Indiana Law Review


XIV. Torts

John F. Vargo*

A. Introduction

The overall objectives of tort law have been the compensation of vic-

tims, the prevention of accidents, and the promotion of safety. 1 These

objectives have existed as a part of the public policy in all jurisdictions

and have been the underlying motivation in the development of the com-

mon law. Thus, the achievement in the overall promotion of safety of
citizens and the compensation of the victims of wrongs is an excellent

thermometer by which to measure the legal climate of a particular jurisdic-

tion. During recent years it seems that Indiana has reached the freezing

point.

Excellent examples of the "frigid waters" of Indiana legal policy can

be found in the major areas of litigation in tort law—automobile accidents,
medical negligence, premises liability, and products liability.

With regard to the automobile accident cases, Justice Prentice set forth

the overall attitude of the Indiana Supreme Court:

The [legislative] policy [underlying the "guest statute"] also rec-
ognizes the "Robin Hood" proclivity of juries. The tendency
to take from the rich and give to the needy is as American as

apple pie; but unfettered, it may logically be expected to lead to
the escalation of liability insurance premiums to the level where

the majority of users would be either unable or unwilling to pay

them. We have witnessed the development of just such conflicts
in recent years, particularly with respect to both motor vehicle

and professional liability insurance.

We uniformly recognize that the presence or absence of liabil-
ity insurance is a factor that weighs improperly, but heavily, in

jury determinations. It is for this reason that we endeavor

—

although frequently without success—to keep such information
from juries.

. . . The guest statute may, therefore, logically be a legislative

endeavor to promote financial responsibility for damages caused

by the negligent operation of motor vehicles by protecting liabil-

ity insurance companies from the human propensities of juries
to weigh their "benevolent thumb" along with the evidence of
the defendant's negligence. 2

Member of the Indiana Bar. B.S., Indiana University, 1965; J.D., Indiana Univer-
sity School of Law—Indianapolis, 1974. The author gratefully acknowledges the help of
Steven C. Shockley in the preparation of this Survey Article.

'See W. Prosser, Handbook of the Law of Torts § 4, at 22-23 (4th ed. 1971).
2
Sidle v. Majors, 264 Ind. 206, 218-20, 341 N.E.2d 763, 771-72 (1976).

341



342 INDIANA LAW REVIEW [Vol. 17:341

It is well to note that the above quotations do not have a single source,

citation, or quote upon which the Indiana Supreme Court relies for its

extreme distrust of a legal system wherein all citizens would be tried by

their peers. What is clear from the Indiana Supreme Court's attitude is
that insurance companies need protection and that this should be part

of the public policy of the State of Indiana.

In the medical negligence cases, the court has addressed the issue of

the conflict between the legal disability statute for minors under Indiana

Code section 34-1 -2-5, 3 which allows minors two years after reaching the

age of majority to bring an action, and the limitation in the Medical

Malpractice Act, 4 limiting the legal disability of minors to infants under

six years of age. 5 The Indiana Supreme Court gave the following justifica-

tion in response to a constitutional challenge to the change in the minor's

disability section:

In balancing the interests involved here, the Legislature may
well have given consideration to the fact that most children by

the time they reach the age of six years are in a position to ver-

bally communicate their physical complaints to parents or other

adults having a natural sympathy with them. Such communica-

tions and the persons whom they reach may to some appreciable
degree stand surrogate for the lack of maturity and judgment of

infants in this matter.
6

Again there is absolutely no citation or authority for the above ra-

tionale and, therefore, it is presumed that the Indiana Supreme Court

used their overall experience in such matters, presuming not only that

an infant can communicate his ailments but also that the party in charge

of the infant will take action other than taking the ailing child back to

the health care provider who may have committed the negligence.
What is the overall policy of the Medical Malpractice Act in Indiana?

A case in this survey period 7 succinctly expresses the Indiana policy:

3 Ind. Code § 34-1-2-5 (1982).
4
Ind. Code § 16-9.5-3-1 (1982).

5The special limitation for minors in the Medical Malpractice Act states:

No claim, whether in contract or tort, may be brought against a health care pro-
vider 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 (6) years

shall have until his eighth birthday in which to file. This section applies to all

persons regardless of minority or other legal disability.

Id.

Johnson v. St. Vincent Hosp., Inc., 404 N.E.2d 585, 604 (Ind. 1980). For an ex-

ample of the problems that can arise in cases involving medical malpractice committed against

minors, see Gooley v. Moss, 398 N.E.2d 1314 (Ind. Ct. App. 1979).

"See Warrick Hosp., Inc. v. Wallace, 435 N.E.2d 263 (Ind. Ct. App. 1982); see also

infra notes 19-30 and accompanying text.



1984] SURVEY—TORTS 343

[T]he Indiana Medical Malpractice Act was enacted to meet the

problems of the rapidly escalating cost to physicians of malprac-

tice insurance, the near unavailability of such coverage to physi-

cians engaged in certain high risk specialties, and because "[h]ealth

care providers had become fearful of the exposure to malpractice

claims and at the same time were unable to obtain adequate

malpractice insurance at reasonable prices."
8

This indicates that, in Indiana, an important public policy interest in the

field of medical negligence is the protection of health care providers and

the concommitant protection of insurance companies.

In products liability, the Indiana Supreme Court, through the legal

doctrine of the open and obvious danger rule, has encouraged the

marketing of unsafe products rather than encouraging safety. 9

The Indiana Supreme Court's distrust of the jury system and its out-

ward disregard of the safety incentive concepts of tort law are best ex-

pressed in the premises liability case of Hundt v. La Crosse Grain Co. 10

The plaintiff in Hundt obtained a jury verdict in his favor; however, the
majority of the Indiana Supreme Court found that, as a matter of law,

the plaintiff was contributorily negligent" and then ordered the trial court

to enter judgment for the defendant.
12 The best response to such action

was expressed by Justice DeBruler in his dissent:

The profundity of the majority action in this case to the future

course of the law is apparent. The strongest presumption in the

law must be that justice is done by the decision of an impartial

trier of fact in an error free trial presided over by a judge in

a duly constituted court where the parties are represented by

counsel. All those criteria are present here. In my opinion, it would
only be in the most extraordinary and bizarre circumstances that

an appellate tribunal would be rationally justified in a civil case

in supplanting its view of the evidence for that of a jury and

the presiding judge. Yet there are no such circumstances ap-

proaching that here. The jury awarded $25,000 to the plaintiff
for injuries received when he fell down some steps constructed
in a manner condemned by specific safety laws in more than one

respect.
13

By the clear expression of Indiana decisions, an important policy of

8 435 N.E.2d at 267 (quoting Johnson v. St. Vincent Hosp., Inc., 404 N.E.2d 585,

589-90 (Ind. 1980)).
9See Vargo, Products Liability, 1983 Survey of Recent Developments in Indiana Law,

17 Ind. L. Rev. 255, 255 (1984).
I0446 N.E.2d 327 (Ind. 1983); see infra notes 214-20 and accompanying text.

"446 N.E.2d at 330.

"Id.

"Id. at 330 (DeBruler, J., dissenting).



344 INDIANA LAW REVIEW [Vol. 17:341

Indiana tort law is the protection of insurance companies and certain de-

fendants. The overall objective of compensation of victims and the parallel

objectives of accident prevention and safety promotion have been ignored

to a large extent. t

The Survey Article contains many decisions in a wide variety of tort
litigation. By recognizing the overall Indiana policy, as described above,

these decisions may be better understood.

B. Professional Liability

This Survey Article encompasses a wide variety of professional liability

litigation, including such professions as health care providers,
14

surveyors,
15

attorneys,
16 and agents for athletes. 17 Although the concept of fraudulent

concealment has been highly developed in the medical negligence area,

this concept is discussed in the Statute of Limitations section 18 because

it would seem to apply in a variety of professional liability situtations.

1. Medical Negligence.—In Warrick Hospital, Inc. v. Wallace^ 9 the
court concluded that the provisions of the Indiana Wrongful Death Act20

controlled the Medical Malpractice Act. 21 In Wallace, the widow failed
to appoint a personal representative within two years of the death of her

husband. The widow alleged that her husband died as a result of the
medical negligence of a hospital and certain physicians. The hospital and

physicians, relying on case law interpreting the Indiana Wrongful Death

Act,
22 moved for summary judgment based upon the widow's failure to

timely appoint a personal representative. The widow argued that the sec-
tion of the Medical Malpractice Act that states, "a patient or his represent-

ative having a claim under this article for bodily injury or death on ac-

count of malpractice may file a complaint . . . ," 23 created a right of
action for death separate from the Wrongful Death Act. Two of the judges
in Wallace agreed that the Wrongful Death Act controlled the Medical

Malpractice Act; therefore, the trial court's denial of the defendants' mo-
tion for summary judgment on the widow's wrongful death claim was
reversed.

24

The above decision is difficult to resolve with the decision in Johnson

v. St. Vincent Hospital, Inc. 25 In Johnson the court stated the general

xl See infra notes 19-55 and accompanying text.

"See infra notes 56-63 and accompanying text.
uSee infra notes 64-70 and accompanying text.
nSee infra notes 71-72 and accompanying text.
nSee infra notes 73-91 and accompanying text.
"'435 N.E.2d 263 (Ind. Ct. App. 1982).

"See Ind. Code §§ 34-1-1-1 to -8 (1982).
2[ See id. §§ 16-9.5-1-1 to -10-5.
22
See, e.g., General Motors Corp. v. Arnett, 418 N.E.2d 546 (Ind. Ct. App. 1981)

(construing Ind. Code § 34-1-1-2 (1976)).
23
Ind. Code § 16-9.5-1-6 (1982).

24
435 N.E.2d at 268-69.

2; 404 N.E.2d 585 (Ind. 1980).



1984] SURVEY—TORTS 345

rule that when two statutes conflict, the later and more specific statute

controls.
26 The result in Johnson was that the more restrictive Medical

Malpractice Act, which limited the claims of minors, was held to control

over the less restrictive disability statute for minors.
27 However, the situa-

tion was reversed in Wallace. Here, the later Medical Malpractice Act

did not seem to require the appointment of a representative. Thus, if the

rule of the Johnson case were applied, the widow should have been allowed

to bring her action, as Judge Robertson argued in his dissent. 28 Although

the majority argued that the Medical Malpractice Act was not specific

enough, 29 it appears that the true basis of the decision was that "[t]he

obvious purpose of the Medical Malpractice Act is to provide some

measure of protection to health care providers from malpractice

claims . . . ."
30 The policy of protecting physicians and other health care

providers, and the associated protection of insurance companies to pre-

vent them from raising premiums, is a major, overriding element of In-

diana's tort policy, notwithstanding the traditional tort policies of com-

pensation of the victims of wrongful acts, the prevention of future wrongs,

and the promotion of safer procedures.

The continued vitality of the restrictive "community standard" re-

quirement was confirmed in Weinstock v. Ott, il wherein the court gave

examples of the criteria for establishing similar localities: "geographic loca-

tion, population, the proximity of the localities being compared, the prox-

imity of the localities to various medical facilities, whether the types of

medical facilities available are similar, whether the localities are in the

same state, and the 'character' of the localities in general." 32 The Ott

court noted that the trial court is given wide discretion and refused to

overturn the trial court's allowance of the qualification of a medical ex-

pert who was familiar with similar communities outside the State of
Indiana.

33

The Ott court also approved the general rule that the standard in

contributory negligence is that of an ordinary person in like or similar

circumstances and stated that allowances should be made for the patient's
physical and mental infirmities during the time of treatment by a

physician. 34

26
Id. at 603 (citing O'Donnell v. Krneta, 238 Ind. 582, 154 N.E.2d 45 (1958); Payne

v. Buchanan, 238 Ind. 231, 148 N.E.2d 537, aff'd on rehearing, 238 Ind. 231, 150 N.E.2d

250 (1958)).
27404 N.E.2d at 603.
2%See 435 N.E.2d at 273 (Robertson, J., dissenting).
29See id. at 267.
i0
Id.

3I 444 N.E.2d 1227 (Ind. Ct. App. 1983).
i2
Id. at 1234.

"Id. at 1235.

"Id. at 1239-40 (quoting Memorial Hosp. v. Scott, 261 Ind. 27, 36, 300 N.E.2d 50,

56 (1973)).



346 INDIANA LAW REVIEW [Vol. 17:341

In Emig v. Physicians' Physical Therapy Service, Inc., 35 the plaintiff
fell when she attempted to get up and walk from her wheelchair. The
plaintiff was left unattended and had no restraints at the time of her fall.

The defendant's expert testified, over plaintiff's objection, that in his opin-

ion the plaintiff had been given reasonable care. Instructions to the jury

stated that the jury could only consider evidence given by expert witnesses

concerning the standard of care. 36 On appeal, the court stated that
where medical decisions are concerned, only expert testimony can set forth

the standard of care; however, where the issues are within the common
knowledge and experience of a jury, expert testimony is improper and

should be excluded.
37

If the decision to restrain and attend the plaintiff

is a ministerial decision and not a medical decision, then the case is not

premised on medical negligence, but upon common negligence, and no
expert testimony is necessary. The Emig court held that the decision to
restrain the plaintiff was ministerial and reversed the trial court's decision. 38

Another case discussing ministerial versus medical acts is Poor Sisters

of St. Francis v. Catron.
39 Catron concerned the issue of the length of

time an endotracheal tube should be left in a patient. The defendant

hospital argued that the issue was one appropriate for medical decisions

of a physician and that hospital employees, including nurses, could not

be found negligent for following physicians' orders. Although agreeing

with the general rule of non-liability for following physicians' orders, the

Catron court noted an exception to the rule: When a nurse or hospital
employee knows the doctor's orders are not in accordance with normal

medical practice, then it becomes the duty of the nurse or hospital

employee to inform the physician, and, if the physician fails to act, to

advise the hospital authorities so that appropriate action might be taken. 40

Failure to fulfill this duty will result in liability of the hospital for its

employees' negligence.

In Johnson v. Padilla, 41 the Indiana Court of Appeals made it quite

35432 N.E.2d 52 (Ind. Ct. App. 1982).
lb
Id. at 53.

37M at 54 (citing Fowler v. Norways Sanitorium, 112 Ind. App. 347, 42 N.E.2d 415
(1942); Cramer v. Theda Clark Memorial Hosp., 45 Wis. 2d 147, 172 N.W.2d 427 (1969)).

38432 N.E.2d at 54-55. Although Emig held that the restraint of patients is a case
of common rather than medical negligence, the court of appeals, in Methodist Hosp. v.
Rioux, 438 N.E.2d 315 (Ind. Ct. App. 1982), held that a complaint alleging the hospital's

negligent failure to prevent the patient from falling and injuring herself fell within the broad

language of the Medical Malpractice Act. Id. at 317. If both Emig and Rioux are correct,

we will then have medical panels determining non-medical issues in fall-down cases. The
courts of this state are presented with the opportunity to resolve this conflict in favor of

the determination of the jury system as to whether the victim will be compensated, rather

than leaving the initial determination of that question to the medical malpractice system,

which has shown a distressing propensity for protecting physicians and their insurers.
39435 N.E.2d 305 (Ind. Ct. App. 1982).

*°Id. at 308 (quoting Darling v. Charleston Community Hosp., 33 111. 2d 326, 333,
211 N.E.2d 253, 258 (1965)).

4 '433 N.E.2d 393 (Ind. Ct. App. 1982).



