Indiana Law Review


Nonparty Tortfeasors in Indiana: The Early Cases

Leonard E. Eilbacher*

I. Introduction

The fairness of any system of comparative fault, as the beauty of

a rose, is in the eye of the beholder. There is no objective standard by

which to judge the fairness of a given system of comparative fault. The

standard necessarily is subjective, because it includes a balancing of

several objectives. In order to conclude whether a given system is sub-

stantially fair or, on the other hand, unreasonably harsh, one must first

define and assign a priority to the goals to be accomplished in the

implementation of a comparative fault scheme.

There are two competing primary objectives of comparative fault.

One is the adherence to the cornerstone principal of comparative fault.
That is, each person contributing to cause an injury must bear the burden

of reparation in exact proportion to his share of the total fault. The

other primary objective is the maximum of full compensation to the
injured plaintiff.' To give priority to one goal is to diminish the other.

Partner with the firm of Hunt, Suedhoff, Borror & Eilbacher—Fort Wayne, Indiana.
B.S., Indiana University, 1962; J.D. Indiana University, 1965.

'Other objectives, of nearly equal importance, are simplicity of application, or

"workabihty," encouragement of settlements and predictability of results at trial. The

Indiana system of comparative fault seems to have survived the early reported decisions

without reported criticism with respect to each lesser objective. The importance of the

early cases construing the Indiana Act was recognized by one eminent commentator: "The

litigation which will unfold in the near future over the Act will be the best indicator of

its workability, and of the changes that can be made to improve the Act." Woods,
Comparative Fault and Product Liability in Indiana, 17 Ind. L. Rev. 999, 1028 (1984).

The opinions which have been reported have not presented particularly difficult issues.

The interpretations of the Act have been simple and straightforward, with the single

exception in Hill v. Metropolitan Trucking, Inc., 659 F. Supp. 430 (N.D. Ind. 1987).

This apparent lapse in careful analysis, however, seems to be dictum. See infra text

accompanying note 21. The courts have resisted the inclination to twist the meaning or

appHcation of the Act in order to achieve an illogical or unintended result. Notions of

harsh or unfair results, however, were bothersome to at least one court:

The Court cannot deny that Indiana's Comparative Fault Act gives rise to

numerous uncertainties and is potentially harsh in certain instances. As post-

Act litigation develops, some of these uncertainties will be resolved, and the

legislature may be called upon to modify some of the Act's potential harshness.
Huber v. Henley, 656 F. Supp. 508, 512 (S.D. Ind. 1987) (emphasis added). It is apparent

that the harshness which the Huber court had in mind was the prospective apportionment

at trial of some percentage of fault attributed to a nonparty tortfeasor against whom no
recovery could be had by plaintiff because of the expiration of the time within which

such claim could be perfected. See infra text accompanying note 29.

413



414 INDIANA LAW REVIEW [Vol. 21:413

The evidence of such competition between the primary objectives is

impHcit in the placement of the financial burden attributable to certain

nonparty tortfeasors.

^

Perhaps the most vivid and commonly encountered example of the
relationship between the competing objectives lies in the method employed

by a given system to deal with the burden created by the insolvent

tortfeasor. If preeminence is given to the objective of insuring full

compensation to the injured plaintiff, the burden of the insolvent tort-

feasor's share of liability must be borne by the remaining defendants,

likely through the doctrine of joint and several liability. Such was the

incidence of the burden of insolvency under the traditional tort system,

which included the doctrine of joint and several liability. The plaintiff

made no sacrifice of recovery by omitting insolvent tortfeasors from the

The Indiana Comparative Fault Act, Ind. Code §§ 34-4-33-1 to -14 (Supp. 1987),
places this burden largely on the plaintiff, thereby assigning a priority to the principle

of loss distribution according to fault at the sacrifice of full satisfaction of plaintiff's

damages:

First, the provisions of Indiana's Comparative Fault Act signal a legislative

policy favoring the principle of fair allocation among all tortfeasors. In most
instances, the legislature gave this principle preeminence over the objective of

fully compensating plaintiffs. In return for the removal of the contributory

neghgence bar to recovery, plaintiffs lost the ability to recover the full measure

of damages from any one joint tortfeasor. With this aboHtion of joint and

several liability, the legislature favored strict apportionment of fault and left

the burden of damages attributable to insolvent tortfeasors, inadvertently omitted

tortfeasors, intentionally omitted tortfeasors, and jurisdictionally unavailable

tortfeasors on plaintiffs. Any interpretation of legislative intent must therefore
be made with a cognizance of this policy ....

Id. at 511. Such placement is the result of the consideration of the fault of nonparty

tortfeasors in the apportionment scheme, coupled with the abolition of the doctrine of

joint and several liability. Id. at 510.

The comparative negligence common law of Kansas Hkely influenced the drafters of
the Indiana Act. H. Woods, Comparative Fault 585 app. (2d. ed. 1987). The Supreme

Court of Kansas, in a benchmark comparative fault case, accepted the "harsh result" as

a part of its system:

The ill fortune of being injured by an immune or judgment-proof person now
falls upon plaintiffs rather than upon the other defendants, as was the practice

in this state prior to the enactment of [the comparative negligence statute]. The

risk of such ill fortune is the price plaintiffs must pay for being relieved of

the burden formerly placed on them by the complete bar to recovery based

upon contributory negligence.

Miles V. West, 224 Kan. 284, 580 P.2d 876 (1978). The provision of the plan allowing

nonparties to be included in the apportionment scheme was judicially adopted in Kansas,

although the Kansas statute, since 1976, has provided that "on motion of any party, . . .

any other person whose causal negligence is claimed to have contributed to such death,

personal injury or property damage shall be joined as an additional party to the action."

Kan. Stat. Ann. § 60-258a(c) (1976) (emphasis added); Brown v. Keill, 224 Kan. 195,
580 P. 2d 867 (1978).



1988] NONPARTY TORTFEASORS 415

suit, or by levying his judgment on the solvent judgment debtors.^ While

such tactics tended to maximize full recovery to plaintiff, the burden

of reparation was distributed without regard to relative fault/

In contrast, in a system of comparative fault which gives preeminence

to the objective of contribution in proportion to fault, the doctrine of

joint and several liability is abolished. Therefore, the plaintiff bears the

burden of the insolvent defendant. Indiana has adopted such a system.

One must bear in mind, however, that in the comparative fault model,
the plaintiff may also be a tortfeasor. In judging the fairness of com-
parative fault in Indiana, there is no inherent reason to favor such a

plaintiff.^

^Similarly, plaintiff was permitted under the former practice to enter into loan

receipt agreements (a variation of the so-called "Mary Carter" agreements) with certain
cooperative tortfeasors, both before and during suit, thus hastening his partial recovery

of damages and bringing extraordinary leverage to bear on other recalcitrant tortfeasors.

Eilbacher, Comparative Fault and the Nonparty Tortfeasor, 17 Ind. L. Rev. 903, 910

(1984).

The use of such agreements can be insidious under comparative fault as it was under

the former practice. See Note, Mary Carter in Arkansas: Settlements, Secret Agreements

and Some Serious Problems, 36 Ark. L. Rev. 576 (1983). The use of loan receipt agreements
is favored under Indiana law, provided the existence of the agreement is disclosed to the

other parties and is not so collusive as to undermine the adversarial nature of the trial

where the lender remains a party. N. Ind. Pub. Serv. Co. v. Otis, 145 Ind. App. 159,

250 N.E.2d 378 (1970). See Annotation, Validity and Effect of Agreement with One

Cotortfeasor Setting His Maximum Liability and Providing for Reduction or Extinguishment
Thereof Relative to Recovery Against Nonagreeing Cotortfeasor, 65 A.L.R.3d 602 (1975).

"Allocation of financial burden according to fault is not necessarily inconsistent

with the doctrine of joint and several liability.

Taking the view that the effect of a rule of joint and several liability is unfair

and inconsistent with the principle of liability in proportion to fault, several

jurisdictions, Indiana now included, have abolished or restricted joint and several
liability. Most states, however, retain the doctrine and alleviate the perceived

unfairness by providing for contribution among joint tortfeasors—either on a
pro rata basis or on the basis of relative fault of the parties. The Uniform Act

provides for joint and several liability and gives defendants a right of contribution

in proportion to a degrees of fault.

Smith & Wade, Fairness: A Comparative Analysis of the Indiana and Uniform Comparative
Fault Acts, 17 Ind. L. Rev. 969, 973-74 (1984). The authors strongly argue the merits

of "proportional allocation of the fault of absent tortfeasors and insolvent parties among
all parties to the action." Id. at 997. However, the legislature clearly rejected this concept

in the drafting of the Indiana Act. See Ind. Code § 34-4-33-5 (Supp. 1987).
^The Indiana Act does not use the term "tortfeasor" to describe either plaintiffs,

defendants, or nonparties, each of whom may be guilty of fault in a given case. It is
intellectually dangerous to associate wrongdoing only with the defendant and nonparties.

