although the court of appeals noted that recent Indiana cases have

held that the general measure of damages for an abatable private

"'See D. DoBBS, supra note 110.

"*See sujyra note 110 for discussion of this approach.

"^429 N.E.2d 299 (Ind. Ct. App. 1981).

'''Id. at 301.



1983] SURVEY-TORTS 397

nuisance is the loss of the use of the land, measured by the diminu-
tion in rental value, the court found no Indiana cases which excluded

other items of damage."^ Nor did the court find that the legislature
gave any guidance on the damages issue in the statutes dealing with
nuisance."^ However, intent on expanding the scope of damages
recoverable for a private abatable nuisance, the court recognized that

a plaintiff in a nuisance action often suffers damages beyond diminu-
tion in rental value."^ To support its position, the court cited authority
from other jurisdictions,^^" the Restatement (Second) of Torts section
929(1),^^^ and Dean Prosser,^^^ as well as dicta from a vintage Indiana

''Ud. at 303.

"®See Ind. Code §§ 34-1-52-1 to -3 (1976). These sections define nuisance, identify the

proper party to bring suit, and state possible remedies. These statutes are silent,

however, on what items of damages are recoverable. Id.
"«429 N.E.2d at 303.

^^°Id. at 304 (citing City of San Jose v. Superior Court of Santa Clara County,

12 Cal. 3d 447, 525 P.2d 701, 115 Cal. Rptr. 797 (1974); Miller v. Carnation Co., 39 Colo.

App. 1, 564 P.2d 127 (1977); Nair v. Thow, 156 Conn. 445, 242 A.2d 757 (1968); Nitram

Chemicals, Inc. v. Parker, 200 So. 2d 220 (Fla. Dist. Ct. App. 1967); Pollard v. Land

West, Inc., 96 Idaho 274, 526 P.2d 1110 (1974); Earl v. Clark, 219 N.W.2d 487 (Iowa

1974); Holmberg v. Bergin, 285 Minn. 250, 172 N.W.2d 739 (1969); Nevada Cement Co.
V. Lemler, 89 Nev. 447, 514 P.2d 1180 (1973); Spencer Creek Pollution Control Ass'n

V. Organic Fertilizer Co., 264 Or. 557, 505 P.2d 919 (1973); Hendrix v. City of Maryville,

58 Tenn. App. 457, 431 S.W.2d 292 (1968); Lacy Feed Co. v. Parrish, 517 S.W.2d 845

(Tex. Civ. App. 1974)).
''>429 N.E.2d at 303-04 (citing Restatement (Second) of Torts § 929(1) (1977)). The

Restatement reads:

Harm to Land from Past Invasions
(1) If one is entitled to a judgment for harm to land resulting from a past
invasion and not amounting to a total destruction of value, the damages in-

clude compensation for

(a) the difference between the value of the land before the harm and

the value after the harm, or at his election in an appropriate case, the cost

of restoration that has been or may be reasonably incurred,
(b) the loss of use of the land, and

(c) discomfort and annoyance to him as an occupant.

'^H29 N.E.2d at 304 (citing W. Prosser, Handbook of The Law Of Torts § 90, at
602-03 (4th ed. 1971)). Prosser reads:

As in the case of any other tort, the plaintiff may recover his damages
in an action at law. In such an action the principal elements of damages are

the value attached to the use or enjoyment of which he has been deprived,

or — which often amounts to a measure of the same thing— the loss of the
rental or use value of the property for the duration of a temporary nuisance

. . . and in addition the value of any personal discomfort or inconvenience

which the plaintiff has suffered, or of any injury to health or other personal

injury sustained by the plaintiff, or by members of his family so far as they
affect his own enjoyment of the premises, as well as any reasonable expenses
which he has incurred on account of the nuisance.

W. Prosser, Handbook of the Law of Torts § 90, at 602-03 (4th ed. 1971).



398 INDIANA LAW REVIEW [Vol. 16:377

case^^^ to the effect that courts are not restricted to depreciation of

the property but might also consider a plaintiff's inconvenience and

discomfort.

To Eggacres* contention that damages beyond diminution in ren-
tal value constituted a double recovery, the court responded simply

by voicing its disagreement and referring to a Colorado case

distinguishing between proprietary and personal losses and recognizing

a need to recover for both/^^

Although the long-range impact of Rust v. Guinn cannot be ascer-
tained yet, this decision, which broadens the scope of damages
recoverable for abatable private nuisance, may encourage plaintiffs
to bring nuisance actions.

D. Loss of Consortium

For the first time in Indiana, the issue of whether a noninjured

spouse's cause of action for loss of consortium must be joined with
the injured spouse's action for personal injuries was decided. In

Rosander v. Copco Steel & Engineering Co.,^^^ Rosander's husband was
injured while working at Copco's plant. The injured spouse received
worker's compensation benefits from Copco and executed a release

of all claims againt Copco. Subsequently, Mrs. Rosander, who was not
a party to the release, filed a separate action against Copco for loss

of consortium. The trial court granted a summary judgment in defend-
ant Copco's favor, holding that because loss of consortium is a

derivative suit, the settlement of the injured spouse's primary suit

bars the maintenance of an independent suit by the noninjured

spouse.
^^®

Although the court of appeals disagreed with the trial court's con-
clusion, it picked up the trial court's unfortunate use of the word
"derivative" and stated that "[i]t cannot be denied that a claim for

loss of consortium is derivative in that without an injury to one spouse,

the other spouse would have no action."^^^ That an action for loss of

consortium by one spouse will not arise without negligent injury to
the other spouse illustrates that the claim is for injury to a relational

interest — the marriage relationship — not that it is a derivative

'2^29 N.E.2d at 303 (quoting Weston Paper Co. v. Pope, 155 Ind. 394, 402-03, 57
N.E. 719, 721 (1900)).