1984] SURVEY—TORTS 347

clear that, under Chapter 10 of the Medical Malpractice Act,
42 any party

to an action before the Insurance Commissioner may invoke a court's

jurisdiction for the limited purposes of determining affirmative defenses,

issues of law or fact, or sanctions regarding discovery.
43 The powers of

the court also extend to rulings on summary judgment motions and rul-

ings on factual issues not requiring expert opinions.
44

The Fourth District Court of Appeals of Indiana held, in Methodist

Hospital, Inc. v. Rioux,
45

that the Medical Malpractice Act is broad enough

to include plaintiffs falling as a result of a hospital's alleged negligent

care. In Rioux, the plaintiff forcefully argued that such cases were not

based upon medical negligence but were cases of ordinary negligence. The

Rioux court cited the extremely broad language of the Act
46 and con-

cluded that a fall-down case was within such language.
47

If the Emig4 *

42See Ind. Code §§ 16-9.5-10-1 to -5 (1982).
43433 N.E.2d at 395 (citing Ind. Code § 16-9.5-10-1 (1982)). Jurisdiction of the court

is invoked pursuant to Ind. Code § 16-9.5-10-2 (1982). Code section 16-9.5-10-1 confers

jurisdiction upon the court to make preliminary rulings upon matters covered by section

16-9.5-9-7(c): "That there is a material issue of fact, not requiring expert opinion, bearing

on liability for consideration by the court or jury." Section 16-9.5-10-1 denies court jurisdiction

to make a preliminary ruling on matters covered by section 16-9.5-9-7(a), (b) and (d):

(a) The evidence supports the conclusion that defendant or defendants failed

to comply with the appropriate standard of care as charged in the complaint.

(b) The evidence does not support the conclusion that the defendant or defen-

dants failed to meet the applicable standard of care as charged in the complaint.

(d) The conduct complained of was or was not a factor of the resultant
damages. If so, whether the plaintiff suffered: (1) any disability and the extent

and duration of the disability, and (2) any permanent impairment and the percen-

tage of the impairment.

In Johnson, the plaintiff alleged that the defendant doctor negligently performed a

certain medical procedure, without alleging that the defendant negligently decided to per-

form the procedure or negligently supervised another doctor's performance of it. The defen-

dant filed an affidavit stating that her only contact with the plaintiff's case was to concur

in the opinion of a second doctor that the medical procedure should be performed. The

court held that the issue of whether the defendant actually performed the procedure, as

alleged by the plaintiff, was an issue of fact not requiring expert opinion. 433 N.E.2d at

396. Thus, under code sections 16-9.5-10-1 and 16-9.5-9-7(c), the trial court properly assumed

jurisdiction for the limited purpose of ruling on the defendant's motion for summary judg-

ment. 433 N.E.2d at 396.
44433 N.E.2d at 396.
45438 N.E.2d 315 (Ind. Ct. App. 1982).
46See Ind. Code §§ 16-9.5-9-1, -2, and 16-9.5-l-l(a)(l), (g), (h), (i) (1982), cited in

438 N.E.2d at 316.
47
438 N.E.2d at 317. The court held that the Medical Malpractice Act

applies to any legal wrong, breach of duty, or negligent or unlawful act or omis-

sion proximately causing injury to another based on any act or treatment per-

formed or furnished, or which should have been performed or furnished by the

hospital for, to, or on behalf of a patient during the patient's medical care, treat-

ment or confinement.

Id. at 316.
48Emig v. Physicians' Physical Therapy Service, Inc., 432 N.E.2d 52 (Ind. Ct. App.

1982); see supra notes 35-38 and accompanying text.



34$ INDIANA LAW REVIEW [Vol. 17:341

case is correct in stating that fall-down cases are ones of ordinary

negligence, then such cases should be outside the Medical Malpractice Act,

and conflicting cases such as Rioux should be overruled. On the other
hand, if both Emig and Rioux are correct in stating that fall-down cases in-
volve ordinary negligence, coming within the Act but not requiring the

expert medical opinion of the panel, then plaintiffs should use the ra-

tionale of Johnson and bring such fall-down cases before a court of pro-

per jurisdiction to determine whether expert opinion is necessary. In the

latter instance, the limitations of the Medical Malpractice Act on damages

and attorneys fees would be applicable. The implementation of Rioux for

non-medical situations seems inappropriate and overly protective of in-

surance companies and health care providers. 49 Plaintiffs counsel must

be extremely careful to file such fall-down cases before the Insurance Com-
missioner or face the possibility that the two-year statute of limitations

may bar recovery.
In Marquis v. Battersby, 50 the court made it clear that expert testimony

is imperative in a medical negligence case and becomes an absolute neces-

sity for any party desiring to challenge an adverse ruling by a medical

review panel, at least where the opinions of other medical experts are

not in conflict. 51 Any reliance upon the legal doctrine of res ipsa lo-
quitur will not assist the plaintiff because that doctrine is based upon
common knowledge and is not applicable where expert testimony is
necessary to determine the standard of care. 52

Two medical cases, Weinstock v. Ott5i and Colbert v. JVaitt, 54 discuss
the tolling provisions of fraudulent concealment. These two cases will be

discussed in the Statute of Limitations section of the article. 55

2. Surveyor's Liability.—Following the lead of the Indiana Supreme
Court, Judge Buchanan of the court of appeals decided to restrict the

scope of liability of a surveyor. This decision was based, at least in part,

upon the increased cost of insurance which would result from an opposite
decision. In Essex v. Ryan, 56 the plaintiff, a successor in title to land

previously surveyed by the defendant, was seeking damages for the

surveyor's error in determining the extent of a lot. The plaintiff, relying
upon ordinary negligence principles, argued that, as a successor in in-

terest of the prior owners, he was within a class of persons who would
reasonably rely upon a surveyor. 57 The Essex court's rationale for non-

*9See supra note 38.
50
443 N.E.2d 1202 (Ind. Ct. App. 1982).

"Id. at 1203 (citing Bassett v. Glock, 174 Ind. App. 439, 368 N.E.2d 18 (1977)).
52443 N.E.2d at 1203.
53444 N.E.2d 1227 (Ind. Ct. App. 1983).
<4
445 N.E.2d 1000 (Ind. Ct. App. 1982).

i5 See infra notes 73-91 and accompanying text.
56446 N.E.2d 368 (Ind. Ct. App. 1983).
i7
Id. at 369.



1984] SURVEY—TORTS 349

liability read like a check list from the limited duty concepts as expressed

in early casebook law—flood of litigation, increased litigiousness of our
society, imposition of unwieldy duties upon providers of professional opin-

ions, and threats of driving professionals from their chosen professions. 5 *

The court also specifically referred to "the rising cost of malpractice in-

surance" as a factor in its rationale for rejecting the plaintiff's negligence

claim.
59 Rejecting the Restatement (Second) of Torts section 55260 concept

of negligent misrepresentation as "a radical extension of liability," 61 the

Essex court decided to reconstruct the ancient "citadel" of privity as the

factor for determining the breadth of liability. 62 In the instant case,

however, the plaintiffs had taken an assignment of all contract rights from

the prior owners, thus, the Essex court allowed either a contract action

or a negligence action based upon the assignment. 63

Again, plaintiffs are forewarned that in order to bring an ordinary

negligence action under Indiana law as successors in interest in faulty

survey situations, an assignment of all rights and interest of all predecessors

in title appears to be necessary.

3. Attorney Negligence.—In Whitehouse v. Quinn, 64 the plaintiff ap-
pealed a summary judgment in favor of the defendant attorney. Sum-
mary judgment was granted because the plaintiff failed to bring his ac-
tion within the two-year limitation period of Indiana Code section
34-1-2-2. 65 On appeal, the plaintiff argued that he was injured because
his attorney failed to bring an action against all possible parties and secure

all available remedies. The plaintiff had been injured in an automobile

accident and hired the defendant as his counsel. The plaintiff and defend-

ant entered into a contingent fee contract, and the attorney obtained

a covenant not to sue from one defendant in exchange for $50,000 and

later obtained $90,000 from another defendant in exchange for a release

signed by the plaintiff.

On appeal, the court reversed in part, 66 stating that since the con-
tingent fee contract contained language that the attorney would bring an

action against some named defendants "and others," the contract might
be sufficient to allow plaintiff a contract action within the twenty-year

statute of limitations. 67 However, the Whitehouse court was extremely

5
«Id. at 373.

59
Id.

"Restatement (Second) of Torts § 552 (1977).
6, 446 N.E.2d at 372.
62
Id. at 373. The court allowed for an actual knowledge exception to the rule of priv-

ity where the professional has actual knowledge that a specific third person would rely on

his opinion. Id. at 372. Such actual knowledge was absent in this case.
63
Id. at 374-75.

64443 N.E.2d 332 (Ind. Ct. App. 1982).
65
Id. at 335. See Ind. Code § 34-1-2-2 (1982).

66443 N.E.2d at 338.
61
Id. at 337 (citing Ind. Code § 34-l-2-2(b) (1982)).



350 . INDIANA LAW REVIEW [Vol. 17:341

careful to "emphasize the narrowness of the issue as presented. The motion

for summary judgment did not attack the legitimacy of a breach of con-

tract action. Rather, it assumed an action against an attorney based upon

that attorney's professional services was exclusively an action for legal

malpractice based upon negligence." 68

The plaintiff also attempted to overcome the summary judgment on
the negligence issue by arguing constructive fraud. The court of appeals
agreed that the tolling principles of constructive fraud, as enunciated in

the physician-patient relationship were applicable in the attorney-client

relationship.
69 However, the plaintiff had failed to meet his burden of show-

ing a genuine issue of material fact existed; therefore, the summary judg-
ment on the negligence count was allowed to stand. 70

In summary, plaintiffs and attorneys should be aware that any writ-

ten contract attorneys have with clients, including contingent fee contracts,

may give rise to a contract action with a twenty-year statute of limitation
and that fraudulent concealment can toll the two-year statute of limita-

tion on any negligence issue.

4. Agents for Athletes.—Andrew Brown, a professional hockey
player, brought an action for constructive fraud and breach of fiduciary

duty against his agent. In Brown v. Wool/, 11 the district court denied
the defendant-agent's motions for summary judgment and partial sum-
mary judgment. The agent's motions were based, in part, upon his con-

tentions that the plaintiff could not receive punitive damages, because no

proof of fraudulent intent is reflected in a constructive fraud allegation.

The Brown court stated its conclusion that Indiana courts would not adopt
a per se rule prohibiting punitive damages in constructive fraud cases and

would, instead, consider the facts of each case to determine if any elements

of recklessness or oppressive conduct were demonstrated to support a

punitive damages award. 72

C. Statute of Limitations

1. Fraudulent Concealment.—The harsh rule that the statute of
limitations for medical negligence begins to run from the date of the

negligent act or omission 73 rather than from the date of discovery or

knowledge of the injury was challenged in Nahmias v. Trustees of In-
diana University. 1 * The plaintiff allegedly was injured because of negligent

treatment with radiation therapy; however, the plaintiff did not have

68 443 N.E.2d at 336 (footnote omitted).
69
Id. at 339 (citing Guy v. Schuldt, 236 Ind. 101, 138 N.E.2d 891 (1956)).

70443 N.E.2d at 339.
7I 554 F. Supp. 1206 (S.D. Ind. 1983).
12
Id. at 1208.

7iSee Ind. Code § 26-9.5-3-1 (1982).
74
444 N.E.2d 1204 (Ind. Ct. App. 1983).



1 984] SUR VEY— TOR TS 351

knowledge of any possibly negligent conduct until almost two years after

the treatment. The plaintiff brought his action within two years of being

advised by another doctor of the possible negligence, but later than two

years after the allegedly negligent act. Summary judgment was granted
for defendants, and plaintiff appealed. The Nahmias court, following In-

diana precedent, affirmed summary judgment against the plaintiff.
75

The court discussed the fraudulent concealment concept, stating that

the concept was not an exception to the two-year rule but was based

upon equitable estoppel precluding the defendant from asserting the

statutory bar.
76 Because the plaintiff did not raise the issue, however, he

could not avail himself of the rule.

The fraudulent concealment rule was further explored in Weinstock

v. Ott.
11 The Ott court stated that because of the fiduciary relationship

between physician and patient, the physician has a duty to disclose material

information to his patient and the failure to do so is fraudulent concealment. 78

This duty to disclose ends when the physician-patient relationship is ter-
minated, and the statute of limitations begins to run at that time. 79 The

time period will begin to run before the physician-patient relationship ends

only if the patient learns of the negligence or fails to exercise diligence

to discover the negligence after obtaining information which would lead

to discovery.
80 Because the plaintiff in Ott had visited other physicians

during her period of treatment by the defendant, the defendant alleged

that the plaintiff had lost confidence in her treatment and that this factor

should weigh heavily in determining that the physician-patient relation-

ship had ceased. The Ott court stated that other factors, such as plain-

tiff's more than fifty-five visits to the defendant-doctor over a four-year
period and the fact that she had followed almost all of his medical recom-

mendations, were a strong indication that the physician-patient relationship

continued to exist. 81 The court cited prior Indiana authority for deter-

mining when a physician-patient relationship ends:

"There are many factors that enter into the analysis of determin-
ing when a physician-patient relationship ends. The subjective
views of parties are important and a consideration must be given

ls
Id. at 1211. The court held that the plaintiff's claim was time-barred whether the

statute of limitations section of the Medical Malpractice Act was strictly construed as an

"occurrence" statute, cf. Alwood v. Davis, 411 N.E.2d 750 (Ind. Ct. App. 1980) (constru-
ing Ind. Code § 34-4-19-1 (1976), the predecessor to the present malpractice limitations
section), or as a "discovery" statute. Cf. Toth v. Lenk, 164 Ind. App. 618, 330 N.E.2d 336

(1975) (construing Ind. Code § 34-4-19-1 (1976)).
76444 N.E.2d at 1208.
77444 N.E.2d at 1227 (Ind. Ct. App. 1983).
1%
Id. at 1236.

19
Id.

M
ld. (quoting Toth v. Lenk, 164 Ind. App. 618, 623, 330 N.E.2d 336, 340 (1975)).

"444 N.E.2d at 1237.



352 INDIANA LAW REVIEW [Vol. 17:341

to objective factors, including, but not limited to, the frequency

of visits, whether a course of treatment was prescribed by the

doctor (to be followed with or without consultation), the nature

of the illness, the nature of the physician's practice and whether

the patient began consulting other physicians for the same

malady." 82

In Wojcik v. Almase,* 3 the court discussed the circumstances where

fraudulent concealment may extend its tolling provisions beyond the pa-
tient's last visit to the allegedly negligent physician. In Wojcik, the plain-

tiff alleged he was injured by a subclavian catheter which broke off and

became lodged in his chest. He brought his action against the attending
physicians alleging, in part, that the physicians were negligent. The physi-

cians asserted that the two-year statute of limitations 84 barred plaintiff's

recovery. The plaintiff responded that fraudulent concealment tolled the

statute. The Wojcik court stated that, generally, the tolling provisions of

fraudulent concealment cease when the physician-patient relationship
ends,

85 and the patient's last visit to the physician, in certain circumstances,

may not be the date when the patient ceases to rely on the physician or
when the relationship ends:

We agree with the proposition that where a doctor represents that
a certain condition is to be expected to continue into the future

or prescribes a course of treatment to be followed for a period

of time, a constructive fraud can be found which will delay the

running of the statute of limitations for the time the doctor has

indicated. However, we also believe that where no such representa-
tions are made the patient's reliance does not continue beyond
the time he and the doctor ceased their association. 86

Although the Wojcik court agreed with the trial court that the plaintiff's

action came too late, the case cited several Indiana decisions that have

extended the tolling powers of fraudulent concealment beyond the pa-

tient's last visit to the physician.
87 But the Wojcik court made it clear

that a mere discharge from care, with nothing more, is insufficient to

extend the fraudulent concealment rationale. 88

In Colbert v. Waitt,* 9 the court of appeals stated, in dicta, that two

"'Id. (quoting Adams v. Luros, 406 N.E.2d 1199, 1203 (Ind. Ct. App. 1980)).
* 3
451 N.E.2d 336 (Ind. Ct. App. 1983).

%i
See Ind. Code § 16-9.5-3-1 (1982).

85451 N.E.2d at 339 (quoting Guy v. Schuldt, 236 Ind. 101, 109, 138 N.E.2d 891,
895 (1956)).

8 <451 N.E.2d at 340.
87M (citing Carrow v. Streeter, 410 N.E.2d 1369 (Ind. Ct. App. 1980); Adams v.

Luros, 406 N.E.2d 1199 (Ind. Ct. App. 1980)).
88451 N.E.2d at 340-41.
89445 N.E.2d 1000 (Ind. Ct. App. 1982).