Under such a system [of comparative negligence] it no longer appears proper

to label the defendant as a "tortfeasor," with the stigma and various undesirable

connotations attached to the word, when in fact the plaintiff may be the more



416 INDIANA LAW REVIEW [Vol. 21:413

Moreover, under Indiana's modified system of comparative fault,

not only may a successful plaintiff be a tortfeasor, his share of the
causal fault may be greater than that of a defendant from whom the
plaintiff recovers.^

For example, assume the percentage of fault of the plaintiff to be

40%, and the percentage of fault of each of three defendants to be
20%. The plaintiff is entitled, under Indiana law, to recover 20% of
his total damages from each defendant. While it seems eminently unfair

to permit a plaintiff tortfeasor to recover from a defendant tortfeasor

who is only half as much at fault as the plaintiff, such result is precisely
consistent with the principle that each tortfeasor must bear the financial

burden of an injury in exact proportion to his share of the total fault.

Indeed, the plaintiff has borne 40% of the burden of his own injury.
Although such an allocation of the burden is contrary to the traditional

tort system's maxim that any contributory negligence on the part of the
plaintiff was a complete bar to his recovery,"^ the allocation is not unfair

to any one participant.

culpable party in terms of contributory fault.

Goldenberg & Nicholas, Comparative Liability Among Joint Tortfeasors: The Aftermath
of Li V. Yellow Cab Co,, 8 U. West L.A. L. Rev. 23, 29 (1976).

^Indiana has what is commonly known as a "Sl^/o" system. See generally Wilkins,
The Comparative Fault Act at First (Lingering) Glance, 17 Ind. L. Rev. 687 (1984). One
commentator lists Indiana among the majority of states which have adopted a New
Hampshire plan, which signifies a state where a plaintiff may recover so long as the
percentage of fault attributable to him is not greater than that of all defendants. H.

Woods, supra note 2, at 28-29.

In an action based on fault . , . the claimant is barred from recovery if his

contributory fault is greater than the fault of all persons whose fault proximately

contributed to the claimant's damages. Ind. Code § 34-4-33-4(a) (Supp. 1987).
In a few states which have adopted "51%" systems, such as Wisconsin, the contributory
fault of the plaintiff is compared to the fault of each defendant, and recovery is permitted

only if the plaintiff's fault is not greater than the fault of the person against whom
recovery is sought. See Wis. Stat. Ann. § 895.045 (West 1985). For a discussion of the

practical significance of such a provision, see C.R. Heft & C.J. Heft, Comparative
Negligence Manual § 1.40 (1978 Rev.) [hereinafter Heft & Heft].

The comparison of the plaintiff's fault with the aggregate fault of all tortfeasors,

including nonparties, caused one commentator to describe the Indiana plan as "among
those most favorable to claimants in the aspect of when recovery is allowable." Bayhff,

Drafting and Legislative History of the Comparative Fault Act, 17 Ind. L. Rev. 863,

866 (1984).

Tt may be supposed at first glance that the provision of the Indiana Act which
bars plaintiff's recovery if his share of the assigned fault is greater than 50% was a
gesture toward the traditional tort sense of accountability. Such motivation is denied by

one commentator who was a key participant in drafting the proposed act and shepherding
it through the legislature. Bayhff reports that the "greater than" bar was, in fact, a

response to the concern of the insurance lobby with the prospect of plaintiffs and defendants



1988] NONPARTY TORTFEASORS 417

By abolishing the doctrine of joint and several liability and including

a provision for allocation of fault to nonparty tortfeasors,^ the Indiana

legislature has unequivocally assigned the highest priority to the objective

of allocating reparation according to fault. ^ In the early cases, the courts

have recognized such priority, and have demonstrated unwavering fealty

to that objective. ^^

The Indiana Act permits the fault of all liable parties to be considered

in the apportionment scheme, whether or not they are parties to the

suit.'' Consequently, all but one of the early cases have in some fashion

dealt with the treatment of the conduct of the nonparty claimed to have

been guilty of some causal fault for the plaintiff's injury. '^ These cases
have adhered to the principle that each person contributing to cause an

injury must bear the burden of reparation, therefore, in exact proportion

both being able to recover from each other in the same action. Id. at 863.

Such an explanation prompts the question of why the threshold for a complete bar
to recovery was not set at 50% of the total fault. The existing provision still permits a
recovery by both plaintiff and defendant, against each other, when the fault of each is

exactly 50%. This single possibility for reciprocal recovery would have been eliminated

had the statutory language barred the plaintiff from recovery if his contributory fault

were equal to or greater than the fault of the other tortfeasors.

»lND. Code § 34-4-33-5 (Supp. 1987).
^See supra text accompanying note 2, The Indiana Act deviates from such priority

as evidenced by its treatment of the immune tortfeasor and those whose Hability is limited
by the exclusive remedy provision of the Workmen's Compensation Act. See Discussion

of immune tortfeasors, Section II infra. The Act also deviates somewhat in its requirement
that a legal nonparty to whom fault is allocated must be identified by name. Ind. Code
§ 34-4-33-6 (Supp. 1987). See generally Eilbacher, supra note 3, at 920.

^°See infra notes and accompanying text.

"The Indiana Act requires that the jury be instructed seriatim as to the apportionment

of fault and the calculation of the verdict against each defendant and liable nonparty,

Ind. Code § 34-4-33-5 (Supp. 1987). Indiana is the first state to provide by statute for
the inclusion of fault of nonparties in the apportionment of fault by the trier of fact.

See generally Heft & Heft, supra note 6, ch. 3.
'^As of this writing five reported decisions have construed the act, which became

applicable to civil action accruing on or after January 1, 1985. Act of March 5, 1984,
Pub. L. No. 174-1984, § 9, 1984 Ind. Acts 1468, 1473. They are, in chronological order,

Walters v. Dean, 497 N.E.2d 247 (Ind. Ct. App. 1986); State v. Schuetter, 503 N.E.2d

418 (Ind, Ct. App. 1987); Huber v. Henley, 656 F. Supp. 508 (S.D, Ind. 1987); Hill v.

Metropolitan Trucking, Inc., 659 F. Supp. 430 (N.D. Ind. 1987), and Persinger v. Lucas,

512 N.E.2d 865 (Ind. Ct. App. 1987). Of these, only the Persinger case did not involve
the construction of the nonparty provision of the Act. It dealt with the mitigation of

damages defense. See supra text accompanying note 39. At the time this Article was going

to print, two additional decisions construing the Indiana Comparative Fault Act were

reported: Huber v. Henley, 669 F. Supp. 1474 (S.D. Ind. 1987) (Huber II); and Farmers

& Merchants State Bank v. Nolfolk & W. Ry. Co., 673 F. Supp. 946 (N.D. Ind, 1987).
Because these cases are outside the survey period, they have not been incorporated in the

discussion; however, the cases have been footnoted where relevant.



418 INDIANA LAW REVIEW [Vol. 21:413

to his share of the total fault. The courts have applied the letter of the

Act, ever mindful that the principle of proportional liability reflects the

intent of the legislature, and have left the cure for any injustices to the

Indiana General Assembly.

II. The Immune Tortfeasors

If one accepts the proposition that the goal of fairness is best served

by adherence to the principle requiring contribution according to fault,

then one of the more disquieting results under the Indiana system occurs

in cases involving tortfeasors who have been statutorily exempted in the
drafting of the act and by common law, i.e., the immune tortfeasor
and the employer. The burden of fault of the insolvent tortfeasor has

been placed squarely on the plaintiff through the abolition of joint and

several liability coupled with the statutory retention of the prohibition

of contribution among tortfeasors.'^ With respect to immune tortfeasors,
the act has perpetuated the shifting of the burden of their fault to other

participants in the casualty by its requirement that a nonparty, for

purposes of allocation of fault, must be "a person who is, or may be,
Hable" to the plaintiff.''* Because an immune tortfeasor cannot be hable
to the plaintiff, the fault of such tortfeasor may not be considered by
the trier of fact. Therefore, no damages may be assessed against such
participant in the casualty.

There are three commonly encountered classes of tortfeasors who
are immune or who are insulated from tort liability under Indiana's act:

1. Parents for claims by an unemancipated child; '^

"In Indiana, there has never been a right of contribution or indemnity in favor of

a neghgent tortfeasor. McClish v. Niagara Machine & Tool Works, 266 F. Supp. 987
(S.D. Ind. 1967). This common law prohibition was incorporated into the Act as follows:

In an action under this chapter, there is no right of contribution among joint
tortfeasors. However, this section does not affect any rights of indemnity.