'''Id. at 304 (citing Miller v. Carnation Co., 39 Colo. App. 1, 564 P.2d 127 (1977)).
The court neglects to point out that there is considerable authority for the proposi-
tion posited by Eggacres that recovery of personal damages amounts to double recovery.
See generally D. Dobbs, supra note 110, § 5.3 and cases cited therein.

^^^429 N.E.2d 990 (Ind. Ct. App. 1982).

'^'Id. at 991.

''Ud.



1983] SURVEY-TORTS 399

action/^® Nevertheless, the court of appeals recognized that an action

for loss of consortium is an independent action that is separate and

distinct from the injured spouse's action for personal injuries and that

one spouse cannot waive the rights of the other
/^^

Regardless of the independent status of an action for loss of con-

sortium, the court considered whether the interests of judicial

economy, the danger of double recovery, and the potential for incon-

sistent verdicts are sufficiently compelling reasons to justify a rule

requiring mandatory joinder of the claim for loss of consortium with

the personal injury claim/^° The court cited Troue v. Marker,^^^ in which

the Indiana Supreme Court first recognized a wife's claim for loss of
consortium, and noted that though Troue did not specifically answer

the joinder question, the case implied that separate and distinct actions

may be filed separately/^^ In addition, the court found that the Troue
court settled the double recovery problem by holding that a wife can-

not recover loss of support in an action for loss of consortium. ^^^ The
court noted that the problem of inconsistent verdicts was not rele-

vant to Rosander, because the husband had signed a release, and a

release does not settle the merits of a claim/^'^

To answer the remaining question regarding judicial economy, the
court turned to the Restatement (Second) of Torts section 693 which

requires joinder, unless joinder is not possible/^^ Situations which

would make joinder impossible include the release of the claim by
the injured spouse without knowledge of the other spouse, as hap-

'^*Derivative can generally be defined as "[cjoming from another; taken from

something preceding; secondary. That which has not its origin in itself, but owes its

existence to something foregoing." Blacks Law Dictionary 399 (rev. 5th ed. 1979).
Derivative action is traditionally an action brought by one party on behalf of someone
else as in the situation of a stockholders' derivative action in which the corporation

is the real party in interest and the stockholder only a nominal plaintiff. See 12 Words
& Phrases Derivative Action 312 (West 1954 & Supp. 1982).

'^^29 N.E.2d at 991.

'''Id.

'^^253 Ind. 284, 252 N.E.2d 800 (1969).

'^M29 N.E.2d at 991.

'''Id.

'''Id.

'^^Restatement (Second) of Torts § 693 (1977) states:

(1) One who by reason of his tortious conduct is liable to one spouse
for illness or other bodily harm is subject to liability to the other spouse
for the resulting loss of the society and services of the first spouse, including

impairment of capacity for sexual intercourse, and for reasonable expense

incurred by the second spouse in providing medical treatment.

(2) Unless it is not possible to do so, the action for loss of society and

services is required to be joined with the action for illness or bodily harm,

and recovery for loss of society and services is allowed only if the two ac-
tions are so joined.



400 INDIANA LAW REVIEW [Vol. 16:377

pened in the instant case; the abatement of the impaired spouse's claim

by death; or the barring of the action by a workers' compensation

act.^^* By adopting the approach in section 693, the court of appeals
has made an effort to balance the sometimes competing interests of
judicial economy and individual rights. After Rosander, in order to
protect against subsequent suits by spouses who are unaware of the
settlement of the primary suit, the negligent party, before finalizing

a settlement agreement, should notify the uninjured spouse regarding

the pending settlement.

E. Seat Belt Defense

In State v. Ingram,^^'^ the Indiana Supreme Court granted transfer

and vacated the opinion of the court of appeals. The supreme court

found that the trial court had properly admitted a loan receipt agree-

ment and that the court of appeals had incorrectly reversed on that
basis.^^® In the course of its discussion of issues not addressed by the

court of appeals, the supreme court took occasion to settle the ques-

tion of whether the "seat belt defense" has any validity in Indiana.

In Ingram, the plaintiffs were injured when their car went into
a ditch that was negligently maintained. The State had responsibility
to maintain the ditch. The plaintiffs were not wearing seat belts at
the time of the accident. On appeal, the State claimed that the trial
court erred in refusing to give the jury the following instruction:

One who is injured is bound to exercise reasonable care
and diligence to avoid loss or to minimize resulting damage.
It is incumbant [sic] upon a person who is injured to use such
means as are reasonable under the circumstances to avoid or
to minimize the damage. If you find from a consideration of
all the evidence that the using and fastening of seat belts

would have avoided or minimized the resulting damage, then
the person wronged cannot recover for any item of damage
which could have been avoided, or minimized. ^^^

The State claimed that the instruction was justified because the
evidence showed that plaintiffs' injuries would have been reduced if
they had worn seat belts, and a defendant may "show in mitigation
or reduction of damages any facts surrounding the injury complained
of which tend to reduce the amount required for just compensation
to the plaintiff."^*"

^^Id. at comment g.
"^427 N.E.2d 444 (Ind. 1981).

•'7d. at 445.

'''Id. at 447.



