Indiana Law Review The Impact of Comparative Fault in Indiana Roger L. Pardieck* I. Introduction Indiana has long adhered to the rule that a contributorily negligent plaintiff is not entitled to recover any damages in tort actions.' This "all or nothing approach" will be altered in 1985 when Indiana's Comparative Fault Act takes effect.^ In most states, the ehmination of the "all or nothing" rule of common law contributory neghgence is the major im- pact of a comparative fault law. However, this change may not be the most significant alteration. The cumulative effect of a nonparty defense,^ the possible elimination of joint and several liability," and legislative restric- tions on fault comparison^ may overshadow the elimination of the "all or nothing" approach. *Partner with the firm of Montgomery, Eisner & Pardieck. A.B., Indiana Universi- ty, 1959; LL.B., Indiana University—Bloomington, 1963. The author wishes to extend his appreciation to Sharon L. Hulbert for assistance in the preparation of this Article. 'See, e.g., Hundt v. La Crosse Grain Co., Inc., 446 N.E.2d 327 (Ind. 1983); Kingan & Co. V. Gleason, 55 Ind. App. 684, 101 N.E. 1027 (1913); Hall v. Terre Haute Elec. Co., 38 Ind. App. 43, 76 N.E. 334 (1905). ^Act of Apr. 21, 1983, Pub. L. No. 317-1983, 1983 Ind. Acts 1930 (codified as amended at Ind. Code §§ 34-4-33-1 to -13 (Supp. 1984) (effective Jan. 1, 1985) [hereinafter 1983 Act]. Indiana became the 40th state to adopt some form of comparative fault when S.B. 287 was passed. Bayliff, Comparative Fault Act, Verdict 13-15 (post leg. ed. 1983). 'See Act of Mar. 5, 1984, Pub. L. No. 174-1984, Sec. 5, § 10, 1984 Ind. Acts 1468, 1471-72 (codified at Ind. Code § 34-4-33-10 (Supp. 1984)). "While the statute does not expressly eliminate joint and several liability, it can be interpreted as abolishing joint and several hability. See infra notes 51-84 and accompanying text. See also Wilkins, The Indiana Comparative Fault Act At First (Lingering) Glance, 17 Ind. L. Rev. 687, 718 (1984). 'The Indiana Act not only creates comparative fault but also creates a number of restrictions to its application. First, comparative fault will apply and allow recovery only when the claimant's fault is less than "the fault of all persons whose fault proximately contributed to the claimant's damages." Ind. Code § 34-4-33-4(a), (b) (Supp. 1984)). Sec- ond, the Act also bars the claimant's recovery if the claimant's fault is "greater than fifty percent (50%) of the total fault." Id § 34-4-33-5(a)(2) and (b)(2). In addition to limiting the claimant's recovery under certain circumstances, the Act sets forth certain types of actions that will not be covered by comparative fault. The defini- tion of fault states that actions based on intentional conduct do not fall under the scope of the Act. Id. § 34-4-33-2(a) (Supp. 1984). The Act also does not apply to any strict liabil- ity actions bought under the Products Liability Act. Id. § 34-4-33-13. For an interesting discussion regarding the benefits and detriments of this exclusion on manufacturers, see Fisher, Products Liability & Overview of Act, in Indiana's Comparative Fault Act VI-1, VI-22 (Indiana Continuing Legal Education Forum 1984). Finally, Indiana Code section 34-4-33-8 states that comparative fault "does not apply in any manner to tort claims against governmental entities or public employees under I.C. 34-4-16.5." The expansiveness of the governmental exclusion is understood only when the definitions of public employee and governmental entity are examined. Indiana Code section 34-4-16.5-2(1) defines public employee: 925 926 INDIANA LAW REVIEW [Vol. 17:925 "[E]mplo\ee" and "public employee" means a person presently or formerly acting on behalf of a governmental entity whether temporarily or permanently or with or without compensation, including members of boards, committees, com- missions, authorities and other instrumentalities of governmental entities, and elected public officials, but does not include an independent contractor or an agent or employee of an independent contractor. Indiana Code section 34-4-16.5-2 states that (2) "governmental entity" means the state or a political subdivision of the state; * * * (5) "political subdivision" means a: (i) county, (ii) township, (iii) city, (iv) town, (v) separate municipal corporation, (vi) special taxing district, (vii) state college or university, (viii) city or county hospital, (ix) school corporation, or (x) board or commission of one (1) of the entities listed in clauses (i) through (ix), inclusive of this subdivision; (6) "state" means Indiana and its state agencies; and (7) "state agency" means a board, commission, department, division, govern- mental subdivision including a soil and water conversation district, bureau, com- mittee, authority, military body, or other instrumentality of the state, but does not include a poHtical subdivision. IND. Code § 34-4-16.5-2(2) & (5) to (7) (1982). For discussions of this exemption, see Fisher, supra, at VI- 19 and Wilkins, supra note 4, at 692. It is also questionable whether comparative fault will apply to actions involving a guest statute. Some jurisdictions have entertained the idea that comparative fault impliedly repeals automobile guest statutes. Davis v. Cox, 593 S.W.2d 180 (Ark. 1980); Huydts v. Dixon, 606 P.2d 1303 (Colo. 1980). In Davis v. Cox, the court first declared the guest statute constitutional and then determined that the guest statute was not repealed by the passage of the comparative fault statute. The court noted that for one statute to repeal another, the imphcation had to be "clear, necessary and irresistible." 593 S.W.2d at 183. The court acknowledged that the guest statute may entirely eliminate a cause of action but stated that the concept of comparative fault and the guest statute's elimination of a cause of action were compatible. Therefore the guest statute was not deemed repealed. The Huydts decision addressed the argument that an implied repeal of assumption of risk by adoption of comparative fault was the same as an implied repeal of the guest statute. The court rejected this argument stating that unlike assumption of risk, the guest statute was "not derived from the common law doctrine of contributory negligence; but stems from a legislative decision that one who rides as a guest in another person's vehicle should not be allowed to recover for injuries caused by the operator's simple and ordinary negligence." 