1 984] SUR VEY—TOR TS 353

types of conduct by a physician can toll the statute of limitations—active
or passive fraud.

90
Failure to meet an affirmative duty to disclose material

information, usually arising from the fiduciary relationship between physi-

cian and patient, is a good example of the passive fraud situation.

The fiduciary relationship between physician and patient giving rise

to the affirmative duty of disclosure of material information also exists

in the attorney-client relationship; therefore, all of the same rules of the

equitable estoppel concept of fraudulent concealment should apply. 91

2. Accrual.—The two-year statute of limitations for negligence begins
when a cause of action accrues, 92 and accrual occurs "at the time injury
is produced by wrongful acts for which the law allows damages suscepti-

ble of ascertainment." 93 In Babson Brothers Co. v. Tipstar Corp., 9 * the

plaintiff had problems with a milking parlor, beginning shortly after in-

stallation and continuing over a four-year period of time; however, the

exact source of the problems were unknown until four years after installa-
tion. The plaintiff received a verdict and judgment, and the defendant-

installer alleged on appeal that the cause of action accrued when the plain-
tiff first encountered the problems with the milking parlor. The Babson
court rejected this contention and stated that, generally, the factfinder

should determine the time when a cause of action accrued. 95

In Chacharis v. Fadell 96 a defamation action based upon the pleadings

of a prior action, the court of appeals stated that the statute of limita-

tions began to run at the time of publication (filing) and not when the
determination was made that the pleadings were not privileged. 97

3. Legal Disability.—In Duwes v. Rodgers, 9 * the plaintiff alleged that
due to the pain and disablement she suffered in an automobile accident,

she was a "distracted person" of unsound mind99 sufficient to toll the
two-year statute of limitations. 100 Under Indiana Code section 34-1-2-5,

a person under legal disability may bring his action within two years after
the disability is removed, 101 and "under legal disabilities" is defined to

include persons of unsound mind. 102 The Rodgers court held, however,
that the plaintiff's evidence was insufficient to establish the unsound mind

90
Id. at 1003.

9[ See supra notes 64-70 and accompanying text (discussing Whitehouse v. Quinn, 443

N.E.2d 332 (Ind. Ct. App. 1982)).
92
JSee Ind. Code § 34-1-2-2(1) (1982).

93
Scates v. State, 178 Ind. App. 624, 625, 383 N.E.2d 491, 493 (1978).

94446 N.E.2d 11 (Ind. Ct. App. 1983).
9i
Id. at 14 (citing Montgomery v. Crum, 199 Ind. 660, 161 N.E. 251 (1928); Rees

v. Heyser, 404 N.E.2d 1183 (Ind. Ct. App. 1980)).
96438 N.E.2d 1032 (Ind. Ct. App. 1982).
91
Id. at 1033.

98438 N.E.2d 759 (Ind. Ct. App. 1982).

"See Ind. Code § 34-1-67-1(3), (6) (1982).
100See id. § 34-1-2-2(1).

""Id. § 34-1-2-5.

102
Id. § 34-1-67-1(6).



354 INDIANA LAW REVIEW [Vol. ,17:341

requirement. l03 Because the plaintiff did not file her action within the re-

quired two-year period from the date of the accident, and because she

did not meet the requirements of the legal disability statute, summary
judgment in favor of defendant was affirmed. 104

4. Tort Claims Notice.—The notice requirement of the Indiana Tort
Claims Act has become an area where "form" rules over "substance".
In Teague v. Boone, 105 the court of appeals, following Indiana Supreme

Court precedent, held that the government's actual knowledge of the in-

cident which gave rise to the action was insufficient to meet the notice

requirement or to estop the government's assertion of immunity. 106 The

Teague court made it clear that the object of the Tort Claims Act 107 was
to limit liability and protect the assets of the state, 108 irrespective of the

merits of any claim an injured party might assert. The plaintiff must notify

the specific state agency involved in the incident giving rise to the plain-

tiff's injury;
109

therefore, plaintiffs should be extremely careful that they

notify all potentially responsible state or governmental agencies because

any mistake would be fatal to a meritorious claim.

5. Construction Deficiencies—Ten-year Limitation.—In Capitol
Builders, Inc. v. Shipley,

no the plaintiff-owner brought an action against

the defendant-builder for damages due to defective (spalling) brick. The

owner received judgment, and the builder appealed. The action was based

upon negligence in selecting and installing bricks, and breach of the war-

ranty to construct a home "in a good and workmanlike manner." 111 The
defendants argued that the two-year statute of limitations for injury to

personal property applied since the brick was personal property when
selected.

112
In support of this contention, defendants cited a case in

l03438 N.E.2d at 761. The plaintiff apparently relied on the portion of the statute that

defines "of unsound mind" as including "distracted persons." See Ind. Code § 34-1-67-1(3)
(1982). The Rodgers court, in the absence of Indiana precedent, borrowed its definition

of "distracted person" from an Illinois case, which defined such a person as one who is
"incapable of acting rationally in the ordinary affairs of life, and of comprehending the

nature and value of property, as to be incapable of transacting, or procuring to be trans-

acted, ordinary business." Snyder v. Snyder, 142 111. 60, 67, 31 N.E. 303, 305 (1892), quoted

in 438 N.E.2d at 761. For purposes of the Indiana statute, the Rodgers court tightened

up the definition and stated that "a distracted person is a person who by reason of his
or her mental state is incapable of managing or procuring the management of his or her

ordinary affairs." 438 N.E.2d at 761. Although the plaintiff was in pain and physically

disabled, her condition did not justify the finding that she was of unsound mind. Id.
,04
438 N.E.2d at 761.

,05442 N.E. 2d 1119 (Ind. Ct. App. 1982).
">b

Id. at 1 120 (citing Geyer v. City of Logansport, 267 Ind. 334, 370 N.E.2d 333 (1977);

City of Indianapolis v. Uland, 212 Ind. 616, 10 N.E.2d 907 (1937)).
i0 Tnd. Code §§ 34-4-16.5-1 to -19 (1982).
,0»442 N.E.2d at 1120.
"J9Galovick v. Board of Comm'rs, 437 N.E. 2d 505 (Ind. Ct. App. 1982).
Il0439 N.E.2d 217 (Ind. Ct. App. 1982).
ltl

Id. at 220.
n2

Id. at 226; see Ind. Code § 34-1-2-2 (1982).



1 984] SUR VEY—TORTS 355

which a products liability action was brought against a brick

manufacturer." 3 The court of appeals rejected the defendant's argument

and stated that since the brick became permanently incorporated into the

building, it became real property," 4 and the ten-year statute of limita-

tions for deficiencies in construction of improvements to real property

was applicable." 5

D. Limited Duty

In negligence cases, Indiana law has developed a protection for defen-

dants and their insurance companies by following one of the earliest

methods of barring plaintiffs' recovery—limited duty. Whereas the overall
trend in most jurisdictions over the past fifty years has been to expand

the duties owed," 6 Indiana law has steadily retrenched toward lesser and

lesser protection for injured victims.

1. Governmental Liability.—In Department of Natural Resources v.
Morgan, 111 the plaintiff received a jury verdict and judgment for wrongful

death and personal injuries. The death and damages resulted when the

deceased's vehicle accidentally left the road surface and landed in the water

of a nearby strip-mining pit. The plaintiff alleged that the Department

of Natural Resources had a duty to act reasonably to insure that open

water-filled pits were placed far away from roads or were guarded suffi-
ciently to protect vehicles from entering the pits should they accidentally

veer from the road surface." 8 This duty was alleged to arise either pur-

suant to the strip-mining law, under which the Department gave permits

to coal companies to conduct strip-mining," 9 or under the common law. 120

The court of appeals reversed the jury verdict based upon an inter-
pretation of the strip-mining law as only effecting a duty to protect the

land and the general public. Under this statute there was no duty to pro-
tect motorists.

121
In addition, the court of appeals said there was no com-

mon law duty because the Department had no direct control over the in-
strumentality that caused the harm—the strip pit. 122 Finally, the court

inSee Adcor Realty Corp. v. Mellon-Stuart Co., 450 F. Supp. 769 (N.D. Ohio 1978).
" 4439 N.E.2d at 227.
u5

Id. (citing Ind. Code § 34-4-20-2 (1982)).
" 6Over ten years ago, Dean Prosser stated: "The shift [in tort law] as a whole has

been heavily toward the side of the plaintiff, with expanded liability in nearly every area."

W. Prosser, Preface to Handbook of the Law of Torts at xi (4th ed. 1971).
" 7432 N.E.2d 59 (Ind. Ct. App. 1982).

"*Id. at 62.
n9See Ind. Code § 14-4-2-5 (1982).
l20The plaintiff relied on the following cases: Elliott v. State, 168 Ind. App. 210, 342

N.E.2d 674 (1976); Indiana State Highway Comm'n v. Rickert, 412 N.E.2d 269 (Ind. Ct. App.
1980), rev'd on other grounds, 425 N.E.2d 620 (Ind. 1981); Indiana State Highway Comm'n
v. Clark, 371 N.E.2d 1323 (Ind. Ct. App. 1978).

m432 N.E.2d at 65.
I22

ld. at 66. The cases relied upon by the plaintiff, see supra note 120, were distinguished
on this basis.



356 INDIANA LAW REVIEW [Vol. 17:341

stated that even if there was a duty imposed upon the Department, the

Indiana Tort Claims Act provided immunity.
123

The Indiana Supreme Court reversed a jury verdict in favor of the

plaintiff in State v. Hall,
124 based upon the trial court's misapplication

of section 1983.
125 The plaintiff brought both a malicious prosecution and

a section 1983 action against the State of Indiana and its employees and

agents. The jury returned a general verdict for plaintiff, and the court

of appeals upheld the jury verdict, pointing out that certain jury instruc-

tions on respondeat superior were given only on the malicious prosecu-
tion theory and not on the section 1983 action. 126 The Indiana Supreme
Court reversed, holding that there was error in denying a directed verdict

for the State on the section 1983 theory, because

a local government may not be sued under section 1983 for
an injury inflicted solely by its employees or agents. Instead, it

is when execution of a government's policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly
be said to represent official policy, inflicts the injury that the

government as an entity is responsible under § 1983.
127

The supreme court held that the state's motion for a directed verdict should

have been granted because the plaintiff's section 1983 claim was not ad-

dressed to any action that could be claimed as an implementation of execu-

tion of "official policy." 128

The supreme court also reversed the court of appeals' holding that

the failure to direct a verdict for the state on the section 1983 claim was

harmless error. 129 The court of appeals determined that the jury's general

verdict for the plaintiff could have been based solely on the malicious

prosecution claim, since that was the only theory on which a respondeat

superior instruction was given. 130 The supreme court reversed, holding that

"[a] general verdict for the plaintiff upon a complaint which proceeded

upon two theories, one good and the other bad, cannot stand unless it

affirmatively appears that it rests upon the good theory." 131

In dissent, Justice DeBruler noted that the defendant, in its motion

l23432 N.E.2d at 67 (citing Ind. Code § 34-4-16.5-3(7), (11) (1982)).
,24432 N.E.2d 679 (Ind. 1982), vacating 411 N.E.2d 366 (Ind. Ct. App. 1980).
,2i See 42 U.S.C. § 1983 (1976).
I26

411 N.E.2d at 370.
i:7432 N.E.2d at 680 (quoting Monell v. New York City Dept. of Social Serv., 436

U.S. 658, 694 (1978)).
,28432 N.E.2d at 681.
,29M
,30411 N.E.2d at 370.
13 '432 N.E.2d at 681. The supreme court rejected the rationale of the court of appeals

as "specious," stating that it "would render error in the denial of a directed verdict or

motion to dismiss harmless in every case prosecuted upon multiple theories, provided the

verdict was sustainable upon any one of them." Id.



1984] SURVEY—TORTS 357

for directed verdict, did not disclaim the applicability of section 1983 nor

did it raise any legal defense at any point in the trial. 132 In addition, there

was no appellate challenge to the jury instructions:

To this dissent it is helpful to add the observation that jury
instructions are generally regarded as the means by which legal

theories of liability and the manner of their proper application

as well as such doctrines of respondeat superior are communicated

to the jury. I cannot understand how this Court can consider
whether a general verdict for the plaintiff and against a defend-

ant can be set aside on the basis that it is the product of the

application by the jury of a mistaken legal theory of liability or

of the misapplication of a correct legal theory in the absence of

an appellate challenge to jury instructions, the vehicles which

finally determined and defined the applicable legal theories of

liability and provided the jury with guidance in applying those

theories. Here, there is no appellate challenge to the propriety

of any jury instruction. This case was fairly tried on the facts

at considerable cost to the plaintiff, and resulted in a jury verdict

against one of the defendants. That party defendant has failed

in demonstrating through the issues properly raised on appeal that

the verdict is contrary to law. 133

In Hurst v. Board of Commissioners,
xi *

the trial court granted sum-

mary judgment in favor of the defendant. The plaintiff, claiming that
weeds and tall vegetation at an intersection obstructed his view and caused

an automobile accident, based his action against the Board upon a statutory

duty to remove weeds, 135 on a common law duty to remove weeds, and
on negligent maintenance of an inherently dangerous intersection. The court

of appeals reversed the summary judgment against plaintiff, stating that
the county owed a common law duty to construct, maintain, and repair
the roads within its jurisdiction and control. 136

The court of appeals rejected the statutory duty argument under In-

diana Code section 8-17-14-1, however, stating that this statute's purpose
was to reduce the spread of weeds and obnoxious growth to surrounding

farmland, and not to impose a duty upon the county to protect
motorists.

137

n2
Id. at 682 (DeBruler, J., dissenting).

ni
Id. at 683.

,34446 N.E.2d 347 (Ind. Ct. App. 1983).
,i5See Ind. Code § 8-17-14-1 (1982).
I36446 N.E.2d at 351.
n7

Id. at 349-50. The court's construction of the purpose of § 8-17-14-1 was aided by

an examination of Ind. Code § 32-10-4-1 (1982), which imposes upon the state the duty

to trim natural growth at the intersections of state highways in order to prevent the obstruction

of motorists' vision. The Hurst court stated that if "the Legislature [had] intended that



358 INDIANA LAW REVIEW [Vol. 17:341

2. Construction Law and Independent Contractors.—Five Indiana
cases during this survey period discussed the interplay between the liabil-

ity of the parties constructing buildings and the individuals injured at such

construction sites. Generally, a landowner will contract with architects,

engineers, prime contractors and others to perform the design and con-

struction of his building. The parties contracting with the owner may in
turn subcontract many areas of work to be performed. When a worker
is injured on the job site, courts generally examine the contracts between

the various parties to determine if any particular party undertook the

overall liability for the particular manner in which the workman was in-
jured. Absent a contractual undertaking for liability or safety, the court

will apply the common law rule that a contractor owes no duties to
the employees of an independent contractor. This rule has five com-

mon law exceptions 138 and if the injured workman does not come within
a specified exception, he is without a tort remedy. Combining the above

situation with two additional restrictions under the Indiana Worker's Com-
pensation law, 139 the exclusive remedy doctrine, 140 and the deplorably low

benefits granted to injured Indiana employees 141 often results in the high

costs of severe injuries being absorbed by those least able to bear such

costs, the injured workers.

In Jones v. City of Logansport,
142

the plaintiff was holding a cable

attached to a crane when the crane either came into contact with a high

voltage line or came close to the line, resulting in electrical burns and other

injuries to the plaintiff. The plaintiff brought his action against several par-

ties including the owner of the construction site (City of Logansport),

the authorized representative of the owner, and Zimpro, the prime contrac-

tor. The trial court granted summary judgment in favor of the owner's

the counties have such a statutory duty, it would have included county intersections in [§
32-10-4-1] or included a comparable provision under the article on county highways [Ind.

