Indiana Law Review


Tort Law: The Languages of Duty

Jay Tidmarsh*

Summarizing the developments in Indiana tort law is a daunting,

perhaps impossible task. In more than 115 reported opinions, state and

federal courts wrestled with issues, many of them issues of first im-
pression, which ranged across the spectrum of tort law. From physical
to psychic to economic injuries, from compensatory to punitive damages,

from legal doctrine to legal process, scarcely a page of Indiana's tort

hornbook was left unchanged. Describing the changes in complete detail

would exhaust everyone long before the work was done, while organizing

the year's developments around any single theme risks the omission of

cases and concepts as important as the theme chosen.

In spite of its risks, I have taken the latter approach. The reason

is that a constant thread runs through many of these cases. The thread
is duty. Time and again during the past year, Indiana courts were
required to decide whether a particular set of facts gave rise to a duty

of care by the defendant or an obligation of avoidance by the plaintiff.

Some of the cases involved novel legal duties, while others gave
modern answers to time-worn problems. Whatever the ultimate result,
one aspect of the decisions stands out: the courts did not resolve the

issue of duty along any consistent view of the notion of obligation and

responsibility. Although the Indiana Supreme Court purported to an-

nounce a comprehensive new test for the determination of duty during
1991, Indiana does not in fact have a single, coherent theory of duty.

Rather, it has four competing models: a model of duty based on re-

lationship, a model based on foreseeability of harm, a model based on

public policy, and a model based on community values. Different areas
of tort doctrine have been captured by different models, with the result

that Indiana tort law is presently a confused patchwork of obligation

and immunity.

Part I of this Article begins the exploration of this theme by
describing Indiana's new test for duty. Part II examines three sets
of cases decided by the Indiana Supreme Court and demonstrates
that the four models of duty remain entrenched despite this new
test. Part III applies these models to duty decisions in the areas of

physical, psychic, and economic torts, as well as to the plaintiff's
own obligation of due care, and proves that the reliance on the

* Associate Professor of Law, Notre Dame Law School. A.B., 1979, University
of Notre Dame; J.D., 1982, Harvard Law School. I thank Francesco Penati for his
research assistance in the preparation of this Article.



1420 INDIANA LAW REVIEW [Vol. 25:1419

disparate models has frustrated any coherent pattern of doctrinal

development in the area of duty. Part IV provides some tentative
conclusions about the general direction of duty analysis in Indiana.

By focusing on this theme of duty, I am necessar-
ily bypassing important, interesting, and occasionally inconsis-
tent decisions regarding negligence, 1 proximate cause, 2

1. See Amcast Indus. Corp. v. Detrex Corp., 779 F. Supp. 1519 (N.D. Ind. 1991)

(holding that the violation of an Indiana administrative regulation was evidence of negligence

but not negligence per se); Witco Corp. v. City of Indpls., 762 F. Supp. 834 (S.D. Ind.

1991) (holding that doctrine of res ipsa loquitur could apply in case in which city failed

to maintain building in order to prevent vagrants from setting fire); Adams Township of
Hamilton County v. Sturdevant, 570 N.E.2d 87 (Ind. Ct. App. 1991) (refusing to allow

negligence per se claim for violation of statute when statute's purpose was not public
safety); Cochran v. Phillips, 573 N.E.2d 472 (Ind. Ct. App. 1991) (rejecting use of res

ipsa loquitur for escape of dog); French v. Bristol Myers Co., 574 N.E.2d 940 (Ind. Ct.

App. 1991) (finding negligence per se theory available when defendant failed to abide

ordinance's command to keep bushes near roadway trimmed); Hale v. Community Hosp.
of Indpls., Inc., 567 N.E.2d 842 (Ind. Ct. App. 1991); Hobble v. Basham, 575 N.E.2d

693 (Ind. Ct. App. 1991) (holding unconstitutional an ordinance which defendant violated

and on which plaintiff had relied to establish negligence per se); Kerr v. Carlos, 582

N.E.2d 860 (Ind. Ct. App. 1991) (finding that mere fact of unsuccessful first surgery did

not establish a breach of the standard of care and that expert testimony was therefore

required); Nails v. Blank, 571 N.E.2d 1321 (Ind. Ct. App. 1991) (holding that compliance

with postal regulations, is not conclusive on the issue of due care, especially when the

regulations are not concerned with safety); Stackhouse v. Scanlon, 576 N.E.2d 635 (Ind.

Ct. App. 1991) (holding that chiropractor cannot give expert testimony on standard of

care for internal and pulmonary medicine); Summit Bank v. Panos, 570 N.E.2d 960 (Ind.

Ct. App. 1991) (holding that affidavit of expert who was not familiar with locality and
was not a licensed physician at time of malpractice was sufficient to resist motion for

summary judgment).

2. See Cowe v. Forum Group, Inc., 575 N.E.2d 630 (Ind. 1991) (holding that
jury could find that failure to diagnose and care for pregnant mother in defendant's care

was a proximate cause of child's afflictions); Peak v. Campbell, 578 N.E.2d 360 (Ind.

1991) (reversible error not to give instruction on the burden of proof on proximate cause

when the defendant admits negligence); Adams Township of Hamilton County v. Stur-
devant, 570 N.E.2d 87 (Ind. Ct. App. 1991) (holding that failure of township to enforce

fence repair law not a proximate cause of death of decedent who collapsed after repairing
hole in neighbor's portion of fence); Cornett v. Johnson, 571 N.E.2d 572 (Ind. Ct. App.

1991) (holding that trial judge's testimony that evidence would have had an effect on his

decision was speculative and therefore should have been excluded); Lilge v. Russell's Trailer

Repair, Inc., 565 N.E.2d 1146 (Ind. Ct. App. 1991) (finding that whether plaintiff's failure

to put his foot on bumper was sole proximate cause of his fall from back of trailer was

question of fact for the jury); Stackhouse v. Scanlon, 576 N.E.2d 635 (Ind. Ct. App.

1991); Summit Bank v. Panos, 570 N.E.2d 960 (Ind. Ct. App. 1991) (finding that patient's

alleged suicide from overdose of prescription medication was not an intervening cause

when the prescribing doctor knew of patient's suicidal behavior and neglected to give

proper warnings regarding the use of medication); Tucher v. Brothers Auto Salvage Yard,

564 N.E.2d 560 (Ind. App. 1991) (finding summary judgment proper when plaintiff failed



1992] TORTS 1421

defamation, 3 nuisance, 4 false arrest, 5 malicious prosecution and

abuse of process, 6 statutes of limitation, 7 sovereign

to prove that gravel on which he slipped came from defendant's salvage yard); Walker

v. Rinck, 566 N.E.2d 1088 (Ind. Ct. App. 1991) (holding that parents' subsequent knowledge

of the mother's Rh negative blood type and their decision at that time to have children
was an intervening cause which precluded claim against doctor and laboratory).

3. See Tacket v. Delco Remy Div. of Gen. Motors Corp., 937 F.2d 1201 (7th Cir.
1991) (holding that plaintiff must prove pecuniary damages in order to recover in libel per

quod action); Bandido's, Inc. v. Journal Gazette Co., 575 N.E.2d 324 (Ind. Ct. App. 1991)

(stating that inaccurate headline which constituted extreme departure from the standards of

journalism could be used as evidence of actual malice); Burks v. Rushmore, 569 N.E.2d 714

(Ind. Ct. App. 1991) (holding that medical director's allegedly defamatory comment regarding

employee on disability entitled to qualified privilege); Chambers v. American Trans Air, Inc.,

577 N.E.2d 612 (Ind. Ct. App. 1991) (holding that reference given by former employer to

prospective employer entitled to qualified privilege); Powers v. Gastineau, 568 N.E.2d 1020

(Ind. Ct. App. 1991) (finding that comment to county commissioners that plaintiff is a

"lunatic" is defamatory and not entitled to qualified privilege because of actual malice);

Olsson v. Indiana Univ. Bd. of Trustees, 571 N.E.2d 585 (Ind. Ct. App. 1991) (holding that

reference given by teacher to prospective employer of student entitled to qualified privilege).

4. See Witco Corp. v. City of Indpls., 762 F. Supp. 834 (S.D. Ind. 1991); Blair v.

Anderson, 570 N.E.2d 1337 (Ind. Ct. App. 1991) (holding that an open pit dump which
failed to comply with applicable ordinances was a public nuisance); Pickett v. Brown, 569

N.E.2d 706 (Ind. Ct. App. 1991) (holding that a nuisance suit is not an exception to the

Indiana's "common enemy" doctrine).
5. See Edwards v. Vermillion County Hosp., 579 N.E.2d 1347 (Ind. Ct. App. 1991).

6. See Indiana Nat'l Bank v. Churchman, 564 N.E.2d 340 (Ind. Ct. App. 1991).

7. The significant statute of limitations decisions occurred in the areas of products

liability, medical malpractice, and legal malpractice. In perhaps the most important statute

of limitations decision of the year, B & B Paint Corp. v. Shrock Mfg. Inc., 568 N.E.2d
1017 (Ind. Ct. App. 1991), the court of appeals held that a product liability claim asserting

a breach of implied warranties was governed by the four-year Uniform Commercial Code

statute of limitations rather than the two-year Products Liability Act statute of limitations.

The issue has resulted in a significant divergence of opinion in other jurisdictions, see Taylor

v. Ford Motor Co., 408 S.E.2d 270 (W. Va. 1991), but had apparently never been addressed

in Indiana.

The most fascinating series of opinions, however, concerned the application of the

discovery rule in products liability and malpractice cases. As a general matter, the discovery

rule holds that a statute of limitations begins to run on the date on which the plaintiff

discovers or reasonably should discover the relationship between the defendant's actions and

the injury. In Alexander v. Beech Aircraft Corp., 952 F.2d 1215, 1226 (10th Cir. 1991), the

Tenth Circuit held that the discovery rule does not apply in all products liability cases; rather,

it is limited only to those cases in which injury results from "the ill effects of long term

chemical exposure." The Alexander court upheld this reading of the discovery rule, which

effectively limits the discovery rule just to toxic tort claims, against an equal protection

challenge. In another products liability case, the Indiana Supreme Court applied the discovery

rule exception to the two-year statute of limitations and found that, although the plaintiff

did not actually discover the relationship between the product and his injury until a date

within the two-year period, there was a jury question about whether the plaintiff should have

known about the relationship at a date outside the two-year period. Allied Resin Corp. v.



1422 INDIANA LAW REVIEW [Vol. 25:1419

immunity, 8 preemption, 9 compensatory 10 and punitive

Waltz, 574 N.E.2d 913 (Ind. 1991).

When the discovery rule was applied in medical malpractice cases, however, the result
was different. In Yarnell v. Hurley, 572 N.E.2d 1312 (Ind. Ct. App. 1991), the court held

that the two-year statute of limitations begins to run at the date of malpractice, but is tolled

for an equitable period of time when there is evidence of fraudulent concealment or continuous

wrong. The court held that a 21-month delay in bringing a malpractice claim after discovery

of the fraud was unreasonable and that the defendant's continuous wrong ended when the

physician-patient relationship ended, which had occurred more than two years before the filing

of the proposed malpractice complaint. Similarly, Keesling v. Baker & Daniels, 571 N.E.2d
562 (Ind. Ct. App. 1991), held in a legal malpractice case that the two-year statute of

limitations on a claim of malpractice due to conflict of interest begins to run, at the latest,

on the last date of the attorney's representation. The most stringent statute of limitations

decision, however, was Madlem v. Arko, 581 N.E.2d 1290 (Ind. Ct. App. 1991), in which

the court held that a claim for malpractice begins to run on the date of the malpractice and

that there is no discovery rule which tolls the statute until the time when the client discovers

the malpractice. The direct conflict between Madlem and Keesling, as well as Madlem's general
inconsistency with the trend toward adoption of discovery rules, is a development which

should continue to be monitored.

8. See Witco Corp. v. City of Indpls., 762 F. Supp. 834 (S.D. Ind. 1991); Buckley

v. Standard Inv. Co., 581 N.E.2d 920 (Ind. 1991) (holding that utility is not entitled to

immunity under the Indiana Tort Claims Act for negligent inspection); Board of Trustees v.

Henry, 576 N.E.2d 614 (Ind. Ct. App. 1991) (holding that the statements regarding the extent

of loss provided sufficient notice to satisfy Tort Claims Act's claim presentation requirement);

City of Valparaiso v. Edgecomb, 569 N.E.2d 746 (Ind. Ct. App. 1991) (finding that police

officer involved in car accident while leading funeral procession was entitled to immunity);

Edwards v. Vermillion County Hosp., 579 N.E.2d 1347 (Ind. Ct. App. 1991) (holding that

hospital is entitled to immunity of Indiana Tort Claims Act after its instigation of a debt

collection action); Hupp v. Hill, 576 N.E.2d 1320 (Ind. Ct. App. 1991) (finding that judge
pro tern was entitled to immunity under Indiana Tort Claims Act for signing warrant minutes

after his commission had expired); State v. Hughes, 575 N.E.2d 676 (Ind. Ct. App. 1991)

(holding that plaintiff's physical injuries, did not excuse her failure to file a notice of claim

within 180 days of the injury); Tucher v. Brothers Auto Salvage Yard, 564 N.E.2d 560 (Ind.

Ct. App. 1991).

9. See Heath v. General Motors Corp., 756 F. Supp. 1144 (S.D. Ind. 1991) (holding

that design defect claim of failure to equip car with air bag preempted by federal motor

vehicle safety standards); Smith v. Norfolk & Western Ry. Co., 776 F. Supp. 1335 (N.D.
Ind. 1991) (finding that alleged negligence in failing to provide additional warning devices at

railroad crossing preempted by Federal Railway Safety Act).

10. Undoubtedly the most important opinion on compensatory damages was Southlake

Limousine & Coach, Inc. v. Brock, 578 N.E.2d 677 (Ind. Ct. App. 1991), in which the
plaintiff used an economist to testify about his calculations of the economic value of a

person's life ("hedonic damages"). The court of appeals held that this type of testimony is

inadmissible in a wrongful death suit because it is irrelevant to the issues of loss of love,

guidance, and mental anguish; because it is speculative as to the losses of the survivors; and

because it invades the jury's province in assessing damages. Other opinions worthy of note

are: Chamness v. Carter, 575 N.E.2d 317 (Ind. Ct. App. 1991) (holding that a noncustodial

parent can file a wrongful death action on behalf of the deceased child when the custodial

parent refuses to do so); Eden United, Inc. v. Short, 573 N.E.2d 920 (Ind. Ct. App. 1991)



1992] TORTS 1423

damages," indemnity, 12 assignability of claims, 13 vicarious liability, 14

strict liability,
15 and the jury process. 16 I do so with great reluctance.