606 P. 2d at 1306. The court's argument that the issue was one for the legislature was strengthened by the fact that the legislature had expressly repealed the guest statute five years after the adoption of the comparative fault statute. However, because the guest statute was in effect on the date of the accident in question, the trial court was obligated to apply its provisions. Id. Indiana's legislature recently amended Indiana's guest statute to allow recovery by passengers who are not the driver's parent, spouse, child or stepchild, brother, sister or a hitchhiker. Ind. Code § 9-3-3-l(b) (Supp. 1984) (amending Ind. Code §9-3-3-1 (1982)). 1 984] EXPANSfVE IMPACT 927 Determining what type of actions are covered by their comparative fault act has created problems in many jurisdictions/ While Indiana's statute anticipated many of these problems,' it remains silent as to a number of situations and doctrines, making it unclear where these doc- trines are included within the Act's coverage or, in some cases, abrogated by the Act. This article, while noting the cumulative impact of the Comparative Fault Act, discusses areas of Indiana law affected by the statute, including proximate cause, last clear chance, joint and sevcial liability, and no-duty rules. An examination of these areas illustrates the expansive impact com- parative fault will, have on Indiana law. II. The Scope of Indiana's Comparative Fault Act Not all statutes on this topic are "comparative fault" statutes. Some acts are termed "comparative negligence."^ The scope of a state's com- parative fault act depends on the language utilized in the act. When an act such as Indiana's is referred to as a comparative fault act, the scope of the statute is often interpreted to be more expansive than a comparative negligence statute.^ This is because the term "fault" is read as encom- passing a greater variety of conduct than the term "negligence. "'° In- diana's definition of fault indicates that the statute will cover conduct beyond mere negligence, yet the statute does place limits on the scope of its coverage." The 1983 Indiana Comparative Fault Act covered a much broader scope of conduct than the 1984 Act, and gave credence to the idea that "fault" encompassed much more than negligent conduct. The 1983 Act defined fault as including strict tort Hability, breach of warranty, and This amendment will allow certain individuals to bring negligence actions against the driver. Thus, comparative fault will play a role in those cases. The legislature's active role in this area will probably deter the courts from finding that comparative fault impliedly repeals the guest statute. The courts are more apt to adopt the reasoning of the Huydts and Davis decisions and defer to the legislature should such an attack on the guest statute be made. ^See V. Schwartz, Comparative Negligence 31-42 (1974) (discussing the broad range of problems and effects which can arise under comparative fault); Annot., 10 A.L.RAth 946 (1981) (discussing whether comparative fault should apply to actions based on gross negligence or recklessness). 'See IND. Code § 34-4-33-2(a) (Supp. 1984). 'Not every jurisdiction utilizing comparative fault has a statute; some states have judicially adopted comparative fault. However, the majority of jurisdictions adopting com- parative fault have done so legislatively rather than judicially. See New Topic Serv. Am. JuR. 2d, Comparative Negligence § 7 (1977). ^See Comment, The Role of Recklessness in American Systems of Comparative Fault, 43 Ohio St. L.J. 399 n.l (1982). "*/c?. This article will use the terms "comparative fault" and "comparative negligence" interchangeably unless indicated otherwise. "See iND. Code § 34-4-33-10 (Supp. 1984). 928 INDIANA LAW REVIEW [Vol. 17:925 misuse of a product.'* Each of these theories encompasses concepts that are not generally associated with pure negligence actions. The 1984 Act narrowed the definition of fauh. Under the 1984 Act, "Fault" includes any act or omission that is negligent, willful, wanton, or reckless toward the person or property of the actor or others, but does not include an intentional act. The term also includes unreasonable assumption of risk not constituting an en- forceable express consent, incurred risk, and unreasonable failure to avoid an injury or to mitigate damages.'^ This definition of fault no longer covers actions based on a strict liability or warranty theory."* but retains actions based on conduct beyond or- dinary negligence.'^ Thus, actions based on a defendant's willful, wan- ton, or reckless conduct will be decided under comparative fault principles.'^ However, where the conduct is intentional, no comparison '^IND. Code Sec. 34-4-33-2(a) (Supp. 1983) (amended 1984). The 1983 Act stated: "Fault" includes any act or omission that is negligent, willful, wanton, or reckless toward the person or property of the actor or others, or that subjects a person to strict tort liability, but does not include an intentional act. The term also includes breach of warranty, unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, misuse of a product for which the defendant otherwise would be liable, and unreasonable failure to avoid an injury or to mitigate damages. Id. (emphasis added). The emphasized portions of the above definition were deleted by the 1984 Act. Act of Mar. 5, 1984, Pub. L. No. 174-1984, Sec. 1, § 2(a), 1984 Ind. Acts 1468, 1468 (codified at Ind. Code Sec. 34-4-33-2(a) (Supp. 1984). The original 1983 Act's definition of fault closely resembled the language used in the Uniform Comparative Fault Act. The Uniform Act states: "Fault" includes acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability. The term also includes breach of warranty, unreasonable assumption of risk not constituting an enforceable express consent, misuse of a product for which the defendant otherwise would be liable, and unreasonable failure to avoid an injury or to mitigate damages. Legal requirements of causal relation apply both to fault as