Code tit. 8, art. 17 (1982)]." 446 N.E.2d at 350. However, in his concurring opinion Judge

Staton pointed out that the state's duty under section 32-10-4-1 was limited by the Indiana

Court of Appeals, Fourth District, in Board of Commissioners v. Hatton, 427 N.E.2d 696

(Ind. Ct. App. 1981), to trimming natural growth to a height of five feet, which may not

achieve visual safety for motorists. 446 N.E.2d at 353 (Staton, J., concurring).
niSee infra notes 146-47 and accompanying text.
,39

Ind. Code §§ 22-3-1-1 to 22-3-10-3 (1982).
l40Under Indiana Code section 22-3-2-6, the rights and remedies granted to an

employee under the workmen's compensation system are exclusive of all other rights and

remedies, with the exception of remedies for victims of violent crimes. See id. § 16-7-3.6-11;

see also Note, Dual Capacity Doctrine: Third Party Liability of Employer-Manufacturer

in Products Liability Litigation, 12 Ind. L. Rev. 553 (1979).

""Indiana's workmen's compensation system has been described as granting "horribly

low benefits . . . when Indiana is compared to our sister states, including midwestern states."

Townsend, A Comparative Study of Selected Areas of Indiana Tort Law, 5 Verdict 4
(1983); see infra note 173.

U2436 N.E.2d 1138 (Ind. Ct. App. 1982).



1984] SURVEY—TORTS 359

representative, and a jury verdict was entered in favor of the owner and

Zimpro. The plaintiff appealed.

The court of appeals stated that the initial issue was whether the

owner's representative owed a duty of care because of the contract or

a voluntary assumption of a duty through affirmative conduct.
143 The

Jones court found that no contractual duties existed between the owner's

representative and the plaintiff144 and that the plaintiff had not alleged any

assumption of duty by the owner's representative.
145

The plaintiff also contended that the prime contractor, Zimpro, owned

a non-delegable duty and that the trial court erroneously modified plain-

tiff's instruction on that issue. The court of appeals reiterated the general

rule that the contractor is not liable to employees of independent

subcontractors.
146 The non-liability rule, however, has five exceptions:

(1) the contract requires the performance of work intrinsically

dangerous;

(2) a party is by the law or contract charged with a specific

duty;

(3) the act will create a nuisance;

(4) the act to be performed will probably cause injury to others

unless due precaution is taken to avoid harm;

(5) the act to be performed is illegal.
147

The court rejected plaintiff's assertion that Zimpro was liable under
exception (4) since such exception applies only to third persons and not

to employees actually doing work. 148 The court found, however, that Zim-
pro did owe a non-delegable duty to the plaintiff imposed by regulations
of the Indiana Commissioner of Labor, 149 the contract between Zimpro
and the owner concerning safety, and OSHA rules and regulations. 150

The plaintiff alleged that the trial court committed reversible error
in denying an instruction concerning the owner's liability as to the power

143M at 1143.
144

Id. at 1144-45.

'"Id. at 1145.
[A6

Id. at 1147 (citing Hale v. Peabody Coal Co., 168 Ind. App. 336, 343 N.E.2d 316

(1976)).
147
436 N.E.2d at 1147 (citing Denneau v. Indiana & Mich. Elec. Co., 150 Ind. App.

615, 277 N.E.2d 8 (1971)).
,48436 N.E.2d at 1149.
l * 9

Id. at 1147. The court held that, as the prime contractor, Zimpro had the specific

duty, under 610 Ind. Admin. Code § 5-1-1(6), (7), (8) (1979), to ensure compliance with
the following regulation: "Power shall be cut off from electric lines within range of shovel

or crane operation whenever possible. When not possible to cut off power the shovel or
crane shall not be operated within electrical reach of electric transmission lines." Id. §

5-1-12(21), quoting in 436 N.E.2d at 1147.
,50436 N.E.2d at 1148-49.



560 INDIANA LAW REVIEW [Vol. 17:341

lines which it owned. The Jones court noted that although Indiana

recognizes electricity as a dangerous element, 151 the duty owed is one of
ordinary care under like conditions and circumstances, and not one of

utmost care, as several other jurisdictions have held. 152 Under ordinary

care, the distributor of electricity may either insulate or isolate its wires;
however, insulation of wire need not be used unless the utility knows or

should know that a segment of the population will be regularly exposed
to uninsulated wire.

153 The Jones court, finding no such knowledge, re-

jected plaintiff's contentions.
154

In Perry v. NIPSCO, 155 the trial court granted the defendant NIPSCO
summary judgment, and the plaintiff appealed. The plaintiff has been ordered

by his foreman to perform work twenty feet above the ground without

using a scaffold or safety apparatus. When the plaintiff complained of
the danger, his foreman said it would take too long to construct the scaf-

folding and told the plaintiff either to do the work or go home. Later

the plaintiff complained to his shop steward and to a NIPSCO man wear-
ing a white hat that read "Safety Supervisor." The shop steward did not

help, and the NIPSCO man said he had no control over what the plain-
tiff did for his contractor. Aware of the danger, but in fear of losing his
job, the plaintiff attempted to do the work and fell, severely injuring
himself.

156

The Perry court stated the general rule of non-liability for independ-

ent contractors and their employees, reiterating the five exceptions stated

in Jones.
151 As to the first exception—intrinsically dangerous work—the

Perry court stated that work is not intrinsically dangerous if the "risk

of injury involved in its use can be eliminated or significantly reduced

by taking proper precautions." 158 In the instant case, scaffolding or safety

equipment would have reduced the risk; therefore, plaintiff could not

meet this exception.

The specific, contractual duty exception was not available to the plain-

tiff because the contract between NIPSCO and plaintiff's employer, a con-
tractor, did not impose any duty on NIPSCO. 159 The plaintiff further
argued that NIPSCO, as owner of the property, was obligated to provide a
safe place to work. The Perry court rejected plaintiff's contention because

such a duty only involves defects in the premises or the negligent

,S]
Id. at 1150 (citing Hedges v. Public Serv. Co., 396 N.E.2d 933 (Ind. Ct. App. 1979)).

I52436 N.E.2d at 1150.
i53

Id. (quoting Southern Ind. Gas & Elec. Co. v. Steinmetz, 177 Ind. App. 96, 100,
377 N.E.2d 1381, 1384 (1977)).

,54436 N.E.2d at 1151.
I55
433 N.E.2d 44 (Ind. Ct. App. 1982).

,ih
Id. at 46.

157
Id. at 47; see supra notes 146-47 and accompanying text.

m433 N.E.2d at 47 (quoting Hale v. Peabody Coal Co., 168 Ind. App. 336, 343,
343 N.E.2d 316, 322 (1976)).

I59433 N.E.2d at 48.



1984] SURVEY—TORTS 361

maintenance thereof.
160 Because the plaintiff's injury did not involve the

premises or their maintenance, NIPSCO had not breached its duty as
owner of the premises.

The Perry court stated that several factors indicated that NIPSCO
had, however, assumed the supervision of safety for the construction site

and owed a duty of ordinary care after such assumption. 161 The factors

indicating such assumptions were: NIPSCO conducted regular safety
meetings for employees of sub-contractors; NIPSCO had between six and
thirty safety men at the job site who had "jurisdiction" of the safety pro-
gram; the NIPSCO man to whom the plaintiff complained had "Safety
Supervisor" written on his hard hat, and that same safety man called
for an ambulance and ordered no one to touch the plaintiff after his fall. 162

Citing Illinois case law,
163

section 324A of the Restatement of Torts, 164

and prior Indiana law, 165 the Perry court said that the assumed duty ra-

tionale was well founded, and, viewing the evidence in the light most

favorable to the (non-moving) plaintiff, held that jury questions existed

that required reversal of the summary judgment against plaintiff. 166

In Johns v. New York Blower Co., X67 the court of appeals discussed
the intrinsically dangerous work exception to the non-liability rule for sub-

contractors. The Johns court noted that "[a]ppellants who have argued
for expansion of the 'intrinsically dangerous work' exception have not

fared well in Indiana courts."
168 Denying the applicability of the rule to the

plaintiff, who was injured when he fell thirty feet to the ground from
a steel beam upon which he was working, the court held that: (1) work
is not intrinsically dangerous if the risk of injury can be eliminated or

significantly reduced by taking safety precautions 169 and (2) the rule does

not apply to employees of an independent contractor. 170

The Johns court's rationale for not applying the intrinsically dangerous

work exception was based upon the fact that on many occasions the
"owner does not escape liability since, in effect, he pays the premiums
for Workmen's Compensation coverage as part of his contract price." 171

]60
Id. at 49 (citing Jones v. Indianapolis Power & Light Co., 158 Ind. App. 676, 687,

304 N.E.2d 337, 344 (1973)).
I6, 433 N.E.2d at 49-50.
162

Id.

163 Nelson v. Union Wire Rope Corp., 31 111. 2d 69, 199 N.E.2d 769 (1964), quoted
in 433 N.E.2d at 50.

'"Restatement (Second) of Torts § 324A (1966), quoted in 433 N.E.2d at 50.
165 Board of Comm'rs v. Hatton, 427 N.E.2d 696 (Ind. Ct. App. 1981), quoted in 433

N.E.2d at 50.
I66
433 N.E.2d at 50.

,67442 N.E.2d 382 (Ind. Ct. App. 1982).
t6
*Id. at 385.

,69
Id. at 386.

no
Id.

n,
Id. at 388.



362 INDIANA LAW REVIEW [Vol. 17:341

The court also noted that if an employee of the owner had been in-

jured, the owner's liability would have been limited by worker's com-

pensation laws. Because there did not appear to be any valid reason to

subject the owner to greater liability for employing an independent con-

tractor to perform the work than he would have had if he had employed

his own servants, the court ruled in favor of the defendant-owner. 172

The Johns court rationale, based upon worker's compensation in-

surance premiums and benefits, seems outlandish in light of the fact that

the benefits an Indiana employee obtains under worker's compensation

are among the lowest in the country. 173 To further state that, because the
owner's employees cannot obtain sufficient benefits for their injuries, the

subcontractor's employees should likewise be limited reveals the court's

reasoning as another example of the harsh climate for tort plaintiffs in

this state.

In Plan-Tec, Inc. v. Wiggins,
174

the plaintiff received a jury verdict

and judgment, and the defendant, who was the construction manager at
the job site, appealed. The plaintiff, an employee of a subcontractor on

the job site, was injured when the scaffolding on which he was working

fell to the ground, six stories below. The Wiggins court made reference

to the exceptions to the general rule of non-liability for independent

contractors
175 and stated that the facts of the case came within the assumed

172
Id.

'"Indiana's poor performance in compensating its injured workers is evident when com-

pared to the benefits awarded by other states in cases of temporary total disability (TTD)

and permanent total disability (PTD). See generally United States Chamber of Commerce,
Analysis of Workers' Compensation Laws 1983 (1983).

TTD occurs when the injured employee is totally unable to work during the period
during which benefits are payable, but is expected to recover from his injuries and return

to work. Most cases of employee injury involve TTD. Id. at 14. PTD occurs when an in-
jury renders an employee permanently and totally unable to work. Id.

Indiana limits an injured employee to a maximum weekly payment of $140. Only Georgia

($135), Mississippi ($112), and Tennessee ($136) impose lower limits. Id. at 15-16.

The Chamber of Commerce analysis indicates that Indiana limits the duration of

payments for both TTD and PTD to 500 weeks. Id. at 15. With respect to TTD, only
nine other states impose a shorter time limitation—Alabama, Arkansas, Florida, Mississippi,
Missouri, New Jersey, Oklahoma, Texas, and West Virginia. Id. at 15-17. With respect
to PTD, only four other states impose any limit at all on the duration of benefits to a

permanently disabled employee, and of those four, only Mississippi (450 weeks) and Texas

(401 weeks) impose shorter limits than Indiana. Id.

Indiana limits the total amount of benefits payable to an injured employee to $70,000

in any case, whether TTD or PTD. Id. at 15. Of the sixteen other states that impose any
limit on total TTD payments, only Alabama ($52,200), Arkansas ($69,300), Mississippi
($50,400), Oklahoma ($58,800), Tennessee ($54,400), and West Virginia ($62,735) impose

lower limits. Id. at 15-17. Of the five other states that place any limit on total PTD benefits,
only Mississippi ($50,400) and Tennessee ($54,400) impose lower limits than Indiana. Id.

at 15-17.

|74
443 N.E.2d 1212 (Ind. Ct. App. 1983).

175
Id. at 1219. The court seems to have treated the defendant-construction manager



1984] SURVEY—TORTS 363

duty rationale expressed in Perry.
116

In the instant case the construction

manager had appointed a safety director, initiated weekly safety meetings,

directed certain safety precautions to be taken by the contractors, and

inspected the scaffolding which fell and injured the plaintiff.
177 Based on

these factors, the Wiggins court found that the jury could consider whether

the construction manager had assumed either a duty to provide a safe

place to work or a duty for the overall safety of the project. 178

The defendant argued that, even accepting the assumed duty, its ac-

tions constituted nonfeasance rather than misfeasance, and as such, there

must have been reliance by the plaintiff on the defendant's performance

of the assumed duty. 179 Citing a 1981 court of appeals case, 180 the Wig-

gins court approved of the nonfeasance/misfeasance dichotomy but stated

that this was a case of misfeasance. 181 This acceptance of the

nonfeasance/misfeasance concept in a negligence action is a definite step

back to the nineteenth century and quickens Indiana's march backward

in time and thought. The mere fact that someone has assumed a duty

should not change the normal negligence standard.

The Wiggins court rejected the constructon manager's argument that

an indemnification agreement between itself and the subcontractor, who
employed the plaintiff, should shift the loss to the subcontractor. 182 The
Wiggins court based its rejection of the indemnification agreement upon
the fact that the work the plaintiff performed was outside the contract
and, therefore, not subject to the indemnification agreement. 183

In Hixon v. Sherwin-Williams Co., 1 * 4 a homeowners' insurance com-

pany hired a local contractor, Hixon, to perform work on the homeowner's

floor. Hixon subcontracted the work to the defendant Sherwin-Williams

Co., who in turn hired Benkovich to perform the work. While Benkovich

(Plan-Tec) as the owner of the land where the plaintiff was injured. The court stated that
a landowner has a common law duty to exercise care to keep his property in
a reasonably safe condition for invites or business visitors. This obligation exists

where an injury is reasonably foreseeable in light of the hazardous nature of the

instrumentalities maintained by the [landowner] on his premises. However, where

the instrumentality is that of an independent contractor, the complainant must
show either that the landowner assumed control of the instrumentality or had
superior knowledge of the potential dangers involved in its operation.

Id. (citations omitted).
i76

Id. at 1220 (citing Perry v. NIPSCO, 433 N.E.2d 44 (Ind. Ct. App. 1982)); see
supra notes 155-66 and accompanying text.

I77443 N.E.2d at 1220.
ns

Id.

179
Id.

,S0See Board of Comm'rs v. Hatton, 427 N.E.2d 696 (Ind. Ct. App. 1981), cited in
443 N.E.2d at 1220-21.

m443 N.E.2d at 1221.
n2

Id. at 1221.
lii

Id. at 1222.
I84671 F.2d 1005 (7th Cir. 1982).



3 64 INDIANA LA W REVIEW [Vol . 1 7 : 34

1

was attempting to complete the work on the homeowner's floor, the house

caught fire and the insurance company and Hixon brought an action

against the defendant Sherwin-Williams. The Hixon court stated that

Benkovich was an independent contractor and, under the common law
rule, Sherwin-Williams was not liable for the torts of its independent

contractors.
185 The Hixon court then stated: "In an age when tort law

is dominated by the search for the deep pocket, which Benkovich does

not have, the common law rule may seem an anachronism .... The
Indiana courts, explicitly adopting an accident-prevention rather than deep-

pocket approach to the question, have decided ... to retain the
independent-contractor rule in full force."