1983] SURVEY-TORTS 401

The supreme court noted that the Indiana Court of Appeals had
discussed this theory, commonly called the doctrine of avoidable con-
sequences, in Kavanagh v. Butorac.^^^ Although in Kavanagh, the court
of appeals found insufficient evidence to justify application of the doc-

trine, the Kavanagh court recognized that the doctrine might apply
at "some future date and in some matter where the circumstances
are clearer than in the instant case in showing that some part of the
injury would not have occurred except for the fact that plaintiff failed

to avoid the consequence of the tort by not fastening his seat belt."^^^

In spite of the State's claim that the "future date" had arrived,

the supreme court in Ingram refused to accept failure to fasten a seat
belt as the kind of avoidable consequence that a defendant may show
in mitigation of damages/^^ The court pointed out that the rule of
avoidable consequences applies only to a plaintiff's conduct after the

commission of the tort but while some damage might still be averted.^**
Because buckling or failing to buckle a seat belt must be accomplished

before the tortious act occurs, the doctrine of avoidable consequences

cannot logically include the seat belt defense/*^ In addition to finding

logical inconsistency in including failure to wear a seat belt under the

rubric avoidable consequences, the supreme court noted Indiana's tradi-
tional approach to limiting mitigation of damages to post-tort
consequences.^*^ Thus the court concluded that a defendant cannot suc-
cessfully assert plaintiff's failure to wear seat belts as a way to reduce
damages in a negligence action.^*^

To buttress its conclusion, the supreme court pointed out that the
Indiana legislature addressed the matter of seat belts for other

purposes but has never imposed the duty on riders to wear seat
belts/*® Until a time when the legislature feels called upon to impose
such a duty upon riders in automobiles, the position of the seat belt

defense is settled in Indiana.

F. Medical Malpractice

During the survey period, both the first and the fourth district

'^•140 Ind. App. 139, 221 N.E.2d 824 (1966).

'*'Id. at 149, 221 N.E.2d at 830.
^"427 N.E.2d at 447.

''*Id. at 448.

'*^Id. But see Note, Spier v. Barker, 3 Hofstra L. Rev. 883, 892-93 (1975).
^''427 N.E.2d at 448. But see Kircher, The Seat Belt Defense-State of the Law, 53

Marq. L. Rev. 172, 182-86 (1970); Comment, Self-Protective Safety Devices: An Economic
Analysis, 40 U. Chi. L. Rev. 421, 427-33 (1973).

148427 N.E.2d at 448. For a discussion of the seat belt defense see Note, The Seat

Belt Defense: A Comprehensive Guide for the Trial Lawyer and Suggested Approach for
the Courts, 56 Notre Dame Law. 272 (1980).



402 INDIANA LAW REVIEW [Vol. 16:377

court of appeals had an opportunity to interpret portions of the

Medical Malpractice Act. In Carmichael v. Silhert,^^^ the first district

court of appeals held that the Indiana Malpractice Act^^" does not

violate the equal protection or due process clauses of the United States

Constitution or the privileges and immunities clause of the Indiana

Constitution/^^ The Act provides that a medical malpractice action
must be brought within two years from the alleged act, omission, or

neglect while other tort actions for personal injuries need not be

brought until two years after the cause of action has accrued/^^

Mrs. Carmichael underwent surgery for the removal of warts and
tumors in February 1977 and again in March 1977 because of resulting
complications. In February 1980 she filed a malpractice complaint

against Dr. Silbert, claiming that she currently suffers from a nervous

disorder which is a result of Dr. Silbert's treatment. Dr. Silbert filed

a motion for preliminary determination of law, claiming that the com-

plaint was filed after the statute of limitations had run and the plain-
tiff 's claim therefore should be barred. The trial court granted
Silbert's motion and Carmichael appealed on the ground that the

statute of limitations in the Medical Malpractice Act is
unconstitutional.

Carmichael argued that the statute of limitations embraced in the

Medical Malpractice Act violates the equal protection clause of the

fourteenth amendment because it treats victims of medical malprac-
tice differently from victims of other tortious acts. The statute of
limitations provides that:

No claim, whether in contract or tort may be brought against
a health care provider based upon professional services or

health care rendered or which should have been rendered

unless filed within two (2) years from the date of the alleged
act, omission or neglect except that a minor under the full age

of six years shall have until his eighth birthday in which to

file. This section applies to all persons regardless of minority

or other legal disability.^^^

The basis of Carmichael's claim was that the Medical Malpractice Act
requires the filing of a claim within two years of the act, omission,
or neglect complained of, whereas the general statute of limitations

provides that actions for personal injuries must be brought within two

'^^422 N.E.2d 1330 (Ind. Ct. App. 1981).
i^lND. Code § 16-9.5-3-1 (1976).
^"422 N.E.2d 1330 (Ind. Ct. App. 1981).

'^^IND. Code § 16-9.5-3-1 (1976).
153
Id.



1983] SURVEY-TORTS 403

years after the accrual of the action. ^^"^ Because neither a fundamen-

tal right nor a suspect classification was at issue in Carmichael, strict

judicial scrutiny was not required. ^^^ Only a fair and substantial
relationship between the classification and the legislative purpose must

be present. The court of appeals found that the legislative classifica-
tions were rationally related to maintaining the availability of suffi-

cient medical treatment in the state.^^^ Thus, the statute does not

violate equal protection.

Carmichael also argued that the two-year time period violates due

process because it may not be possible to ascertain the full extent
of injury, including the possibility of recurrence or permanency, until

after the two-year period.^" However, the court pointed out that in

this case Mrs. Carmichael was aware of her alleged injuries soon after
they occurred, and she had failed to take proper steps to bring her

claim. In view of the 1980 Indiana Supreme Court decision of Johnson
V. St. Vincent Hospital, Inc.,^^^ which upheld the Act's constitutional-

ity against multiple attacks, it is likely that the Carmichael court's

decision would have been the same no matter when the injuries were
discovered.