the basis for liability and to contributory fault. Unif. Comparative Fault Act Sec. 1(b), 12 U.L.A. 35 (Supp. 1983). The similarity between the 1983 Act and the Uniform Act would have permitted In- diana courts construing the statute to look to the comments accompanying the Uniform Act for guidance. While the 1984 Act's definition of fault eliminates some of the similarities between the Indiana Act and the Uniform Act, the Uniform Act and its comments should still be a valuable reference source where the two Acts utilize similar language. '^Act of Mar. 5, 1984 Pub. L. No. 174-1984, Sec. 1, § 2(a), 1984 Ind. Acts 1468, 1468 (codified at Ind. Code § 34-4-33-2(a) (Supp. 1984)). "For a discussion of whether and how comparative fault should apply to strict liabili- ty actions, see V. Schwartz, supra note 6, at 195-209 and H. Woods, Comparative Fault ch. 14 (1978) (containing a discussion of camparative fault and warranty actions at 263-74). "See Ind. Code § 34-4-33-2(a) (Supp. 1984). '*See id. Indiana presently follows the common law rule that contributory negligence is no defense when injuries are willfully inflicted; in addition, conduct evincing a lesser degree of culpability also precludes the defense, such as conduct that has been labeled "con- 1 984] EXPANSIVE IMPA CT 929 of fault will occur and traditional common law principles will be applied.'^ Other types of conduct specifically included in the 1984 Act are unreasonable assumption of risk, incurred risk, and unreasonable failure to avoid injury or mitigate damages.'^ While Indiana's 1984 Act attempts to clarify what type of actions are within the scope of the Act, it fails to mention a number of doc- trines. Courts will eventually have to decide whether doctrines not men- tioned in the 1984 Act are within its scope; the sjope and application of the Act will also have to be determined in regard to those areas specifically mentioned. Although Indiana's definition of fault delineates to a degree what concepts fall under the Act, the definition does not deal with every situation that may arise, leaving the final word on the Act's scope and impact in the hands of the judiciary. III. Causation Under a Comparative Fault System Court interpretation of how causation operatres under the statute will be of central concern to any action governed by comparative fault. Before the impact comparative fault has on causation can be understood, Indiana's current law on causation must be examined. A. Current Status of the Law Indiana courts have stated that both cause in fact and proximate cause are indispensable elements of a negligence action.'^ Cause in fact is deter- mined under a "but for" test^° which states that negligent conduct is not a cause in fact "if the harm would have occurred without it."^' Factual causation must be established before a finding of proximate cause can be made.^^ Once factual causation is shown, proximate cause must be proved. For example, car A is pulling out of a private driveway while car B is driving on the road. Car B passes through an intersection with structive willfulness," "wanton," or even "reckless." McKeown v. Calusa, 172 Ind. App. 1, 5, 359 N.E.2d 550, 553 (1977). Under the new Comparative Fault Act the need for such exceptions to common law contributory negligence is lost as the plaintiff 's negligence no longer acts as a total bar to recovery. "Ind. Code § 34-4-33-2(a) (Supp. 1984). "/c?. The unreasonable failure to avoid injury probably encompasses the avoidable consequences doctrine. This doctrine "denies recovery for any damages which could have been avoided by reasonable conduct on the part of the plaintiff. . . . The rule of avoidable consequences comes into play after a legal wrong has occurred, but while some damages may still be averted, and bars recovery only for such damages." W. Prosser, Law of Torts ch. 11, § 65, at 423 (4th ed. 1971). '"See Havert v. Caldwell, 452 N.E.2d 154, 158 (Ind. 1983); City of IndianapoHs v. Parker, 427 N.E.2d 456, 461 (Ind. Ct. App. 1981); Tabor v. Continental Baking Co., 110 Ind. App. 633, 643, 38 N.E.2d 257, 261 (1941). ^°City of Indianapohs v. Parker, 427 N.E.2d 456, 461 (Ind. Ct. App. 1981). ^^Id. The party asserting negligent conduct on the part of another "has the burden of proving causation in fact by a preponderance of the evidence." Id. "Tabor v. Continental Baking Co., 110 Ind. App. 633, 643, 38 N.W. 2d 257, 261 (1941). 930 INDIANA LAW REVIEW [Vol. 17:925 a malfunctioning traffic light and collides with car A. The plaintiff, driver of car A, sues the city on the theory that the city should have maintained the traffic light in proper working order. To maintain the suit against the city, the plaintiff would have to prove that the malfunctioning traffic light did in fact cause the accident. Because the accident did not occur in the intersection, the malfunctioning light probably had nothing to do with the accident. Thus, although the city may have been negligent in not fixing the traffic light, the plaintiff cannot collect from the city because the traffic light played no part in causing the accident; in other words, no cause in fact exists. If the collision had occurred in the intersection, however, and the plaintiff introduced evidence proving the malfunction- ing light to be a cause of the accident, cause in fact would exist, and the plaintiff would move on to prove proximate cause. ^^ Proximate cause is defined as ''that cause which, in natural and con- tinuous sequence, unbroken by any efficient intervening cause, produces the result complained of and without which the result would not have occurred."^'' The conduct or act of a party need not be the sole prox- imate cause of an injury for Hability to attach. ^^ The act need only be a cause of injury. ^^ However, Indiana courts have stated that the act must be "a substantial factor in producing the injury complained of,"^' not just a remote cause. ^^ The major test of proximate cause centers around foreseeability. Before an act can be deemed to be the proximate cause of an injury, it must be shown that the injury was one that "was foreseen, or reasonably should have been foreseen, as the natural and probable consequence of the act or omission. "^^ This does not mean that the specific nature of the injury or the extent of injury must be foreseen.