(describing the level of certainty needed in order to obtain damages for tortious interference

with prospective advantage); Smith v. Syd's, Inc., 570 N.E.2d 1216 (Ind. Ct. App. 1991)

(holding that court incorrectly excluded testimony of $26,000 in medical expenses suffered by

the plaintiff).

11. See Mundell v. Beverly Enter.-Ind., Inc., 778 F. Supp. 459 (S.D. Ind. 1991)

(holding that personal representative of decedent could not recover punitive damages for

improper care received by decedent); Erie Ins. Co. v. Hickman, 580 N.E.2d 320 (Ind. Ct.

App. 1991); Powers v. Gastineau, 568 N.E.2d 1020 (Ind. Ct. App. 1991) (holding that punitive

damage award must be reversed because of a failure to demonstrate malice, fraud, gross

negligence, or oppression); Hotel Operating Co. v. Shaffer, 580 N.E.2d 306 (Ind. Ct. App.

1991) (discussing the foundation needed to permit introduction of evidence on net worth of

defendant and to pierce the corporate veil); Ramada Robbins v. McCarthy, 581 N.E.2d 929

(Ind. Ct. App. 1991) (holding that punitive damages could be awarded even when defendant

had already been subject to criminal sanctions); Swain v. Swain, 576 N.E.2d 1281 (Ind. Ct.

App. 1991) (holding that constructive fraud supported award of punitive damages where there

was evidence of oppression).

With one exception, however, the courts missed the most pressing issue under punitive

damages. After the United States Supreme Court's decision in Pacific Mutual Insurance Co.

v. Haslip, HIS. Ct. 1032 (1991), it appears that the punitive damages rules of each state
will need to be examined to determine whether they comport with the due process guarantees

which Haslip found in the Alabama case before the Court and which the majority strongly

implied were required to render an award of punitive damages constitutional. The only case

to raise the issue of the constitutionality of Indiana's punitive damages rules held that they

were constitutional because Haslip determined that awards of punitive damages are constitutional

as long as the court considers the character and degree of the wrong and the necessity of

preventing similar wrongs. United Farm Bureau Mut. Ins. Co. v. Ira, 577 N.E.2d 588 (Ind.

Ct. App. 1991). The court's reading of Haslip is extremely generous and probably incorrect.

See Mattison v. Dallas Carrier Corp., 947 F.2d 95 (4th Cir. 1991). But see Hospital Auth.

of Gwinnett County v. Jones, 409 S.E.2d 501 (Ga. 1991).

12. See Allied Signal, Inc. v. Acme Serv. Corp., 946 F.2d 1295 (7th Cir. 1991);
Sprigler v. Osnabrucker Mettallwerke, 761 F. Supp. 86 (S.D. Ind. 1991); Indianapolis Power

& Light Co. v. Snodgrass, 578 N.E.2d 668 (Ind. 1991) (holding that Indiana Comparative
Fault Act creates no right of indemnity against employer of plaintiff).

13. See Picadilly, Inc. v. Raikos, 582 N.E.2d 338 (Ind. 1991) (holding that legal

malpractice claim cannot be validly assigned to victorious plaintiff as part of a discharge of

defendant's debts in bankruptcy).

14. See Bitzer v. Pradziad, 571 N.E.2d 593 (Ind. Ct. App. 1991); Eden United, Inc.

v. Short, 573 N.E.2d 920 (Ind. Ct. App. 1991) (piercing corporate veil to hold subsidiary

organizations liable for parent organization's interference with plaintiffs economic advantage).

15. See Amcast Indus. Corp. v. Detrex Corp., 779 F. Supp. 1519 (N.D. Ind. 1991).

16. The most significant opinion was probably Frito-Lay, Inc. v. Cloud, 569 N.E.2d

983 (Ind. Ct. App. 1991), in which the court found that the failure to give a sudden

emergency instruction required reversal of a judgment entered in favor of a teenager who
failed to yield at a stop sign and was struck by the defendant's driver. Calling the plaintiff's

reasons for a nonbifurcated trial "mere subterfuge," the court held that the compelling

damages testimony evoked such sympathy for the plaintiff that the defendant was unduly

prejudiced by a nonbifurcated trial and that a bifurcated trial would maximize judicial



1424 INDIANA LAW REVIEW [Vol. 25:1419

1991 was a year of rich diversity in Indiana tort law. Ultimately,
however, it was the year of duty.

I. A New Test For Duty?

Michael Neal was a patient of Dr. Orville Webb. At some point
before 1985, Dr. Webb began to prescribe anabolic steroids for Neal.
On March 27, 1985, Neal brandished a knife at his wife, pointed a gun
at her head, and pulled the trigger. Fortunately the gun was unloaded,

and Ms. Neal escaped to the home of her sister and brother-in-law. Her
brother-in-law, a state trooper, called the sheriff's office, which in turn

called Dr. Webb. Dr. Webb went to the Neals' home and found Neal
distraught and afraid he might hurt someone. Dr. Webb convinced Neal
to see a psychiatrist the next day and then called the sheriff's office to

report that it would be better if everyone stayed away from Neal for
the night. The sheriff's office subsequently called Ms. Neal and told

her that everything was fine. Ms. Neal called her husband, who said
that she could come over to pick up some clothes for the night. When
Ms. Neal and her brother-in-law arrived at the home, Neal threatened

his wife with a gun, shot the brother-in-law, and drove to a local

hospital, where he killed a nurse.

The brother-in-law and his wife sued Dr. Webb. The plaintiffs'
theory of the case was that Neal had become a toxic psychotic because

of Dr. Webb's negligent over-prescription of anabolic steroids. As the

Indiana Supreme Court framed it, the legal issue presented by the case

was "[w]hat duty a physician owes to a third person injured by the

physician's patient as a result of treatment." 17 The issue was new; no

prior precedent dictated the result.

To answer the novel issue, the supreme court began by asking a
logical question: What is the test for determining whether a duty in tort
exists? Although obvious, the question was also revolutionary. Indiana

economy. Id. at 990-91. But see Fultz v. Cox, 574 N.E.2d 956 (Ind. Ct. App. 1991)

(declining to follow Frito Lay and refusing to bifurcate issue of prior release in car

accident case).

Courts were also active in reviewing damage awards and liability findings which were

arguably the product of "jury justice." See, e.g., Adams v. McClevy, 582 N.E.2d 915
(Ind. Ct. App. 1991); Conklin v. Demastus, 574 N.E.2d 935 (Ind. Ct. App. 1991) (upholding

jury verdict for defendant when defendant's lawyer conceded that defendant was more

than 50% at fault, but there was a serious question that the plaintiffs' injuries were
caused by other events); Schuh v. Silcox, 581 N.E.2d 926 (Ind. Ct. App. 1991) (ordering

new trial in case where jury returned verdict for defendant after defendant's lawyer

conceded liability in opening statement); State v. Snyder, 570 N.E.2d 947 (Ind. Ct. App.

1991).

17. Webb v. Jarvis, 575 N.E.2d 992, 993 (Ind. 1991).



1992] TORTS 1425

cases had long recognized the need of a tort plaintiff to establish a

duty, 18 but no single test to determine the existence of a duty had ever

been established. 19 Rather, various duties—such as the duty of a land-
owner to an invitee or licensee,20 the duty of care for the actions of

contractors,21 the duty of a motorist, 22 the duty to prevent criminal

conduct,23 the duty of a seller or supplier of alcohol, 24 even the duties

of physicians25 and product manufacturers26—grew up independently and
haphazardly, without any thought given to their relationship to other

tort obligations arising in other factual contexts. By asking a simple
question, the Indiana Supreme Court was poised to bring the unruly

duty analysis, full of its technicalities and exceptions, within a single

framework.

The court's answer was straight-forward. In determining whether a

duty existed in the case, "three factors must be balanced ... (1) the

relationship between the parties, (2) the reasonable foreseeability of harm
to the person injured, and (3) public policy concerns."

27 Applying these

three factors to the facts of the case, the court found that all three

counseled against the imposition of a duty. 28 Consequently, it held that

"generally physicians do not owe a duty to unknown nonpatients who
may be injured by the treatment of a patient."29

In spite of its apparent simplicity, this new test for duty suffers
from three serious flaws. The first is that the court provided less than
two paragraphs of discussion and no precedential or theoretical analysis

for its new test. The lack of analysis and justification robbed this new
framework of much of its prescriptive power and force.

The second weakness of the test is a problem shared by all multi-

factor balancing tests: lack of certainty and undue pliability. When all

18. See, e.g., Miller v. Griesel, 308 N.E.2d 701, 706 (Ind. 1974).

19. See, e.g., Gariup Constr. Co. v. Foster, 519 N.E.2d 1224 (Ind. 1988).

20. See Cleveland C.C. & St. L. Ry. Co. v. Means, 104 N.E. 785 (Ind. App.
1914).

21. See Prest-O-Lite Co. v. Skeel, 106 N.E. 365 (Ind. 1914); Hale v. Peabody

Coal Co., 343 N.E.2d 316 (Ind. App. 1976).

22. See Martin v. Lilly, 121 N.E. 443 (Ind. 1919).

23. See infra notes 116-25 and accompanying text.

24. See Picadilly, Inc. v. Colvin, 519 N.E.2d 1217 (Ind. 1988); Gariup Constr.

Co. v. Foster, 519 N.E.2d 1224 (Ind. 1988).

25. See Worster v. Caylor, 110 N.E.2d 337 (Ind. 1953).

26. See J.I. Case Co. v. Sandefur, 197 N.E.2d 519 (Ind. 1964).

27. Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991).
28. The court cautioned, "This conclusion should not be interpreted as inoculating

physicians so as to give them complete immunity against third party claims. In a different

factual setting, the duty analysis undertaken here could lead to a different conclusion."

Id. at 998.

29. Id.



1426 INDIANA LAW REVIEW [Vol. 25:1419

three factors pull in the same direction, the answer to the duty question

is always easy. When factors tug in different directions, however, the
courts will necessarily be forced to do one of two things: either manipulate

the meaning and evidence concerning the discordant factor in order to

create an appearance that all three factors support the decision or establish

a "lexical" or serial ordering in which some factors are given priority

or greater weight. 30 In Webb v. Jarvis, il the court appears to have
adopted the former approach. With respect to the first factor (rela-

tionship), the Indiana Supreme Court noted that, although privity "has

vanished evolutionarily during the twentieth century" and that "[a]s we
approach the next century, it is well-established that privity is not always

required," 32 the lack of professional relationship between the plaintiff

and the physician compels a finding of no duty unless the professional

knows that a third person is relying on his opinions and conclusions. 33

By focusing on the relationship between the plaintiff and the physician,
the court failed to appreciate that the existence of a relationship between

a physician and a patient can also give rise to obligations toward others. 34

Similarly, with respect to the second factor (foreseeability), the court

rejected the plaintiff's analogy to dram shop cases which find a duty
on the tavern for a patron's drunken conduct;35 it noted that the toxic

dangers of steroids are less widely known, and therefore, less foreseeable

than the dangers of selling someone too much alcohol. 36 Here too, the
court's argument is thinly reasoned. The consequences of excessive steroid

use might well have been known to the defendant as a medical pro-
fessional. If the court intended to suggest that a defendant owes no

duty for harm which it can foresee simply because the general public,
with less expertise than the defendant, cannot foresee the harm, then

30. By "lexical" or serial ordering, I mean that the court will need to acknowledge

that certain factors are dominant and others are subservient in the case of a conflict.

For instance, if public policy considerations favored a duty while relationship and fore-

seeability did not, the court would need to determine which set of factors deserved the

priority. On the more general question of lexical ordering, see John Rawls, A Theory
of Justice 42-44 (1971).

31. 575 N.E.2d 992 (Ind. 1991).

32. Id.

33. Id. at 996. In this case, there was no evidence that the plaintiff had relied

on the defendant's conclusions and opinions or that the defendant knew of any arguable

reliance.

34. See Tarasoff v. Regents of Univ. of Cal., 551 P. 2d 334 (Cal. 1976) (holding

that relationship of doctor to patient creates obligation of due care toward specific target

of patient's violent ideation); Restatement (Second) of Torts § 315 (1965).

35. Webb, 575 N.E.2d at 997. The court did not specifically cite any dram shop

cases, but it was presumably thinking of Picadilly, Inc. v. Colvin, 519 N.E.2d 1217 (Ind.

1988).

36. Webb v. Jarvis, 575 N.E.2d 992, 997 (Ind. 1991).



1992] TORTS 1427

the foreseeability factor will work against the creation of duties for

significant classes of injuries caused by technological innovations.

Finally, the court turned to public policy, where it stood on the

firmest ground. The court found that the negative effects of a duty on

a physician's loyalty to a patient and on the generally beneficial use of

prescription medication were policy reasons which weighed heavily against

the duty. 37 Although these arguments are persuasive, the court ignored

countervailing public policy factors such as the compensation of plaintiffs

and the deterrence of negligent prescription. The court gave no reason

that the public policies it selected were the critical ones.

That problem leads to the third weakness of Webb: whether in fact

the new test of duty will be taken seriously. Less than a month after
Webb was decided, the supreme court decided Cowe v. Forum Group,
Inc.,™ a case involving a child born to a woman raped in the defendant's
institutional care facility. The case, in which the child sued on a theory
of wrongful life, bore significant parallels to Webb: both involved a

professional relationship, both involved third party criminal conduct,

and both claimed an asserted duty to protect. Both held that no duty

existed. In many ways, however, the most remarkable thing about Cowe
is that it utterly fails to cite Webb or to undertake the three-factor
balancing test which Webb seemingly requires. The duty analysis adopted
in Cowe is considered shortly. At this point it is enough to note that
the court ignored the Webb test in its first opportunity to use it.

This last observation—that courts have not and may not accept the
Webb balancing test—leads to a further question: If the courts are not
deciding duty issues with Webb's test, then what are the factors on

which courts are basing their duty decisions? Again using cases decided

during the past year, the next section explores the models on which the

Indiana courts have premised the existence of a legal duty.

II. Four Models of Duty

With few exceptions, Indiana's duty decisions during 1991 turned

on one of four critical factors. Some cases relied on the nature of the
relationship between the defendant and the plaintiff (or third person)

in order to resolve the duty issue, some relied on the failure of due

care, some relied on public policy, and at least one relied on a sense

of community values. The first three factors are familiar; they are the
ones identified in Webb. The difference from Webb, however, is that
the presence or absence of a single factor was typically deemed dispositive
of the duty question; the courts did not engage in the balancing of

37. Id.

38. 575 N.E.2d 630 (Ind. 1991).