The court of appeals also relied on Johnson v. St Vincent Hospital,
Inc., in holding that the statute of limitations provision does not violate

article I, section 23 of the Indiana Constitution. ^^^ The burdens on
malpractice claimants and the benefits granted to health care providers

were deemed consistent with the legislative goal of maintaining health
care services. ^^" Therefore, the statute of limitations of the Medical

Malpractice Act has withstood constitutional challenge and those who
cannot or do not comply with its provisions will be barred from bring-

ing an action.

In Kranda v. Houser-Norberg Medical Corp.,^^^ the court of appeals
for the fourth district rendered a statutory interpretation of several

provisions of the Medical Malpractice Act. Kranda brought suit against

Dr. Houser and his medical corporation because Kranda suffered a
rectal fistula following Dr. Houser's excision of a Bartholin cyst. The
jury returned a verdict for Dr. Houser from which Kranda appealed.^®^

15M22 N.E.2d at 1332 (quoting Ind. Code § 16-9.5-3-1 (1976), now codified at id.
§ 16-9.5-3-1 (1982), and citing Ind. Code § 34-1-2-2 (1982)).

^^^22 N.E.2d at 1332.

'""Id. at 1333.

''Ud.

158404 N.E.2d 585 (1980). For discussion of this case, see Harrigan, Torts, 1981 Survey

of Recent Developments in Indiana Law, 15 Ind. L. Rev. 425 (1982).
'^^22 N.E.2d at 1333-34.

'''Id. at 1334.

^«'419 N.E.2d 1024 (Ind. Ct. App. 1981).
*®^Kranda claimed numerous errors in addition to those bearing on the statutory



404 INDIANA LAW REVIEW [Vol. 16:377

Plaintiff claimed that the trial court erred in allowing two members
of the medical review panel to testify regarding their decisions and

in admitting each panel member's written opinion because those opin-
ions were based upon casual conversations with other physicians.

Kranda contended that Indiana Code section 16-9.5-9-4^*^ provides
that the only information to be considered by the medical review panel

under the Act is evidence submitted in writing by the parties. The
court acknowledged that section 4 read alone might support that in-

terpretation, but if read in conjunction with section 6 a different in-

terpretation results.^^ Section 6 permits the panel to consult with

"medical authorities."^*^ Kranda argued that medical authorities include
only treatises, journals, medical texts, etc., and that the opinions were

not in conformance with the statute.^** Applying traditional rules of

statutory construction, the court of appeals rejected Kranda's argu-

ment on the basis that such a construction of the language would un-
necessarily narrow the statutory provision.^*' The Kranda court noted
that the ordinary meaning given to the word "authorities" includes
written materials as well as individuals who are qualified in the field.^*®

Additionally, the court interpreted section 6 as referring to individuals

because the statute states that "[t]he panel may consult with medical
authorities,"^*^ and "ordinarily one consults with a person rather than

a book or written materials."^^"

Kranda also argued that admission of the consultations was im-
permissible because she had no opportunity to cross-examine the

consulted physicians. Because of her lack of knowlege of the conver-

sations, she claims she was unable to present rebuttal evidence. The
court also rejected this argument, based on section 5 of the Act which

provides that either party may convene the panel and question the
members regarding any relevant issues to be decided. ^^^ The court
reasoned that Kranda could have availed herself of this opportunity
by questioning the members as to any consultations that were made."^
The court rejected Kranda's final argument regarding the admissibility

construction of the Medical Malpractice Act. The court found all her constitutional

attacks to have been settled by Johnson v. St. Vincent Hospital, Inc. 404 N.E.2d 585

(Ind. 1980).

i^^lND. Code § 16-9.5-9-4 (1982).
i«''419 N.E.2d at 1032.

'''Id. See Ind. Code § 16-9.5-9-6 (1982).
i««419 N.E.2d at 1032.

''Ud.

'^Ud. (citing WEBSTER'S Third New International Dictionary 146 (1976)).
^'M19 N.E.2d at 1032-33 (quoting Ind. Code § 16-9.5-9-6 (1976) now codified at id.

§ 16-9.5-9-6 (1982)).

""419 N.E.2d at 1033.

'''Id.

"Hd.



1983] SURVEY-TORTS 405

of the opinions. This argument was based on the fact that the opinions

were not in the form of a collegial opinion. The court interpreted sec-
tion 9 as not prohibitive of individual opinions and pointed out that

if such a construction were adopted, individual panel members could
not dissent to the majority opinion.^^^

The 1982 Session of the Indiana General Assembly amended the
Medical Malpractice Act to include within the definition of patient,

"any and all persons having a claim of any kind, whether derivative

or otherwise, as a result of alleged malpractice on the part of a health

care provider."^^* The Act provides that "[d]erivative claims include,
but are not limited to, the claim of a parent or parents, guardian,

trustee, child, relative, attorney, or any other representative of such

patient including claims for loss of services, loss of consortium, ex-

penses, and all such similar claims."^^^

The purpose of the amendment was apparently to clarify an
ambiguity in the statute found by the court of appeals in Sue Yee Lee

V. Lafayette Home Hospital, Inc}'^^ In Sue Yee Lee, the court found "the
Indiana Medical Malpractice Act to be ambiguous and unclear in mean-

ing with regard to whether or not the action of parents for loss of

services of, and medical expenses for, a minor child is subject to the

act."^^^ Looking to historical background in order to find legislative

intent, the court in Su£ Yee Lee concluded that "all actions the underly-

ing basis for which is alleged medical malpractice are subject to the

act."^^* Thus the recent amendment has codified the court of appeals'
holding in Sue Yee Lee.