^" It need only be reasonably foreseeable "that [the] conduct will cause injury in substan- tially the manner in which it occurs."^' Generally, proximate cause is an issue of fact to be determined by the jury;^^ however, "where the facts are undisputed and lend themselves to a single inference or conclusion," proximate cause becomes a question of law for the court." In Indiana it is therefore possible for proximate ''See id. ^^Johnson v. Bender, 174 Ind. App. 638, 643, 369 N.E.2d 936, 939 (1977). -'Ortho Pharmaceutical Corp. v. Chapman, 180 Ind. App. 33, 54, 388 N.E.2d 541, 555 (1979). "Id. ^'Tabor v. Continental Baking Co., 110 Ind App. 633, 644, 38 N.E.2d 257, 261 (1941). ^'Ortho Pharmaceutical Corp. v. Chapman, 180 Ind. App. 33, 54, 388 N.E.2d 541, 555 (1979). "Havert v. Caldwell, 452 N.E.2d 154, 158 (Ind. 1983). '"Johnson v. Bender, 174 Ind. App. 638, 643, 369 N.E.2d 936, 939 (1977). ''Ortho Pharmaceutical Corp. v. Chapman, 180 Ind. App. 33, 54, 388 N.E.2d 541, 555 (1979). 'Pelroski v. Northern Indiana Pub. Serv. Co., 171 Ind. App. 14, 24, 354 N.E.2d 736, 744 (1976). 1 984] EXPANSIVE IMPACT 931 cause issues to be decided by either the court or jury depending upon the facts of the case. When the facts are undisputed, the court may either find that no proximate cause exists and enter summary judgment or direct a verdict for the defendant, or determine that a plaintiff's conduct was not contributorily neghgent.^^ If the jury determines that no proximate cause is shown, a plaintiff will not be permitted to recover from the defen- dant. If contributory negligence has been asserted, the lack of proximate cause between the plaintiff's negligence and injury will defeat the con- tributory negligence defense. B, The Impact of Comparative Fault on Causation It is clear that Indiana's Comparative Fault Act has retained the re- quirements of both cause in fact and proximate cause. Indiana Code sec- tion 34-4-33- 1(b) states that "[i]n an action brought under this chapter, legal requirements of causal relation apply to: (1) fault as the basis for liability; and (2) contributory fault. "^^ This section clearly indicates that causation will still be a determinative factor for any case based on fault '*See Havert v. Caldwell, 452 N.E.2d 154 (Ind. 1983). The Havert case illustrates the somewhat bizarre results that may be achieved when the foreseeability element of prox- imate cause is applied. In Havert, a police officer, Havert, pulled to the side of a curb to investigate a house. Another car, driven by Hook, stopped abruptly behind the police car and was then struck from the rear by a third car, driven by Caldwell. After searching for a prowler, Havert returned to the scene of the accident. Havert and Hook walked be- tween Hook's and Caldwell's cars to examine the damage. At that time, a fourth car, driven by Warren, hit the rear of Caldwell's car pushing it forward into Hook's car which then hit the police car. Mr. Hook and Officer Havert both suffered serious personal in- juries as did Mrs. Hook who was standing to one side of the cars. At the time of the accident, all of the cars were in a lane designated as a parking lane for that time of the evening. Havert and Hook sued Caldwell and Warren for their injuries. At trial, Caldwell moved for partial summary judgment on two alternative theories. First, that his act only created a condition, and it was not reasonably foreseeable that a fourth car would run into the back of his car causing it to hit the other cars again. Therefore, Caldwell claimed his act was not the proximate cause of Havert's personal injuries. Second, Caldwell claimed that Hook and Havert were contributorily negligent in standing between the vehicles, placing themselves in very hazardous positions. The trial court granted Caldwell's motion on the theory that Hook and Havert did act with contributory negligence. The ap- pellate court reversed, and the supreme court vacated the appellate court's ruling and granted the motion, not on the theory of contributory negligence however, but because Caldwell's actions did not constitute a proximate cause. The supreme court first noted that no material issue of fact existed and then stated that it was not reasonably foreseeable that a car would drive in the parking lane of the roadway and strike the cars in that lane. Therefore, the court found as a matter of law that none of the plaintiffs had been contributorily negligent and that no partial summary judgment was proper on that basis. Thus the same forseeability factor was used to declare the plaintiffs not contributorily negligent and to allow the defendant's motion for partial summary judgment on the ground that proximate cause was lacking. One interesting sidelight is that the original accident occurred while the lane was designated a parking lane and each car had been driven in that lane. ^Tnd. Code § 34-4-33-l(b) (Supp. 1984). 932 INDIANA LAW REVIEW [Vol. 17:925 or any case in which contributory fault is raised. ^^ Presumably, any con- duct that is not shown to be causally related to the claimant's damage will not fall under the Comparative Fault Act and therefore will not be considered when fault is apportioned.^' This approach is compatible with Indiana's common law approach; both require conduct to be deemed a proximate cause of the injury before it is considered in a negligence ac- tion. The problem arising under comparative fault involves either a plain- tiff or defendant whose conduct is deemed to be the sole proximate cause of an injury, or a finding of "no cause in fact".^^ Nothing in Indiana's Comparative Fault Act indicates that the com- mon law rules of causation will be altered under the comparative fault system. Thus, it is reasonable to assume that the substantial factor test and the forseeability test will continue to apply. ^^ In addition, the issue will remain one for the jury unless the facts are undisputed and lead to but one conclusion. "^^ Whether the question goes to the jury or to the court may be important, because what the jury and court do with the ultimate conclusion on a given set of facts may vary somewhat. 7. 77?^ Plaintiff's Negligence as the Sole Proximate Cause.