1428 INDIANA LAW REVIEW [Vol. 25:1419

factors suggested by Webb. The fourth factor, of course, lies entirely
outside the Webb framework. By examining three series of cases decided
by the Indiana Supreme Court, this section develops the four ways in
which Indiana courts have analyzed the question of duty.

A. The Model of Relationship and Control: Landowner Liability
Toward Those Injured on the Property

At common law the paradigmatic instance of a duty based on
relationship was the duty of a landowner toward those injured on the

landowner's property. Simply put, the relationship of the person entering

on the land to the landowner—in other words, the injured person's
status as invitee, licensee, or trespasser—defined the duty owed. Invitees
were owed a general duty of reasonable care; licensees, which included
all social guests, were owed a duty only to avoid wilful or wanton injury
and to warn of latent dangers; and trespassers received a duty simply

to avoid wilful or wanton injury. 39 The rule in Indiana was the same.40

In the past twenty-five years, however, this status-driven test has

come under increasing attack for its arbitrary character and its finespun
distinctions. Consequently, it has been replaced in a substantial number
of jurisdictions with a general duty of reasonable care under the cir-

cumstances. 41

In a series of five decisions, the Indiana Supreme Court entered the

debate about the nature and extent of a landowner's duty to those

injured on the premises.42 It struck a middle ground, significantly re-

working and expanding the present "invitee" category but nonetheless

39. See Restatement (Second) of Torts §§ 328E-344 (1965). A fourth status-
based distinction has been developed through legislation; every state has some form of a

recreational use statute, in which landowners who hold land open for certain recreational
purposes owe the entrants on the land a limited duty of care. See, e.g., Ind. Code §§ 14-
1-3-18, -19 (1988 & Supp. 1991) (limiting duty of landowner toward users of recreational
vehicles and snowmobiles entering on the land).

40. See Burrell v. Meads, 569 N.E.2d 637 (Ind. 1991).

41. See, e.g., Rowland v. Christian, 433 P.2d 561 (Cal. 1968); Basso v. Miller,

352 N.E.2d 868 (N.Y. 1976); W. Page Keeton et al., Prosser and Keeton on the
Law of Torts § 62 (5th ed. 1984) (discussing fate of Rowland in other jurisdictions).

42. Burrell, 569 N.E.2d at 637; Parks v. Parks, 569 N.E.2d 644 (Ind. 1991); Risk

v. Schilling, 569 N.E.2d 646 (Ind. 1991); LeLoup v. LeLoup, 569 N.E.2d 648 (Ind. 1991);
Beresford v. Starkey, 571 N.E.2d 1257 (Ind. 1991). The first four cases were decided on

the same day; subsequently, Beresford reversed a court of appeals judgment which had

been rendered prior to the decision in Burrell and its progeny. Burrell involved a plaintiff

injured while helping his neighbor remodel his garage. Parks involved a plaintiff injured

while helping his brother build a carport at the brother's home. Risk involved a plaintiff

injured while helping the defendant restore an antique tractor in the defendant's shop.

LeLoup involved a son injured while returning a wrench to his father's home. Beresford

involved a friend injured while diving off the defendant's dock during a party.



1992] TORTS 1429

retaining the three status-based categories as the fundamental determinant

of duty. The lead opinion, Burrell v. Meads,43 enlarged the invitee

category in two ways. First, it clarified the basic test for the determination

of invitee status. Confusion in Indiana precedents over the proper test

for invitee (the earlier "invitation test" as opposed to the subsequently

developed "economic benefit" test) left the scope of the invitee category

extremely murky. After definitively rejecting the "economic benefit" test

because of the "sense late in this century that the economic benefit test

promotes injustice when applied to social guest cases," Burrell held that
the correct test for determining invitee status is the invitation test.

44

Second, the court clarified the types of persons who are invitees
entitled to claim this general duty of reasonable care. In the first instance,

the "invitee" category now includes both public invitees (members of
the public invited onto the land "for a purpose for which the land is

held open to the public")45 and business visitors (persons invited onto

the land "for a purpose directly or indirectly connected with business

dealings with the possessor of the land").46

More significant, however, was Burrell's expansion of the invitee
class to include social guests. Under traditional analysis, social guests
were neither public invitees nor business visitors; they were only li-

censees.
47

Nonetheless, starting from the newly declared test for invitee

status—the existence of an invitation—the court found no basis to
distinguish between those persons invited for social reasons and those

invited for business or public reasons. The claim that social guests can
expect no more from a friend's home than the friend himself "simply
does not comport with modern social practices."48 Rather, persons typ-
ically prepare their premises more carefully for social guests than for
public or business invitees, and the social guest is equally entitled to

rely on the expectation that the premises are safe. 49 Therefore, the court

held, landowners owe a duty of reasonable care to "all individuals
known to the landowner who [come] to the premises upon actual in-
vitation or arguably upon standing invitation."50

Although certainly expanding the number of persons entitled to expect

a duty of reasonable care, the decisions in Burrell and its progeny should

43. 569 N.E.2d 637 (Ind. 1991).

44. Id. at 642.

45. Id. (quoting Restatement (Second) of Torts § 332 (1965)). These categories

of business visitors and public invitees are standard in most jurisdictions which retain the

status-based duties.

46. Id.

47. Restatement (Second) of Torts § 330 cmt. g (1965).

48. Burrell v. Meads, 569 N.E.2d 637, 643 (Ind. 1991).

49. Id.

50. Id.



1430 INDIANA LAW REVIEW [Vol. 25:1419

not be read to represent a victory for a model of due care. Although

it tinkers with the categories, Burrell retains the three classifications of

invitee, licensee, and trespasser. When combined with the court's focus
on the existence of an invitation, this classification scheme suggests that
the duty of reasonable care cannot be extended to uninvited solicitors,

public officers, and trespassers. Risk v. Schilling' 1 suggests another sig-

nificant limitation on the landowner's duty of care. In Risk, the plaintiff

was a social guest injured in a workshop under the exclusive control

of the occupier of the land. Although the court found that the possessor

owed a duty of reasonable care, it further held that a landowner who
is not in possession or control of land does not owe a duty of care to
persons invited onto the land by the possessor. 52 Therefore, a model of

relationship between the parties (as defined by invitation and control)

is the key determinant of the duty owed to those injured on the land.
Invitation and control, not due care under the circumstances, are the

language of liability.

B. The Model of Due Care: Landowner Liability Toward Those
Injured Off the Land

A different model for the determination of duty was suggested by
the court in Valinet v. Eskew. 53 In Valinet, a dead 190-year-old oak fell

across a road in a residential area of Hamilton County and seriously

injured the plaintiff. The plaintiffs' evidence suggested that the tree had

been dying for eight to twelve years and had finally died three to five

years before the injury. The evidence also showed that the defendant

51. 569 N.E.2d 647 (Ind. 1991).

52. Id. at 647-48. The same expansion of duty within the model of relationship

is also apparent from three appellate court decisions which granted invitee status to injured

plaintiffs who were arguably licensees. In Mead v. Salter, 566 N.E.2d 577 (Ind. Ct. App.
1991), a plaintiff who forgot the address of his attorney's office entered a building to
see if his attorney's name was listed in the lobby's directory. The court found that the

plantiff was an invitee because, even though his attorney did not have offices in the

building, the lobby was held open to members of the public. In Markle v. Hacienda

Mexican Restaurant, 570 N.E.2d 969 (Ind. Ct. App. 1991), a plaintiff entered the de-

fendant's parking lot to eat dinner, but stopped to talk to a friend who agreed to take

some business supplies for the defendant. Even though the plaintiff was injured while

handing the friend the business supplies, the court held that his status did not automatically

change from business visitor to licensee. Because a jury could find that the incidental use

of the parking lot for the defendant's own purposes was foreseeable, the plaintiff's status
(and thus the duty of care owed him) was a fact issue to be resolved by the jury. In

Smith v. Syd's, Inc., 570 N.E.2d 126 (Ind. Ct. App. 1991), a tenant who fell down a
stairway jointly owned and maintained by the landlord and the owner of the adjourning

building was found to be an implied invitee of the owner of the adjacent building, even

though the adjacent owner derived no direct economic benefit from the plaintiff's rent.

53. 574 N.E.2d 283 (Ind. 1991).



1992] TORTS 1431

made periodic trips to his property. Prior to Valinet, the rule in Indiana
was that a landowner owed no obligation to those injured off the property

by a natural condition on the property. 54 As the court noted, this rule

"arose at a time when land was largely unsettled and the burden imposed
on a landowner to inspect it for safety was held to exceed the societal

benefit of preventing possible harm to passersby." 55 With modern "urban

landowners," however, "the risk of harm to highway users is greater

and the burden of inspection on landowners is lighter in such populated

areas." 56 Acknowledging the trend of other courts and the Restatement,

the court imposed a duty on landowners in "an area of sufficient

population density" to "inspect their trees to try to prevent their posing

an unreasonable risk of harm to passing motorists." 57

Like Burrell, Valinet does not entirely replace existing landowner

obligations with a duty of reasonable care. The case does not change
the rule of no liability for property owners in less populated areas, nor

does it change the rule of no liability for conditions other than trees. 58

If ValineVs rationale is taken seriously, however, it is difficult to believe

that these areas of no liability can survive. In even the most rural areas,

the harm caused by a failure to take care might strongly outweigh the
precautions needed to prevent harm; the same is certainly true of natural

conditions other than trees.

The most significant aspect of Valinet, however, is its relationship

to Burrell. In many ways, the parallels between Burrell and Valinet are
striking. Both involve the obligations of landowners. Both find that the

prior duty rules for landowners ill reflect modern social circumstances.
Both impose duties of reasonable care on defendants.

Indeed, given their similarities, it seems incredible that Valinet never

cites Burrell, which was decided less than three months before. The
explanation for the silent treatment is simple. In the final analysis, one

difference between the cases outweighs their similarities: the model under

54. The duty with respect to artificial conditions maintained on the land toward

those injured off the land is one of reasonable care, at least where the condition is not

abnormally dangerous. See Restatement (Second) of Torts §§ 364-69 (1965). For a

recent application of this rule, see Suslowicz v. Mielcarek, 571 N.E.2d 1304 (Ind. Ct.

App. 1991).

55. Valinet, 574 N.E.2d at 285.

56. Id.

57. Id.

58. There is a possible caveat to this statement: in dicta, the court mentioned that

some courts also departed from the rule of nonliability for natural conditions when the
landowner had actual knowledge of the danger. Id. Although it is not clear whether the

court intended this observation to become another exception to the rule of nonliability,

the creation of such an exception would be consistent in most instances with the Valinet

court's reasoning.



1432 INDIANA LAW REVIEW [Vol. 25:1419

which they resolve the duty issue. Burrell relies on relationship, partic-

ularly invitation and control, to define duty. Valinet relies on a model
of due care: the obligation to use care exists whenever the expected

harm outweighs the expected benefits. This balance of harm against
benefit is, of course, simply one way of describing negligence. 59 Thus,
Valine? s approach ultimately collapses the questions of duty and neg-

ligence into each other; both the duty of care and the existence of

negligence are determined by asking the same question. 60

Without a consistent, overarching theory of duty, the Indiana Su-

preme Court simply failed to appreciate the conceptual link between the

cases. Rather, the facts of Burrell, an injury on the land, invoked one

paradigm of duty. The facts of Valinet, an injury off the land, invoked

a different paradigm. The supreme court is obviously appealing to
different models in seemingly related types of factual occurrences; the

problem lies in discerning its reasons for speaking more than one lan-

guage. None is apparent from either Burrell or Valinet.
Whatever the explanation, the breadth of Valinet' s model of due

care now poses a critical question for duty analysis in Indiana. By staking
the rule of Valinet on the rationale that duties exist when the expected
harm outweighs the cost of precautions, the Indiana Supreme Court

ultimately paves the way for a landowner's duty of reasonable care
under the circumstances—both in the context of landowner liability
toward those injured off the property and in the context of landowner

liability toward those injured on the property.61 Whether Valinet ulti-

mately sounds the death knell for the remaining no-duty rules of land-

owner liability and for the invitee-licensee-trespasser categories already

weakened by Burrell is now the pressing issue in landowner liability. Of

59. See United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947); Henry

T. Terry, Negligence, 29 Harv. L. Rev. 40, 42-44 (1915).

60. This approach to the issue of duty was first advocated by Lord Esher in his

famous concurrence in Heaven v. Pender, 11 Q.B.D. 503 (1883):

[WJhenever one person is by circumstances placed in such a position with regard

to another that every one of ordinary sense who did think would at once
recognize that if he did not use ordinary care and skill in his own conduct with

regard to those circumstances he would cause danger to the person or property

of the other, a duty arises to use ordinary care and skill to avoid such danger.

Id. at 509. It also underlies Judge Cardozo's famous equation of foreseeability of harm

and relationship in Palsgraf v. Long Island Railroad, 162 N.E. 99, 100 (N.Y. 1928) ("The

risk reasonably to be perceived defines the duty to be obeyed, and risk imports rela-

tion . . . .").

61. Whether the expected harm outweighs the cost of precaution is, of course,

simply one way of deciding the issue of negligence. See Carroll Towing, 159 F.2d at 169.

To use the same inquiry to decide the issue of duty ultimately collapses the questions of
duty and breach.



1992] TORTS 1433

even greater importance is the effect of Valinefs analysis across the

spectrum of tort duties.

C. The Model of Public Policy: Liability for Wrongful Life

A legal realist would probably have little difficulty explaining the
disparate analysis in Burrell and Valinet: the Indiana Supreme Court

was simply using legal rubric ("relationship" or "due care") to mask
the results which the court wished to achieve for reasons of public

policy. 62 Although the point is debatable as a general matter, there is

no doubt that the Indiana Supreme Court has, in at least some instances,

relied explicitly on a model of public policy to define the duty owed.

In Cowe v. Forum Group, Inc.,63 a profoundly retarded woman was
raped in the defendant's institutional care facility. The woman gave
birth to a boy with physical and mental impairments. The boy then

brought two claims: negligence in the failure to protect his mother from

rape and negligence in failing to diagnose his mother's condition until

the fifth month of her pregnancy. For the first claim, the boy alleged

that the damages suffered were the loss of a relationship with his birth

mother; for the second claim, the damages were the physical and mental

impairments he suffered as a lack of early and adequate treatment for

his mother's pregnancy.