One effect of the amendment should be to clarify the question
whether an action by survivors for a death caused by medical malprac-

tice is properly brought under the Medical Malpractice Act or whether

an independent action may be brought under the Wrongful Death
Act.^^^ The expansive language defining patient as "any and all per-

''Ud. at 1034.

i^^lND. Code § 16-9.5-l-l(c) (1982).
"^/rf. The amendment suffers from the use of the word "derivative" to refer to

such actions as loss of consortium and loss of services. The implication is that any
claim brought by one who has not sustained the actual physical injury has a "derivative"
claim. However, such claims for loss of consortium or loss of services, though they

may have arisen from an alleged medical malpractice, are independent claims for damage
to the plaintiff 's relational interest with the injured party. See supra notes 125-36 and

accompanying text.
'''410 N.E.2d 1319 (Ind. Ct. App. 1980). For a discussion of this case, see Harrigan,

Torts, 1981 Survey of Recent Developments in Indiana Law, 15 Ind. L. Rev. 425, 429

(1982).

»"410 N.E.2d at 1323.

"'Id. at 1324.

'^^This problem was raised and discussed in Warrick Hosp., Inc. v. Wallace, 435
N.E.2d 263 (Ind. Ct. App. 1982). The court of appeals concluded "that the right to pros-



406 INDIANA LAW REVIEW [Vol. 16:377

sons having a claim of any kind" must include claims based on death
caused by alleged medical malpractice. Thus, it appears that if death

is caused by medical malpractice, any claims that would have been

filed on behalf of survivors separately under provisions of the

Wrongful Death Act must now be included in the medical malprac-
tice claim and, presumably, will be subject to the limitations on

recovery^®" provided for in the Medical Malpractice Act.

G. Tortious Interference With Contract

Although the Indiana Court of Appeals decided several cases dur-

ing the survey period involving interference with a contractual

relationship, Stanley v. Kelly^^^ is the most interesting case from the

point of view of legal development — or in this particular case, non-
development. In Stanley v. Kelly, the court of appeals for the fourth

district declined to find that an oral contract of employment terminable

at will was an adequate contract to sustain a claim for tortious inter-
ference with a contractual relationship.^*^

Plaintiff Stanley and defendant Kelly both worked for Financial
Sales Corporation (F.S.C.) in Indianapolis until Stanley fired Kelly.

Sometime thereafter, Kelly called the F.S.C. home office and told a
top executive that Stanley had fired him because he would not sup-
port Stanley's attempt to form his own company. When Stanley was
later fired, he brought suit against Kelly alleging both intentional inter-

ference with a contractual relationship and slander. The jury entered
a verdict for Stanley and awarded him both actual damages and
punitive damages. Kelly made a motion to correct errors which the
trial court granted on the basis that the verdict was clearly erroneous
and not supported by the evidence. ^^^ Stanley appealed.

ecute a claim for wrongful death based upon medical malpractice is governed by the
wrongful death statute with regard to the parties eligible to institute such proceeding,

the persons for whose benefit recovery may be had, and the manner of distribution
of such proceeds." Id. at 268.

'^''IND. Code § 16-9.5-2-2 (1982).
^«^422 N.E.2d 663 (Ind. Ct. App. 1981).

^^^Id. at 665. For cases which hold that interference with an employment contract
terminable at will gives rise to a cause of action, see American Surety Co. v.
Schottenbauer, 257 F.2d 6 (1958); Canuel v. Oskoian, 184 F.Supp. 70 (1960).

'*^422 N.E.2d at 665. This case has had a strange procedural history. The trial
court originally granted a new trial pursuant to Trial Rule 59(I)(7). The court of ap-
peals on the first appeal retained jurisdiction but sent the case back to the trial court

for clarification on whether the trial court intended to enter judgment for Kelly or
grant a new trial. 417 N.E.2d 1145 (Ind. Ct. App. 1981). The trial court clarified its
ruling, rendered a judgment for Kelly on the interference with contract issue, and
ordered a new trial on the slander issue. In addition to deciding in Kelly's favor on
the interference with contract issue, the court on this appeal also found that the trial



1983] SURVEY-TORTS 407

Because the court of appeals found that an action for interference

with a contractual relationship presupposes the existence of a valid

and enforceable contract,^^ and Stanley had only an oral contract of

employment which was terminable at will, the court on appeals agreed

with the trial court that the verdict in favor of Stanley was clearly
erroneous. In so finding, the court of appeals rejected Stanley's argu-

ment that a majority of jurisdictions recognize interference with
employment contracts terminable at will.

The court purported to find support in Indiana law for its conclu-
sion. The cases cited by the court, however, are either factually
distinguishable or mention only in dicta that oral contracts are not

a basis for an action in interference with a contract.^*^ Thus, Indiana

authority does not compel the court's conclusion that an oral contract

of employment, which is terminable at will, is insufficient as a basis

for a cause of action in tortious interference with contract. In difficult

economic times where unemployment is rampant, the employer-em-
ployee relationship may be the most important economic relationship
one can have. It is unfortunate that the court in Stanley was unwill-
ing to fall in line with the majority and to extend protection for oral

employment contracts.

H. Malicious Prosecution

Wong V. Tabor^^^ presented the first opportunity for an Indiana
appellate court to review a malicious prosecution suit which was
brought by a physician against an attorney for wrongful initiation of

a claim for medical malpractice. In Wong v. Tabor, attorney Tabor had
filed suit against Dr. Wong on behalf of a couple who sustained injur-
ies allegedly caused by Dr. Wong's medical malpractice. When Tabor
subsequently failed to answer interrogatories, Wong moved for sum-
mary judgment. Prior to the hearing, an attorney from Tabor's office

court did not abuse its discretion in granting Kelly a new trial on the slander issue.
422 N.E.2d at 668-69.