Ind. Code § 34-4-33-7 (Supp. 1987). The statute preserves the right of indemnity of one
who is constructively liable only, for the wrongful conduct of another. Coca-Cola Bottling

Co. v. Vendo Co., 455 N.E.2d 370 (Ind. Ct. App. 1983).

'^IND. Code § 34-4-33-2(a) (1984).
'^It is firmly estabUshed in the Indiana common law that a parent is immune in

tort actions brought by his or her child, but the immunity appears to be limited to torts

committed before emancipation of the child. Vaughn v, Vaughn, 161 Ind. App. 497, 316

N.E.2d 455 (1974).

An earlier Indiana case reviewed the reason for the immunity:
From our knowledge of the social Hfe of today, and the tendencies of the

unrestrained youth of this generation, there appears to be much reason for the
continuance of parental control during the child's minority, and that such control

should not be embarrassed by conferring upon the child a right to civil redress

against the parent .... In our opinion, much reason exists for maintaining the



1988] NONPARTY TORTFEASORS 419

2. Employers and co-employees, for bodily injury claims by em-

ployees;'^

sound public policy, which, as stated, underlies the rule which denies such

redress.

Smith V. Smith, 81 Ind. App. 566, 569-70, 142 N.E. 128, 129 (1924). Because the parent

cannot be liable to the child, the parent cannot be a nonparty for purposes of allocation

of fault in a suit by the child against others. However, in an action against others by a

child who was emancipated at the time of the injury, any fault of the parent which caused
the injury must be included in the apportionment scheme. Also, there is no immunity

for the noncustodial parent in actions by the child. Buffalo v. Buffalo, 441 N.E.2d 711

(Ind. Ct. App. 1982).

In the converse relationship, there probably is no immunity of an unemancipated

child in a tort action by a parent. Young v. Wiley, 183 Ind. 449, 107 N.E. 278 (1914);
McKern v. Beck, 73 Ind. App. 91, 126 N.E. 641 (1920). Thus, in an action by a parent

against others, the fault of a child who contributed to cause the injury should be included
in the apportionment scheme. The most common accident scenario is where a parent is
a passenger in an automobile being operated by the child and a collision occurs. If the

colhsion was caused jointly by the fault of the child-driver and a second driver, the fault

of the child would have to be considered in the parent's action for damages against the

second driver.

The withering of the parent-child immunities was suggested by the 1984 General

Assembly in its amendment to the statute dealing with liability to guest passengers which
provided:

The owner, operator or person responsible for the operation of a motor vehicle

is not liable for loss or damage arising from injuries to or the death of:

(1) His parent;
* * *

(3) His child or stepchild; resulting from the operation of the motor

vehicle while the parent . . . child or stepchild . . . was being trans-

ported without payment therefor . . . unless the injuries or death are

caused by the wanton or willful misconduct of the operator, owner,

or person responsible for the operation of the motor vehicle.

Ind. Code § 9-3-3-1 (Supp. 1987). The effect of the guest statute on parent-child immunity
and comparative fault was discussed in Farmers & Merchants State Bank v. Norfolk &
W. Ry. Co., 673 F. Supp. 946, (N.D. Ind. 1987) ("parent may be liable to a guest child
who is injured when the parent driving the car willfully or wantonly causes such injury."
(emphasis in original)).

The interplay between the apportionment scheme of comparative negligence and

interspousal and intrafamily immunities of the common law was the critical issue in two
leading Kansas cases. Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978), and Miles v.
West, 224 Kan. 284, 580 P.2d 876 (1978). In Miles, the minor plaintiffs argued that the

negligence of their father, as the operator of an automobile which collided with defendant's

vehicle, could not be considered in the determination of comparative negligence. Id. at

287, 580 P.2d at 879. The Supreme Court of Kansas in rejecting this argument, stated:
The goal of determining fault of all the parties responsible for causing or

contributing to the collision or occurrence is to allow each party to be joined

in action, even if he is immune or judgment-proof.
The foregoing effectively disposes of plaintiffs' arguments on interspousal

tort immunity and intrafamily immunity as they apply to this case. Recognizing



420 INDIANA LAW REVIEW [Vol. 21:413

3. Governmental entities and their employees, for claims arising out

of certain acts, including discretionary acts, and conditions.
'"^

Because these classes of immune tortfeasors cannot be considered
in the allocation of fault, all the nonimmune joint tortfeasors, including
a plaintiff tortfeasor, share the burden of the fault of an immune
tortfeasor in proportion to their respective percentages of fault. '^ Such

allocation emanates from the Indiana provision that the fault of all

tortfeasors, whether they are parties or nonparties, is to be considered

in the allocation of fault by the trier of fact, except that the fault of

immune tortfeasors may not be considered.'^
One of the first reported opinions addressed the effect of the in-

volvement of immune tortfeasors on the apportionment of fault. In the
consolidated cases of Hill v. Metropolitan Trucking, Inc. and demons
V. Metropolitan Trucking, Inc.,^^ the court ruled that co-employees of

the plaintiffs could not be pleaded as nonparty tortfeasors, and could

not be the subject of an apportionment of fault. ^^ The defendants, whose

truck struck two state highway department workers, attempted to assert

the fault of each worker in the suit by the other. In both actions the

defendants attempted to assert the negligence of a third worker and a

state trooper who were at the scene of the accident. The court easily

the existence of interspousal tort immunity [citation omitted], and assuming, but

not admitting, the existence of intrafamily immunity in this state, plaintiffs*

arguments have no merit.

Id. at 288, 580 P.2d at 879-80. The Court affirmed the diminution of the jury awards

to the minor children by 40%, the percentage of fault which the jury assigned to their

father. Remarkably, the Kansas court resisted the temptation to abolish intrafamily im-

munity, if indeed such immunity existed, and simply ignored such immunity in the

comparative fault allocation.

'^The Indiana Workmen's Compensation Act bars civil actions by an employee against

his employer and against co-employees. Ind. Code § 22-3-2-6 and § 22-3-2-13 (1982).
Also, the employer is expressly excluded as a nonparty by the Comparative Fault Act.

Ind. Code § 34-4-33-2(a) (Supp. 1987).
'^Indiana has adopted a comprehensive Tort Claims Act barring claims against

governmental entities and their employees with respect to the performance of discretionary

functions and other specified acts and conditions. Ind, Code § 34-4-16.5-3 (1982). Sovereign
immunity generally does not exist with respect to the ministerial acts of the government

and its employees. Department of Mental Health v. Allen, 427 N.E.2d 2 (Ind. Ct. App.

1981). See Discussion of the State as tortfeasor, Section III infra.

'Tor example, in the hypothetical case in which the plaintiff is 20% at fault, the
nongovernmental tortfeasor is 30% at fault, and the immune governmental tortfeasor 50%
at fault, the plaintiff's damages theoretically would be reduced by 40%, and the non-

governmental tortfeasor would be liable for 60% of such damages.
"See supra note 12 and accompanying text.
^°659 F. Supp. 430 (N.D. Ind. 1987).

^'Id. at 435.



1988] NONPARTY TORTFEASORS 421

disposed of such purported nonparty defenses, reasoning that none of

the nonparty employees, including the state trooper, were within the

statutory definition of nonparty because none were or could be liable

to the claimants. 22 The court looked to the Indiana Workmen's Com-
pensation Act, which provides the exclusive remedy for a claim for

injury or death against both an employer and a co-employee. Since there

was no civil remedy available to the plaintiffs against the other state

highway employees, or against the co-employee state trooper, they were

immune from civil liability. Therefore, they could not be "liable to the
claimant" and did not qualify as nonparties within the contemplation

of the Comparative Fault Act.^^

The opinion of the District Court in Hill, with respect to immunity

from civil suit by reason of the exclusive remedy provision of the

Workmens' Compensation Act, is consistent with both the letter and
the rationale of the Act.^^ That is not to say that it is consistent with

the spirit of comparative fault, for such result shifts the burden of the

fault of the alleged immune tortfeasors to either the plaintiff, or the
defendant, or both, depending upon their culpability relative to each

other.

For example, if the plaintiffs' decedents were entirely free from

fault, the non-immune defendant was guilty of 10% of the total fault,
and the immune tortfeasors were collectively guilty of 90% of the total
fault, the defendant would be liable for 100% of plaintiffs' damages.
Such result would be a gross deviation from the objective of allocation

of financial burden in proportion to fault, but would satisfy the objective

of providing for full compensation to the plaintiff. On the other hand,
if the plaintiffs' decedents were found to be 20% at .ault, and the non-
immune defendants were also 20% at fault, then they would share equally
the burden caused by the 60% fault of the immune tortfeasors. Although

^^Id. at 434-35.

''Id.

^The court in Hill perfunctorily contemplated a second reason for the exclusion of

the state employees from the apportionment scheme. It observed that the governmental

employees were within the protection of the 180-day notice provision of the Tort Claims

Act, and stated:

The record does not suggest that the [plaintiffs] gave such notice; accordingly,

the record does not reflect that the would-be nonparties are or may ever be
liable to the plaintiffs.