186

The Hixon court's statement that Indiana's common law concerning
non-liability for independent contractors is an accident-prevention ap-

proach seems unsupportable, to say the least. As the cases in this survey

period indicate, a contract between owners and others will generally not

contain specific language that obligates the owner or its contractors to

any specific duty to maintain a safe jobsite. The subcontractor's motiva-

tion was best expressed in Perry, 181 where the plaintiff's foreman told the

plaintiff to do the work without a scaffold or quit, because it would take

too long to build a safe scaffold.
188

Is the relegation of safety to independ-

ent contractors, who are more concerned with time demands than safety,
an accident-prevention approach? In reality, owners and those who contract
with owners usually attempt to avoid taking on contractual duties for

subcontractors 189 and the conscientious contractors who attempt to effect
safety procedures assume a duty that they may not have had under the
contract. These contractors are penalized because of their safety-conscious

attitudes while the less safety-minded contractors escape liability by not

assuming any such duties.

Worker's compensation benefits are probably the least likely of all

methods to prevent accidents. When an employee loses a leg above the
knee, and the benefit for the loss of this limb amounts to a maximum
temporary total disability benefit of $7,280' 90 plus $16,875 permanent par-

,85M at 1009 (citing Ryan v. Curran, 64 Ind. 345, 354 (1878)).
,86

671 F.2d at 1009.
l87 Perry v. NIPSCO, 433 N.E.2d 44 (Ind. Ct. App. 1982); see supra notes 155-66 and

accompanying text.
,88 433 N.E.2d at 46.
,H9

See, e.g., Plan-Tec, Inc. v. Wiggins, 443 N.E.2d 1212 (Ind. Ct. App. 1983). Plan-

Tec, who contracted to be the construction manager with the owner, undertook to perform
certain aspects of the utility contractor's job when the latter was written out of the project.

Plan-Tec, however, expressly disavowed responsibility for safety considerations that were

originally part of the utility contractor's undertaking. Id. at 1218-19.

""See Ind. Code § 22-3-3-10 (1982) (limiting temporary total disability benefits to fifty-
two weeks when permanent partial impairment is also present); id. § -8 (limiting temporary

total disability benefits to two-thirds of employee's average weekly wage); id. § -22 (limiting

average weekly wage to $210). Two-thirds of $210 is $140, multiplied by fifty-two weeks

yields a maximum total temporary disability benefit of $7,280.



1984] SURVEY—TORTS 365

tial impairment 191 and one year's medical bills,
192

it is unlikely that an

owner or contractor, who may have to pay only the premiums under the
contract, will want to take on the safety of a project and expose himself

to much greater damages. The Hixon court's statement that Indiana con-

tracting law, with the non-liability concept for independent contractors,

is an "accident-prevention" approach does not survive even a superficial

examination.

The Hixon court did examine other contentions by the plaintiff, one

of which was that the defendant breached an implied or express

warranty. 193 The Hixon court stated that Indiana law requires privity of

contract in warranty cases involving personal injury or property damage. 194

This statement is not fully true. If the warranty is based upon contract,

then privity is required; 195 however, if the warranty is in tort, no privity

is required.
196 In Lane v. Barringer, 191 the case cited by the Hixon court,

the majority held that privity was required only for warranty actions based

on contract. 198 Judge Ratliff, concurring and dissenting, would not have

required privity even in contract actions where personal injury claims were

involved.
199 The Hixon court would apparently like to return to the days

of yesteryear and follow eighteenth-century English law which originated

the privity concept. Although the Hixon court's judgment, that the directed

verdict in favor of the defendant should be upheld, 200 was probably cor-

rect, the language used by the court and the partial misstatements of war-

ranty law are most disturbing.

191 See id. § -10(a)(1) (limiting the number of weeks of compensation for loss of leg
above the knee to 225 weeks); id. § -10(b) (limiting the average weekly wage to 60% of
$125, or $75). Multiplying 225 weeks by $75 yields a maximum permanent partial impair-
ment benefit for loss of a leg above the knee to $16,875.

192See id. § -4.
,93671 F.2d at 1010.
]94

Id. (citing Lane v. Barringer, 407 N.E.2d 1173, 1175 (Ind. Ct. App. 1980)).
l95

Privity is divided into vertical and horizontal elements. Vertical privity is the relation-

ship between the seller and the buyer of a product, while horizontal privity is the relationship

between the buyer and other parties. Vargo, Products Liability, 1974 Survey of Recent

Developments in Indiana Law, 9 Ind. L. Rev. 270, 270 n.12 (1975). White and Summers
have stated: "There are two basic kinds of 'non-privity' plaintiffs. The 'vertical' non-

privity plaintiff is a buyer within the distributive chain who did not buy directly from
the defendant. . . . The 'horizontal' non-privity plaintiff is not a buyer within the distributive

chain but one who consumes or uses or is affected by the goods." J. White & R. Sum-
mers, Handbook of the Law Under the Uniform Commercial Code, § 11-2, at 399 (2d
ed. 1980). Ind. Code § 23-1-2-318 (1982) extends privity horizontally to "natural persons"
in the "family or household of the buyer and to his guests," but only where it is "reasonable

to expect that such persons may use, consume or be affected by the goods." This extension
is the most limited alternative offered under U.C.C. § 2-318 (1972).

i96See Vargo, supra note 195, at 212-14.
,97407 N.E.2d 1173 (Ind. Ct. App. 1980), cited in 671 F.2d at 1010.
I98 407 N.E.2d at 1175.
,99

Id. at 1176-77 (Ratliff, J., concurring and dissenting).
200671 F.2d at 1011.



366 INDIANA LAW REVIEW [Vol. 17:341

3. Negligent Hiring.—Another issue discussed by Hixon 201 was the
concept of negligent hiring, which, according to the court, was an ac-

cepted Indiana concept.
202 The Court of Appeals of Indiana again discussed

the legal concept of negligent hiring of an independent contractor in

Baugher v. A. Hattersley & Sons, Inc. 20i The trial court granted sum-
mary judgment for the defendant and the plaintiff appealed. The Baugher

court affirmed the summary judgment, stating that, although Indiana
recognized the tort of negligent hiring, the plaintiff had failed to prove

the elements of the action.
204

Citing Indiana decisions 205 and section 213

of the Restatement (Second) of Agency, 206 the Baugher court said that

the tort was generally limited to an employer who invites the public to
his business, and in such situations, the employer must use care in the

choice of his employees who are expected to deal with the public. 207

4. Erroneous Instruction on Sudden Emergency—Harmless Error.—
In Taylor v. Todd, 208 a pedestrian was injured when struck by the defend-
ant's vehicle. The trial court allowed the defendant to submit a sudden

emergency209 instruction and the jury returned a verdict in favor of the

defendant. On appeal the plaintiff urged that the giving of the sudden
emergency instruction was reversible error. The Taylor court agreed with

plaintiff that the evidence indicated that the defendant was not aware of

any emergency and such awareness is a prerequisite to the doctrine of

sudden emergency. 210 The Taylor court also noted, however, that the er-

roneous instruction on sudden emergency is usually not a basis for rever-

20l Hixon v. Sherwin-Williams Co., 671 F. 2d 1005 (7th Cir. 1982).
202

Id. at 1010 (citing Wabash County v. Pearson, .120 Ind. 426, 429, 22 N.E. 134,
135 (1889)). The Hixon court held that Sherwin-Williams was not negligent in hiring the
experienced Benkovich to lay the floor and, even if it were, such negligent hiring was

not the proximate cause of the accident in question. 671 F.2d at 1010.
203436 N.E.2d 126 (Ind. Ct. App. 1982).
204

Id. at 128.

20 Tindall v. Enderle, 162 Ind. App. 524, 320 N.E.2d 764 (1974); Lange v. B&P Motor
Express, Inc., 257 F. Supp. 319 (N.D. Ind. 1966), cited in 436 N.E.2d at 128.

206Restatement (Second) of Agency § 213 (1957), cited in 436 N.E.2d at 128.
207
436 N.E.2d at 128.

208439 N.E.2d 190 (Ind. Ct. App. 1982).
209

In order to invoke the sudden emergency doctrine a party must prove the following

facts:

"(1) That the appearance of danger or peril was so imminent that he had

no time for deliberation.

(2) That the situation relied upon to excuse any failure to exercise legal care
was not created by his . . . own negligence.

(3) That his conduct under the circumstances was such as the law requires

of an ordinarily prudent man under like or similar circumstances."
In addition, the doctrine presumes that the actor perceives his situation as an

emergency.

Id. at 193 (quoting Taylor v. Fitzpatrick, 235 Ind. 238, 247, 132 N.E.2d 919 (1956)) (cita-

tions omitted).
2,0

Id. at 193-94 (citing Baker v. Mason, 253 Ind. 348, 242 N.E.2d 513 (1968)).



1984] SURVEY—TORTS 367

sal and is almost considered harmless error; therefore, the court affirmed

the judgment for defendant. 2 "

5. Negligent Release of Prisoner.—One area of duty which was not
limited was the duty of a sheriff who releases a mentally confused prisoner
into severe winter weather. In Iglesias v. Wells,

2 [2
the trial court granted

a 12(B)(6) motion when the plaintiff alleged that the sheriff was negligent

in causing plaintiff severe injuries. The plaintiff alleged that he was indigent,

had no residence, and was unable to speak or understand English. After

serving a sentence for public intoxication, the plaintiff, who was wearing
inadequate clothing, was released into severe winter weather by the sheriff,

who had knowledge of the plaintiff's condition. Following his release,

the plaintiff wandered around downtown Indianapolis for several hours

until eventually suffering severe frostbite to his feet, which required surgery

and partial amputation. The court of appeals reviewed the motion to

dismiss, stating that it was possible to state a theory of recovery on such

grounds because, under some circumstances, the sheriff would owe a duty

to release prisoners in a manner which would not subject them to

unreasonable danger. 213

6. Premises Liability.—In Hundt v. La Crosse Grain Co. 214 the plain-
tiff opened a door, fell down some steps and injured himself. The jury
awarded the plaintiff damages in a general verdict. The steps were con-

structed in violation of specific safety laws 215 and were undoubtedly

dangerous. The plaintiff fell when he mistakenly opened a door leading
to the basement instead of the door to a bathroom which he intended

to enter. Because the plaintiff was thoroughly familiar with the premises,

the Hundt majority ruled that, as a matter of law, the plaintiff was con-
tributorily negligent and ordered the trial court to enter judgment in favor

of the defendant. 216 The court's ruling in Hundt contained indications that
the open and obvious danger rule was a factor in its decision. 217 In addi-

21 '439 N.E.2d at 194.
212441 N.E.2d 1017 (Ind. Ct. App. 1982).
2n

Id. at 1020-21 (citing Wagar v. Hasenkrug, 486 F. Supp. 47 (D. Mont. 1980); Parvi
v. City of Kingston, 41 N.Y.2d 553, 394 N.Y.S.2d 161, 362 N.E.2d 960 (1977); 60 Am.

Jur. 2d Penal and Correctional Institutions § 17 (1972)).
2I4446 N.E.2d 327 (Ind. 1983).
2l5 The uncontradicted evidence showed that the basement door opened inward, toward

the steps down which the plaintiff fell, and that there was no landing inside the door and
no handrail beside the steps. Id. at 328. At trial, the State Fire Marshall "was allowed

to testify, over LaCrosse's timely objections, as to the existence, scope and content of statutes

and regulations of the Administrative Building Council concerning safety features such as

landings and handrails required for stairways in public buildings." Id.
lxb

Id. at 330.
2 "The court's description of the facts in Hundt indicate that the danger to the plain-

tiff was open and obvious, given his familiarity with the area where he was injured. The

court's holding that the plaintiff was contributorily negligent as a matter of law, id., con-

tains the predicate that the defendant was negligent, because without negligence there can

be no contributory negligence. Thus, it is clear that the open and obvious nature of a danger



368 INDIANA LAW REVIEW [Vol. 17:341

tion, the Indiana Supreme Court completely ignored the specifics of human
reactions and human factors as described in the dissent. 218 The Hundt
opinion goes to the extent of calling an unlocked door a "guard"

against dangers.
219 What seems most disturbing is the fact that the area where

the plaintiff fell was dangerous and defective. 220 What incentive does a
defendant have to cure dangers and defects when he is told that he need

not pay for the damages caused by his dangerous and defective property?

Do those dangers still exist to cause further injury? What message does
the Hundt decision send to other landowners or parties who may also
violate the safety statutes and regulations established for the protection

of the public of Indiana?

The dissent in another premises liability case, Martin v. Shea, 221 il-

lustrates the conflicts that can arise between the application of the out-

moded, traditional concepts of premises liability and the contentions of

severely injured plaintiffs. In Shea, the plaintiff was a social guest at a

swimming pool party at the private residence of the defendants. During

some "horseplay" the plaintiff was shoved from behind by another guest

and fell into the pool. The plaintiff was rendered quadriplegic after strik-
ing his head on the bottom of the pool. Under the traditional categories of

premises liability—trespasser, licensee, invitee

—

222
the plaintiff would be con-

sidered a licensee
223 and the defendants would owe such a limited duty

to plaintiff that he could not recover. 224 The plaintiff alleged, however,

that it was not the premises that caused him harm, but the conduct of

the defendants in controlling other guests. Under these contentions the

plaintiff alleged that the defendant owed at least a duty of reasonable care.
The majority of the Shea court agreed with plaintiff, held that the

defendant's 12(B)(6) motion was erroneously granted, and remanded the

case back to the trial court for further proceedings. 225 The dissent in Shea
is an excellent expression of the "legal atmosphere" that existed over fifty

is merely a factor in determining, and not conclusive of, the defenses of contributory negligence

and assumption of risk. The supreme court's holding in Bemis Co. v. Rubush, 427 N.E.2d

1058 (Ind. 1981), that an open and obvious danger makes a product non-defective as a

matter of law regardless of whether the products liability action is based on negligence or

strict liability, id. at 1061, does not seem to comport with the Hundt court's conclusion
that such a danger is part of the defense of contributory negligence or possibly assumption

of risk. See Vargo, Products Liability, 1983 Survey of Recent Developments in Indiana

Law, 17 Ind. L. Rev. 255, 255 (1984).
2,H See 446 N.E.2d at 331 (DeBruler, J., dissenting).
219

Id. at 329.
220See supra note 215.
22l 432 N.E.2d 46 (Ind. Ct. App. 1982).
222

See Swanson v. Shroat, 169 Ind. App. 80, 345 N.E.2d 872 (1976), cited in 432 N.E.2d

at 47.

223432 N.E.2d at 49 (Ratliff, J., dissenting).
224

Id. at 50.

225
Id. at 49.



1984] SURVEY—TORTS 369

years ago and which seems to be the driving policy of the Indiana Supreme

Court. The dissent viewed the obligation of the defendant as requiring

positive wrongful acts, willfull or wanton misconduct, and entrapment, but

not reasonable care. 226 The dissent also made it clear that a plaintiff must
look out for his own safety and that a guest has no right to any protec-
tion from obvious dangers. 227 The Shea dissent comes close to approving
the active-passive distinction of negligence law which has been specifically

rejected in other Indiana negligence cases. 228

Although the Shea majority analyzed the case as requiring reasonable

care because the condition of the premises involved was not the source

of the breach of duty, the time has come for Indiana to reject the ancient

premises liability categories.

7. Parent-Child Immunity.—In Buffalo v. Buffalo, 229 the court
reversed the dismissal of a complaint by a child against his non-custodial

parent when the marriage of the child's parents had been previously
dissolved.

230 The Buffalo court implied that the parent-child immunity doc-

trine stood intact, 231 but that the circumstances of this case were outside

the doctrine.
232 Although the decision in Buffalo seems quite appropriate,

the suggestion by the court, that their knowledge of present day social

life would substantiate the continuance of the parent-child immunity, 233

does not seem to comport with the fact that other similar immunities have

been abrogated. 234 In addition, current conditions indicate that children

may need protection, considering the increase of both physical and men-
tal abuse of children by an increasing number of parents. 235

8. Negligent Infliction of Emotional Harm.—In Little v.
Williamson, 236 a young child saw his sister mauled by a great Dane dog
owned by the defendants. The plaintiff and his sister were walking in
the neighborhood when the great Dane grabbed a puppy from the girl's
arms and killed the puppy. In the process the great Dane bit so hard
on the girl's arm that he broke two of the bones in her arm and caused

226
Id. at 50 (Ratliff, J., dissenting) (citing Fort Wayne Nat'l Bank v. Doctor, 149 Ind.

Ct. App. 365, 272 N.E.2d 876 (1971)).
227432 N.E.2d at 51 (Ratliff, J., dissenting) (citing Swanson v. Shroat, 169 Ind. App.