''"422 N.E.2d at 667. The elements of the tort of interference with a contractual
relationship were set out by the court of appeals in Hurst v. Town of Shelburn, 422
N.E.2d 322 (Ind. Ct. App. 1981). They include:

(1) existence of a valid and enforceable contract;

(2) defendant's knowledge of the existence of the contract;
(3) defendant's intentional inducement of breach of the contract;
(4) the absence of justification; and

(5) damages resulting from defendant's wrongful inducement of the breach.
Id. at 325. See also W. Prosser, Handbook of the Law of Torts § 129, at 931-33 (4th
ed. 1971).

'«^422 N.E.2d at 667 n.3. See Miller v. Ortman, 235 Ind. 641, 136 N.E.2d 17, (1956).
'««422 N.E.2d 1279 (Ind. Ct. App. 1981). For further discussion of this case, see

Jackson, Professional Responsibility, 1982 Survey ofRecent Developments in Indiana Law,
16 Ind. L. Rev. 265, 275 (1983).



408 INDIANA LAW REVIEW [Vol. 16:377

informed Wong's attorney that there would be no objection to the
entry of summary judgment. The trial court entered summary judg-
ment in favor of Wong, and he subsequently filed suit against Tabor
for malicious prosecution. At the trial for malicious prosecution, the
medical records indicated that Wong's sole involvement in the original

plaintiff 's hospital care had been prescribing a laxative. Wong argued
that Tabor had been or should have been aware of this fact prior to
initiating the suit, and therefore Tabor lacked probable cause for bring-

ing the claim. The jury found in Wong's favor and awarded damages,
but the trial court granted Tabor's motion for judgment on the

evidence and set aside the verdict for Wong on the ground that the
prior dispute was terminated by agreement which served as a bar
to Wong's suit.

The four elements to be proven by the plaintiff in a malicious pros-
ecution action are "(a) the defendant instituted, or caused to be insti-

tuted, a prosecution againt the plaintiff; (b) the defendant acted

maliciously in doing so; (c) the prosecution was instituted without prob-
able cause; and (d) the prosecution terminated in the plaintiff's

favor."^®^ Although the court of appeals for the third district affirmed

the trial court's judgment, it held that electing not to oppose summary
judgment does not constitute settlement or agreement in terms of ter-
minating the prior malpractice suit.^** Rather, the appellate court

resolved the case on the probable cause element, finding that Wong
failed to prove Tabor lacked probable cause. ^^^

Initially, the court made some general observations on malicious
prosecution and its application to the problem of medical malpractice.

Noting that malicious prosecution has not been favored by the legal

system,^®" the court pointed out that physicians are increasingly

alarmed by the recent marked increase in what they often consider
groundless malpractice actions, and that physicians have counter-

attacked by suing attorneys for malicious prosecution. According to

the court, the tort of malicious prosecution was not designed to ad-
dress the problem of attorneys who file groundless suits, and courts
have been reluctant to allow plaintiffs to use it to effect such a result.^*^

The court recognized, however, that if any cause of action exists
against an attorney, malicious prosecution is essentially the only

vehicle available for seeking relief.

In addressing the elements of the case, the Wong court pointed
out that termination in favor of a prior defendant for the purpose of

''Ud. at 1283.

'''Id. at 1282.

'''Id.

'""Id. at 1283.



1983] SURVEY-TORTS 409

a malicious prosecution action may occur in a number of ways:
adjudication by a competent tribunal, withdrawal of the proceedings

by the plaintiff, or dismissal of the proceedings for failure to

prosecute/^^ However, if settlement or agreement is the basis for the

termination of the suit, no action in malicious prosecution will lie.^®^

Although entry of summary judgment in favor of a prior defend-
ant qualifies as termination in his favor, if the judgment is merely

the formal means of securing settlement benefits, then such judgment

does not constitute a termination in plaintiff's favor for purposes of

a malicious prosecution suit/^" Thus, the circumstances surrounding

the entry of summary judgment must be considered. The court of ap-
peals found no evidence of settlement or agreement in Wong v. Tabor.
Tabor's decision to forego contesting the motion was apparently a per-
sonal choice. Because voluntary abandonment by the plaintiff can con-

stitute termination in favor of the defendant, the court of appeals

found that the trial court had erred in setting aside the verdict on

this ground. The appellate court found, however, that Wong failed to
show probable cause, and on this basis, the court was able to affirm
the trial court's decision.^^^

The court pointed out that though the probable cause question

has previously been addressed from a litigant's perspective, this is

the first case to enunciate a standard of probable cause for assessing

a lawyer's decision to bring suit. Early in its discussion of the prob-

able cause issue, the court set the stage in such a way that its ultimate

conclusion in favor of the attorney defendant comes as no surprise.

Purporting to review authorities which have addressed the issue of

"articulating a standard by which an attorney's actions may be
judged," the court took advantage of the opportunity to point out socie-

ty's need to keep attorneys free from the threat of suit so they may
effectively protect the interests of their clients. ^^^ An attorney's deci-
sion to initiate an action cannot be judged merely from an evaluation

of the merits of the case.^®^ The lawyer's role is to facilitate access

to the judicial system; thus, that role carries a high degree of profes-

sional and ethical responsibility of meeting the client's needs even if

the client's case is not likely to succeed. Because of this duty to the

"^/d. at 1284 (quoting Restatement (Second) of Torts § 674 comment j (1977)).
**M22 N.E.2d at 1284 (citing W. Prosser, Handbook of the Law of Torts § 854

(4th ed. 1971)).

^^"422 N.E.2d at 1284.

'''Id. at 1290.

'^Id. at 1286-87 (quoting Restatement (Second) of Torts §§ 674, 676 (1977) and
citing Mallen, An Attorney's Liability for Malicious Prosecution, A Misunderstood Tort,
46 Ins. Couns. J. 407 (1979); Note, A Lawyer's Duty to Reject Groundless Litigation, 26
Wayne L. Rev. 1561, 1587 (1980)).