659 F. Supp. at 435. The recitation infers the reasoning that if a plaintiff cannot perfect

a claim against an otherwise qualified nonparty by reason of having allowed a limitations

period to expire, such potential defendant or nonparty cannot be considered in the

apportionment of fault by the trier of fact. The conclusion is in direct conflict with the

better-reasoned opinion of the Southern District in Huber v. Henley. See infra text
accompanying note 31.



422 INDIANA LAW REVIEW [Vol. 21:413

this result seems to be more just, it remains violative of the spirit of
comparative fault.

Whether the deprivation of the statutory nonparty defenses^^ is jus-

tifiable involves a judgment as to the social utility of such immunities,

and the propriety of universal adherence to the basic principle of fault

allocation. As evidenced by the Tort Claims Act and the Workmen's
Compensation Act, the Indiana General Assembly presumably has con-

cluded that sound public policy dictates the retention of the immunities

of governmental entities and their employees for certain acts, and the

immunity of the employer and co-employees from civil actions. Neither

the legislature nor the courts have directly addressed the retention of

parental immunity in the context of comparative fault. Parental immunity

remains in the common law of Indiana, but the critical issue is whether
it should be engrafted onto the comparative fault system. If indeed

preeminence is to be given to the basic principle of fault allocation,

then the fault of familial nonparties must be included in the fault

apportionment system.^^

It must be stressed that the allocation of fault to immune tortfeasors
would not require the abolition of such immunities. The burden of such

immunities would merely shift to the plaintiff. Although this shift in

the burden obviously would not accomplish the goal of full compensation

to the injured plaintiff, it would comport with the principle of fault

allocation because the immune parties would be considered by the trier
of fact. On the other hand, the exclusion of immune tortfeasors from
the apportionment scheme shifts the burden of their fault to all the

other tortfeasors, including the plaintiff tortfeasors, in the same ratio

of their relative fault to each other. Under this scenario, neither of the

primary objectives of comparative fault is realized.

III. Treatment of the State as a Tortfeasor

The state, its political subdivisions, and their employees are expressly

exempted from the provisions of the Indiana Comparative Fault Act,

but remain liable for their nonimmune torts. ^"^ The traditional defenses

"IND. Code § 34-4-33-10 (Supp. 1987).
^^See supra note 13.

"Section 8 of the Act provides, "This chapter does not apply in any manner to

tort claims against governmental entities or public employees under IC § 34-4-16.5." Ind.

Code § 34-4-33-8 (Supp. 1983).
The reference in the statute is to the Indiana Tort Claims Act, which, in its sahent

provisions, defines the immunities for discretionary^ acts and certain other acts and con-

ditions, and recodifies the requirement for filing a notice of tort claim within 180 days

of the alleged tort. Ind. Code § 34-4-16.5-7 (1982). Such notice is a condition precedent

to the right of recovery against the political subdivision and its employees. In effect, it

provides a 180-day limitation period on claims against governmental tortfeasors. See infra

note 36 and accompanying text.



1988] NONPARTY TORTFEASORS 423

of contributory negligence and incurred risk remain available and con-

stitute a complete bar to claims both by and against governmental

tortfeasors. 2®

The immediate concern of the practicing bar upon enactment of the

comparative fault system was whether the fault of governmental tort-

feasors could be pleaded by a nongovernmental defendant in order to

reduce that defendant's apportioned share of the plaintiff's damages,

even though governmental tortfeasors are expressly excluded from the

comparative fault scheme. This concern grew mostly out of the rec-

ognition that automobile injury cases have comprised a substantial share

of tort litigation, and that substandard highway design and maintenance

are often alleged to be causal factors in automobile accidents.

The plaintiffs' bar wanted to read the provision excluding govern-

mental tortfeasors to prohibit a defendant from pleading the fault of

the government as a nonparty tortfeasor, because to permit such con-

sideration by the trier of fact would require the cumbersome inclusion

by the plaintiff of a "contributory defense" defendant and a "com-

parative defense" defendant in the same action, and perhaps even in

the same trial. Moreover, highway design and maintenance cases against

the government are usually more complicated to prove, often requiring

special expert testimony and evidence, in contrast to the relatively simple

automobile negligence case against a defendant motorist. Furthermore,

the inclusion of the state in the apportionment system would deprive

the plaintiff of a substantial part of his recovery if he did not act within

the 180-day notice period set out in the Indiana Tort Claims Act.^^

Finally, such inclusion would permit the nongovernmental defendant to

reduce his judgment exposure by the percentage of fault attributed to

both the governmental tortfeasor and the plaintiff; yet, any percentage

of fault on the part of the plaintiff would completely bar a recovery

by plaintiff of those damages which are attributable to the fault of the

government. In light of these considerations, the plaintiffs' bar would

have preferred to ignore the governmental tortfeasors in the comparative

fault case, especially in the apportionment of fault by the trier of fact.

Indeed, each of these fears was justified, since the application of the

act would be made exceedingly more complicated by the inclusion of
the governmental tortfeasor in a case in which there were private de-

fendants.

Of course, the defense bar and insurance industry argued that the
exlusionary provision should be interpreted consistently with the basic

principle of comparative fault. That is, the fault of the government

^See Wilkins, supra note 6, at 729.

'^See supra note 22.



424 INDIANA LAW REVIEW [Vol. 21:413

should indeed be apportioned along with all the other tortfeasors. To
ignore the fault of the government, whether or not it could be a

defendant, would cause the burden of the governmental tortfeasor's fault

to be borne, in whole or in part, by each Hable defendant;^^ yet, the

plaintiff could recover damages against the governmental tortfeasors,

perhaps in a separate action. Such result would have been an obvious

violation of the fundamental principle of apportionment of liability

according to fault. The defense bar was not concerned that the inclusion
of the government's conduct in the apportionment scheme, while meas-

uring its liability for damages by traditional tort rules, would present

very special problems for the plaintiff. While the defendants' argument

for inclusion of the governmental defendant for fault apportionment

purposes would serve the basic principle of comparative fault, it would

deprive a plaintiff tortfeasor of that percentage of his damages attrib-

utable to the fault of the governmental tortfeasors. ^^

While the respective arguments of the plaintiffs' bar and the defense

bar came into focus early, the state's initial perception of the exclusionary
provision was not so clear. The State of Indiana simply argued in the

legislature that it would be subjected to unreasonably burdensome costs

were it to be included in the comparative fault system, and managed

to have itself written out of the act.^^

The state's position came into focus in the second reported opinion
under the Act, State v. Schuetter,^^ a motor vehicle collision/highway

^°If the government's fault were ignored in the apportionment scheme, the burden

of the government's fault would also be shared by a plaintiff tortfeasor in the same ratio

that plaintiff's fault bore to the total fault of all other liable tortfeasors. Theoretically,

assuming 50*^0 of the fault were attributable to the state, but were ignored in the

apportionment scheme, a plaintiff 20% at fault would bear 20% of the government's
fault and a defendant 30% at fault would bear 30%. Plaintiff's actual recovery on a
finding of $100,000 total damages would be $60,000.

^'Assume that the trier of fact were to apportion 10% of the total fault to the
plaintiff, 40% to the private defendant, and 50% to the governmental defendant. The
plaintiff would recover only 40% of his total damages, since the finding of contributory
fault on the part of the plaintiff would bar recovery of any damages against the gov-

ernmental defendant.

^^The proposed act was subjected to many compromises during the legislative process.
The opposition by the State of Indiana was voiced after the bill had already passed the

Senate, and had cleared the second-reading amendment stage on the floor of the House.

At that point, the Attorney General informed the House Speaker that "passage of the

bill would cost the State of Indiana milhons of dollars each year." On the strength of
that unsupported assertion, and as a matter of political expediency, governmental entities

were legislatively excluded from its coverage. Bayliff, supra note 6, at 865.

"503 N.E.2d 418 (Ind. Ct. App. 1987). The claim of plaintiff arose from property

damage to plaintiff's truck, sustained in a two-vehicle collision with defendant's automobile

on an interstate highway. The defendant asserted by answer to the complaint that the



1988] NONPARTY TORTFEASORS 425

design case. The state argued that it could not even be sued in the same

legal action with the defendant motorists because the plaintiff's right

of recovery against those defendants was governed by comparative fault,

which plan was not to apply "in any manner" to the State. ^"^ The court

of appeals swept the state's argument aside and held that there is no

prohibition against inclusion of both a private defendant and a gov-

ernmental defendant in the same action. The court recognized that the

action was one against joint tortfeasors, differing only in the manner

in which their alleged negligence is to be treated at trial. ^^ The fears of

the plaintiffs' bar thus became a reahty. The impact upon the government

is not so clear.