The supreme court rejected the first claim on public policy grounds.
According to the court, the primary arguments against a "wrongful life"

theory were that life, even life with a genetic defect, was not a damage

in comparison to no life and that it was impossible to calculate the

damages of an impaired life as opposed to no life. 64 The policy arguments

favoring the duty were alleviation of the parents' financial burden,

discouragement of malpractice, and the fostering of genetic counseling. 65

Because it believed that the latter policies were better left to the leg-

islature,
66 the court held that "life, even life with severe defects, cannot

62. There is at least some evidence that this was in fact occurring. In both cases,
the court mentioned, although it did not explicitly rely on, the fact that modern social

conditions made the former duties no longer tolerable. For a general discussion of the
role of public policy in shaping the nature and extent of legal obligations, see, e.g.,

Keeton, supra note 41, §§ 3, 53.

63. 575 N.E.2d 630 (Ind. 1991).

64. Id. at 634.

65. Id. at 634-35.

66. Id. at 635. Of these three objectives, the fostering of genetic counseling was
not implicated on the facts of the case. Contrary to the court's assertion, that the

discouragement of malpractice and other negligence is not a matter typically left to the

legislature.



1434 INDIANA LAW REVIEW [Vol. 25:1419

be an injury in the legal sense." 67 The languages of relationship and
due care did not enter into the court's calculus.

The same appeal to public policy permeated a court of appeals
decision, rendered before Cowe, which also held that wrongful life and
wrongful birth claims could not be brought in Indiana. In Walker v

Rinck,6s a laboratory and a doctor who negligently diagnosed a woman
as Rh positive were sued for the damages to the children caused by the
fact that the woman was Rh negative. Relying on the public policy
analysis of Albala v. City of New York,69 the court found that pre-
conception torts would create unmanageable and potentially massive

liability, that such torts lacked precedential support, and that the issue

was better addressed by the legislature. Appealing to the model of due

care, a vigorous dissent argued that a duty existed because the injury

was foreseeable. The majority's appeal to the model of public policy,

subsequently endorsed by Cowe for injuries of this type, carried the
day.

From the perspective of duty analysis, however, the critical aspect
of Cowe was not just its reliance on a public policy model. The plaintiff
had also asserted a second, distinct claim for negligent failure to diagnose

and treat his mother's pregnancy. The court's holding on the first claim
would suggest that the second claim should have been dismissed on the

same public policy grounds: life, even damaged life, is no damage, and

in any event, the difference between the plaintiff's life and the condition

in which he would otherwise have been born was incalculable. On the
second claim, however, the court held that the nursing home had a duty
of reasonable care to diagnose the mother's condition and that the child

could sue for damages which resulted from a breach of that duty. In

making this decision, the court did not rely on the models of relationship,

due care, or public policy; it used a fourth language of duty.

D. The Model of Community Values: Liability for Negligent

Infliction of Harm to the Unborn

In finding that the defendant in Cowe owed a duty of diagnosis
and treatment to the plaintiff, the court's duty analysis was simple: a

duty exists "where, in general, people would recognize it and agree that

it exists." 70 It noted the trend of courts and the Restatement to impose

67. Id. (quoting Azzolino v. Dingfelder, 337 S.E.2d 528, 532 (N.C. 1985)).

68. 566 N.E.2d 1088 (Ind. Ct. App. 1991).

69. 429 N.E.2d 786 (N.Y. 1981).

70. Cowe v. Forum Group Inc., 575 N.E.2d 630, 636 (Ind. 1991) (quoting Gariup
Constr. Co. v. Foster, 519 N.E.2d 1224 (Ind. 1988)). Gariup's phrasing is identical to

the language found in Keeton, supra note 41, § 53, at 359 ("No better general statement

can be made than that the courts will find a duty where, in general, reasonable persons

would recognize it and agree that it exists.").



1992] TORTS 1435

liability when a defendant negligently causes harm to the mother. 71 Then,

limiting itself at least for the present time to the facts of the case, the

court found that the child could assert a claim for his prenatal damage

when his mother was extremely dependent on the defendant for care

and protection and the defendant exercised complete control over the

discharge of that obligation. 72

A strong argument can be made that this second holding of Cowe,
with its discussion of dependence and control, actually fits within the

model of relationship. On the facts, of course, that argument is un-
assailable—at least assuming that the concept of relationship does not
get the narrow reading given to it in Webb v. JarvisP However, the
court's analysis—whether reasonable people in the community would
impose the duty—ultimately suggests a source of duty different than
relationship, due care, or public policy. Rather, duties spring from the

community's shared values. In many circumstances, the community's
values will be shaped by notions of relationship, due care, or public

policy, but those values might also be grounded in entirely different

concerns. 74 In spite of its drawbacks, the model of community values

71. Cowe, 575 N.E.2d at 636-37. See Restatement (Second) of Torts § 869

(1965).

72. Cowe, 575 N.E.2d at 637.

73. Indeed, Cowe begins its analysis of the failure to render medical care issue
by stating that "[t]he question of whether a duty to exercise care arises is governed by

the relationship between the parties." Id. at 636. If Webb's analysis of relationship is

correct, the absence of privity between the defendant and the fetus and the defendant's

lack of knowledge about the fetus's arguable reliance on the defendant for health care,

would doom the argument that a relationship which could sustain a duty existed. See
supra notes 33-34 and accompanying text.

74. There are significant problems with a duty based on consensus values. The

relevant community must be identified, its values must be discerned, and care must be

taken not to trample on the rights of those systematically excluded from the community.

The court's reasoning helps little in this task. The court seems to assume that, because

legal precedent has widely moved to accept a new duty, reasonable people have done the

same. If the test of shared values is the wide recognition of a legal obligation, then no

factual circumstance for which the existing precedents in other jurisdictions gave different

answers could give rise to a duty, nor could Indiana ever be the first state, or even one

of the first states, to recognize an unprecedented theory of liability. For instance, the

court's resolution of the duty issue in Burrell was novel; courts in other jurisdictions have

not typically retained the three categories of invitee, licensee, and trespasser, but moved

social guest into the invitee category. See Keeton, supra note 41, at 62. If the test of

duty under consensus values requires a consensus in the legal community, then Burrell

was clearly wrong. On the other hand, if the test is whether society in general recognizes
the obligation of due care toward social guests, the decision may well have been correct;
most people recognize that their obligations of care toward friends invited onto their

property are greater than the obligations of care toward door-to-door solicitors. Cf. Burrell

v. Meads, 569 N.E.2d 637, 643 (Ind. 1991) (noting that limiting the duty of care toward

social guests to the obligations owed a licensee "simply does not comport with modern

social practices").



1436 INDIANA LAW REVIEW [Vol. 25:1419

presents an intriguing alternative to the other three models of duty.

Although its full implications lie beyond the scope of this Article, it

remains a language which lawyers and judges can use when they find
that appeal to the languages of relationship, due care, and public policy

does not result in the correct adjustment of the parties' responsibilities.

Choosing the relevant language for duty will be particularly important

for two questions left unanswered by Cowe. The first is whether a parent

(as opposed to the child) can sue for the expenses of raising an unwanted

child or for the special expenses and the emotional distress of raising

an impaired child.75 Should the courts choose the language of public

policy, then the factors identified in the first holding of Cowe might
well preclude damages under any of these theories. On the other hand,
the languages of relationship, due care, and in some instances, community
values, all suggest that a claim for some or all of these expenses is
appropriate.

Second, Cowe leaves open the scope of the duty of other defendants
toward unborn children. 76 It seems that the only logical distinction

between the two holdings in Cowe (and between their appeals to different
models of duty) is that the court will refuse to recognize a duty toward

those not yet conceived at the time of the negligence—at least for those
injuries inherently associated with the process of conception and birth

—

while it will recognize a duty toward existing fetuses harmed by neg-

ligence. 77 If true, the distinction would suggest that doctors and drivers

would owe a duty toward existing fetuses to prevent harm.78 Although

that result is not at all objectionable, the distinction on which the result

is based is ultimately unsatisfying. Consider a doctor who negligently
prescribed medication that harmed an existing fetus and also caused

genetic damage to the mother, with the result that her future children

were also harmed. Under Cowe's logic, even though the conduct and

the harm are the same, the doctor is liable to the first child, but not

to the future children.

75. See Procanik v. Cillo, 478 A.2d 755 (N.J. 1984).

76. Persons who perform abortions are likely to be protected as long as Roe v.
Wade, 410 U.S. 113 (1973), survives because a tort suit would likely be preempted by

the constitutional right recognized in Roe. Cf. Boyle v. United Technologies Corp., 487

U.S. 500 (1987) (product liability suit preempted when unique federal interest and state

tort claim were in significant conflict).

77. The court's reliance on the notion of control to create a duty of reasonable

diagnosis and care cannot serve as a valid ground for distinction of the two holdings.

The defendant also had control over the mother when she was raped; if control is the

touchstone of duty, the court should have upheld the wrongful life theory.

78. The duty would still require proof of proximate cause where some defendants

might succeed in proving that the type of harm was unforeseeable.



1992] TORTS 1437

As this hypothetical example shows, the appeal to different models

as the determinant of duty can create considerable inequities among
similarly situated claims and claimants. We saw the same result when
Burrell and Valinet appealed to different models of duty. The extraor-

dinary thing about Cowe, however, is that it explicitly uses different

models to decide two duty issues presented within a single case. The

result is all the more extraordinary when we remember that Cowe failed
to appeal to the hybrid model which Webb v. Jarvis, a case involving
similar issues, had declared a month before to be the sole framework
for the resolution of all duty issues. The failure of Indiana courts to

develop a single, coherent view of duty is manifest.

III. Applying the Models

The remaining duty decisions of the Indiana courts reflect the same

inconsistency of theoretical foundation as the cases already discussed.

Some duty decisions were premised on notions of relationship and control,
some on notions of due care, and some on notions of public policy.

If there was a reason that different duties were captured by different

models, it was not apparent from the decisions themselves. If duty

analysis in Indiana is to become coherent, every line of duty doctrine

will need to be re-examined.

In this section, I review the year's duty decisions for the three types

of harm which invoke tort liability: harm to body or property, harm

to human dignity or psychic peace, and harm to economic interests. For
each line of duty decisions, I identify the primary language used by the

court to decide the issue of duty. My purpose in doing so is not to
suggest the specific revisions which a consistent theory would require

for each area of duty; it is rather to describe the range of existing duties

and to highlight the duties which need re-examination if a consistent

theory of duty, whatever its content, is to be developed.

A. Physical Harms

1. Medical Malpractice.—The quintessential duty based on an existing
relationship is medical malpractice. During the past year, the lack of a

relationship of patient-doctor privity was fatal to two cases which sought

to recover for alleged malpractice committed on a person other than

the plaintiff, while the existence of a direct doctor-patient relationship

between the defendant and the plaintiff led two other courts to read

the duty of care generously. The two cases refusing to find a duty in
the absence of a doctor-patient relationship were Webb v. Jarvis, whose
effect on the duty analysis has already been considered, and Smith v.

Methodist Hospital of Indiana, Inc. 19 In Smith, the plaintiffs allegedly

79. 569 N.E.2d 743 (Ind. Ct. App. 1991).



1438 INDIANA LAW REVIEW [Vol. 25:1419

suffered emotional distress because of a hospital's failure to advise them
that their son, whom the hospital was maintaining on life support
equipment for possible organ donation, was already brain dead. In order

to recover for emotional distress, the plaintiffs needed to demonstrate

the existence of fraud. The court affirmed a dismissal of the case,
holding that there was no fraud because the hospital "did not owe a
duty to [plaintiffs] to advise them of [their son's] condition where that
information was not related to a course of medical treatment." 80 Because

of its close relationship to the issue of psychic harm, I defer a fuller

discussion of Smith until later in the Article. At this point, however,

it is important to note that the lack of a relationship regarding the

matter for which recovery was sought was the key variable in the court's

ultimate decision.

When the doctor-patient relationship did exist, however, the courts
were willing to read the duty of care more generously. Centman v.
Cobbsl declared the relevant standard of care for a physician in the first
year of postgraduate work. Because the Medical Malpractice Act and

its duty of care—that of a reasonably skilled practitioner in the same
or similar locality—technically apply only to physicians holding unlimited
licenses, the standard of care for first-year physicians practicing with

temporary licenses was unclear before Centman. On review of a motion
to determine a preliminary question of law for the Medical Review Panel,

the court of appeals found that first-year physicians must be held to

the same standard of care as doctors with unlimited licenses in the same

or similar locality. 82 As the court reasoned, the common-law duty it
imposed was proper because the first-year physicians in the case had a

relationship in which they treated patients; they were supervised by

hospital staff, they were continuing their medical studies, they held

themselves out to possess the reasonable and ordinary qualifications of

a doctor with an unlimited license, and the absence of contract or

representations specifying their first-year status led the plaintiff to rely

on their possession of a licensed practitioner's skills and judgment. 83

This language of relationship, control, and reliance highlights the model

of relationship on which medical malpractice is based.

Another generous reading of the physician's obligation occurred in

the context of an informed consent case. In Griffith v. Jones, 84 a court

of appeals again considered the appropriate standard for breach of the

physician's duty to inform a patient. The defendant's position was that

80. Id. at 746.

81. 581 N.E.2d 1286 (Ind. Ct. App. 1991).

82. Id. at 1288.

83. Id. at 1288-89.

84. 577 N.E.2d 258 (Ind. Ct. App. 1991).



1992] TORTS 1439

a doctor needed to advise only of those risks of which a prudent physician

would inform the patient. The plaintiff's position was that the doctor

needed to advise of those risks which would be material to a prudent

patient. Finding prior Indiana precedent supportive of the plaintiff's

position, 85 the court opted for the "prudent patient" standard. As the

court indicated, this standard better protected the patient's right of self-

determination86 and placed Indiana in line with the general (although

by no means uniform) trend toward a patient-oriented duty of informed

consent. Once again, the decision is consistent with a model of rela-

tionship, in which doctor control and patient reliance are significant

variables. Had the court relied on the model of due care, the defendant's
position would have prevailed.

Unfortunately, Griffith failed to resolve crucial issues such as the

standard of causation87 and the nature of the exceptions to the "prudent

patient" rule. 88 Another informed consent case, Kerr v. Carlos*9 touched

on the causal issue. In Kerr, a physician failed to inform the patient

that his associate would perform surgery, and the associate failed to

obtain consent. The court nonetheless affirmed the entry of summary

85. See, e.g., Payne v. Marion Gen. Hosp., 549 N.E.2d 1043 (Ind. Ct. App.

1990).; Revord v. Russell, 401 N.E.2d 763 (Ind. Ct. App. 1980); Joy v. Chau, 377 N.E.2d

670 (Ind. Ct. App. 1978). But see Ellis v. Smith, 528 N.E.2d 826 (Ind. Ct. App. 1988)

(suggesting need for expert testimony on informed consent issues).