>«^422 N.E.2d at 1285.



410 INDIANA LAW REVIEW [Vol. 16:377

client, "mere negligence in asserting a claim is not sufficient to sub-

ject an attorney to liability for the bringing of the suit."^^^ The court
pointed out that if negligence alone were sufficient for liability only
"easy cases" would be taken and that would result in a chilling effect

upon the legal system.

The Wong court looked to the California Court of Appeals' deci-
sion in Tool Research & Engineering Corp. v. Henigson^^^ to define a
standard of care for attorneys in initiating a cause of action. The court
in Tool Research & Engineering Corp. articulated the most frequently
cited judicial standard of probable cause:

An attorney has probable cause to represent a client in litiga-
tion when, after a reasonable investigation and industrious

search of legal authority, he has an honest belief that his

client's claim is tenable in the forum in which it is to be tried.

The test is twofold. The attorney must entertain a subjective
belief in that the claim merits litigation and that belief must
satisfy an objective standard.^*^"

The Indiana Court of Appeals noted that this test correctly focuses
upon an attorney's right to pursue any claim he deems worthy but,
at the same time, offers protection to potential opponents by requir-
ing an objective standard of reasonableness of belief.^"^ The Wong court
proceeded to establish an objective standard to review the

reasonableness of an attorney's action in filing a client's claim stating

that the test is "whether the claim merits litigation against the defend-

ant in question on the basis of the facts known to the attorney when
suit is commenced."^"^ An attorney-defendant lacks probable cause only
if "no competent and reasonable attorney familiar with the law of the

forum would consider that the claim was worthy of litigation on the
basis of the facts known by the attorney who instituted suit."^°^ The
standard recognizes that the facts actually known may be insufficient
but seeks to avoid incorporation of what might have been discovered

by diligent investigation.^"^

The court of appeals also intended that the time available for
investigation be considered in reviewing the attorney's conduct, and

indeed made several references to it in the instant case.^"^ Tabor had
only thirty days to investigate prior to filing suit against numerous

'''Id. at 1286.

^«M6 Cal. App. 3d 675, 120 Cal. Rptr. 291 (1975).

^°'Id. at 683, 120 Cal. Rptr. at 297 (citations omitted).
'°'422 N.E.2d at 1288.

'"'Id.

'"'Id.

'"'Id. at 1288 n.9.

'''Id. at 1289.



1983] SURVEY-TORTS 411

potential defendants. The court pointed out that many times evidence
is not discovered or developed until after suit is filed; therefore, when
some factual basis exists for bringing the claim, lack of probable cause
is not a basis upon which to rest negligent failure to investigate
thoroughly.^^^

The court took great care in Wong v. Tabor to lay out the policy
bases for its conclusion. It recognized the trauma and expense suffered

by physicians who get caught in the "sue everyone in sight" net
so common in the medical malpractice cases and those who must de-
fend groundless lawsuits.^"^ On the other hand, it ably stated the
critical importance of keeping the courtroom door open. Lawyers who
fear retribution do not attempt to assert novel claims. Such a stifling

effect on the evolution of the law cannot be countenanced. Regardless,

this case will do little to dispel the not altogether meritless belief often

held by other professionals and the general public that those in the

legal profession look after their own.

7. Indiana Tort Claims Act

In Seymour National Bank v. State,^^^ the Indiana Supreme Court
granted the state's petition for transfer and vacated the decision of

the first district court of appeals because the appellate court had

"erroneously decided a new question of law; i.e., the interpretation
to be placed upon the term 'enforcement of a law' as used in the

Indiana Tort Claims Act."^"^ In Seymour, a state police car involved

in a high-speed chase of a fleeing suspected felon collided with a

passenger car. The occupants of the car were killed and their per-
sonal representative brought suit.

The trial court granted the state's motion for summary judgment
on the basis that the state was immune from suit under a provision
of the Indiana Tort Claims Act which provides that a governmental
entity is not liable for a loss resulting from "the enforcement of, or

failure to enforce, a law."^^" The court of appeals for the fourth district
reversed the trial court^" because it found the phrase "enforcement

^''Id. (citing Berlin v. Nathan, 64 111. App. 3d 940, 381 N.E.2d 1367 (1978)).
^''See Note, Physicians' Cause of Action Against Attorneys For Institution of Un-

justified Medical Malpractice Actions: The Aftermath of Drago v. Buonagurio, 44 Alb.
L. Rev. 188 (1979).

^''»422 N.E.2d 1223 (Ind. 1981). For further discussion of this case see Johnson, Con-
stitutional Law, 1982 Survey of Recent Developments in Indiana Law, 16 Ind. L. Rev.
101, 117 (1983).

""Id. at 1223 (citing Ind. Code § 34-4-16.5-3(7) (1974), amended by § 34-4-16.5-3(7) (1976)
(now codified at id. § 34-4-16.5-3(7) (1982)).

'^"Ind. Code § 34-4-16.5-3(7) (1974), amended by Ind. Code § 34-4-16.5-3(7) (1976) (now
codified at id. § 34-4-16.5-3(7) (1982)).

^"384 N.E.2d 1177 (Ind. Ct. App. 1979).