The second issue in Schuetter was whether the granting of a separate

trial of the claim against the governmental defendant was permissible.

The court of appeals held that the granting of separate trials is within

the discretion of the trial court and that since there was no showing

of an abuse of that discretion, the separate trial ruhng should stand. ^^

The trial posture of Schuetter following the appeal vividly illustrates

the unworkability of excluding governmental tortfeasors from the com-

parative fault system and may even serve to increase the number of
suits against governmental tortfeasors. If separately trying claims against

governmental tortfeasors develops into a trend, it is possible that the

parties within the comparative fault system will benefit from the exclusion

of governmental tortfeasors. Given the virtual impossibility of intelligibly

instructing the jury when both governmental and nongovernmental de-
fendants are joined at trial, it is likely that courts will look favorably

upon separate trials. As a result, the ground is fertile for a plaintiff
who is free from fault to recover all his damages from a governmental
defendant. 3^

A likely scenario under which recovery of all damages against the
government would occur is where a faultless plaintiff, with the coop-

eration of the nongovernmental defendant, causes the suit against the

governmental defendant to be tried first. If the plaintiff is successful

collision was caused, in whole or in part, by the state's failure to keep the roadway clear

of sand and debris, and by its failure to provide adequate access onto the state highway.

Thereupon, plaintiff amended the complaint to include the state as a defendant. The state

moved to dismiss and, in the alternative, for a separate trial. Upon denial of its motion
to dismiss, the State perfected an interlocutory appeal. Id. at 419.

''Id. at 420. See Ind. Code § 34-4-33-8 (Supp. 1987).
3^503 N.E.2d at 420.

'^Id. at 421.

"The political subdivision and its employees enjoy a liability cap of $300,000 for

injury or death of one person in any occurrence, which would frustrate collection of all

damages from the governmental tortfeasor in cases of catastrophic loss. Ind. Code § 34-
4-16.5-4 (1982).



426 INDIANA LAW REVIEW [Vol. 21:413

in that suit, he can then collect his entire judgment against the government

through the application of the doctrine of joint and several liability. A
variation of the scenario occurs where the nongovernmental defendant,

a joint tortfeasor with the government, lends an agreed sum to the
plaintiff in return for a covenant not to sue. Under such an agreement,

plaintiff would be obligated to repay the loan only upon collection of

a settlement or judgment against the government. ^^

In light of the opportunity for such abusive tactics against the state,

it is curious that it was the state which moved for the separate trial in
Schuetter.^^ The only logical justification is that the state believed that

the plaintiff would not proceed to trial due to the state's minimal exposure

to liability.

It is apparent that the lofty goals of the comparative fault system

are frustrated where a governmental entity is a joint tortfeasor with a

nongovernmental defendant. The exclusionary clause in the Indiana Acf^

provides no assurance of either apportionment of the liability in pro-

portion to fault, or of full compensation to the plaintiff for his injuries.

The system is unnecessarily complicated, and multiplicity of trials is

encouraged. Moreover, since one must be skeptical of the validity of

excluding the state from the comparative fault system on the ground

that it would be unreasonably costly, there is scant justification for the

exclusion. Further, the consensus of the trial bar seems to be that the

abrogation of joint and several liability by the comparative fault system

is more valuable to a defendant than such traditional tort defenses which

^^For a discussion of the use of loan receipt agreements, see note 3 supra.

One might be tempted to reason that the state's motion for a separate trial in
Schuetter was motivated by the presence of a meritorious contributory negligence defense

against the plaintiff, but considerations of litigation costs aside, joint trial would enhance

the contributory negligence defense. Since the jury is required to specially find the percentage

of neghgence of the plaintiff with respect to the claim against the non-governmental

defendant, the advantage of a finding of only a small percentage of the total fault on

the part of the plaintiff would establish the contributory negligence defense and result in

a verdict in favor of the government.

In contrast, in the separate trial scenario, where the claim against the non-governmental

defendant happens to be tried first, the government should not be able to take advantage

of an allocation by the jury in the first trial of some percentage of comparative fault to

the plaintiff. Obviously, the element of mutuality of estoppel is lacking between the two

trials. Otherwise, the government would not be estopped from resisting the proof of its

negligence at trial, even though the jury in the first trial may have assigned some fault
to the nonparty government.

Mutuality of estoppel is an essential element of the "claim preclusion" branch of

the doctrine of res judicata. State v. Speidel, 181 Ind. App. 448, 392 N.E.2d 1172 (1979).
^'503 N.E.2d at 419.

'^See supra note 22.



1988] NONPARTY TORTFEASORS All

have been retained by the governmental defendants/' The state would

be well advised to make the same trade.
The ills visited upon the tort system by excluding governmental

tortfeasors from the comparative fault system are numerous. Coupled

with the lack of any proof to merit such exclusion, it is not difficult

to conclude that the Act should be amended to include governmental

tortfeasors in Indiana's comparative fault system.

IV. The Inadvertently Omitted Tortfeasors

The failure in a comparative fault suit to include a joint tortfeasor

who is liable to the plaintiff is one of the most dreaded omissions of
the plaintiff's lawyer. Under the traditional tort system, the availability

of joint and several liability rendered such omission inconsequential so

long as one joint tortfeasor was successfully sued. Under the unique

provision of the Indiana Comparative Fault Act, however, such omission

causes a diminution in the plaintiff's recovery in precisely that percentage

of plaintiff's total damages which is attributed to the fault of the omitted

nonparty tortfeasor. "^^ Once the period of limitations for suing that

tortfeasor has expired, that share of plaintiff's damages is forever lost.

This was precisely the outcome in the recent case of Huber v.
Henley."^^ In Huber, one defendant pleaded that the fault of the co-

defendants and the fault of the nonparty Indiana Department of High-

ways caused the injuries to the plaintiff. Unfortunately for the plaintiff,

the defendant asserted this defense in an amended answer filed after
the expiration of the 180-day notice period to the state, a condition

precedent to recovery on claims against the state imposed by the Indiana

Tort Claims Act."^ The primary issue presented in Huber was whether
a defendant should be permitted to amend an answer in which he asserts
for the first time the fault of a nonparty tortfeasor who is no longer
amenable to suit."^^ The Southern District ruled that such amendment is
permissible because the Act provides that, while a defendant must plead

*^See Eilbacher, supra note 3, at 907.

«IND. Code § 34-4-33-5(a)(4) & (b)(4) (Supp. 1987).
^'656 F. Supp. 508 (S.D. Ind. 1987).

^Id. at 509. See supra note 22. See also Huber v. Henley, 669 F. Supp. 1474, 1477-

79 (S.D. Ind. 1987) (Huber II). In Huber II, the court contrasted a plaintiff who had
failed to give notice to the state under the Indiana Tort Claims Act, thereby forfeiting

his right to recovery with a plaintiff whose suit against the state was barred by a statute

of repose. The court correctly noted that in the first instance the state could be a nonparty

under the Comparative Fault Act; however, the state in the second instance could not

be a nonparty because it was not "a person who is, or may be, liable" to the plaintiff.
669 F. Supp. at 1479.

^^656 F. Supp. at 510.



428 INDIANA LAW REVIEW [Vol. 21:413

the Statutory nonparty defense in the original answer if it is known, the

defense may be pleaded by amended answer "with reasonable
promptness, ""^^ once the defendant has actual knowledge of the defense/'^

Ordinarily, the operative provision for the naming of a nonparty

tortfeasor is the provision which recites that, if the defendant is served

with summons more than 150 days prior to the expiration of the period
of limitations, the nonparty defense must be pleaded not later than 45

days before such expiration/^ Such scheme is calculated to give the

plaintiff time to evaluate the claim against the alleged nonparty tortfeasor

and to join such tortfeasor as a party defendant. However, such provision

was not at issue in Huber, since the assertion by the amended answer

was made more than 45 days before the expiration of the applicable
two-year period of hmitations, although after the expiration of the 180-

day claim notice period/^

The other significant issue in Huber is whether the comparative fault
of the state could be asserted at all, since the state could no longer be

"hable to the claimant," because of the expiration of the 180-day notice

period. ^^ The court had no difficulty in identifying the distinction between

a tortfeasor who cannot be joined if the applicable limitation period
had not expired and the tortfeasor who cannot be joined because of an
immunity. Accordingly, the court held that the state, although immune
from liability to the plaintiff, must be included in the apportionment

scheme as a nonparty tortfeasor under the Comparative Fault Act.^'

Interestingly, the court justified its conclusion by noting that the pro-

^^The act allows for the defense by amended answer:

A nonparty defense that is known by the defendant when he files his first
answer shall be pleaded as a part of the first answer. A defendant who gains
actual knowledge of a nonparty defense after the filing of an answer may plead
the defense with reasonable promptness.