—Indiana adopted a modified form of comparative fault, meaning that a comparison of fault will not always lead to recovery by the plaintiff. Rather, the plain- tiff is entitled to recover only when his fault is "not greater than fifty percent (50^o) of the total fault. "^' While the efficacy of using a 50% rule versus a pure comparative fault rule may be strongly debated, ''^ it is certain that such an approach alleviates any problem that might arise when a jury finds the plaintiff's negligence to be the sole proximate cause of his injury. Under a pure system, a finding of sole proximate cause results in the plaintiff's negligence barring recovery as in contributory negligence.''^ In Indiana, a jury finding that the plaintiff was over 50% '^The language utilized in this section is identical to the language used in the Uniform Comparative Fault Act, except for a few minor changes. The commissioners' comments to the Uniform Act state that this language includes both the concept of cause in fact and proximate cause. Unif. Comparative Fault Act Commissioners' Comments, 12 U.L.A. 35, 38 (Supp. 1983). ''See id. ^'Because of the similarities in these two issues and this problem, this article will focus on the proximate cause issue as cause in fact is a prerequisite to a finding of proximate cause. The reader should, however, keep in mind that the problem occurs both when cause in fact and sole proximate cause are involved. "See supra notes 27-31 and accompanying text. ""See supra notes 32-34 and accompanying text. "'IND. Code § 34-4-33-5(a)(3), (b)(3) (Supp. 1984). "^A large debate centers on whether a pure form or modified form of comparative fault is the best approach. For general discussions regarding the various approaches available, see V. Schwartz, supra note 6, at 43-82; H. Woods, supra note 14, at 77-90. "^See V. Schwartz, supra note 6, at 89. Under a pure comparative negligence system, "the contributorily negligent plaintiff's damages are reduced by the jury in proportion to the amount of negligence attributable to him. The jury is instructed to take this step unless plaintiff's negligence was the sole proximate cause of the harm that befell him." Id. at 46. 1984] EXPANSIVE IMPACT 933 at fault has the same effect as a sole proximate cause finding in a pure system; both findings result in the plaintiff being completely barred from recovery/"* Sole proximate cause will more directly affect the Indiana plaintiff when the court determines that no issue of material fact exists and decides the issue of causation as a matter of law/' If the court decides that the plaintiff's conduct was the sole proximate cause of his injury, summary judgment may be granted for the defendant. The plaintiff, therefore, never reaches the jury and his contributory negligence acts as a complete bar to any chance of recovery. The possibility of such an occurrence in In- diana should, however, be limited by two factors. First, Indiana generally recognizes that the issue of causation is one for the jury. Therefore, in most cases, the issue will go to the jury because of a factual dispute. ""^ Second, pure comparative fault jurisdictions that allow the sole proximate cause issue to be sent to the jury have been reluctant to take the issue away from the jury.^' The courts are also reluc- tant to allow the jury to make a finding of sole proximate cause which results in no comparison of fault. "** Rather, the courts ask the jury to compare the fault and apportion it accordingly."*^ Because of these fac- tors and Indiana's less than 50% rule, the impact of sole proximate cause should be minimal when directly appHed to the plaintiff under the In- diana comparative fault system. 2. The Innocent Plaintiff and Joint and Several Liability.—A finding by either the court or jury that the defendant was the sole proximate cause of the plaintiff's injury will create special problems in Indiana. In this situation, the court is dealing with a non-neghgent plaintiff or a plain- tiff whose negligence was not a proximate cause of his injury. '° One's inclination is to conclude that the negligent defendant will be liable. However, the issue is no longer whether the defendant is liable (assuming he has been found negligent), but whether he is liable under a comparative fault or common law analysis. The importance of this question becomes apparent when one considers that Indiana's statute may have eliminated ''See IND. Code § 34-4-33-5(a)(2), (b)(2) (Supp. 1984). ''See Haven v. Caldwell, 452 N.E.2d 154, 156 (Ind. 1983). '^Ortho Pharmaceutical Corp. v. Chapman, 180 Ind. App. 33, 54, 388 N.E.2d 541, 555 (1979). The benefit for a plaintiff in having the causation issue go to the jury is that the jury will be more apt than the judge to find the plaintiff less contributorily negligent. However, it is probable that if the judge considers the plaintiff 's negligence to be the sole proximate cause of his injury, the jury, while not finding sole proximate cause, would find the plaintiff to be over 50% at fault. This again would result in the plaintiff being barred from recovery. It is therefore questionable how much of a benefit is derived in Indiana by having the issue go to the jury. There is, however, the possibility that the jury would find the plaintiff to be less than 50% at fault and permit recovery. ''See H. Woods, supra note 14, at 96-101. "Id. "Id. '°See infra notes 76-87 and accompanying text. 934 INDIANA LAW REVIEW [Vol. 17:925 joint and several liability.-' If comparative fault is applied in situations involving a non-negligent plaintiff, the non-negligent plaintiff's recovery may be severely limited due to immune, insolvent, or nonparty defendants.-- There are two possible approaches to this problem. One ap- proach is to nor apply comparative fault to this type of situation and revert back to common law rules of joint and several liability. A second approach is to apply comparative fauh and apportion the fault among the defendants. This latter approach disregards the fact that the plaintiff has no fault and presumably leaves the plaintiff to carry the burden of the unavailable or insolvent defendant." a. Goals of a comparative fault statute.