412 INDIANA LAW REVIEW [Vol. 16:377

of, or failure to enforce, a law" ambiguous,^^^ The appellate court
concluded that the trial court erred in finding immunity because the
statute is in derogation of the common law and a finding of immunity
produced a harsh result.^^^

The supreme court, however, found that the court of appeals had
erred in concluding that the term "enforcement of a law" is
ambiguous.^^* Using the time worn, though not necessarily time

honored,^^^ axiom of statutory construction that statutory language will

be given its "plain meaning," the supreme court held that an officer
engaged in attempting to effect an arrest is enforcing a law.^^^

Although the court found that the language of the statute is unam-

biguous, it stated that even if the language were interpreted as be-
ing ambiguous, the legislature's later amendment of the statute
clarified its intent by stating that all acts of enforcement except false

arrest and imprisonment render the state immune from suit.^^^
Justices DeBruler and Hunter each dissented with separate opin-

ions. Justice DeBruler agreed with the court of appeals that the

immunity statute is in derogation of the common law; therefore, the
statute should be strictly construed.^^* Furthermore, he concluded that

because the immunity granted by the statute conflicts with a statutory

duty that drivers of emergency vehicles operate them with due care,
immunity should not be granted which would shield negligent or

reckless conduct.^^®

Justice Hunter's dissenting opinion focused on potential abuses

of power possible if employees of governmental entities are granted
absolute immunity.^^° He suggested that the "King can do no wrong"
approach taken by the court's majority leaves citizens with no legal

recourse for losses even though a governmental employee may have
acted with reckless disregard for the consequences of his

"enforcement."^^^ In addition. Justice Hunter noted a number of
inherent ambiguities in the phrase "enforcement of law."^^^ He pointed
to the fact that the legislature has employed the term "enforcement"

to describe a variety of government controlled activities, thus giving

^''Id. at 1184.

'''Id. at 1186.

2^M22 N.E.2d at 1226.

"^See United States v. American Trucking Ass'ns, 310 U.S. 534 (1940); Jackson,

The Meaning of Statutes, 34 A.B.A. J. 535 (1948).
2'M22 N.E.2d at 1226.

'"Id.

'''Id. at 1227 (DeBruler, J., dissenting).

'''Id.

"°Id. (Hunter, J., dissenting).

'"Id. at 1228.

'"Id.



1983] SURVEY-TORTS 413

rise to a number of different connotations and interpretations of the

word.^^^ In addition, he noted that the legislature has not used the

word ''enforcement" in several contexts in which the activity contem-

plated could be viewed as "enforcement of law."^^ Such inconsistencies

in Justice Hunter's view, open a "Pandora's box of unsettling

questions."^^^

In a rare written opinion on Petition for rehearing, denominated,

in part. Modification of Prior Opinion, the majority attempted to clarify

its original opinion.^^^ Although the majority upheld its previous posi-

tion that the state is not liable for losses resulting from its employees'

enforcement of or failure to enforce the law, it did address one prob-

lem raised by the dissenters to the original opinion. The court consid-
ered whether the grant of immunity would protect government entities

and employees even where the acts complained of were wilful and
wanton or intentional. The majority, on rehearing, found that "[i]t does
not follow, however, that the statute necessarily grants immunity for

all acts of law enforcement officers committed while engaged in the

enforcement of the law."^^^ The majority admitted that sometimes "an
employee's acts, although committed while engaged in the performance

of his duty, might be so outrageous as to be incompatible with the

performance of the duty undertaken."^^^ Such acts, said the court "are

simply beyond the scope of the employment."^^^ If the difficulty in
granting the immunity in question is that it is prejudicial to the public

because losses suffered by private citizens at the hands of govern-

ment employees go unrecompensed, such a facile answer hardly
resolves the problem.

Using traditional agency concepts, the court reasoned that the

employee is immune as long as he is the representative of his
employer, the immune governmental entity. If the acts of the employee
are so outrageous as to be beyond the scope of his employment, then
he is no longer covered by the immunity blanket and is subject to
suit. This concession gives little solace to the injured plaintiff. As the
majority so aptly points out, the governmental entity now has no need

^^Ud. See, e.g., Ind. Code § 22-8-1.1-35.6 (1982) (commissioner of the Occupational
Health and Safety Board empowered to enforce a safety order, penalty assessment
or notice of failure to correct a violation); Ind. Code § 22-2-9-4 (1982) (duty of the com-

missioner of labor to enforce claims).
'^''422 N.E.2d at 1229. See, e.g., Ind. Code § 14-2-3-2 (1982) (director of Fish and

Wildlife or his representative may enter private or public property for purpose of
managing or protecting any wild animal).

22^22 N.E.2d at 1229.

22«Seymour Nat'l Bank v. State, 428 N.E.2d 203 (Ind. 1981).
^^Ud. at 204.

'''Id.

'''Id.



414 INDIANA LAW REVIEW [Vol. 16:377

for the immunity because there is no basis for liability .^^° Thus, the

employer, as the only likely party to have sufficient funds to pay a

judgment, can no longer be held liable. In addition, to find that

outrageous behavior puts a governmental employee outside the scope

of his employment could have far-reaching negative effects for the
plaintiff whose civil rights have been violated by the "enforcement"
and who might want to bring a section 1983 action.^^^

Justice Hunter in his dissenting and concurring opinion reasserted

his earlier position that the term "enforcement" is ambiguous.^^^
Though he agreed with the majority that the scope of immunity
encompassed in the Indiana Torts Claim Act does not include immunity

for wilful and wanton misconduct, he concluded that the majority's
affirmance of the trial court's grant of summary judgment was in-
appropriate because the decision of whether the officer's conduct was
merely negligent or was wilful and wanton and therefore outside the
scope of the immunity should have been for the trier of fact.^^^

The opinions in this case emphasize the conflicting policies
surrounding the granting of governmental immunities in situations in

which private individuals have suffered losses. State agencies must
be free to actively enforce the laws of the state unfettered by the

constant threat of suits. On the other hand, the public interest
demands that governmental employees and entities act with care so
that the rights of citizens will not be jeopardized.

^''Id.

^''See Monroe v. Pape, 365 U.S. 167 (1961).
''H28 N.E.2d at 206 (Hunter, J., dissenting).

'''Id.