Ind. Code § 34-4-33-10(c) (Supp. 1987). The provision limits the pleading of the nonparty
defense at a time close to the expiration of the period of limitations applicable to the

claim against such nonparties, granting discretion to the trial court to alter the time

limitations to achieve a fair result to both parties.

"^656 F. Supp. at 512. The court's decision to allow such an amendment was not

difficult because the 180-day notice period had already expired at the time of filing the

original answer. Id.

^«lND. Code § 34-4-33- 10(c) (Supp. 1987).
^'656 F. Supp. at 512 n.5.

^°Id. at 510-11. The plaintiff argued that the state was "immune" since it could no
longer be sued, because the plaintiff had not given notice of the tort claim to the state

within 180 days of the injury. As to the lack of common identity between an immune
tortfeasor and a statutory nonparty, see supra note 20 and accompanying text. By definition,
the terms are mutually exclusive. However, the state is not immune as to its ministerial
acts of negligence in highway maintenance. Ind. Code § 34-4-16.5-3 (1982).

"656 F. Supp. at 511. See supra discussion of Huber II, note 44.



1988] NONPARTY TORTFEASORS 429

visions of the Act evidenced a legislative intent to favor the principle

of strict apportionment of fault among all tortfeasors over the objective
of fully compensating plaintiffs."

A contrary conclusion was reached by the Northern District in Hill
V. Metropolitan Trucking Inc.,^^ which reasoned that, if an applicable

limitation period has expired as to a tortfeasor who has not been sued,
then such tortfeasor may not be included in the apportionment of fault
by the trier of fact. As in Huber, the plaintiffs apparently had not given

the required 180-day notice to the governmental tortfeasors. The Hill

court observed that, since such tortfeasors could never again be liable

to the plaintiffs because of such omission, none qualified as a nonparty

who "is or may be liable to the claimants," and, therefore, must be
ignored in the apportionment of fault. ^"^ The court failed to make the
Huber court's distinction between a tortfeasor who is or may be liable
at the time of the tortious conduct, but subsequently becomes free from

liability because the plaintiff, either intentionally or inadvertently, per-

mitted the Hmitation period to expire and a tortfeasor who can never
be liable to the plaintiff because of a statutory or common law im-
munity. ^^

The reasoning in Hill is faulty. The court ignored the mandate of

the legislature that the primary objective of the Comparative Fault Act

is to allocate fault among all tortfeasors in direct proportion to the
fault of each. To ignore a tortfeasor in the apportionment process simply
because the applicable period of limitations or notice has expired would

permit the plaintiff to manipulate the apportionment process and allow

an otherwise liable tortfeasor to escape the assignment of fault. Whether

the omission of timely notice was intentional or inadvertent, the result

would be to shift the burden of the absent tortfeasor's fault to the other

parties to the suit, contrary to the objective of the Act. Indeed, if the

plaintiff's failure to give timely notice or to bring suit within the limitation

period was inadvertent, the exclusion of such tortfeasor from fault

apportionment would shift the burden of plaintiff's error to the defen-

dant. Traditional notions of fairness compel the rejection of this result.

In contrast, the ruling in Huber allowing a defendant to name a
tortfeasor as a nonparty after the expiration of some limiting period is

sound. This result was obviously anticipated by the legislature, not

necessarily with respect to the 180-day tort notice provision, but in the

interplay with any applicable period of limitations. The plaintiff can

"/c?. See also, supra note 2.

"659 F. Supp. 431, 434-35.

''Id. at 435.

''Compare Hill, 659 F. Supp at 434-35 with Huber, 656 F. Supp. at 510-11.



430 INDIANA LAW REVIEW [Vol. 21:413

protect against the inadvertent omission of tortfeasors by filing his suit

more than 150 days before the limitation period expires. In such case

defendant would be compelled to name all nonparty tortfeasors at least
45 days before expiration, thus giving plaintiff time to gather all liable

tortfeasors into the legal action. ^^

Unfortunately, such protection for the plaintiff against the inad-

vertent omission does not exist with respect to the 180-day notice provision

of tort claims against governmental tortfeasors. The potential deprivation

to plaintiff of a part of his damages attributable to the government's

share of the total fault is an injustice. However, the injustice is not in

the provisions of the Comparative Fault Act. The injustice springs from

the unreahstic 180-day notice provision of the Tort Claims Act." The

remedy does not lie in modification of the comparative fault system,

but by re-evaluating the necessity for the tort claim notice provision. ^^

As any defense counsel who has been employed by an insurance company
to defend a governmental tortfeasor must concede, there is no substantial

justification for the retention of the tort claim notice provision. The

state or the municipal corporation has no greater need for such advance

notice than does any other corporate defendant. The provision is too

often simply a shield against liability for meritorious claims of citizen

plaintiffs who have no knowledge of the notice requirement, or have
been unable to identify the liability of the government in so short a

time period. The need to satisfy both primary objectives of comparative

fault—fair allocation of financial responsibility among all tortfeasors
and fully compensating the injured plaintiff justifies the legislative aban-

donment of the notice provision of the Tort Claims Act, if not the

immunities provided by it.

V. Avoidable Consequences Defense

The Indiana Act borrows liberally from the Uniform Comparative

Fault Act.^^ The definition of "fault" is essentially taken from the

Uniform Act, except that the concepts of strict liability, breach of

'^iND. Code § 34-4-33-10(c) (Supp. 1987).
"5ee supra note 22.

'*The Indiana courts have repeatedly held that the failure of a claimant to give

notice of a tort claim against a political subdivision is a complete bar to suit, even in

instances in which the governmental entity had had actual notice of the incident giving

rise to the tort claim, and conducted its own investigation of the incident. Geyer v. City
of Logansport, 267 Ind. 334, 370 N.E.2d 333 (1977); City of IndianapoHs v. Uland, 212

Ind. 616, 10 N.E.2d 907 (1937); Teague v. Boone, 442 N.E.2d 1119 (Ind. Ct. App. 1982).

5^Unif. Comparative Fault Act, 12 U.L.A. 39 (1979).



1988] NONPARTY TORTFEASORS 431

warranty, and the misuse defense are omitted to reflect their exclusion

from the Indiana comparative fault scheme.^°

Among the array of acts and omissions which constitute "fault" is
the

*

'unreasonable failure to avoid an injury or to mitigate damages. "^^

The phrase suggests two distinct defenses. The failure to avoid an injury

refers to pre-tort conduct, while the defense of failure to mitigate damages

looks to post-tort conduct, formerly a distinction which provided for a

cumbersome analysis. ^^ The latter was traditionally known as the avoid-
able consequences doctrine,^^ and was pleaded as an affirmative defense

^he original version of the Indiana Act was more comprehensive. By the 1984
amendment, claims based upon the legal theories of strict liability and breach of warranty

were expressly excluded from the Act. Ind. Code § 34-4-33-13 (Supp 1987). The act is
rendered far more difficult in its application by such exclusion in the products liability

trial which often is based upon those two theories, as well as a neghgence theory. See,

e.g., Davidson v. John Deere & Co., 644 F. Supp. 707 (N.D. Ind. 1986). The ability to
instruct the jury intelligibly is questionable when those three theories are combined.

*'The full definition of fault is as follows:

(a) As used in this chapter:

'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 enforceable express consent, incurred risk, and unreasonable

failure to avoid an injury or to mitigate damages.

Ind. Code § 34-4-33-2 (Supp. 1987).

"See State v. Ingram, 427 N.E.2d 444 (Ind. 1981), a case in which the availability

of the "defense" of failure to wear seat belts is analyzed. The court seemed to struggle

with whether the failure to wear restraints supported a defense of failure to mitigate

damages, because such failure was a pre-tort act. Id. at 448. A pre-tort act or omission
ordinarily gives rise to an affirmative defense, which, in the former practice, constituted

a complete bar to recovery under the traditional defenses of contributory negligence or

incurred risk. In contrast, a post-tort error would simply result in a reduction of damages

to the plaintiff on the theory that avoidable damages are not proximately caused by the

defendant's wrongdoing. The distinction is now meaningless, since both pre-tort and post-
tort errors are combined in the definition of fault, the natural function of which is to

reduce damages.

"/c?. at 447. The court stated:

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 for
such damages.

Id. (emphasis in original) (quoting W. Prosser, Handbook of The Law^ of Torts, ch.
11, § 65 at 243 (4th ed. 1971).

The definition of the avoidable consequences doctrine, as established at Restatement

(Second) of Torts § 918 (1971), was recognized:

Avoidable consequences. (1) Except as stated in Subsection (2), one injured by

the tort of another is not entitled to recover damages for any harm that he
could have avoided by the use of reasonable effort or expenditure after com-

mission of the tort.

It was concluded by the court that such doctrine was not applicable to the so-called seat

belt defense, which arises out of a pre-tort omission. 427 N.E.2d at 447.