86. Griffith, 577 N.E.2d at 263. One matter which Griffith did clarify was a
procedural one: because informed consent turns on the patient's right to know rather

than the physician's standard practice, the court precluded the Medical Review Panel from

rendering an opinion about whether there had been a lack of informed consent. Id. at

264. Had the panel done so, of course, its opinion could have been submitted to the
jury. Ind. Code §§ 16-9.5-9-7, -9 (1988). Cf. Dickey v. Long, 575 N.E.2d 339 (Ind. Ct.
App. 1991) (admission into evidence of panel opinion on a lack of breach of standard

of care permissible even when plaintiff claimed that the breach was obvious to laypersons).

87. A patient must, of course, prove that the information not supplied by the
physician would have made a difference in the patient's decision. Various standards for
proving this counter-factual hypothesis are possible: whether the information would make
a difference to the reasonable person, Canterbury v. Spence, 464 F.2d 772, 790-91 (D.C.

Cir. 1972), cert, denied, 409 U.S. 1064 (1973), whether it would have made a subjective

difference to the plaintiff, Scott v. Bradford, 606 P.2d 554 (Okla. 1979), or whether it

would have made a difference to a reasonable person with the plaintiff's characteristics

and quirks, see Keeton, supra note 41, § 32, at 192. In order to recover damages, the

plaintiff might also need to show that she was worse off after the procedure performed

without consent than she would have been after a procedure performed with consent.

88. Canterbury v. Spence, 464 F.2d 772, 788-90 (D.C. Cir. 1972), cert, denied,

409 U.S. 1064 (1973), recognized two exceptions: (1) emergency procedures in which the

patient cannot give consent and (2) procedures for which the physician must withhold

information in order to protect the patient's well-being. This latter, therapeutic exception

could swallow the rule of disclosure if read broadly enough, and its existence and scope

will ultimately need to be addressed by the Indiana courts.

89. 582 N.E.2d 860 (Ind. Ct. App. 1991).



1440 INDIANA LAW REVIEW [Vol. 25:1419

judgment because the patient failed to prove through expert opinion

"a causal connection between the inadequate disclosure and the re-

sulting damages." 90 Thus, when consent to a procedure has been given,
Kerr requires the plaintiff to prove two separate causal issues: that

the patient would have consented to the change of physicians (pre-

sumably a question not requiring expert testimony),91 and if not, that

the outcome of the procedure was worse because of the change in

physicians. 92 Although Kerr can technically be reconciled with Griffith,

this second causal question gives little deference to Griffith's right of

patient self-determination or to the model of relationship on which

informed consent is based. If self-determination truly underlies in-

formed consent, then the plaintiff in Kerr should have been entitled

to whatever damages ensued from a procedure violating his autonomy
regardless of whether similar damages might have been occasioned by

a procedure for which proper consent was obtained. 93 Nor would the
issue of the associate's exercise of due care, which is implicit in the

second question, even be relevant to the causal issue.

It was undoubtedly this concern for the preservation of plaintiff

autonomy which moved the court in Kerr to observe that the patient
would have had a valid claim for battery had he bothered to assert

one. 94 It makes little sense to create, as Kerr apparently did, different

elements of causal proof for informed consent and battery when the
relevant conduct and the injury suffered is identical for both claims,

when the relationship, control, and reliance are identical for both claims,
and when the only claim against the physician who obtained the consent
is likely to be lack of informed consent.95 By relying on notions derived

90. Id. at 864.

91. See supra note 87 and accompanying text.

92. Kerr, 582 N.E.2d at 864-65.

93. See Canterbury v. Spence, 464 F.2d 772, 790 (D.C. Cir. 1972), cert, denied,

409 U.S. 1064 (1973). The "no harm, no foul" rule of the court of appeals fails to

acknowledge that the harm flows from the lack of consent, rather than from the quality

of the procedure performed.

94. See Kerr v. Carlos, 582 N.E.2d 860, 864 (Ind. Ct. App. 1991).

95. See Perna v. Pirozzi, 457 A.2d 431 (N.J. 1983) (holding that claim against

physician who operated was battery, while claim against physician who obtained consent
was malpractice, but failing to resolve ambiguity regarding the exact measure of damages

against the latter physician). Curiously, Kerr cited Perna for its holding that the operating

physician could be liable for battery, but failed to acknowledge Perna's holding that the

claim against the referring doctor sounded in informed consent. See Kerr, 582 N.E.2d at

864. The holding in Kerr is also somewhat at odds with Boruff v. Jesseph, 576 N.E.2d

1297 (Ind. Ct. App. 1991). The facts in Boruff are nearly identical to those in Kerr, but

the plaintiff there attempted to file a battery claim in order to bypass the Medical Review

Panel. The court of appeals held that the performance of surgery by an associate whom



1992] TORTS 1441

from the model of due care rather than from the model of relationship

within which informed consent is better understood, Kerr ends up suf-

fering from the schizophrenia already diagnosed in Burrell, Valinet, and

Cowe.

2. Liability Created by Injuries to or the Actions of Contractors.—
Injuries associated with the work of contractors resulted in numerous

reported decisions. None of the decisions altered existing law, although
several involved interesting new factual applications of the existing rules.
Two cases clarified the scope of the contractor's own liability. Lynn v.
Hart96 reiterated the rule that a contractor is no longer liable for an

injury after the work has been accepted by the owner and found that

the exception to this rule—that the work is left in a condition defectively
dangerous, inherently dangerous, or imminently dangerous—did not apply
to a parking lot plowed by the contractor the day before the plaintiff

slipped and fell. 97 Alexander v. City of Shelbyville9* held that an en-

gineering firm who contractually agreed to supervise the work of a
construction contractor owed no duty to an employee of the contractor."

The engineering firm's right to inspect and control the performance of

the construction contractor did not, without evidence of negligent in-

spection or actual control, create a duty of reasonable care. 100

Alexander was also one of two cases to discuss the duties of an

employer of a contractor for injuries caused to others because of the

negligence of the contractor. The Alexander court found that the employer

of the construction contractor owed no duty under its contractual res-
ervation of a right to inspect and control performance, but that the

employer did owe a nondelegable duty of care imposed by statute to
supervise and control sewage projects. 101 This nondelegable duty gave

rise to vicarious liability for the construction contractor's negligence. 102

Similarly, Christensen v. Sears, Roebuck & Co. m found that the seller

the plaintiffs specifically did not wish to be involved arose out of the provision of health

care services, and the claim of battery therefore needed to be submitted to the Medical

Review Panel. Id. at 1299.

96. 565 N.E.2d 1162 (Ind. Ct. App. 1991).

97. Another application of the same rule can be found in Hamilton v. Roger

Sherman Architects Group, Inc., 565 N.E.2d 1136, 1139 (Ind. Ct. App. 1991), in which

the court said that an owner's acceptance of a contractor's work ends a contractor's

liability unless "the work is so negligently defective as to be imminently dangerous to

third persons" or "when the plans relied on by the contractor are so obviously defective

that no reasonable independent contractor would follow them." Id.

98. 575 N.E.2d 1058 (Ind. Ct. App. 1991).

99. Id. at 1061.

100. Id. at 1062.

101. Id. at 1061.

102. Id. at 1062.

103. 565 N.E.2d 1103 (Ind. Ct. App. 1991).



1442 INDIANA LAW REVIEW [Vol. 25:1419

of a furnace could be vicariously liable for the installer's alleged neg-

ligence.
104 As the court stated, one exception to the rule of nonliability

for the negligence of contractors is the employer's assumption of the

contractor's duty. 105 The court then held that the seller's somewhat

ambiguous sales contract created responsibility for the contractor's work. 106

Finally, two cases considered the liability of employers for injuries

to their employees or contractors. Whitebirch v. Stiller™ started from

the proposition that an employer owes a duty to provide a reasonably

safe workplace to an employee. Whitebirch, however, found an exception

to that rule dispositive of the plaintiff's case: the employee could not

recover for an unsafe condition which she created and maintained if

that condition arose from the failure to discharge the responsibility for

which she was employed. 108 On the other hand, McClure v. Strother*09

started from the opposite premise: that the employer of a contractor

owes no duty to supply a safe workplace. 110 The court also seized upon

an exception to this rule: the employer can be liable when he or she

assumes control of a dangerous instrumentality. Because the employer

refused to permit the contractor to tie a ladder to the gutters, the court

found that a reasonable jury could infer that the employer had assumed

control over the ladder and reversed a summary judgment entered for

the employer. 111

As these cases show, the exceptions to the rules of nonliability for

the actions of contractors are often more significant than the rules

themselves. 112 From the viewpoint of a model of due care, these finespun

technicalities of rule and exception are senseless and unduly resistant to

the modern notion of due care under the circumstances. Yet, from the

viewpoint of a model of relationship, with its language of privity, control,

and reliance, the cases actually make a great deal of sense. The lack

of direct relationship between the parties, control by the defendant, or

reliance by the plaintiff explains the decisions for the contractors in

Lynn and Alexander. On the other hand, the statutory or contractual
relationship between the parties explains the contrary decisions against

the employer in Alexander and the retailer in Christensen. Likewise, the

104. Id. at 1109.

105. Id. at 1107.

106. Id. at 1108.

107. 580 N.E.2d 262 (Ind. Ct. App. 1991).

108. Id. at 264.

109. 570 N.E.2d 1319 (Ind. Ct. App. 1991).

110. The employer must, however, keep the property in reasonably safe condition.

Id. at 1321.

111. Id. at 1323.

112. See Restatement (Second) of Torts § 409 cmt. b (1965); Keeton, supra note

41, § 71, at 510.



1992] TORTS 1443

degree of the employer's control and of the plaintiff's legitimate reliance

on the employer's conduct marks the difference between Whitebirch and

McClure. Indeed, when relationship, control, and reliance are understood

to be the critical variables in the duty analysis, the rules of contractor

liability typically come out in the right way. Only the unsophisticated
"general" rule that employers have no liability for the acts of con-

tractors—a rule which is not grounded in the relevant language of
relationship—is wrong.

3. Liability for the Actions of Franchisees.—One court of appeals
considered the duty of a franchisor to an injured employee of a franchisee.

In Whitten v. Kentucky Fried Chicken Corp., Ui the employee was severely

burned while cleaning out a fryer. The fryer was purchased by the

franchisee, apparently without any direction or control by the franchisor.

A subsequent franchise agreement, however, obliged the franchisee to
use equipment approved by the franchisor and to make modifications
ordered by the franchisor to existing equipment. A subsequent agreement
between the franchisor and the fryer manufacturer made the manufacturer
an approved source of fryers. In addition, the franchise agreement gave

the franchisor the right to inspect the restaurant to determine compliance

with contract specifications.

The case presented a strong factual analogy to the employer's liability

for the actions of its contractors, and it is not surprising that the court

of appeals turned to that relationship to define the duty. It found two

potential sources of duty: the employer's liability for negligence in the

work over which it retains control and the Good Samaritan obligation
of a person who undertakes to render services for another. 114 Because
there were factual issues concerning the extent of control over the selection

of equipment and the scope of the franchisor's undertakings to select

safe equipment and inspect the premises, the court reversed a summary
judgment in favor of the franchisor." 5 In this area of duty, the court's

reliance on the model of relationship was manifest. The crucial words
in the court's vocabulary were contractual relations, control, and un-

dertaking for another. The language of due care, public policy, and
community values was missing.

4. Liability for Another's Criminal Conduct.—The duty of reasonable
care to prevent another's criminal conduct is a modern invention which

has begun to supplant, in some instances, the no-duty rule of the common
law. 116 During the past year, the relevant decisions of the Indiana courts

113. 570 N.E.2d 1353 (Ind. Ct. App. 1991).

114. Id. at 1356.

115. Id. at 1359.

116. See, e.g., Kline v. 1500 Massachusetts Ave. Apartment Corp., 439 F.2d 477



1444 INDIANA LAW REVIEW [Vol. 25:1419

appeared to be somewhat inconsistent at the level of legal rule. Once
we appreciate that Indiana's dominant model of liability for another's
criminal conduct is that of relationship, and thus presents the same

fundamental issues as liability for the acts of a contractor or franchisor,

the apparent inconsistencies resolve themselves into a consistent pattern

of decisions.

The leading case this year was Webb v. Jarvis, in which the Indiana
Supreme Court held that a doctor who negligently prescribed steroids
to a patient owed no duty to third persons criminally harmed by the
patient.

117 As already discussed, Webb developed a three-prong test for
the existence of duty (relationship, foreseeability, and public policy). 118

There is no doubt, however, that the critical factor for the court was

the lack of a relationship on which the plaintiff relied. 119 Although

decided before Webb, two appellate court decisions provide excellent

examples to test the centrality of relationship in Webb's analysis. In

Nails v. Blank, 120 a tenant was assaulted inside her apartment. The
building was locked, but the assailant gained entry by breaking into a

key retaining box which held the key used by the Postal Service to enter

the building. The court of appeals held that the landlord was liable
because he gratuitously assumed the duty of providing security meas-

ures.
121

Based on an analysis of Webb's three factors, the existence of a

duty in Nails is problematic. The foreseeability of harm is certainly no
greater in Nails than in Webb, and public policy arguments as credible

as the unsophisticated and one-sided arguments used in Webb can be
concocted in favor of the landlord. Thus, the only factor which clearly

distinguishes the two cases is the existence of a relationship in Nails

and the lack of a relationship in Webb. Indeed, had Nails focused

directly on the relationship rather than a dubious "gratuitous assump-

tion," it could have made even shorter work of the duty question. A
contractual relationship existed between the parties, the defendant had

control over the security measures, and the defendant knew of the
plaintiff's reliance on those measures. Relationship is thus the key feature

which allows the imposition of a duty.

(D.C. Cir. 1970); Tarasoff v. Regents of Univ. of Cal., 551 P. 2d 334 (Cal. 1976). Cf.

Restatement (Second) of Torts § 315 (1965) (no duty to control conduct of another

to prevent him from causing harm in the absence of a special relationship).

117. Webb v. Jarvis, 575 N.E.2d 992, 993 (Ind. 1991).
118. See supra note 27 and accompanying text.

119. The court's foreseeability analysis was weak, and its public policy analysis

focused on far fewer than all of the potentially relevant policy factors.

120. 571 N.E.2d 1321 (Ind. Ct. App. 1991).