80, 345 N.E.2d 872 (1976)).
22
*See, e.g., Fort Wayne Nat'l Bank v. Doctor, 149 Ind. App. 365, 272 N.E.2d 876

(1971).
229441 N.E.2d 711 (Ind. Ct. App. 1982).
2
"Id. at 712.

2i]
Id. at 712-13.

212
Id. at 713.

2ii
Id. at 712 (quoting Smith v. Smith, 81 Ind. App. 566, 569-70, 142 N.E. 128, 129

(1924)).
2i
*See Brooks v. Robinson, 259 Ind. 16, 284 N.E.2d 794 (1972) (interspousal immunity

abrogated).
2 "See Davidson, Children's Rights: Emerging Trends for the 1980's, 19 Trial 44, 46

(1983).
236441 N.E.2d 974 (Ind. Ct. App. 1982).



370 INDIANA LAW REVIEW [Vol. 17:341

numerous lacerations. The plaintiff was present during the mauling of

his sister and suffered mental anguish and fear as a result. The trial court

granted summary judgment for the defendants and the court of appeals
affirmed.

237 The Little court confirmed the Indiana rule that some type

of physical impact is required in both negligent and intentional infliction

of emotional distress cases.
238 The impact rule as espoused in Indiana seems

unnecessary to say the least. The major reason for continuance of the

rules seems to be based upon the idea that it will prevent fraudulent claims

and the release of the dreaded "flood of fictitious claims" upon the

courts.
239

Under the circumstances of the Little case, it seems almost inevitable

that a plaintiff would suffer mental anguish and fear, in fact, it would

be unusual if he did not. The fear of fraudulent claims as a support for

the impact rule ignores the advances in modern medicine and psychiatry
and the fact that mental damages are quite common in negligence cases
involving physical injury. In addition, the courts appear capable of pro-

tecting parties against any fraudulent claims that might arise. The reason

for the existence of the courts is to adjudicate the claims of parties, and

to deny parties' claims because "we're too busy" does not seem to be

a principled rationale. The courts in this area may, in reality, be imple-

menting the policy consideration underlying other areas of Indiana law,

i.e., the protection of insurance companies. 240

9. Guest Cases.—Indiana still adheres to its guest statute 241 on the
shaky grounds of social politeness and gratitude toward one giving a

gratuitous ride to another. This policy has been grounded upon the pro-

motion of hospitality. 242 If this is the true foundation of guest cases, the

Supreme Court of Indiana and the Indiana Legislature must believe that

the promotion of politeness is of much greater importance than the com-
pensation of victims or the promotion of safety.

Within the framework of the guest statute, the plaintiff is required

211
Id. at 974.

2l
*Id. at 975 (citing Kaletha v. Bartz Elevator Co., 178 Ind. App. 654, 383 N.E.2d 1071

(1978) (intentional); Kroger Co. v. Beck, 176 Ind. App. 202, 375 N.E.2d 640 (1978) (negligent);

Charlie Stuart Oldsmobile, Inc. v. Smith, 171 Ind. App. 315, 357 N.E.2d 247 (1976)

(negligent)). Although the Little court noted an exception to the impact rule in certain cases

of intentional infliction of emotional distress, 441 N.E.2d at 975 (citing Charlie Stuart

Oldsmobile, Inc. v. Smith, 171 Ind. App. 315, 327, 357 N.E.2d 247, 254 (1976)), the court

stated that responsibility for recognizing negligent infliction of emotional distress as a tort

independent of physical impact lay with the Indiana Supreme Court or the state legislature,

and that any erosion of the impact rule must first occur in cases of intentional rather than

negligent infliction of emotional distress. 441 N.E.2d at 975.
2,9See Charlie Stuart Oldsmobile, Inc. v. Smith, 171 Ind. App. 315, 325, 357 N.E.2d

247, 253 (1976).
2i
"See supra notes 1-13 and accompanying text.

2tx See Ind. Code §§ 9-3-3-1 to -2 (1982).
2i2

See Sidle v. Majors, 264 Ind. 206, 216, 341 N.E.2d 763, 771 (1976).



1 984] SUR VEY—TORTS 37

1

to show some type of behavior by the defendant-driver beyond mere

negligence, usually referred to as willful and wanton conduct. 243 This type

of conduct was discussed in Thrapp v. Austin. 2 ** In Thrapp, the plaintiff

was injured in a one car accident and the identity of the driver was in

dispute. The Thrapp court stated that inferences were sufficient to sup-

port the conclusion that the defendant was the driver of the vehicle. 245

The court also discussed the evidentiary requirements for willful and wan-

ton conduct 246 and concluded that whenever intoxication is combined with

evidence of other types of misconduct, willful and wanton conduct may
be inferred.

247
In Thrapp, the evidence showing that the driver was intox-

icated—the car went off both sides of the road several times and the guest-
passenger requested to drive—was sufficient to establish willful and wanton
conduct. 248

In Clipp v. Weaver, 2 * 9 Gerald Clipp was killed in a boat accident

wherein he was riding as a passenger, and an action was brought for his
death. The trial court granted summary judgment for the defendant and
the plaintiff appealed. The court of appeals reversed the trial court's sum-
mary judgment, 250 stating that the standard of care owed by the operator

of a boat to his passenger is one of ordinary care, and the plaintiff need

not prove willful and wanton misconduct. 251 The Weaver court rejected

24iSee Ind. Code § 9-3-3-1 (1982).
244436 N.E.2d 1170 (Ind. Ct. App. 1982); see also Antcliff v. Datzman, 436 N.E.2d

114 (Ind. Ct. App. 1982), discussed infra at notes 332-37 and accompanying text.
245 436 N.E.2d at 1174.
246Wanton or willful misconduct requires that [sic] the host-driver to be: (1) con-
scious of his misconduct; (2) motivated by reckless indifference for the safety

of his guest; and (3) to know his conduct subjects his guests to a probability

of injury. The trial court should also apply the following guidelines: a) An error
of judgment or a mistake standing alone, on the part of the host, will not amount

to wanton or willful misconduct, b) The host must have manifested an attitude

adverse to the guest, or of perverseness, in that the host must have been shown

he was indifferent to the consequences of his conduct, c) The entire course of

conduct of the host leading up to the accident must be considered, d) The host

must have had actual knowledge of danger confronting the guest.

Id. at 1175 (citations omitted).
241

Id. at 1174 (citing Andert v. Fuchs, 271 Ind. 627, 394 N.E.2d 931 (1979)).
2
**Id. at 1175.

249439 N.E.2d 1189 (Ind. Ct. App. 1982), vacated, 451 N.E.2d 1092 (Ind. 1983). The

Indiana Supreme Court granted transfer and vacated the court of appeals opinion because

it conflicted with the Seventh Circuit Court of Appeals decision in McDonnell v. Flaherty,

636 F.2d 184 (7th Cir. 1980) (applying Indiana law). Nevertheless, the supreme court stated:

"[W]e have carefully examined Judge Conover's excellent opinion [for the Indiana Court

of Appeals] and believe he is absolutely correct in his approach to the law regarding the

operation of watercraft." 451 N.E.2d at 1092. Because the supreme court took the same

approach and added little to the court of appeals anaylsis, only the court of appeals deci-

sion will be discussed in this Survey Article.
250

Id. at 1190.
25 l

Id. at 1193.



372 INDIANA LAW REVIEW [Vol. 17:341

the application of the guest case rationale because the Indiana motor vehicle

guest statute applies only to motor vehicles operated on public highways. 252

In addition, the court rejected the application of a prior decision by the

United States Court of Appeals for the Seventh Circuit,
253 which inter-

preted boat cases as requiring proof of willful and wanton negligence based

upon the rationale of the duty owed to social guests in premises liability
cases.

254 Noting that Indiana Code section 14-1-1-16, 255 regarding the stand-

ard of care owed by boat owners, only requires proof of ordinary

negligence, the majority in Weaver reversed; 256 however, Presiding Judge

Young stated in dissent that he would require the willful and wanton rule

in order to promote hospitality. 257

The Weaver decision, although rejecting the troglodytic concept of the

guest rationale, emphasizes the sluggish state of Indiana law. Indiana is

practically the last jurisdiction in the nation still clinging to the motor

vehicle guest rationale,
258 based upon the insupportable policy of the pro-

motion of hospitality. Is it really ingratitude to bring an action against

a driver whose negligent act has caused injury to one or more of his

passengers?

E. Res Ipsa Loquitur

The doctrine of res ipsa loquitur is a rule of evidence that allows

an inference of negligence once the following elements have been fulfilled:

"1) [T]he event must be of a kind which ordinarily does not oc-

cur in the absence of someone's negligence;

2S1
Id. at 1190 (citing Ind. Code § 9-l-l-2(a), (b), (q) (1982)). Applying the rule of

statutory construction that "the more specific statute will govern if in apparent conflict
with a more general statute," 439 N.E.2d at 1191, the court held that Ind. Code § 14-1-1-1

(1982), which specifically defines boats, excludes boats from the provision of the motor

vehicle guest statute, Ind. Code § 9-3-3-1 (1982). 439 N.E.2d at 1191.
253 McDonnell v. Flaharty, 636 F.2d 184 (7th Cir. 1980), distinguished in 439 N.E.2d

at 1192.
254 636 F.2d at 186-87.
25!

Ind. Code § 14-1-1-16 (1982), quoted in 439 N.E.2d at 1193.
256

Ind. Code § 14-1-1-16 (1982) provides: "Every person operating any boat shall operate
the same in a careful and prudent manner, having due regard for the rights, safety and

property of other persons . . . ." The Weaver court held that the words "careful and prudent

manner" determined the degree of care required of a boat operator, and that "Indiana

cases using these words apply only to the standard of reasonable and ordinary care." 439

N.E.2d at 1193 (citing Orth v. Smedley, 177 Ind. App. 90, 378 N.E.2d 20 (1978); Allied

Fidelity Ins. Co. v. Lamb, 361 N.E.2d 174 (Ind. Ct. App. 1977). Further, the Weaver conn
found the words "other persons" to be broad enough to include gratuitous guests. 439

N.E.2d at 1193.
257439 N.E.2d at 1193 (Young, J., dissenting).
2S *Only Indiana, Alabama, Arkansas, Delaware, Georgia, and Utah still have guest statutes

that prevent a guest-passenger from bringing an action against a host-automobile driver

based on ordinary negligence. Townsend, supra note 141, at 4.



1984] SURVEY—TORTS 373

2) it must be caused by an agency or instrumentality within the

exclusive control of the defendant;

3) it must not have been due to any voluntary action or con-

tribution on the part of the plaintiff". 259

Two recent Indiana Court of Appeals cases, SCM Corp. v. Letterer260
and Bituminous Fire & Marine Insurance Co. v. Culligan Fyrprotexion,
Inc.,

261 discussed the application of the second element above. Both cases

stated that Indiana requires that the defendant have exclusive control of

the injuring agency at the time the accident occurs. 262 It does not require

a great deal of thought to conclude that the control element of res ipsa,

if restricted to the time of the accident, would eliminate its applicability

to many factual situations, such as defective products. If the defect
originated at the time of manufacture, the product will be sold and the

accident will occur at a later time, usually when the product is in the
control of the user or someone other than the defendant-manufacturer.

The primary source of the control rule in Indiana seems to be the

1958 case of Evansville American Legion Home Association v. White
,

263

wherein an unfortunate plaintiff fell on an allegedly defective chair owned

by the defendant. The injured plaintiff was denied recovery because at
the time she sat in the chair, she had control of the injuring agency. 264

Both Letterer265 and Bituminous266 cite the White decision, along with other

cases, most of which rely on White. 267 It is also noteworthy that Prosser,

upon which Letterer relies for the elements of res ipsa, 268 commented that
the literal application of the second element has led to "ridiculous con-

clusions, requiring that the defendant be in possession at the time of the

plaintiff's injury—as in the . . . case denying recovery where a customer
in a store sat down on a chair, which collapsed." 269

Thus, the key Indiana case, White, does not seem to be within the

logic for which res ipsa was intended, according to one of the leading
authorities on tort law. As long ago as 1944, one of the mose prominent cases

259SCM Corp. v. Letterer, 448 N.E.2d 686, 689 (Ind. Ct. App. 1983) (quoting W.
Prosser, Handbook of the Law of Torts § 39, at 214 (4th ed. 1971)).

260448 N.E.2d 686 (Ind. Ct. App. 1983).
26, 437 N.E.2d 1360 (Ind. Ct. App. 1982).
262448 N.E.2d at 689; 437 N.E.2d at 1365.
263239 Ind. 138, 154 N.E.2d 109 (1958).
26A

Id. at 140, 154 N.E.2d at 110.
265See 448 N.E.2d at 689.
266See 437 N.E.2d at 1365.
2bl

See, e.g., Henley v. Nu-Gas Co., 149 Ind. App. 307, 271 N.E.2d 741 (1971), cited
in 448 N.E.2d at 689 and 437 N.E.2d at 1365.

268See 448 N.E.2d at 689 (quoting W. Prosser, Handbook of the Law of Torts
§ 39, at 214 (4th ed. 1971); see supra text accompanying note 259.

269W. Prosser, Handbook of the Law of Torts § 39, at 220 (4th ed. 1971) (citing
Kilgore v. Shepard Co., 52 R.I. 151, 158 A. 720 (1932)).



374 INDIANA LAW REVIEW [Vol. 17:341

in the country stated that the defendant's control at the time of the indicated

negligence should be sufficient to satisfy the control requirement. 270 The

Letterer case, in recognizing the applicability of res ipsa in strict liability

cases, attempted to alleviate the harshness of the control element.
271 The

"ridiculous conclusions" will remain in negligence cases, however, if In-

diana continues to adhere to the unwarranted literal interpretation of the

control doctrine. It seems unduly harsh that merely because the plaintiff has

possession or control of the injuring agency at the moment of the accident,
he should be deprived of the inferences raised by the res ipsa doctrine,

especially when, as it often happens, the plaintiff is unable to meet the

proof requirements of negligence, because the damning evidence thereof

is in the control of the defendant.

In Hammond v. Scot Lad Foods, Inc., 212 the court emphasized that
a jury instruction on res ipsa must include an instruction on the inferences

which are to be drawn from the proof of the three elements of res ipsa. 273

In the context of Indiana's pattern jury instructions, the Hammond court
held that instruction No. 7.11, setting forth the three elements of res ipsa,

must be accompanied by instruction No. 7.13, which describes the in-

ferences resulting from meeting the elements. 274

In Marquis v. Battersby 215 the court discussed the first element of

res ipsa—the type of accident which does not ordinarily occur in the
absence of someone's negligence—and found the doctrine inapplicable
where the incident in question was of a nature not within the ordinary

knowledge of a jury. 276 Thus, in medical malpractice cases, or other

negligence cases where the standard of care must be established by expert

testimony, res ipsa is inapplicable. However, in a medical negligence case

where the consequence of the alleged negligent treatment is within the

common knowledge of laymen, such as leaving a sponge in the body of
the plaintiff, res ipsa should be applicable.

F. Damages

1. Treble Damages for Wrongful Cutting of Timber.—In Wright v.

270
Escola v. Coca Cola Bottling Works, 24 Cal. 2d 453, 455, 150 P. 2d 436, 438 (1944).

27 '448 N.E.2d at 690.
272436 N.E.2d 362 (Ind. Ct. App. 1982).
21i

Id. at 364. The emphasis of this holding is heightened by the fact that the court
of appeals took the unusual action of upholding the trial court on grounds not asserted

by either party in their appellate briefs. See id. at 364-65. The court stated that it took

such action, sua sponte, because the instruction, which was requested by the plaintiff and

rejected by the trial court, and which did not tell the jury what inferences would be raised

by the application of res ipsa in this case, was " 'palpably bad on its face, and' ... to
approve that instruction by itself could only have the effect of 'confusing the law and

misleading the profession.' " Id. at 365 (quoting L.S. Ayres & Co. v. Hicks, 220 Ind. 86,
99, 41 N.E.2d 195, 196 (1942) (Shake, C.J., on petition for rehearing)).