432 INDIANA LAW REVIEW [Vol. 21:413

as a matter of avoidance under Trial Rule S.^"*

Since the defense of unreasonable failure to mitigate damages now
appears simply as "fault," it fits quite neatly into the comparative fault

procedure reducing those damages of a plaintiff which are attributable

to his own acts and omissions, irrespective of whether such act or
omission was pre-tort or post-tort. Such defense was addressed by the

court of appeals in the recent case of Persinger v. Lucas.^^ The defendant

in Persinger argued that the accrual of storage charges for a damaged
automobile which had been rendered a total economic loss in a collision

constituted an unreasonable failure to mitigate damages. The court agreed

that a plaintiff has a duty to mitigate storage cost damages and that

an unreasonable failure to mitigate constitutes fault under the Act, to

be compared with other forms of fault contributing to the injury. ^^ The

Persinger case is not remarkably instructional in terms of explanation

of the Indiana Act because the issue involving comparative fault was

given to easy disposition.^"^ However, the case reinforces the conclusion

that the Indiana comparative fault scheme is simple in appHcation because

it deals more easily with doctrines which tended to be analytically elusive

under the former practice.

VI. Pleadings and Special Findings

In Walters v. Dean,^^ the first reported decision after adoption of

the Act, the issue on appeal was whether the trial court properly applied

the provisions of the Comparative Fault Act. The trial court found that
the plaintiff was 100% at fault for the damages to his own automobile
although the defendant had not pleaded the fault of the plaintiff in his

answer. The defendant did, however, file an affirmative defense asserting
that the sole cause of the collision was the fault of a nonparty tortfeasor

—

the plaintiff's son.^^ In focusing on the quantum of proof to support

«Ind. r. Tr. p. 8.

^'512 N.E.2d 865 (Ind. Ct. App. 1987).

^M at 871.
*The court of appeals, while finding that the plaintiff had a duty to mitigate storage

cost damages for the demolished automobile, affirmed the finding of 0% comparative
fault on the part of the plaintiff on the evidence that the plaintiff was financially unable

to make other arrangements for the disposition of the automobile. The court correctly
reasoned that the burden of proof of failure to mitigate was that of the defendant, and

the defendant failed to show what plaintiff could have done to mitigate damages that

would not have required the expenditure of unavailable funds. Id.
^«497 N.E.2d 247, 249 (Ind. Ct. App. 1986).

^"^Id. at 249. The issue of the existence of a possible immunity of the son was not

raised. See discussion of intrafamily immunities in Indiana supra note 13.

It is not necessary to plead that the sole cause of an injury is the fault of a person



1988] NONPARTY TORTFEASORS 433

the judgment, the court did not comment on the apparent pleading

discrepancy and no such error was assigned by the plaintiff. In affirming

the judgment the court of appeals held, seemingly reluctantly, that the

trial court could have found under the evidence that the plaintiff was

negligent and that plaintiff's son and the defendant were entirely free

from fault.^o

There are two important procedural considerations raised in Walters.

First, it may be fairly inferred from the opinion that it is unnecessary
for the defendant to plead in his answer the comparative fault of the

plaintiff in order to put the plaintiff's fault in issue. ^^ Such is not the

case, however, with respect to the comparative fault of a nonparty

tortfeasor.^2 The court in Walters observed, '*it is our opinion that

allocation of nonparty fault is to be made only in those cases where
the nonparty defense is specially pleaded by a named defendant. "^^

The court of appeals did not make a similar observation with respect
to the assertion of the fault of the plaintiff as an affirmative defense;

yet, it considered appropriate a finding of 100% fault on the part of
plaintiff. Such a distinction between the two defenses probably does not

represent a departure from the pleading requirements set forth in the

Indiana Rules of Trial Procedure. Rule 8(C) omits both contributory

negligence and assumption of risk from the array of affirmative defenses

which must be specially pleaded, and Rule 9.1(A) provides that in a

negligence action, such defenses may be pleaded by the denial of the
allegation.^'* The Federal Rules of Civil Procedure, on the other hand,

expressly require that assumption of risk and contributory negligence be

asserted as affirmative defenses. ^^ Thus, Walters seems to stand for the

proposition that the defendant need not specially plead the fault of the

plaintiff in an Indiana court.^^ In contrast, the defense must still be

pleaded in a federal action in which Indiana substantive law is applied. ^^

who is neither a party nor a statutory nonparty. Such a contention encompassed in the
general denial of the allegations that the conduct of the defendant was the proximate

cause of plaintiff's injury. Hill v. Metropolitan Trucking Inc., 659 F. Supp. 430, 435

(N.D. Ind. 1987).

^°497 N.E.2d at 254.

''^See supra note 45.

^The Act expressly provides that a nonparty defense must be pleaded in defendant's

answer. Ind. Code § 34-4-33-10(c) (Supp. 1987).
^'497 N.E.2d at 253.

'^IND. R. Tr. p. 8(C).

"Fed. R. Civ. P. 8(C).

^*Due caution dictates that the matter of contributory fault be raised at the pre-

trial conference, when "simplification of the issues" is undertaken, and included in the
pre-trial order. See Ind. R. Tr. P. 16.

"See supra note 48 and accompanying text.



434 INDIANA LAW REVIEW [Vol. 21:413

Another important procedural issue raised by the opinion in Waiters

is whether, in a bench trial, the court should include in its judgment

the mathematical calculation of its apportionment of fault, in the absence

of a request for special findings by a litigant. Of course, in Walters,
the judgment was negative. ^^ If the trial court had not included in its

ruUng on the motion to correct errors its finding that "the plaintiff was

100<% at fault, "^^ it appears doubtful that the case would have been

remanded for further findings. The court of appeals probably would

have affirmed on the basis that there was sufficient evidence for the

trial court to conclude that one of the following was found: (1) the

defendant was not hable; (2) plaintiff's son was 100% at fault; or (3)
plaintiff was at least 51% at fault. The court could have justified any
of these findings under the oft-cited rule that a judgment will be affirmed

on appeal, if it is supportable on any ground. ^^

There is no admonition in the Act that in a bench trial, the court

make a specific finding of the percentages of fault.^' In a jury trial,
however, the Act expressly provides that the jury be furnished with

verdict forms which require the disclosure of both the percentage of

fault charged against each party and the calculations made in arriving
at their final verdict. ^^

The issue then becomes whether the court, in a hypothetical bench

trial, may secretly find that the plaintiff's damages are $100,000, that
the plaintiff is 50% at fault, that the defendant is 25% at fault, and
that the nonparty tortfeasor is 25% at fault, and simply enter a general
judgment for the plaintiff for $25,000. Based upon traditional rules,

such general judgment may not be reversed if neither party had requested
the court to find the facts specially, ^^ and if there was sufficient evidence

to support the judgment. ^"^ Such a general finding was permissible before

M97 N.E.2d at 254.
''Id. at 252.

80Devine v. Grace Construction and Supply Co., 243 Ind. 98, 181 N.E.2d 862 (1962).

If an inference of fact could be inferred from the evidence, and proceeds logically from

the evidence, the judgment will not be overturned on appeal. Hyman v. Davies, 453
N.E.2d 336 (Ind. Ct. App. 1983).

^'The act merely requires that the trial court "shall make its award of damages
according to the principle apphcable to the jury trials." Ind. Code § 34-4-33-5(c) (1984)
(emphasis added).

«^lND. Code § 34-4-33-6 (1984).
"Rule 52(A),. of the Indiana Rules of Trial Procedure, provides that the trial court

is not required to find the facts specially and state its* conclusions therefor, unless requested

in writing by a party.

^^The virtual impossibility of reversal of a trial court upon general findings is well

estabhshed. The Indiana Court of Appeals stated:

We are not at liberty to re-weigh the evidence or to substitute our opinion for



1988] NONPARTY TORTFEASORS 435

the adoption of comparative fault, and there is nothing in the Act which

precludes such a general finding in a comparative fault bench trial.

However, it cannot be denied that a trial court would do a great disservice

to the litigants by such a scant judgment order. Rule 52 contemplates

that a court may make special findings on its own motion. ^^ It is clear
that the Act must be amended to require a trial court, sitting without

a jury, to make at least the same findings that are required of a jury.
In the interim, the trial lawyer must remember to protect the record by

filing a request for special findings.