121. Id. at 1324.



1992] TORTS 1445

The same lesson can be derived from Foster v. Purdue University

Chapter, The Beta Mu of Beta Theta Pi. 122 In Foster, a freshman
fraternity member was rendered a quadriplegic when he apparently got
drunk at a fraternity party and fell off a makeshift slide. The freshman,

who was not of legal drinking age, sued the liquor store which had
supplied the alcohol, the fraternity's house association, and the national

fraternity. Using the language of relationship and control, the court

dismissed the claims against all three defendants. The liquor store had

policies which ensured the sale of alcohol only to students of legal age

and "had no right to control [plaintiff's] consumption of alcohol." 123

The national fraternity had a policy against underage drinking, but had

no power to implement its policy and had never undertaken to enforce

a ban on underage drinking in the fraternity. The house association had

the power to prescribe rules to prevent underage drinking, but never

exercised any actual control over the fraternity. Moreover, there appeared

to be a lack of reliance by the plaintiff on any actions or policies of

the defendants, and there was a lack of knowledge by the defendants

that the plaintiff would rely on their actions and policies. In the absence

of evidence of control or reliance, therefore, none of the defendants

were held to have a duty to prevent the illegal provision of alcohol to

a minor. 124

Although the factor of relationship strongly favors a lack of duty,

the issue is much closer when Webb's, other factors (foreseeability and
public policy) are blended in. As Webb itself recognized, the foreseeable
dangers of allowing the supply of excessive liquor are well established. 125

Similarly, unlike the health care policy issues which counseled against

a duty in Webb, the public interest in the protection of the relationship

between a fraternity house and its liquor store and its controlling or-

ganizations and in the protection of the free flow of alcohol to minors

are obviously weak public policy reasons on which to stake a lack of

duty.

If Foster is correct, then it ultimately must be because of the lack

of control and the lack of plaintiff reliance—in other words, the lack
of relationship. It is hardly surprising, therefore, that the language of

relationship and control permeates the opinion. That approach stands

in stark contrast to the approach of Valinet v. Eskew and Cowe v.
Forum Group, whose respective languages of due care and public policy
would certainly have led to the imposition of a duty in Foster. The

122. 567 N.E.2d 865 (Ind. Ct. App. 1991).

123. Id. at 869.

124. Id.

125. See Webb. v. Jarvis, 575 N.E.2d 992, 997 (Ind. 1991).



1446 INDIANA LAW REVIEW [Vol. 25:1419

critical choice in Foster, as in all duty cases, was the selection of the

proper model for analysis. The court of appeals chose the model of

relationship. The rest was a matter of technique.

5. The Duty of a Supplier of Chattels.—Viewed as a failure to
prevent the criminal conduct of another, the decision in Foster not to

hold the liquor store liable makes sense: without control there is no

relationship and without relationship there is no duty. Viewed as a

negligent supply of a chattel, however, the court was clearly wrong. A
supplier's right to control of the use of a chattel is not an element of

a claim for negligent supply. Rather, the critical issues are whether the

supplier warned the user of those dangers of which the user was not

aware, whether the alcohol was used by a person ignorant of its un-

reasonably unsafe nature, and whether the supplier knew or had reason

to know that alcohol would be supplied to persons who, because of
their youth and incompetence, would be endangered by its use. The

reason for the different focus is simple. Unlike the duty to prevent

criminal conduct, the duty of a supplier is based on a model of due

care under the circumstances. 126

Three cases decided during the year demonstrate the reliance of the

supplier's duty on the model of due care. In Cox v. American Aggregates
Corp., 121 summary judgment for the seller of a respirator was reversed

because there was evidence that the seller recommended the respirator

to the plaintiff's employer with the knowledge that it would not filter

out the types of fumes to which the plaintiff was exposed. 128 Even though

there was a lack of control over the use of the respirator, the court

found that the recommendation implied a duty of reasonable care in

the sale of the product. 129 In Billingsley v. Brown,m the court found
that a defendant who supplied his neighbor with a power saw owed no
duty when the plaintiff realized that the saw was old and the defendant

had warned him that the saw occasionally jammed. 131 In Johnson v.

Patterson,
1 *2

a court of appeals recognized for the first time the tort of

negligent entrustment of a firearm to an incompetent person, but found

that the duty elements (entrustment to an incapacitated person or one

who cannot use the chattel with reasonable care with actual and specific
knowledge of the incapacity) were not established on the peculiar facts

of the case. 133

126. See MacPherson v. Buick Motor Co., Ill N.E. 1050 (N.Y. 1916).

127. 580 N.E.2d 679 (Ind. Ct. App. 1991).

128. Id. at 685-86.

129. Id. at 686.

130. 569 N.E.2d 687 (Ind. Ct. App. 1991).

131. Id. at 688.

132. 570 N.E.2d 93 (Ind. Ct. App. 1991).

133. Id. at 96-97.



1992] i TORTS 1447

The duty of care in each of these cases does not hinge on relationship,

control, or reliance; it hinges on a defendant's superior knowledge of

possible harm. 134 This language of foreseeability is simply not consistent

with the language of relationship which defines the duties in the areas

of malpractice, contractors' liability, and prevention of criminal conduct.

Claims against liquor stores and gun suppliers are easily resolved against

the plaintiff when the relevant issue is whether there is relationship and
control sufficient to prevent criminal conduct, but they are far more

problematic to resolve when the issue is whether the defendant had

knowledge of possible harm or incompetence. As long as Indiana courts

speak both languages, the courts' choice of language, and not the

reasonableness of the defendant's conduct, will define the legal obligations

owed.

6. Products Liability.—Products liability is a special application of
the general duty of the suppliers of chattels. After the significant de-

velopments in Indiana products liability during 1990, 135 1991 had few

notable cases. In one case, the obligations of Indiana's Product Liability

Act were extended to defendants who become so sufficiently involved
in the reconditioning of a product that they were no longer performing

a service but were instead selling a product. 136 In another case, an

instruction sheet was not found to be a "product" within the meaning

of the Product Liability Act. 137 Furthermore, the design of a car with

134. In both Cox and Billingsley, the element of plaintiff reliance could have served
as a critical feature in the creation of duty; the plaintiff in Cox had relied on the advice
of the defendants, while the defendant's warnings in Billingsley made reliance on the
safety of the chattel unjust. In neither case, however, did the courts specifically inquire

into the existence of reliance or knowledge of reliance, as had Webb. In any event, the

issue of reliance was entirely irrelevant to the negligent entrustment decision in Johnson.

135. See generally John Vargo, Strict Liability for Products: An Achievable Goal,
24 Ind. L. Rev. 1197 (1991).

136. Lilge v. Russell's Trailer Repair, Inc., 565 N.E.2d 1146 (Ind. Ct. App. 1991).

137. Alexander v. Beech Aircraft Corp., 952 F.2d 1215 (10th Cir. 1991). The exact

circumstance of the holding was that, in 1979, an airplane manufacturer issued an instruction

sheet for a plane which was initially sold in 1967. The ten-year statute of repose barred

a claim brought in 1986 for negligent design of the airplane. The plaintiff tried to resurrect

the case by contending that the instruction sheet was itself a product which failed to

warn of the defect in the plane.



1448 INDIANA LAW REVIEW [Vol. 25:1419

air bags was held to be preempted by federal law. 138

The more important opinions centered on aspects of the seller's duty

of care. The view that Indiana's "state of the art" defense 139 requires

proof of a product's conformity to the existing technological capabilities

for the product garnered additional support. 140 The terms "defective

condition" and "unreasonably dangerous," which are the bedrock el-

ements necessary to demonstrate a strict products liability claim, 141 re-

ceived a restrictive interpretation in three cases. In Hamilton v. Roger

Sherman Architects Group, Inc., 142 a waitress, who banged her head on
a bar she was forced to stoop under in order to fill drink orders, sued

the architect and construction contractor on theories of design defect

and negligence. Avoiding the interesting issues of whether the bar was

a "product" and the defendants "sellers" of a product, 143 the court

found that this "stationary wooden object" was not "defective" because
it posed no risk of harm "not contemplated by reasonable persons

among the bar's expected users," 144 nor was the bar unreasonably dan-
gerous because its risk of harm was not "beyond the risk of harm

contemplated by the 'ordinary consumer' of the bar." 145 Cox v. American
Aggregates Corp. held that a respirator not intended or designed to

filter out the fumes to which the plaintiff was exposed could not be

defective.
146 The court frankly seemed to ignore the fact that a product

is defective when it fails to meet the consumer's expectations, not the

manufacturer's intentions. Finally, Condon v. Carl J. Reinke & Sons,
Inc.

141 found that a reinforcing bar did not pose an unreasonably dan-

gerous risk when the plaintiff's testimony revealed only that the need

to rebend the bars was a common problem at construction sites. 148

In theory, of course, products liability is concerned with the hazards

of the product, not the conduct of the manufacturer. Yet, liability is

138. Heath v. General Motors Corp., 756 F. Supp. 1144 (S.D. Ind. 1991).

139. Ind. Code § 33-l-1.5-4(b)(4) (1988).
140. Phillips v. Cameron Tool Corp., 950 F.2d 488 (7th Cir. 1991); Weller v. Mack

Trucks, 570 N.E.2d 1341 (Ind. Ct. App. 1991). This interpretation of Indiana's "state

of the art" defense was first espoused in Montgomery Ward & Co. v. Gregg, 554 N.E.2d
1145 (Ind. Ct. App. 1990).

141. See Ind. Code §§ 33-1-1.5-2, -2.5(a) (1988).
142. 565 N.E.2d 1136 (Ind. Ct. App. 1991).

143. Id. at 1137 n.2. See Ind. Code § 33-1-1.5-2.5(a) (1988) (limiting strict product

liability to sellers of products).

144. Hamilton, 565 N.E.2d at 1138.

145. Id. Negligence claims against the architect and the contractor were also dis-

missed. Id. at 1138-39.

146. Cox v. American Aggregates Corp., 580 N.E.2d 679, 685 (Ind. Ct. App. 1991).

147. 575 N.E.2d 17 (Ind. Ct. App. 1991).

148. Id. at 19.



1992] TORTS 1449

far from strict and ultimately turns on the care exercised by the man-

ufacturer to avoid unreasonable risks through the use of the best available

technology. The model of due care, albeit somewhat modified around

the edges, lies at the heart of the products liability scheme in Indiana.

B. Psychic Harms

With the exception of claims for wrongful life and negligent harm

to the fetus, the past year's duty decisions in the area of physical harm
invariably revolved around either the model of relationship or the model

of due care. 1991 was also a year of truly significant movement in the
area of recovery for psychic harms. Until this year, Indiana's rules on

psychic harm remained mired in the first half of this century: recovery
for intentional infliction of emotional distress was not recognized unless

accompanied by another intentional tort, and negligent infliction of

emotional distress was only recognized when it resulted from a direct
physical impact. 149

In four cases which are perhaps destined to become the most far-

reaching tort decisions in many years, the courts pushed the law toward
greater recognition of psychic harms. The recognition was grudging and
somewhat illogical. The reason is that the courts overthrew the model

of public policy which had refused to recognize naked emotional distress

claims, but they did not rest the new duties on the models of relationship
or due care. As a result, the decisions in the area of psychic injury
were both confusing in their ultimate import and subject to the charge

of arbitrary, ipse dixit line drawing.

The four decisions were Cullison v. Medley, 150 Shuamber v. Hen-
derson, 1 ^ Smith v. Methodist Hospital of Indiana, Inc., 152 and Eakin

v. Kumiega. ]5i Cullison involved a plaintiff who had invited a teenage
girl to his house trailer for a soda one afternoon. Late that evening,

he heard a banging at his door, and invited a girl outside into the

trailer. When he returned to the living room after putting on some

149. For a description of the law existing in Indiana prior to 1991, see New York,
Chicago & St. Louis R.R. Co. v. Henderson, 146 N.E.2d 531 (Ind. 1957); Naughgle v.
Feeney-Hornak Shadeland Mortuary, Inc., 498 N.E.2d 1298 (Ind. Ct. App. 1986). Else-

where, the tort of intentional infliction of emotional distress has been widely recognized,

and recovery for negligent infliction of emotional distress is not typically dependent on

a physical impact. See, e.g., Molien v. Kaiser Found. Hosps., 616 P. 2d 813 (Cal. 1980);

George v. Jordan Marsh Co., 268 N.E.2d 915 (Mass. 1971); Rockhill v. Pollard, 485

P. 2d 28 (Or. 1971).

150. 570 N.E.2d 27 (Ind. 1991).

151. 579 N.E.2d 452 (Ind. 1991).

152. 569 N.E.2d 743 (Ind. Ct. App. 1991).

153. 567 N.E.2d 150 (Ind. Ct. App. 1991).



1450 INDIANA LAW REVIEW [Vol. 25:1419

clothes, he found the teenager, her father, her mother, and her brother-

in-law sitting in the dark. The father had a gun strapped to his thigh,
and the mother had her hand held in her coat pocket as though she
had a gun as well. The father kept clutching his gun and shaking it
while the girl and her mother berated the plaintiff and called him a
"pervert." 154 At one point the father said that he would "jump astraddle"
the plaintiff if he did not leave his daughter alone. 155 Although no one

ever touched him, the plaintiff said he was constantly afraid that he
would be shot. His fear continued over the course of the next several
weeks, when he saw the teenager and her mother walk past his trailer
"in a taunting manner" 156 and when he saw the father, still wearing a
gun, glare at him in a restaurant and even, on one occasion, stand over
him with the gun approximately one foot from his face.

Because of the lack of physical impact, the court of appeals affirmed

summary judgment for the defendants. The supreme court took a dif-
ferent view. The court began by noting that the plaintiff had alleged
four causes of action: trespass, assault, invasion of privacy, and inten-

tional infliction of emotional distress. 157 The court admitted that, in the
absence of physical impact, the occurrence of a trespass had not pre-

viously given rise in Indiana to a claim for emotional distress. 158 The
reasons which supported this rule were based in policy: "mental anguish

is speculative, subject to exaggeration, likely to lead to fictitious claims,

and often so unforeseeable that there is no rational basis for awarding
damages." 159

Rejecting these policy arguments in favor of an appeal to the model

of due care, the court found that the impact rule, "whatever its historical

foundation, is no longer valid and . . . does not apply to prohibit

recovery for emotional distress when sustained in the course of a tortious
trespass." 160 The court reasoned that the intentional invasion of another's
property can "provoke a reasonably foreseeable emotional disturbance

or trauma." 161 Starting from this language of foreseeability and due

care, the court then refuted each of the policy arguments supporting

the impact rule. The fact of physical impact "does not make mental
injuries any less speculative, subject to exaggeration, or likely to lead

154. Cullison, 570 N.E.2d at 28

155. Id. at 29.

156. Id. at 31.

157. Id. at 28.

158. Id. at 29.

159. Id.

160. Id. at 30.

161. Id.



1992] TORTS 1451

to fictitious claims." 162 Nor is the inundation of the court system a valid

ground to deny legitimate claims. 163

Nevertheless, the court's disposition of the invasion of privacy and

intentional infliction of emotional distress claims demonstrated that the

court was unwilling to extend this model of due care too far. Although

the supreme court stated that the uninvited intrusion of the defendants

into his home constituted an "invasion of Cullison's right of privacy," 164

it held that the plaintiff could not simultaneously maintain an action

for invasion of privacy and trespass. 165 With respect to the defendants'

conduct in walking past his home and in the restaurant, the court held
that the "plaintiff had no legal right to be left alone on a public street

or in a public place." 166

Similarly, the court refused to allow the claim for intentional in-

fliction of emotional distress. 167 The court began by noting that the

theory of intentional infliction of emotional distress was not previously

recognized in Indiana. Then, without any discussion beyond a quotation

of the Restatement section which describes the tort in intentional in-

fliction,
168 the court changed the law. "We hold," the court said, "that

under proper circumstances, liability will attach to a defendant for an

intentional infliction of emotional distress." 169

Like its invasion of privacy decision, however, the court withdrew

the broad promise of its holding by finding that "the facts of this case

do not support a finding that the Medleys intended to cause emotional

distress to Cullison." 170 This narrowing is subject to one of two inter-

pretations. First, because it would be difficult to conceive of a set of

facts more extreme than those presented in the case, the court may have
been effectively preventing any real change in the law of intentional

infliction of emotional distress by allowing the theory but never finding

a set of facts egregious enough to meet that theory. Second, the court

may have been saying that the most egregious conduct was adequately

162. Id.

163. Id.

164. Id. at 31.

165. Id.

166. Id. The court seemed to ignore that the plaintiff was in his home when the
teenager and her mother walked by. If the court intended to suggest that an invasion of

privacy can occur only when there has been a physical invasion of the plaintiff's property,
then the tort of intrusion on seclusion is a useless appendage on the doctrine of trespass.