274436N.E.2d at 365.
275 443 N.E.2d 1202 (Ind. Ct. App. 1982).
276

Id. at 1203.



1984] SURVEY—TORTS 375

Reuss,
217

the plaintiff received treble damages under Indiana Code sec-
tion 25-36. 5-1-17

278
in addition to other damages for the wrongful cutting

and removal of trees from the plaintiff's land. The court of appeals af-

firmed the judgment of the trial court 279 and determined that the treble

damages statute was one of strict liability which did not require inten-

tional or willful conduct. 280 Thus, under section 25-36.5-1-17, lack of in-

tent, good faith, and mistake of fact are not defenses, and the criminal

mens rea is not required in order for the plaintiff to recover.

2. Reduction of Damages Reversed.—In Weaver v. Gullion 2%x an
action for injuries received in an auto collision, the trial court reduced

a judgment for one of the plaintiffs from $27,000 to $3,000. The court

of appeals affirmed the trial court's action, 282 but on transfer, the In-

diana Supreme Court reversed and reinstated the original $27,000 verdict

in favor of the plaintiff.
283 The supreme court noted that the primary concern

of the trial court was the weakness of the plaintiff's medical evidence

concerning permanent injuries. 284 The supreme court also noted that it
was uncontroverted that during a temporary period of four and one-half

months the plaintiff had suffered severe anxiety, pain, disability and ex-

pensive medical treatment, which amply supported the $27,000 verdict. 285

3. Conflicts, Aggravation of Pre-existing Condition, and Survivor-

ship.—In Lee v. Lincoln National Bank & Trust Co., 286 residents of
Michigan and Indiana were involved in an automobile accident in Indiana.

One of the Michigan residents subsequently died and was represented by
the administrator of his estate in an action brought by the surviving

Michigan residents. The defendants argued that the Michigan No Fault
Insurance Act287 precluded any tort action in Indiana, but the trial court

denied defendants' summary judgment motion. On interlocutory appeal,
the Indiana Court of Appeals agreed with the trial court and stated that

the doctrine of lex loci delicti commissi applied288 and, therefore, Indiana

law allowed such an action, and the defendants' motion for summary
judgment was properly denied.

The defendants also contended that, because the death certificate in-
dicated that the plaintiffs' decedent died from a pulmonary embolism

resulting from a pre-existing condition and not from injuries resulting from

277434 N.E.2d 925 (Ind. Ct. App. 1982).
11%See Ind. Code § 25-36.5-1-17 (1982).
279434 N.E.2d at 926.
2i0

Id. at 929.
281 446 N.E.2d 605 (Ind. 1983).
2%2 See id. at 606.
28
'Id.

2i4
Id. at 607.

2%%
Id.

286442 N.E.2d 1147 (Ind. Ct. App. 1982).
2%1

See Mich. Comp. Laws Ann. §§ 500.3101 - .3179 (West 1983).
288442 N.E.2d at 1148. This doctrine states that "the law of the location of the tort

is applicable in a tort action for recovery of damages." Id.



376 INDIANA LAW REVIEW [Vol. 17:341

the automobile accident, the plaintiffs could not recover damages. The

Lee court, however, referred to the deposition of a medical expert that

made it clear that the injuries from the accident could have aggravated

a pre-existing condition and, as such, it was up to the jury to determine

the cause of death in the wrongful death action.
289

Finally, the defendants argued that the Indiana survivor's statute290

limited plaintiffs' damages. The Lee court, however, noting that the sur-
vivor's statute only limited damages when the plaintiff died from injuries
other than those received at the hands of the defendant, affirmed the

denial of the defendants' summary judgment motion, because a jury ques-
tion still remained as to the cause of death of the plaintiffs' decedent. 291

4. Recovery of Wrongful Death Damages by Illegitimate Children.—
The damages that are allowed under the Indiana Wrongful Death Statute292

may be recovered by legitimate "dependent children," 293 but the statute
is silent in regard to whether illegitimate children are, or can be, "depend-

ent children." Special problems arise under Indiana's statutory scheme

regarding the relationship between an illegitimate child and his or her

putative father.
294

In S.M.V. v. Littlepage, 295 the court was confronted

with the claim of a posthumously born illegitimate child for a distributive

share of the proceeds of a wrongful death settlement obtained by the

deceased putative father's surviving legitimate child. The court concluded

that "dependent children," as used in the Wrongful Death Act, includes

"any illegitimate child who has the right to maintain a claim for inheritance
against his father's estate under the laws of intestate succession, or to

enforce parental obligations under the paternity statute against the father's

estate."
296 Thus, under Littlepage, for an illegitimate child to successfully

289442 N.E.2d at 1148-49.
290See Ind. Code § 34-1-1-1 (1982), which states in relevant part:
[W]hen a person receives personal injuries caused by the wrongful act or omis-

sion of another and thereafter dies from causes other than said personal injuries

so received, the personal representative of the person so injured may maintain
an action against the wrongdoer to recover damages resulting from such injuries,

if the person so injured might have maintained such action, had he or she lived;

but provided further, that the personal representative of said injured person shall

be permitted to recovery only the reasonable medical, hospital and nursing ex-

pense and loss of income of said injured person, resulting from such injury, from

the date of the injury to the date of his death.

Id. (emphasis added).
29, 442 N.E.2d at 1150.
292

Ind. Code §§ 34-1-1-1 to -8 (1982).
291 See id. § 34-1-1-2.
29
"See infra note 296.

295443 N.E.2d 103 (Ind. Ct. App. 1982).
296

Id. at 110. Indiana law governing inheritance to, through, and from illegitimate children

is codified at Ind. Code § 29-1-2-7 (1982). Subsection 7(b) states that, for inheritance pur-

poses, an illegitimate child is to be treated the same as if he were the legitimate child of

his father if and only if: "(1) the paternity of such child has been established by law, during



1984] SURVEY—TORTS 111

claim damages for the wrongful death of his or her putative father, facts

must be available that indicate: (1) paternity of the decedent was established

during his lifetime by a court having jurisdiction; or (2) the child's mother

and putative father married and the father acknowledged the paternity

of the child; or (3) the father acknowledged paternity in writing; or (4)

the father performed his support obligations, in whole or in part, in the

past.
297 The Littlepage court indicated its belief that the above requirements

would strike a reasonable balance between the prevention of spurious

claims, problems of proof of paternity, and the rights of illegitimate

children.
298 The court affirmed the trial court's summary judgment against

the plaintiff on the basis that the child failed to meet any of the required

proofs of paternity. 299

Judge Ratliff, in a concurring opinion in Littlepage, questioned the

continued validity of the concerns of the court in reference to the prob-

lems created by stale claims of paternity, the difficulty of proving pater-

nity, and the dangers of spurious claims as justifications for the statutes

governing the rights of illegitimate children. 300 Judge Ratliff pointed out

that recent court decisions, 301 scientific knowledge, and the Indiana

legislature's extension of the statute of limitations in paternity actions 302

the father's lifetime; or (2) if the putative father marries the mother of the child and

acknowledged the child to be his own." Id. at § -7(b).

At all times relevant to the Littlepage case, Indiana paternity law was governed by Ind.

Code §§ 31-4-1-1 to -33 (1976) (repealed 1978). Section 7 of the now-repealed statute allowed

the obligation of the father of an illegitimate child to be enforced against the father's estate

"where his paternity has been established during his lifetime by judgment of a court of

competent jurisdiction, or where his paternity has been acknowledged by him in writing,

or by the part performance of his obligations." Id. § -7. It appears that the Littlepage

holding is limited to the legislative scheme expressed in the 1976 statute. See 443 N.E.2d

at 107 (noting that "[a]t all times relevant to the case at bar, Indiana's paternity statute

was Ind. Code § 31-4-1-1 [1976]"); see also 443 N.E.2d at 110 (stating that its definition

of "dependent children" is a "reasonable and proper interpretation of the legislative scheme

involved here") (emphasis added); id. at 111 (Ratliff, J., concurring) ("I view the major-

ity's comments concerning former legislative policy to have been offered for historical

background .... ").
Indiana's present paternity law is codified at Ind. Code §§ 31-6-6.1-1 to -19 (1982).

Especially relevant here are sections 6, 8, and 9.
291See 443 N.E.2d at 110; see also supra note 296. As discussed supra in note 296,

it appears that the Littlepage holding is limited to the law as it existed at the times relevant

to that case.
29% See 443 N.E.2d at 109-10.
299

Id. at 110.
i00

Id. at 110-11 (Ratliff, J., concurring).
30i

See, e.g., Mills v. Habluetzel, 456 U.S. 91 (1982) (declaring a Texas one-year statute

of limitations in paternity actions unconstitutional); Little v. Streater, 452 U.S. 1 (1981)

(holding denial of blood grouping test to indigent paternity defendant a denial of due proc-

ess); In re M.D.H., 437 N.E.2d 119 (Ind. Ct. App. 1982) (declaring former Indiana two-

year statute of limitations in paternity actions unconstitutional).

"'Compare Ind. Code § 31-4-1-26 (1976) (repealed 1978) with Ind. Code § 31-6-6.1

(1982).



378 INDIANA LAW REVIEW [Vol. 17:341

had negated to a great extent the court's continued reliance upon anti-
quated concepts. 303

In Hollingsworth v. Taylor ™* the court applied the doctrines of Lit-

tlepage and held that an illegitimate child had met the requirements for

"dependent child" within the meaning of the Wrongful Death Statute,

inasmuch as the deceased putative father had supported the child and had

acknowledged the child as his own in writing. 305

5. Permanent and Non-Permanent Injury to Real Property.—In
Capitol Builders, Inc. v. Shipley, 106 an action for negligence and breach

of warranty in the construction of a home, the court concluded that per-

manent injury to realty exists when " 'the cost of restoration exceeds the
market value of the building prior to injury.'

" 307
Conversely, an injury

to real property is "non-permanent," the court held, when the cost of
restoration is less than the pre-injury market value of the building. 308 If

the injury to the realty is non-permanent, then the measure of damages

is the cost of restoration or repair. 309

6. Economic Loss.—In Babson Brothers v. Tipstar Corp., 310 the plain-
tiff sued the defendant for negligent installation of a milking parlor. A
jury verdict was rendered in favor of the plaintiff, and on appeal, the

defendant alleged that the trial court erred by allowing the jury to con-

sider evidence of the plaintiff's economic losses. The court of appeals
noted that contractual damages, such as reliance interest or benefit of

the bargain, are generally not recoverable in a tort action. 311 The Tipstar
court, however, agreed with the plaintiff that Indiana law recognizes the

recovery of lost profits in a tort action312 and that, in some situations,
economic losses may be characterized as consequential or compensatory
damages. 313 In such situations, recovery may be allowed in a tort action.

7. Punitive Damages.—Indiana has allowed punitive damages in a
variety of situations where the defendant's conduct manifests elements

303
443 N.E.2d at 110-11 (Ratliff, J., concurring).

30M42 N.E.2d 1150 (Ind. Ct. App. 1982).
)0S

Id. at 1152. Like Littlepage, it appears that Hollingsworth was also decided under
Ind. Code § 31-3-1-7 (1976) (repealed 1978). See 442 N.E.2d at 1152; see also, supra note
296. For a further discussion of these cases, see Falender, Trusts and Decedents' Estates,
1983 Survey of Recent Developments in Indiana Law, 17 Ind. L. Rev. 387, 387 (1984).

306439 N.E.2d 217 (Ind. Ct. App. 1982).
i07

Id. at 226 (quoting General Outdoor Advertising Co. v. LaSalle Realty Corp., 141

Ind. App. 247, 267, 218 N.E.2d 141, 151 (1966)).
30 *439 N.E.2d at 226.
309M
3I0446 N.E.2d 11 (Ind. Ct. App. 1983).

'"Id. at 15 (citing Moorman Mfg. Co. v. National Tank Co., 91 111. 2d 69, 435 N.E.2d
443 (1982)).

3,2446 N.E.2d at 15 (citing Indiana Bell Co. v. O'Bryan, 408 N.E.2d 178 (Ind. Ct.

App. 1980); Kroger Co. v. Haun, 177 Ind. App. 403, 379 N.E.2d 1004 (1978)).
3I3 446 N.E.2d at 15.



1984] SURVEY—TORTS 379

of fraud, malice, gross negligence, or oppression. 314 In Travelers Indem-

nity Co. v. Armstrong^ 5 however, the Indiana Supreme Court, required

that the plaintiff prove his case for punitive damages by clear and con-

vincing evidence.
316

The Armstrong opinion, as common law in Indiana, generally has
both retrospective as well as prospective effect, as was demonstrated in

Don Medow Motors, Inc. v. Grauman. in There, the plaintiff received
a jury verdict and judgment for damages, including $17,500 in punitive

damages. The Grauman court affirmed certain statutory damages 318 and
compensatory damages for breach of warranty319 but remanded the case

'"See, e.g., Hibschman Pontiac, Inc. v. Batchelor, 266 Ind. 310, 362 N.E.2d 845 (1977);

Vernon Fire & Casualty Ins. Co. v. Sharp, 264 Ind. 599, 349 N.E.2d 173 (1976); Jos.
Schlitz Brewing Co. v. Central Beverage Co., 172 Ind. App. 81, 359 N.E.2d 566 (1977).

315442 N.E.2d 349 (Ind. 1982).
U6

Id. at 365. After noting that there is no right to punitive damages, id. at 362 (citing

Indianapolis Bleaching Co. v. McMillan, 64 Ind. App. 268, 113 N.E. 1019 (1917)), the

Armstrong court proceeded to outline its rationale for the stricter burden of proof for recovery

of punitive damages:

It cannot be said, therefore, that a plaintiff seeking such a bonus is denied any

right, if he be held to a degree of proof higher than is required in other actions.

In fact, it is incongruous to permit a recovery of that to which there is no entitle-

ment upon evidence that barely warrants a recovery of that which is the plain-

tiff's absolute right. Yet, that is precisely what may occur when the inference
of obduracy, from which punitive damages may flow, is permissible, but not com-
pelled, from the same conduct from which compensatory damages flow, as a matter

of right. To avoid such occurrences, punitive damages should not be allowable
upon evidence that is merely consistent with the hypothesis of malice, fraud, gross

negligence or oppressiveness. Rather some evidence should be required that is in-

consistent with the hypothesis that the tortious conduct was the result of a mistake

of law or fact, honest error of judgment, over-zealousness, mere negligence or

other such noniniquitous human failing. For, just as we agree that it is better
to acquit a person guilty of a crime than to convict an innocent one, we cannot

deny that, given that the injured party has been fully compensated, it is better

to exonerate a wrongdoer from punitive damages, even though his wrong be gross

or wicked, than to award them at the expense of one whose error was one that

society can tolerate and who has already compensated the victim of his error.

A rule that would permit an award of punitive damages upon inferences per-
missibly drawn from evidence of no greater persuasive value than that required
to uphold a finding of the breach of contract—which may be nothing more than
a refusal to pay the amount demanded and subsequently found to be owing

—

injects such risks into refusing and defending against questionable claims as to
render them, in essence, nondisputable. The public interest cannot be served by
any policy that deters resort to the courts for the determination of bona fide
commercial disputes.

442 N.E.2d at 362-63. For a further discussion of this case, see Arthur, Insurance Law,

1983 Survey of Recent Developments in Indiana Law, 17 Ind. L. Rev. 223, 226 (1984).
3,7446 N.E.2d 651 (Ind. Ct. App. 1983).
3,8

/tf. at 653; see 15 U.S.C. § 1989(a) (1982).
3I9446 N.E.2d at 654.