—The major rationale behind the development and adoption of comparative fault is the desire to do away with the harsh, arbitrary rule of contributory negligence. ^"^ Com- parative fault is aimed at a comparison of the fault of the plaintiff with the fault of the defendant." By comparing fault, the system permits a plaintiff to recover even when he has been contributorily neghgent, but the recovery is reduced in relation to his share of fault. Thus, the fault comparison alleviates the harsh "all or nothing" effect of common law contributory negligence. The use of comparative fault where the plaintiff has no fault is questionable because comparative fault is aimed at a com- parison between plaintiff and defendant, not defendant and defendant." Indiana's statute states that "any action based on fault" will be covered by the statute." Does this imply that the statute will apply even when the plaintiff has no fault? Considering this question, one must keep in mind that the statute is in derogation of the common law and must "See Ind. Code §§ 34-4-33-4 to -5 & -7 (Supp. 1984). For a discussion of the possible repercussions of these sections of joint and several Hability, see Wilkins, supra note 4, at 718. -'See Ind. Code §§ 34-4-33-4 to -6 (Supp. 1984). These sections require apportion- ment of fault to all individuals at fault whether a party to the action or not. While the nonparty is not technically a defendant, he is referred to as such for convenience in this article. Because the nonparty is not a defendant in the action, an apportionment of fault is not binding on the nonparty and the plaintiff cannot actually collect that portion of damages from the nonparty. -'An argument can be made that joint and several liability has not been abrogated by the statute. See Wilkins, supra note 4, at 718. However, even if Indiana courts deter- mine that joint and several liability has been abrogated, the loss occasioned by an insolvent or unavailable defendant need not fall entirely on even a contributorily negligent plaintiff. Instead, the loss could be distributed by proportion of fault among the actual parties to the action. See S. Speiser, Krause & Cans, 1 The American Law of Torts 418 (1983) [hereinafter cited as Speiser, Wilkins, supra note 4, at 718. ""See Wade, Comparative Negligence—Its Development in the United States and Its Present Status in Louisiana, 40 La. L. Rev. 299 (1980). "Prosser, Comparative Negligence, 51 Mich. L. Rev. 465 n.2 (1953). See also V. Schwartz, supra note 6, at 31. "•See Prosser, supra note 55, at 465 n.2. See also infra text accompanying notes 58-59. V. 'Ind. Code § 34-4-33-l(a) (Supp. 1984). 1984] EXPANSIVE IMPACT 935 be strictly construed/^ Therefore, questions arising due to vagueness or ambiguities in the statute must be resolved in favor of the common law.'^ Section 3 of the statute indicates that "any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages . . . but does not bar recovery . . . .'"''' This section restates the basic purpose of comparative fault which is to alleviate the common law effect of contributory negligence. The section focuses on situations in which the plaintiff has been contributorily negligent. A similar focus is indicated in the damage sections of the Act.^' While these sections speak of apportioning fault among the defendants, they do so only after stating that the plaintiff's percent of fault must be deter- mined. If the plaintiff's fault is over 50^o, he is denied recovery, just as he would be under a common law approach. ^^ Following this deter- mination, the jury is instructed to "determine the total amount of damages the claimant would be entitled to recover if contributory fault were disregarded."" The use of the words "if contributory fault were disre- garded" implies that the jury is dealing with a contributorily negligent plaintiff. Throughout the Act, reference is consistently made to situations in which both the plaintiff and defendant have been negligent. This focus on the plaintiff's negligence indicates that the Act is truly aimed at achiev- ing the goal of comparative fault—negating the "all or nothing-" rule of common law. Because of this focus, the Act should not be ap- plied in situations where the plaintiff has not been contributorily negligent. Defendants may argue that such an approach is not appropriate because the statute is aimed at a comparison of fault among all individuals, regardless of whether they are a party to the action or not.^"* The statute. ^^Connecticut Mut. Life Ins. Co. v. King, 47 Ind. App. 587, 593, 93 N.E. 1046, 1048 (1911). ''See, e.g., Stayner v. Nye, 227 Ind. 231, 289, 85 N.E.2d 496, 499 (1949); B.G.L. V. C.L.S. 175 Ind. App. 132, 137, 369 N.E.2d 1105, 1108 (1977); Hummer v. School City of Hartford City, 124 Ind. App. 30, 49, 112 N.E.2d 891, 900 (1953); Universal Discount Corp. V. Brooks, 115 Ind. App. 591, 596, 58 N.E.2d 369, 371 (1945); Connecticut Mut. Life Ins. Co. v. King, 47 Ind. App. 587, 593, 93 N.E. 1046, 1048 (1911). *°lND. Code § 34-4-33-3 (Supp. 1984). *'lND. Code § 34-4-33-5 (Supp. 1984). ''Id. § 5(a)(3), (b)(3). '"Support for such an argument is found in the nonparty defense section of the statute. Ind. Code § 34-4-33-10 (Supp. 1984). The nonparty defense is not without hmitations in Indiana. The defendant must affirmatively assert the defense and carries the burden of prov- ing nonparty fault. Id. § 10(b). In all situations, the defense must be pleaded with reasonable promptness, however, under certain circumstances, special time limitations are imposed. If the defendant knows of the defense at the time he files his first answer, he must assert the defense in that answer. Id. § 10(c). If the defendant was served with a complaint 150 days before the expiration of the statute of limitations applicable to the plaintiff 's claim against the nonparty, the defendant must assert the defense at least 45 days before the 936 INDIANA LAW REVIEW [Vol. 17:925 however, also states that "[i]f the percentage of fault of the claimant is not greater than fifty percent (50%) of the total fault, the jury then shall determine the total amount of damages the claimant would be entitled to recover if contributory fault were disregarded."