Another interesting pleading issue was presented in Hill v. Metro-

politan Trucking, Inc.,^^ and a most sensible ruling resulted. As stated
above, the primary issue in Hill was whether a defendant could assert

the fault of an immune tortfeasor in diminution of that defendant's
relative fault. The court granted the motion to strike such nonparty

defenses because immune tortfeasors do not meet the test of a * 'person
who is, or may be, Hable to the claimant. ''^^

The defendants further argued that even if they were not permitted

to proceed with their statutory nonparty defenses, they should be per-

mitted to assert that the immune tortfeasors' fault was the sole proximate
cause of the casualty. ^^ The court agreed that such assertion is available

to the defendants, but that such was not an affirmative defense which

must be pleaded. ^^ The Hill court reasoned that under comparative fault

the plaintiff retains the traditional burden of proving that the defendants'

actions caused their injuries. Consequently, the defendants' general denial

that they were a proximate cause encompasses the contention that plain-

tiff's injuries were the sole result of the fault of others. The court
suggested that the contention is appropriately left to the evidence and

to argument, and is not to be the subject of an affirmative defense. ^^

The discussion in Hill concerning the issue of proximate cause sug-

gests a caveat in drafting the jury verdict form in an Indiana comparative

that of the finder of fact. . . . Where no findings of fact are made by the
court, the general judgment is presumed to be based upon findings which are

supported by the evidence. . . . We may not weigh conflicting evidence, but may
consider only that evidence most favorable to the prevailing party. If there is

evidence of probative value to sustain the judgment of the court, the judgment

will not be disturbed. . . . Furthermore, when confronted with a general finding
in favor of the plaintiff, we must affirm the judgment of the court if it is

sustainable upon any legal theory which is supported by the evidence. . . .
Van Orman v. State, 416 N.E.2d 1301, 1304 (Ind. Ct. App. 1981) (citations omitted).

«^lND. R. Tr. p. 52(D).

«*659 F. Supp. 430 (N.D. Ind. 1987).

^^See supra note 19 and accompanying text.
««659 F. Supp. at 435.

^Id.



436 INDIANA LAW REVIEW [Vol. 21:413

fault case. The language of the Act seems to assume that the collective
fault of the parties and liable nonparties caused plaintiff's injuries. ^'

Such is not always the case, however, and the jury should not be

compelled to find that only the fault of named tortfeasors caused plain-
tiff's injuries. The verdict form must allow a finding that no party, as
well as a nonparty, was at fault. That is, the injury was caused by an

"act of God," or by conduct which did not constitute legal fault. The
courts must include in the critical jury instruction setting forth the

methodology of applying the comparative fault principles, the following

provision:

In deciding this case you must first determine whether the de-

fendant was at fault. If you find that the defendant was not

at fault, or that any fault of the defendant was not a proximate

cause of plaintiff's injuries, you must enter a verdict for the

defendant and you need deliberate no further.

^'The Indiana Act is uniquely explicit as to the seriatim method to be employed by

the jury in reaching its verdict. For example, in the case of a single defendant, the statute

provides that the court shall instruct the jury to determine its verdict in the following

manner:

(1) The jury shall determine the percentage of fault of the claimant, of the

defendant, and of any person who is a nonparty. The percentage of fault figures
of parties to the action may total less than one hundred percent (100<^o) if the
jury finds that fault contributing to cause the claimant's loss has also come

from a nonparty or nonparties.

(2) If the percentage of fault of the claimant is greater than fifty percent (50<^o)

of the total fault involved in the incident which caused the claimant's death,

injury, or property damage, the jury shall return a verdict for the defendant

and no further deliberation of the jury is required.

(3) If the percentage of fault of the claimant is not greater than fifty (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,

(4) The jury next shall multiply the percentage of fault of the defendant by the

amount of damages determined under subdivision (3) and shall then enter a

verdict for the claimant in the amount of the product of that multiplication.

Ind. Code § 34-4-33-5 (Supp. 1987). In contrast, the Uniform Act merely provides that
the court shall instruct the jury to answer special interrogatories as to (1) the total amount

of plaintiff's damages, disregarding fault, and (2) the percentage of fault of all of the

parties. The court then determines the award of damages. Unif. Comparative Fault Act

§ 2, 12 U.L.A. 39, 41-42.

One respected commentator eschews special verdicts in comparative fault cases:
More than twenty years of trial experience under both the pure and modified

systems of comparative negligence, and having cases submitted on both general

verdicts and interrogatories have convinced the writer that in many cases a
general verdict is preferable. Juries have less trouble with a general verdict than

with interrogatories. It more nearly effectuates their wishes.

H. Woods, supra note 2, § 18.1 (2d ed. 1987). Such option is not available in Indiana.



1988] NONPARTY TORTFEASORS 437

Some injuries occur in the absence of legal fault by any entity. The
jury should appreciate the availability of such a finding in the proper

case. The suggested language would meet the needs of the defendants

in the Hill case, and allow for the proximate cause argument.

VI. Conclusion

Only five cases construing Indiana's Comparative Fault Act have

been reported since the Act took effect. As one robin does not a summer
make, the effectiveness and the fairness of the Act cannot be judged

upon the impact of these few cases. However, the signs are encouraging.

In none of the cases was the court tempted to torture the provisions

of the Act to achieve its own notion of substantial fairness. ^^ Those
shortcomings of the Indiana comparative fault system which have been

identified arise typically not from the system itself, but from the interplay

between the Act and some extraneous provision of Indiana law, such

as the retention of certain immunities. Even if those injustices were

cured, however, no easy solution is apparent with respect to handling

the burden created by the insolvent tortfeasor.^^ Even the most callous

of analysts must harbor a nagging guilt over placing the weight of that

burden solely on the shoulders of the plaintiff. We must continue to
re-examine the problem of the insolvent tortfeasor, and seek a more

equitable solution if, indeed, one is available. ^^

'^The only interpretation which can be criticized as being contrary to the intent of

the legislature is the comment in dictum in Hill v. Metropolitan Trucking Inc., 659 F.

Supp. 430, 435 (N.D. Ind. 1987). See supra note 21.

'^It is not clear that the incidence of insolvent and uninsured tortfeasors is as

burdensome as it would appear in most academic discussions. For example, in automobile

accident injury litigation, such burden is substantially eliminated by the availability of

uninsured, or underinsured, motorist coverages. See Ind. Code §§ 27-7-5-2 to -6 (Supp.

1987). Nor is there seemingly a burden for tortious injuries arising out of the condition

of business premises and business activities, since such businesses rarely are insolvent, and

usually are collectible without regard to the existence of insurance. Further, the entire

field of product liability injury litigation is not encompassed within the comparative fault

act, at least with respect to the theories of strict liability in tort and breach of warranty,

and the doctrine of joint and several liabihty remains applicable in those claims. See supra

note 38. Finally, medical malpractice actions are not governed by the comparative fault

act, and traditional tort doctrines, including that of joint and several Uability, remain

applicable. Ind. Code § 34-4-33-l(a) (Supp. 1987).
'"The Kansas Supreme Court concluded that no system of tort reparation is exactly

fair:

Numerous examples of unfairness have been cited by both parties in this case

to support their respective positions. The law governing tort liability will never

be a panacea. There have been occasions in the past when the bar of contributory

negligence and the concept of joint and several liability resulted in inequities.

There will continue to be occasions under the present comparative negligence



438 INDIANA LAW REVIEW [Vol. 21:413

While there is some bad in the Indiana comparative fault system,

there is mostly good. The courts should continue to preserve those basic

principles signaled by the legislature, in order to achieve a balanced

fairness and a predictable outcome among litigants.

statute where unfairness will result.

Brown v. Keill, 224 Kan. 195, 204, 580 P.2d 867, 874 (1978). It is claimed that the

reallocation provision of the Uniform Comparative Fault Act provides an equitable solution.

In the section which deals with the apportionment of damages, the reallocation of the

share of an uncollectible tortfeasor is addressed:

Upon motion made not more than [one year] after judgment is entered, the
court shall determine whether all or part of a party's equitable share of the

obligation is uncollectible from that party, and shall reallocate any uncollectible

amount among the other parties, including a claimant at fault, according to
their respective percentages of fault. The party whose liability is reallocated is

nonetheless subject to contribution and to any continuing liability to the claimant

on the judgment.

Unif. Comparative Fault Act § 2(d), 12 U.L.A. 39, 42 (1979). The Commissioners
argue the equity of the solution:

Reallocation takes place among all parties at fault. This includes a claimant
who is contributorily at fault. It avoids the unfairness both of the common law
rule at joint-and-several liability, which would cast the total risk of uncollectibility

upon the solvent defendants, and of a rule abolishing joint-and-several liability,

which would cast the total risk of uncollectibility upon the claimant.

Id. Commissioners' Comment at 43. Certainly, such solution is equitable if the standard
of fairness is that all tortfeasors share in the burden created by the uncollectible tortfeasor

in shares proportionate to their fault. However, if preeminence is given to the objective

of reparation proportionate to fault, then such objective is compromised by making any

tortfeasor respond in damages in a sum disproportionate to his share of the total fault.

The Indiana legislature clearly assigned such preeminence to such objective, which is

inconsistent with the reallocation scheme of the Uniform Comparative Fault Act. See

supra note 2.