It remains to be seen whether intrusion on seclusion will be given a broader reading in

future cases.

167. Id.

168. Id. (citing Restatement (Second) of Torts § 46 (1965)).
169. Id.

170. Id.



1452 INDIANA LAW REVIEW [Vol. 25:1419

redressed by the claims for trespass and assault, 171 and the only conduct

which fell outside of the trespass and assault claims was not egregious

enough to establish an intentional infliction of emotional distress. There-

fore, like the invasion of privacy claim, the court may have been saying
only that there was no need for another theory which compensated for

the same injury.

This latter interpretation, which has some support in the opinion 172

and is certainly a more reasonable reading of the case, suffers from a
serious flaw: it forces a plaintiff to elect a theory of recovery before

completion of discovery and trial. As the court itself admitted, the
plaintiff's trespass and assault claims could fail before a jury. Without

his intentional infliction of emotional distress claim, the plaintiff would

then be unable to recover for the emotional distress inflicted in his

home. Conversely, if the plaintiff elected to proceed only on the emotional

distress theory, it would be possible for the defendants to demonstrate

that an assault occurred and thus avoid liability under the plaintiff's

theory. This sharp practice, which smacks of the rigors of the common-
law writs long since abandoned in favor of liberal pleading, will need

to be corrected if the new theory of intentional infliction of emotional

distress is to be meaningful.

The more general point, however, is that Cullison abandoned a duty
rule grounded in policy through an appeal to the language of foreseeability

and due care. The court's unwillingness to allow the theories of invasion

of privacy and intentional infliction of emotional distress to be pleaded

in conjunction with trespass and assault indicates that, for the time

being at least, public policy concerns about the scope of this new liability

lurk beneath the surface.

The same conclusion applies to the Indiana Supreme Court's decision

in Shuamber, which concerned negligent (rather than intentional) inflic-

tion of emotional distress. In Shuamber, the defendant negligently collided

with a car occupied by a mother and her two children. The son was

killed. Both the mother and sister sued the defendant only for the

emotional distress they suffered as a result of watching a member of
their family die; they made no claim for the emotional trauma caused
by their own injuries.

The court began by finding that, under then-existing Indiana pre-

cedent, the Shuambers had no claim for the simple reason that their

emotional distress was not a direct consequence of the physical injuries

171. The court found that the facts of the case could support a claim for assault.

Id. at 30-31.

172. There is some textual support for this interpretation. In finding a lack of

intent to inflict emotional harm, the only actions the court specifically discussed were the

mother's walks past the plaintiff's home and the encounters in the restaurant. Id. at 31.



1992] TORTS 1453

which they themselves sustained. 173 The court noted that three policy

considerations—flood of litigation, concern for fraudulent claims, and
difficulty in proving a causal connection between conduct and distress

—

supported the no-duty rule. 174 Quoting from the paragraph in Cullison

which refuted nearly identical policy arguments, 175 the court found that

recovery for emotional distress could extend to instances in which the

emotional distress occurred because of a physical injury negligently in-

flicted on a third person. 176

Like all courts which have recognized this claim of emotional distress

by bystanders, 177 the court was then faced with putting certain limitations

on bystander recovery. Other courts have chosen one of three lines:

recovery only when the bystander suffers a physical impact from the
negligence, recovery when the bystander is in the "zone of danger," or
recovery when there is a physical, temporal, and relational proximity
between the bystander and the injured person. 178 Only four courts hued

to the physical impact line; 179 the remainder were split between the more

liberal theories of recovery. Noting that the facts of the case did not

require it to go further, Shuamber cast its lot, at least for the time,
with the four other courts drawing the most conservative line: the physical

impact rule. 180

Two aspects of Shuamber stand out. The first is the difficult evi-
dentiary burden which the court puts on the plaintiff. According to the

court, the plaintiffs will be unable to recover for the general emotional

distress they suffered from the loss of a family member; they can be

compensated only for the extra emotional distress they suffered from

being involved in the collision and witnessing the death. 181

The second significant aspect of Shuamber is its lack of principled
justification for the "physical impact" line it ultimately chooses. The
line is certainly not supported by the model of due care. In fact,

Shuamber' s quotation of Cullison conspicuously deletes the crucial sen-

tence in which the Cullison court pinned its duty on the foreseeable

173. Shuamber v. Henderson, 579 N.E.2d 452, 455 (Ind. 1991).

174. Id.

175. Id.

176. Id.

177. According to Shuamber, Indiana was only one of three states which had not

yet allowed for bystander emotional distress in some circumstances. The others were

Arkansas and Kansas. Id. at 455 n.l.

178. See Keeton, supra note 41, § 54.

179. According to Shuamber, the four jurisdictions were the District of Columbia,

Georgia, Kentucky, and Oregon. Shuamber v. Henderson, 579 N.E.2d 452, 455 n.l (Ind.

1991).

180. Id. at 456.

181. Id.



1454 INDIANA LAW REVIEW [Vol. 25:1419

emotional harm which a trespass might engender. Nor does the model
of relationship explain the line of physical impact. The line can be
justified, if at all, only through a model of community values, which

seems unlikely, 182 or through a model of public policy, whose policy

arguments for limited recovery of emotional distress were thoroughly

discredited both in Cullison and in the earlier portions of Shuamber.

Thus, Shuamber remains a rule in search of a reason. Indeed, it
appears that the court has itself sown the seeds of the physical impact
rule's destruction. Shuamber's precise holding is that when a plaintiff

"sustains a direct impact by the negligence of another and, by virtue

of that direct involvement sustains an emotional trauma which is serious

in nature and of a kind and extent normally expected to occur in a
reasonable person ... a plaintiff is entitled to maintain an action to

recover for that emotional trauma." 183

At the core of the holding is the language of foreseeability and due

care. That language, taken to its logical conclusion, rejects the physical

impact rule. Therefore, when the court returns to the issue in a case
not involving physical impact, as eventually it must, it will need to

decide whether to pay attention to this model of due care and allow

recovery for foreseeable emotional distress or return to a model of public

policy and provide a reasoned explanation for the seemingly arbitrary

requirement of physical impact.

The same tension between due care and public policy informs Smith

and Eakin. In Smith, the plaintiffs' son was involved in a serious accident

and was known by the hospital to be brain dead at some point during
the day. Apparently because they were interested in using the son's

organs for transplant, the hospital maintained the son on life support

equipment. The hospital's physicians and chaplain never told the parents

about the test results, but allowed the parents to spend time with the

son before they finally made a decision to take him off the life support
equipment without allowing any organ harvesting.

After they discovered that their son was brain dead all day, the

parents sued the hospital for the emotional distress they suffered. Con-

sistent with Cullison, the court of appeals noted that, in the absence

of an intentional tort which acts as a "host," emotional distress can

182. Whatever the community's values concerning the allowance of an emotional

distress claim for a mother who sees her child die, it is unlikely that the community
would choose the physical impact as the place to draw the line. Moreover, the model of

community values, as interpreted in Cowe, relies heavily on the legal consensus in other

jurisdictions. The fact that 43 of the 50 jurisdictions in the United States have drawn a
more generous line than Shuamber puts the case out of touch with the legal trend.

183. Shuamber, 579 N.E.2d at 456 (emphasis added).



1992] TORTS 1455

be recovered only as a result of a physical impact.
184 Because there was

no impact on the parents, the court turned to the plaintiffs' argument

that the hospital committed the intentional tort of fraud in failing to

disclose their son's condition. Assuming that fraud could serve as such

a host, the court of appeals held that doctors have no duty to disclose

matters concerning a patient's condition which are not relevant to that

patient's course of treatment; hence, there was no fraud and no way

to overcome the physical impact requirement for recovery of emotional

distress.
185

Eakin presented the horrifying situation of two parents and a daugh-

ter who watched another daughter die in a hospital bed. While the
daughter was recuperating from surgery, one of her arteries ruptured,

and the projectile bleeding splashed onto the mother's clothes. Accepting

the premise, later confirmed in Shuamber, that a physical impact could

sustain a claim for negligent infliction of emotional distress, the court

was faced with the issue of whether the blood splashed onto the mother's

clothes satisfied the physical impact requirement. Retreating to the policies

which underlay the impact rule—the fear of fictitious claims, specula-
tiveness, and exaggeration—the court found that a physical injury, not
mere physical impact, was required. 186

It is not at all clear that Eakin survives Shuamber, which held that

emotional distress could be recovered following a "physical impact" 187

and which refuted the policy arguments on which Eakin relied. 188 Whether

it does or not, however, the case demonstrates the inherently arbitrary

decisions the physical impact rule requires. The plaintiff's emotional

distress from witnessing her daughter's death would be no different if

the splattering blood had caused some minor injury to the mother's eye

or if it had missed the mother altogether. The case also demonstrates

that the model of public policy lurks just beneath the surface of emotional

distress, ready to derail any effort to orient the theory of emotional

distress along the model of due care.

Thus, Cullison and Shuamber point generally toward the emergence
of the model of due care in an area long held captive by the model

of public policy. Smith and Eakin suggest a contrary trend. The rules
themselves are not entirely consistent with any model. It remains to be

seen whether due care will ultimately triumph or whether compensation

184. Smith v. Methodist Hosp. of Ind., Inc., 569 N.E.2d 743, 745 (Ind. Ct. App.

1991).

185. Id. at 746.

186. Eakin v. Kumiega, 567 N.E.2d 150, 152-53 (Ind. Ct. App. 1991).

187. Shuamber v. Henderson, 579 N.E.2d 452, 456 (Ind. 1991).
188. Id. at 455.



1456 INDIANA LAW REVIEW [Vol. 25:1419

for foreseeable emotional injury will be recaptured by the concerns of

public policy.

C. Economic Harms

The final type of harms for which tort plaintiffs can recover are
economic harms. The story of economic harms mirrors that of physical
and psychic harms: a general trend to expand the categories of conduct

subject to liability when they cause economic loss, with a significant
minority of cases which counter the trend. Unlike the prior types of

harm, however, the dominant model of liability is relationship. Only in

limited circumstances do the models of due care, public policy, and

community values play a role in the definition of the scope of liability

for economic harm.

1. Fraud and Constructive Fraud.—Indiana's doctrine of fraud turns
on the model of relationship. The duty to speak truthfully arises during
the course of certain (but not all) business and trust relationships; the

lack of reliance effectively defeats the duty. In the past year, the central

issue in cases of actual fraud was liability for misrepresentations which

could have arguably been statements of fact, which are actionable in

Indiana, and statements of law, opinion, or future conduct, which are

not. Nestor v. Kapetanovicm held that a step-father's promise to leave
the entire estate to a daughter in return for the step-daughter's for-

bearance in asserting a claim against the assets of the intestate mother

was a future promise for which no liability in fraud attached. 190 On the
other hand, Scott v. Bodor, Inc., 191 found that fraudulent statements

regarding the tax deductibility of a pension plan were actionable because

the nature of the misrepresentations may have precluded the plaintiffs
from discovering the law regarding tax deductibility. 192 The defendants'

professed expertise in tax law, which induced the plaintiffs to rely on

their opinions, constituted an exception to the usual rule denying recovery

for misstatements of law. Similarly, over a dissent that the defendants'

representations were mere opinion and "trade talk," Warren v. Wheelerm
held that a jury properly found fraud by a vendor of a human resources
computer network which contained fewer clients than the vendor rep-

resented and which was rigged to prevent the participants from realizing

the limited nature of the network. 194 On a side issue of increasing

189. 573 N.E.2d 457 (Ind. Ct. App. 1991).

190. Id. at 458.

191. 571 N.E.2d 313 (Ind. Ct. App. 1991).

192. Id. at 320.

193. 566 N.E.2d 1096 (Ind. Ct. App. 1991).

194. Id. at 1101.



1992] TORTS 1457

importance in a technological age, the court held that the rigging of

the network in a manner which concealed the network's limited mem-
bership constituted fraud, even though the defendant "never lied to

[plaintiff's] face." 195

On the other hand, constructive fraud, which arises from a defen-
dant's breach of a moral or equitable duty not to deceive, to violate

a public or private confidence, or to injure the public interest, uses the

models of community values, relationship, and public policy. A rela-
tionship is not essential to a finding of constructive fraud; the key

inquiry is whether the failure to recognize a duty will result in an

injustice.
196 At the same time, the claim of constructive fraud almost

always arises in the context of pre-existing relationships of control and

reliance. For instance, Swain v. Swain 191 found that an ex-husband who
induced his ex-wife to refinance her mortgage at a time when they were

attempting to reconcile with the promise that he would pay off the

mortgage was found to have breached his duty when he stopped making

the monthly payments. 198

The same pre-existing relationship and reliance existed in Sanders

v. Townsend, 199 the constructive fraud case with the most far-reaching

impact. In Sanders, the plaintiff alleged that her attorney coerced her

into accepting an inadequate settlement for a personal injury suit. She

presented two causes of action: negligence and constructive fraud. The

court of appeals affirmed a summary judgment on the negligence claim,
but found unresolved factual issues on the constructive fraud claim.