^^ Defendants can argue that when the plaintiff's fault is zero, an allocation still occurs because the fault is less than fifty percent. As previously noted, this section of the statute focuses on the amount of damages set by disregarding the "contributory negligence." This impHes that the plaintiff has been con- tributorily negligent. A strict construction of the statute, therefore, results in no application of the statute and the retention of joint and several liabihty when an innocent plaintiff is involved. b. Goals of tort law and joint and several liability,—Retaining joint and several liability is consistent with the goals of tort law. It is generally agreed that the primary goal of tort law is prevention of injury, and fail- ing in that objective, compensation to injured parties and loss distribution.^^ It is recognized that [t]he defendants in tort cases are to a large extent public utilities, industrial corporations, commercial enterprises, automobile owners, and others who by means of rates, prices, taxes or insurance are best able to distribute to the public at large the risks and losses which are inevitable in a complex civilization. Rather than leave the loss on the shoulders of the individual plaintiff, who may be ruined by it, the courts have tended to find reasons to shift it to the defendants. ^^ This approach is reasonable because corporate defendants and insurance companies can anticipate a certain number of losses each year and adjust their prices, rates, or insurance coverage accordingly.^^ The individual plaintiff, however, has no such foresight or adjustment mechanism available to him.^^ statute of limitations expires. Id. The trial court, however, is given discretion to alter these time limitations. Id. This section gives plaintiffs an incentive to file their claims reasonably early, as the plaintiff is permitted to amend his complaint to add the nonparty as a defen- dant so long as the applicable statute of limitations has not run. Id. § 10(c)(2). Other limitations are also placed on the defense. For example, a nonparty cannot be the plaintiff 's employer. Id. § 2(a). Finally, if fault is applied to a nonparty, the nonparty is to be identified by name. Id. § 34-4-33-6. Presumably this will prevent fault allocation to phantoms and guard against fraudulent assertions of the nonparty defense. 'Tnd. Code § 34-4-33-5(a)(3) (Supp. 1984). **See W. Prosser, supra note 18, at 1-27. ''Id. at 22. "^The justification for having insurance in our society is that it spreads the risk from a single entity to all insureds to prevent the victim of the loss from being ruined. Thus, the law distributes the loss among defendants at fault. Whether one wishes to emphasize the accident prevention feature of the tort system or the loss allocation/risk spreading feature, the result has always been to assign responsibility where its assignment will provide incen- tives to reduce risks and prevent future losses. "While the plaintiff can purchase health insurance, the coverage provided is usually 1984] EXPANSIVE IMPACT 937 Under a system of joint and several liability, an insurance company for the defendant may be required to pay for the fault assigned to an insolvent or absent defendant. Again, this system operates consistently with the overall tort goal of loss distribution. Indiana, along with a ma- jority of other states, has made a value judgment to protect an injured plaintiff from the risk of an insolvent defendant by applying joint and several Hability.^" To put the risk on the plaintiff ignores the fact that insurance companies are in a better position to bear the loss. They have the ability to anticipate the HkeHhood of such additional losses through statistical experience and large-scale projections, and can take steps to protect against this burden. In addition, insurance companies have the ability and the right to pass the additional burden to thousands or millions of others through minute premium increments. '' Because of the poHcies behind insurance programs and the potentially devastating effects on plain- tiffs, joint and several liabiHty should be retained. The allocation of liability to defendants is also based on the idea that the defendant has done something socially unacceptable, and therefore should bear the cost of the loss caused by his conduct.'^ Accompanying this idea is the prevention of socially unacceptable behavior.'^ By placing liability on the manufacturer of a defective product, it is hoped the manufacturer will be encouraged to utilize available engineering technology to produce safe products. ^"^ As between a negligent defendant and an in- inadequate to cover all the losses occasioned by an injury, leaving the plaintiff to bear the burden of his loss unless he successfully seeks recovery through the legal system. ^°See Speiser, supra note 53, at 392-98. "[E]ven though persons are not acting in concert, nevertheless if the result produced by their acts is indivisible, each person is liable for the whole because the law is loath to permit an innocent plaintiff to suffer as against a wrongdoer defendant." Id. at 398. Speiser also discusses the distribution problems specifically associated with insolvent parties, noting that allocation on a fault basis among the solvent defendants and the plaintiff appears to be the fairest approach. Thus, the innocent plaintiff would not be forced to assume any of the loss even if joint and several liability were not utilized. Id. at 417-18. ^'Indeed, Indiana insurance companies are uniquely able to adjust their rates. They are subject only to an after the fact review by the Indiana Insurance Commissioner. An industry spokesman recently credited such favorable legislation with providing the climate that makes Indiana the number one state in the country in which to underwrite insurance: In Indiana, if an insurance firm or a group working through a rating com- pany determines that an increase or decrease is needed, a new rate structure can be developed. The new amount is filed with the Indiana Department of Insurance and immediately goes into effect. The department then has a specified number of days in which to review all data and to accept or disagree with the rate. If the insurance commissioner questions anything, he can issue a cease and desist order and automatically cause the rate to revert to the amount prior to filing. Vernon, Indiana Insurance, 27 Indiana Business 14, 15 (1983). ^^W. Prosser, supra note 18, at 18. ''Id. at 21. '''Technology has developed into a number of specialized areas aimed at the produc- tion of safe products. The use of reliability engineering, human factors engineering, quality assurance engineering, and system safety engineering can prevent the production of unsafe 93S INDIANA LAW REVIEW [Vol. 17:925 nocent plaintiff, the cost distribution and deterrence factors are better served by placing losses on the defendant rather than the plaintiff. c. The continuing need to apply joint and several liability.