380 INDIANA LAW REVIEW [Vol. 17:341

for retrial of the punitive damages award in view of the Armstrong deci-

sion that clear and convincing evidence is required to prove punitive

damages. 320

8. Loss of Consortium.—In Bender v. Peay* lx a husband attempted
to bring a separate action for the loss of consortium of his injured

wife after a judgment had been entered against his wife in an action for per-

sonal injuries. The trial court denied the defendant's motion for sum-
mary judgment and certified the issue for interlocutory appeal. The court
of appeals reversed the trial court and stated that a spouse's claim of loss of
consortium is derived from the claim of the injured spouse; 322 there-
fore, if the injured spouse receives an adverse judgment, no loss of
consortium claim may be maintained as an independent action. 323 Judge
Neal, in dissent, stated that the principle of collateral estoppel (issue preclu-

sion) controls where an independent claim for loss of consortium is made
after the injured spouse has received an adverse judgment. 324 Rejecting

the derivative nature of loss of consortium, Judge Neal stated that both

the personal injury and loss of consortium actions arise from separate
individual injuries, and each spouse should be allowed a day in court. 325

G. Pleadings

Since 1970, Indiana has used the modern system of pleadings wherein
the initiation of an action merely requires a short, plain statement of the

facts and circumstances which gave rise to the plaintiff's claim. This has
been commonly called "notice pleading." However, the recent case of

i20
Id. at 655. Regarding the retrospective effect of the Armstrong case, the Grauman

court stated that except where an enunciation of the common law through a judicial opin-
ion in a civil case would impair a contract made or a vested right acquired in reliance

on an earlier opinion, a change in the common law generally has retrospective as well as
prospective effect:

In theory the law has not changed; the last judicial decision is said to have enun-

ciated the law as it had always existed. Thus, a civil case is determined on the

common law as it stands when the judgment is to be rendered and not as it stood
when the suit was brought .... Therefore, the standard of clear and convincing

proof applied to Grauman.

Id. at 654 (citations omitted).
32, 433 N.E.2d 788 (Ind. Ct. App. 1982).
i22

Id. at 790 (citing Arthur v. Arthur, 156 Ind. App. 405, 296 N.E.2d 912 (1973)).
323 433 N.E.2d at 792.
,24

Id. at 792 (Neal, J., dissenting). Judge Neal stated:

The majority attempts to distinguish the Benders' derivative-claim argument

from their collateral estoppel argument. I see no distinction. The essence of the

derivative argument is that the issue of the Benders' liability to Mrs. Peay has

been decided and cannot be litigated by her husband in a subsequent suit. This

is a collateral estoppel argument. It raises the same competing policies of fairness

to individual litigants and deference to prior judgments.

Id.

u
'Id. at 794.



1984] SURVEY—TORTS 381

Beta Alpha Shelter of Delta Tau Delta Fraternity, Inc. v. Strain,*26 has

called into question the concept of notice pleading. In Strain, the plain-

tiff's original complaint alleged negligent installation of a heating and cool-

ing system. The plaintiff later filed an amended complaint adding a count

of implied warranty of habitability against all defendants. After filing the

amended complaint, the plaintiff filed a trial brief that asserted that the

issues to be tried included the question of negligent design of the heating and

cooling system. The defendant thereafter made an oral motion in limine
to exclude any evidence during trial that tended to show negligent design,

which the trial court granted. Later the plaintiff requested leave to file

a second amended complaint to include an allegation of negligent design,

which the trial court denied. The trial court entered judgment against the

plaintiff, and the plaintiff appealed.

On appeal, the plaintiff contended that its original complaint was
broad enough to include allegations of design defect. The Strain court

disagreed and said that nowhere did the complaint in any manner allude

to defects in design.
327 The Strain court, following the Indiana Supreme

Court's decision in State v. Rankin, 32 * stated that a complaint need only

state the operative facts involved in the cause of action, that the rules

do not require that the complaint state all of the elements of a cause

of action, and while a statement of the theory at trial is desirable, it is

not required. 329 However, the Strain court held that, "[n]ot withstanding

our supreme court's declarations in Rankin, . . . where the plaintiff's

complaint expressly sets forth its theories and facts in support thereof,

the defendant may properly rely upon them in preparing for trial." 330

After further examination of the pleadings, the Strain court affirmed the

judgment against the plaintiff. 331

The Strain decision calls into question the practice of alleging specific
theories and facts in the original complaint. If a plaintiff makes an error
and does not include a specific type of defect in a strict liability case
or a specific act of negligence, it may prove to be detrimental. For exam-
ple, if the statute of limitation runs while discovery is still proceeding

and the plaintiff discovers new facts or theories that he desires to allege,
he may be precluded from doing so if his complaint is narrowly worded;
whereas, if the plaintiff's complaint is extremely broad, he might then

come within the notice requirements and still be able to make more specific
allegations at pre-trial, at trial, or both. The Strain decision makes sense
from the defendant's view, although it may prove to be a detriment to
the plaintiff who attempts to be specific at the early stages of a lawsuit
but later discovers new information.

326
446 N.E.2d 626 (Ind. Ct. App. 1983).

111
Id. at 629.

328 260 Ind. 228, 294 N.E.2d 604 (1973), cited in 446 N.E.2d at 629.
329446 N.E.2d at 629 (citing State v. Rankin, 260 Ind. at 230-31, 294 N.E.2d at 606).
330446 N.E.2d at 630.
33

7tf. at 631.



382 INDIANA LAW REVIEW [Vol. 17:341

H. Contributory Negligence and Assumption of Risk

In Antcliff v. Datzman,
132

the plaintiff brought an action under the

guest act.
333 The defendant alleged that the plaintiff incurred the risk as

a matter of law. The Datzman court, upon examination of the incurred
risk defense, stated that, in this case, the issue of incurred risk was a
question of fact for the jury to decide. 334 The court found that the evidence
presented was such that the jury could infer that the plaintiff did not
appreciate the risk until it was too late to abandon his course of action. 335

In addition, the facts presented an issue of whether the plaintiff's actions

were voluntary. 336 The defendant urged that the instructions the trial court
tendered requiring actual knowledge, appreciation, and voluntariness on
the plaintiff's part were in error because an objective reasonable man test
should have been applied. The Datzman court rejected the defendant's
contention and stated that a subjective analysis was proper for the incurred

risk defense.
337

Although well written opinions such as Kroger Co. v. Haun33% have
attempted to explain the elements of assumption of risk, the issue still

seems to be misconstrued. Such misconstruction seems to indicate a basic

misunderstanding of the assumption of risk and contributory negligence

defenses. Assumption of risk, or incurred risk 339 as it is sometimes called,

when reduced to its basic elements is merely the defense of consent. The
elements of assumption of risk, as spelled out by Indiana law340 and the

Restatement of Torts, 341 are knowledge, understanding, appreciation, and

voluntariness. If a person is said to consent to something, it is clear that

he must have subjective knowledge, understanding, and appreciation of

the risk; he cannot consent to an unknown or unappreciated risk. It is
clear that assumption of risk requires a personalized consent on the plain-

tiff's part because only the person involved can be said to consent. Sub-

jectivity is an absolute necessity in assumption of risk cases. In addition,

a person must be presented with viable alternatives or he has not truly

consented to anything.

On the other hand, contributory negligence involves conduct, not con-
sent. Like negligence, contributory negligence involves a hypothetical stand-

332436 N.E.2d 114 (Ind. App. 1982).

'"See Ind. Code §§ 9-3-3-1- to -2 (1982).
334436 N.E.2d at 119.

""Id.
ii6

Id. (quoting Ridgway v. Yenny, 223 Ind. 16, 22, 57 N.E.2d 581, 583 (1944)).
337436 N.E.2d at 120 (citing Kroger Co. v. Haun, 177 Ind. App. 403, 379 N.E.2d

1004 (1978)).
338 177 Ind. App 403, 379 N.E.2d 1004 (Ind. Ct. App. 1978).
339The term "assumed risk" is used in the situation where the risk arises from a con-

tractual obligation, but otherwise does not differ from "incurred risk." See id. at 408 n.2,

377 N.E.2d at 1008 n.2.
ii0

Id. at 410, 377 N.E.2d at 1009 (quoting Williams v. Brown Mfg. Co., 45 111. 2d

418, 261 N.E.2d 305 (1970)).
341 Restatement (Second) of Torts §§ 496C, 496D (1965).



1984] SURVEY—TORTS 383

ard of reasonableness to which all are supposed to conform. Negligence

and contributory negligence are based upon objective, hypothetical stand-

ards. To inject the objective contributory negligence standard into the
elements of assumption of the risk would refute the basic personalized

underpinnings of consent.

The Datzman court also examined the defense of contributory wan-

ton and willful misconduct; however, the court rejected this theory because

there was no evidence to support its application in this case. 342

/. Malicious Prosecution

The essential elements of malicious prosecution are firmly established

in Indiana law. 343 To support a claim for malicious prosecution, the plain-
tiff has the burden of proving that the defendant instituted legal action

against the plaintiff with malice and without probable cause; that the legal

proceedings terminated in the plaintiff's favor; and that the plaintiff sus-

tained damages. 344 In four recent cases, Indiana courts have refined the

requisites of a claim for malicious prosecution.

1. Underlying Legal Action.—The court in Shallenberger v. Scoggins-
Tomlinson, Inc., i45 discussed the requirement of legal action initiated by

the defendant. The defendant in Shallenberger filed a written grievance

with the professional standards committee of a local board of realtors.

In his grievance, the defendant contended that Shallenberger had engaged

in conduct violative of the Realtors' Code of Ethics. After hearings on

the grievance, Shallenberger was placed on probation. Shallenberger then

brought an action for wrongful civil proceedings 346 and the trial court

entered summary judgment for the defendant.
The court on appeal agreed with the lower court that the action for

wrongful civil proceedings was inappropriate. 347 The appellate court ob-

served that one of the essential elements of malicious prosecution was

absent in that the filing of the grievance did not constitute the initiation

of legal action, because the grievance proceedings were not judicial

proceedings. 348 The Shallenberger decision restricted the broad definition

342436 N.E.2d at 120.
iAiSee Display Fixtures Co. v. Hatcher, Inc., 438 N.E.2d 26, 30 (Ind. Ct. App. 1982).

'"E.g., Costello v. Mutual Hosp. Ins. Inc., 441 N.E.2d 506, 508 (Ind. Ct. App. 1982);
Display Fixtures Co. v. Hatcher, Inc., 438 N.E.2d 26, 30 (Ind. Ct. App. 1982); Shallenberger

v. Scoggins-Tomlinson, Inc., 439 N.E.2d 699, 704 (Ind. Ct. App. 1982).
345 439 N.E.2d 699 (Ind. Ct. App. 1982).
346The wrongful initiation of a civil suit gives rise to an action for wrongful civil pro-

ceedings. W. Prosser, Handbook of the Law of Torts § 120, at 850-56 (4th ed. 1971).
An action for wrongful civil proceedings is analogous to an action for malicious prosecu-
tion. Id.

347439 N.E.2d at 704.
iAi

Id. The court reasoned that even if the grievance proceedings constituted legal ac-

tion, Shallenberger would not have a claim for malicious prosecution, because the grievance

proceedings did not terminate in Shallenberger's favor. Id.



384 INDIANA LAW REVIEW [Vol. 17:341

of "prosecution" proposed in Peoples Bank & Trust Co. v. Stock. 349 In
Stock, any sort of judicial proceeding was recognized as a legal action

out of which a claim for malicious prosecution could arise. 350

2. Malice and Probable Cause.—Malice and absence of probable
cause are other elements of malicious prosecution, and these two requisites

were considered in Display Fixtures Company v. Hatcher, Inc. 351 Display
Fixtures filed a mechanics lien on real estate held in trust by Mercantile

National Bank. Subsequently, Display Fixtures brought an action to foreclose

on the mechanics lien. Mercantile National Bank responded with a counter-
claim for malicious prosection. The trial court entered judgment in favor
of Mercantile National Bank. On appeal, the lower court's judgment was
affirmed on the ground that the act of filing the mechanics lien constituted

malicious prosecution. 352 The appellate court determined that the mechanics
lien was filed without probable cause. Probable cause exists when a
reasonable inquiry discloses facts which would induce a reasonable, in-

telligent, and prudent person to bring an action. 353 Display Fixtures,

however, made no inquiry concerning facts which would have supported
the filing of a mechanics lien. Moreover, the court held that malice could

be inferred from a failure to make a suitable inquiry; 354 therefore, the
trial court's award of punitive damages was upheld. 355

Probable cause was the sole issue addressed by the court in Costello

v. Mutual Hospital Insurance, Inc. 356 In Costello, an insurer brought a

subrogation action against the insured and her daughter. The insured's

daughter paid the amount in question, and the suit was dismissed.

Thereafter, the insured brought an action for malicious prosecution. Sum-

mary judgment was entered in favor of the insurer. The appellate court

affirmed the summary judgment, holding that the insurer had probable

cause to include the insured as a defendant in its suit for subrogation.
357

The insurer based its claim upon a subrogation clause that had not been

conclusively interpreted by the courts. Because the law was unsettled, the

insurer had a potential right of recovery against either the insured or her

dependent. From the apparent state of facts disclosed by suitable inquiry,
the court held that the insurer took reasonable action to protect its col-

lection rights and that probable cause was present. 358

3. Successful Termination.—As further support of a claim for
malicious prosecution, the plaintiff must establish that the underlying ac-

349 392 N.E.2d 505 (Ind. Ct. App. 1979).
350M at 511.
35, 438 N.E.2d 26 (Ind. Ct. App. 1982).
352M at 31.
" l

Id. at 30.
35A

Id. at 30-31.

15i
Id. at 31.

356
441 N.E.2d 506 (Ind. Ct. App. 1982).

357
Id. at 509.

358
/tf.



1984] SURVEY—TORTS 385

tion brought by the defendant terminated in the plaintiff's favor. In Mat-

tingly v. Whelden, 359 the court emphasized that a plaintiff can maintain

an action for malicious prosecution only upon a showing of final disposi-

tion of the underlying cause brought by the defendant. 360 Mattingly com-

menced a malicious prosecution action, basing his complaint upon an

earlier suit for replevin brought by the defendant. On the same date that
Mattingly's complaint was filed, the defendant perfected a timely appeal

of the underlying cause. The trial court granted summary judgment against
Mattingly, ruling that " 'all the elements necessary for the maintenance

of a malicious prosecution action [were] not present . . . .'
" 361

The court of appeals likewise concluded that an essential element of

the cause of action was not in existence. 362 Due to the pendency of the
defendant's appeal, the underlying cause had not been finally terminated

at the time Mattingly commenced his malicious prosecution action. In
short, the action for malicious prosecution was premature. 363 The court of

appeals also noted, however, that the defense of prematurity does not

concern the merits of a claim and, therefore, has no res judicata effect. 364

The court remanded the cause to the trial court with instruction to correct

the summary judgment to a judgment of "dismissal due to prematurity
without prejudice to further action." 365

/. Conclusion

In relation to the traditional goals of tort law—the compensation of
injured victims, the reduction of accidents, and the increase of safety

—

Indiana has taken giant strides backwards in time during this survey period.

Plaintiffs are again confronted with the reemergence of the barrier of privity.

The no-duty concepts of a bygone era are reemphasized in appellate opin-

ions. The guest act still bars recovery and the archaic wrongful death

statute lingers on. The open and obvious danger rule threatens to spread

from products liability cases to the general area of negligence. Damages

are limited or new barriers, such as the clear and convincing evidence

standard for punitive damages, are constructed.

The Supreme Court of Indiana does not disguise its opinion that a
primary policy of tort law should be the protection of insurance carriers.

In support of its protective policy, the Indiana Supreme Court has relied

upon discredited and outdated rationales such as the hospitality rationale
in guest cases. If this trend continues, Indiana may become the most
hospitable state in the union with the least protection for its injured

victims.

359435 N.E.2d 61 (Ind. Ct. App. 1982).
360

Id. at 63.
361

Id.

i62
Id.

26l
Id. (quoting from the record at 74).

364
435 N.E.2d at 64 (citing Kirkpatrick v. Stingley, 2 Ind. 269 (1850)).

365435 N.E.2d at 64.