—For over one hundred years, it has been held that the goals of the tort system are best achieved by utilizing joint and several hability.^^ At common law, two situations give rise to joint and several liability—where the defen- dants act in combination to cause harm,^^ and where the defendants act independently but cause indivisible harm." Liability in the case of harm caused by concerted action is imposed on all defendants even though caused by only one of them.^^ For example, B and C are drag racing and C runs over A. B and C are jointly and severally liable for A*s death or injury. Joint and several liability will be imposed where the defendants act independently, each actually causing harm to the plaintiff but under circumstances where it is impossible to allocate harm to each defendant.'^ Thus if A were a passenger in B's taxi which collided with C when both B and C were speeding, B and C would be jointly and severally liable. On the other hand, if the tortious conduct was not joint or if the elements of the injury are separable, a defendant is responsible only for the harm he actually caused. ^° For example, the colUsion between the speeding vehicles of B and C results in serious injury to A, which keeps him from work for six months. His lost wages are $15,000 and he has $30,000 in medical and hospital expenses. A sues both B and C and recovers damages of $150,000. The jury finds B 60% responsible and C 40% responsible. If the injury is indivisible, B and C are jointly and severally liable for the damages.^' A may go to either defendant and de- mand full payment of his judgment. If the comparative fault statute is interpreted as eliminating the doc- trine of joint and several liability. A, even though free from fault, may not be able to collect his judgment in full. The risk that one of the wrongdoers may not be able to pay any of his share of the judgment is transferred from fellow defendants to the innocent plaintiff when joint and several liability is eliminated. To illustrate, suppose the jury, in the speeding vehicle example, found each of the defendant drivers 50% at fault and C, one of the defendants, was uninsured and insolvent. The plaintiff's maximum recovery would be $75,000 or 50% of his damages. products; yet, some manufacturers fail to take advantage of these systems of analysis. The imposition of liability for defective products will encourage the use of safety oriented technology, resulting in fewer unreasonably dangerous products. "See W. Prosser, supra note 18, at 297-98. '*Speiser, supra note 53, at 390-93. 'Ud. at 393-98. ''Id. at 390-93. ''Id. at 393-98. ''Id. at 392-94. "M at 393-94. 1984] EXPANSIVE IMPACT 939 If A, the plaintiff, were traveling in the course of his employment, the worker's compensation lien, attorney's fees, and litigation expenses would consume most of his recovery/^ If the allocation of fault between the defendants was 25% and 75%, and the 75% defendant was insolvent, the effect on the plaintiff would be even more devastating, as the plain- tiff is left to bear 75% or $112,500 of a loss he did not cause. Between the innocent plaintiff and the negligent defendant, it is better to allocate the loss to the defendant/^ Cases in which the plaintiff has not been contributorily negligent should be excluded from the Comparative Fault Act. This exclusion will place a new importance on the operation of sole proximate cause. In situa- tions where the jury determines that the defendant or defendants were the sole proximate cause of the plaintiff's injury, there should be no in- struction regarding comparative fault. No comparison is necessary with an innocent plaintiff. The statute focuses on situations involving a negligent plaintiff, and comparing the plaintiff's fault with the defendants'. When the defendants alone are negligent, jurors should not compare fault. Their job is to arrive at a damage figure for which the defendants will be jointly and severally liable.^'' Such an approach is best-suited to the overall loss allocation and deterrence goals of the tort system. IV. Comparative Fault's Impact on Other Doctrines While Indiana's comparative fault statute specifically includes several areas and doctrines, there are a number of areas left open to question, including areas involving the last clear chance doctrine and no-duty rules. The impact of comparative fault on these areas illustrates the potentially expansive reach of the Act. A. Last Clear Chance The major issue surrounding last clear chance is whether the doctrine survives the adoption of comparative fault. Indiana currently recognizes *^An employer's lien for worker's compensation benefits is provided for in Indiana Code section 22-3-2-13. Ind. Code § 22-3-2-13 (1982). *'The best approach would be the retention of joint and several liability in all situa- tions, thus supporting and achieving the public policies behind the tort system. However, if the comparative fault statute has indeed done away with joint and several liability, then the statute should be strictly construed to apply only when the plaintiff has been contributorily negligent. Then at least, the innocent plaintiff will not be forced to bear losses which he had no part in causing. See Lynn v. Taylor, 7 Kan. App. 2d 369, 372, 642 P. 2d 131, 135 (1982) (when culpable conduct is the fraud of one defendant and the negligence of another, a tort-feasor found guilty of fraudulent concealment may be held jointly and severally liable with the neghgent tort-feasor). But see Scales v. St. Louis-S.F.R. Co., 582 P. 2d 3(X) (1978) (where plaintiff could recovery only 50