After summarily affirming the appellate court's decision on the negligence

issue,
200 the Indiana Supreme Court turned to the central issue in the

case: "whether a lawyer's alleged breach of a fiduciary duty to a client

gives rise to a claim for constructive fraud." 201

The court said no. It began its analysis by noting that, unlike an

actual fraud, a constructive fraud does not require an intent to deceive;

195. Id. at 1102.

196. Scott v. Bodor, 571 N.E.2d 313, 324 (Ind. Ct. App. 1991); Swain v. Swain,

576 N.E.2d 1281, 1284 (Ind. Ct. App. 1991).

197. 576 N.E.2d 1281 (Ind. Ct. App. 1991).

198. Id. at 1284.

199. 582 N.E.2d 355 (Ind. 1991).

200. The court of appeals found that, although there were questions of fact con-

cerning the attorney's breach of duty, the plaintiff had failed to establish damages, i.e.,

that she would have received more money had she continued to press her case. The court

rejected the personal opinions of the plaintiff and her husband on the value of her damages

and found evidentiary difficulties with the use of the jury verdict reports prepared by

her attorney. Thus, the plaintiff had no competent evidence to rebut the defendant's

affidavit that the settlement was reasonable. Sanders v. Townsend, 509 N.E.2d 860, 863-

64 (Ind. Ct. App. 1987).

201. Sanders, 582 N.E.2d at 357.



1458 INDIANA LAW REVIEW [Vol. 25:1419

rather, it is inferred "from the relationship of the parties and the
circumstances which surround them."202 It then noted that the breach

of a legal or equitable duty in a fiduciary relationship can amount to
a constructive fraud. 203 It also acknowledged that the relationship between

attorney and client is "indisputabl[y] ... of a confidential and fiduciary

nature." 204

The court then refused to complete the syllogism. The reason, the
court said, is that "[u]nlike most other fiduciary obligations, the rela-

tionship between attorney and client, as well as the professional and

private conduct of attorneys, is subject to several forms of 'policing.'" 205

Among those forms are a malpractice action, an action for actual fraud,
the Rules of Professional Responsibility, the sanctions of the supreme

court for breaches of these Rules, and the requirement of legal education,

bar examinations, and continuing legal education.206 In Sanders, there

was no malpractice or fraud, 207 and the court specifically rejected the

proposition that the Rules of Professional Conduct create standards for

civil liability because use of the Rules "would create unreasonable,

unwarranted, and cumulative exposure to liability." 208

Clearly, Sanders does not foreclose all legal actions against attorneys.

Nor does it allow an attorney to breach a Rule of Professional Conduct

without fear of legal consequence; after all, a Rule can define the

applicable standard of care in a malpractice or fraud claim. 209 Yet, it

significantly confines a plaintiff by restricting her to these theories. The

way it does so is also instructive. Simply put, Sanders abandons the
models of relationship and community values which undergird construc-

tive fraud in favor of the models of due care and public policy. First,

it appeals to the model of due care to argue that an action for malpractice

acts as a check on attorney overreaching. It then appeals to other deterrent

mechanisms on attorneys, making the public policy judgment that too

much regulation of the attorney-client relationship is counter-productive
and unnecessary.

The extent to which Sanders signals a shift in other factual situations

which might give rise to a claim of constructive fraud remains to be

202. Id. at 358.

203. Id.

204. Id.

205. Id.

206. Id.

207. Id.

208. Id. at 359. The court was careful to note that its opinion does not foreclose

the possibility of a disciplinary action against an attorney who breaches a fiduciary
obligation. Id.

209. Id.



1992] TORTS 1459

seen. The court's language suggests that the opinion should be read
narrowly and should extend only to other relationships with similar

external mechanisms to deter overreaching. 210 Constructive fraud is now
a battleground on which relationship is competing with public policy

for dominance.

2. Legal Malpractice.—Aside from Sanders, there were two significant
decisions affecting the lawyer's duty toward the client. In Driver v.

Howard County,
,

211
a deputy public defender transferred a case to a

colleague without informing the defendant of the transfer or of the trial

date. Because the deputy public defender had no reason to believe that

the colleague was incompetent and the defendant had knowledge of the

transfer and the trial date sufficiently far in advance of trial that he

was able to retain his own counsel, the court found no malpractice. 212

On an issue of greater significance, the court also found that the chief
public defender could not be liable for malpractice on the theory of a

failure to supervise the two deputy public defenders who represented
the plaintiff. Because each deputy had a duty to exercise professional

judgment, the chief defender had "no right to interject himself into the
attorney client relationship by controlling [their] decision." 213 The ap-
plication of this holding to law office and other supervisory settings is

evident. 214

Another malpractice case, Hacker v. Holland, 215 was the only bright

spot for plaintiffs claiming legal malpractice. When a buyer's note became
uncollectible, a seller of real estate sued the attorney who prepared the
closing. At trial, the defendant called a former judge who testified that
the seller could not, as a matter of law, sue the attorney until she had

sued the buyer on the valid contract. The court reversed a judgment
entered for the attorney, holding that experts cannot testify about con-

clusions or interpretations of law. 216 It also clarified the proof the plaintiff

would need on retrial to show that she had an attorney-client relationship

with the defendant, who was the buyer's lawyer. According to the court,
she needed to demonstrate either an agreement to act on her behalf or

a prior, continuous attorney-client relationship on which she detrimentally

210. Id. at 358.

211. 575 N.E.2d 1001 (Ind. Ct. App. 1991).

212. Id. at 1005-06.

213. Id. at 1006. The court also noted that the chief public defender could not be

vicariously liable when his deputies were not liable. Id.

214. In rendering its decision, the court did not rely on any features peculiar to

the public defender's office or a public defender's relationship to his or her clients.

215. 570 N.E.2d 951 (Ind. Ct. App.).

216. Id. at 953-54.



1460 INDIANA LAW REVIEW [Vol. 25:1419

relied.
217 As the court's insistence on the seller's proof of an attorney-

client relationship shows, the area of legal malpractice relies entirely on

the model of relationship. There was no suggestion in the cases of any

movement away from that model.
3. Intentional Interference with Contract or Business Relationship.—

Two reported decisions further elaborated the scope of a person's liability
for intentional interference with contract or business relationship. Eden

United, Inc. v. Short21 * rejected the defendant's argument that a party

to a contract must breach the contract in order to hold a defendant

liable for interference; rather, the defendant need only make it difficult
or impossible for the contract to be performed. 219

The most important decision concerning interference with contract

was Bochnowski v. Peoples Federal Savings & Loan Association. 220 In
Bochnowski, the plaintiff left the defendant bank's employment in order

to work for a real estate office with which the bank had a significant

business association. Ultimately, the plaintiff was forced to sever his

relationship with this employer, allegedly because of improper pressure

placed on the real estate office by the bank.

The plaintiff then sued the bank for intentional interference with

his employment contract. The bank contended that, since the plaintiff's

contract was at will, it could not be liable for interference. Relying on

the great weight of authority in other jurisdictions, the Indiana Supreme

Court held that a person could be found liable for interference with an

at-will contract.221 Its reasoning sounded in the language of relationship:

"[t]he parties in an employment relationship have no less of an interest

in the integrity and security of their contract than do parties in any

other type of contractual relationship." 222 Therefore, although the "le-

gitimate business purposes" which might excuse an interference with

contract might be grounded in notions of public policy,223 the prima

facie tort is grounded in the model of relationship.

217. Id. at 955-57. The court also found that there was no constructive fraud in

the case, a holding which has since been superseded by Sander.

218. 573 N.E.2d 920 (Ind. Ct. App. 1991).

219. Id. at 925.

220. 571 N.E.2d 282 (Ind. 1991). For a further discussion of the labor law impli-

cations of Bochnowski, see Barbara J. Fick, Labor and Employment Law, 25 Ind. L.

Rev. 1311, 1314-15 (1992).

221. Bochnowski, 571 N.E.2d at 284.

222. Id.

223. For a description of some legitimate business purposes which justify contractual

interference, see Restatement (Second) of Torts § 767 (1965); Keeton, supra note 41,

§ 129, at 982-89.



1992] TORTS 1461

4. Retaliatory Discharge.—In Stivers v. Stevens224 the court of appeals
extended the protection of employees from retaliatory discharge. Pre-

viously, in Frampton v. Central Indiana Gas Co.,225 the supreme court

had held that employers who fire at-will employees because they file
workers' compensation claims can be sued for the tort of retaliatory

discharge.
226 In Stivers, an at-will employee threatened to file, but never

actually filed, a workers' compensation claim prior to being let go. The

court of appeals upheld a jury verdict in the employee's favor, ruling

that Frampton included discharges of at-will employees who merely intend
to file workers' compensation claims.

The result of the case is not surprising, but its reasoning demonstrates

an interesting choice of the model of duty. The tort of retaliatory

discharge necessarily begins with the model of relationship between em-

ployer and employee. In expanding the duty, however, Stivers relied

instead on a model of public policy rather than the model of relationship.

The court reasoned that the failure to protect employees who merely
intend to file workers' compensation claims would undermine the im-

portant public policy of workers' compensation, and that its rule would

better deter efforts to thwart the filing of workers' compensation claims.227

Therefore, in the midst of the economic harm cases which appeal mostly
to the model of relationship, the tort of retaliatory discharge appears

at first blush to be grounded in notions of public policy. As the next
section shows, however, appearances do not entirely reflect reality.

5. Spoliation of Evidence.—In Murphy v. Target Products 226 the
plaintiff was injured on the job when he used an allegedly defective
power saw. The plaintiff commenced a products liability suit against the
manufacturer, but was unable to prove his case because the employer

had apparently destroyed the saw before it knew of the pending lawsuit.
The plaintiff then turned against the employer, suing under the increas-
ingly fashionable tort of "spoliation of evidence." Recognizing that this

tort is really a special application of the tort of interference with pro-

spective economic advantage, the court analyzed the duty issue by using

the three duty factors akin to those declared in Webb v. Jarvis: the

224. 581 N.E.2d 1253 (Ind. Ct. App. 1991). For a further discussion of the labor

law implications and context of the case, see Fick, supra note 220, at 1315.

225. 297 N.E.2d 425 (Ind. 1993).

226. Id. at 427. Frampton was limited in 1990 by Smith v. Electrical Systems

Division of Bristol Corp., 557 N.E.2d 711 (Ind. Ct. App. 1990), which held that an

employee could be fired pursuant to a neutral absence control policy even though the

reason for the employee's absence was an accident for which the employee had claimed

workers' compensation benefits.

227. Stivers, 581 N.E.2d at 1254.

228. 580 N.E.2d 687 (Ind. Ct. App. 1991).



1462 INDIANA LAW REVIEW [Vol. 25:1419

nature of the relationship, a party's knowledge, and the circumstances

surrounding the relationship. 229

Like Webb, however, the court's holding was ultimately based on

the model of relationship. The court's precise holding was that, in the
absence of a special relationship arising from contract, statute, or in-

dependent tort by the employer, an employer has no duty to preserve

evidence for use in a future suit. 230 Although the end of the opinion

bolstered the holding with two policy arguments—a desire not to en-
courage continuous litigation and the plaintiff's ability to preserve ev-

idence by means of subpoena231—the question of relationship was central
to the court's reasoning. The court reads this relationship narrowly:

when the employer does not harm the employee in a manner directly
related to the work which forms the basis of the relationship, then there

is no relationship and consequently, no duty.

This line between harms directly related to the work relationship

and harms indirectly related to the relationship is the only way to reconcile
Stivers with Murphy. In all other respects, the two cases are identical:

conduct by the employer which harms an employee's prospective economic

advantage arising from a workplace injury. Yet Stivers is extremely

solicitous of the policy arguments which protect employees' rights to

file workers' compensation claims, while Murphy never mentions the
negative effect that its decision will have on an employee's ability to

file a products liability claim. It seems that Stivers, as well as the tort

of retaliatory discharge, relies far more on the model of relationship

than its language is willing to acknowledge.

6. The Insurer's Duty of Good Faith.—The principles of relationship
also lie at the heart of the last of the frequently litigated economic

torts: the insurer's duty of good faith and fair dealing. The court in

Egnatz v. Medical Protective Co. 232 was unwilling to find a relationship

still in existence when a doctor sued his insurer of thirty-nine years for

its failure to renew his insurance. The court refused to accept the theory

that the duty of good faith and fair dealing includes a duty not to deny

renewal arbitrarily.233 On the other hand, Liberty Mutual Insurance Co.
v. Blakesley234 held that an insurance company which knew of a mort-

229. Id. at 688. Curiously, Murphy cited an appellate decision from 1983 to support

its use of these three factors; it never cited Webb, whose third factor of public policy

varies from the third factor used in Murphy. Murphy constitutes plain evidence that
Indiana courts are not accepting the seemingly binding command of Webb to use its three
factors to determine issues of duty.

230. Murphy, 580 N.E.2d at 690.

231. Id.

232. 581 N.E.2d 438 (Ind. Ct. App. 1991).

233. Id. at 439-40.

234. 568 N.E.2d 1052 (Ind. Ct. App. 1991).



1992] TORTS 1463

gagee's retained interest in property sold by the mortgagee had a duty

to communicate to the mortgagee that the mortgagor was unable to

obtain insurance. 235

Likewise, in a case in which there was strong evidence of plaintiff

reliance, one court found that an insurance company had a duty to

advise a plaintiff injured by an insured of the scope of the release. 236

But in another case in which the insured was represented by counsel

and was engaged in coverage litigation with its insurer, the court found

that no duty to advise of matters material to the extent of coverage

existed.
237 The only way to explain these two cases, in which an insured

received less protection than persons whose relationship with the insurer

is more attenuated, is to appeal to the concept of reliance which is so

central to the establishment of an actionable relationship.

D. The Plaintiff's Obligation of Care

Until now, this Article has focused on the models used by the courts

to decide whether to impose a duty of care on a defendant. However,

the defendant is not the only person under a duty to avoid injury; the

plaintiff has a similar duty. Encapsulated in the terms "comparative

fault" and "incurred risk," this obligation requires plaintiffs to exercise

due care for their own safety and to accept the consequences of their
voluntary assumption of subjectively known and appreciated risks. 238

Unlike the various models which explain the disparate duties of defend-

ants, however, the duty of the plaintiff involves a single model: the

model of due care. The plaintiff's obligation of care does not depend

on the relationship between the parties or on concerns for public policy

or community values. Rather, it rests on the obligation of a plaintiff

to use care to avoid foreseeable harm.

For the most part, the cases raising plaintiff conduct defenses ac-

cepted this model; therefore, although they added to the practical un-

235. The jury verdict for the plaintiff was overturned on other grounds related to

the breadth of instructions given to the jury. Id. at 1058.

236. McDaniel v. Shepherd, 577 N.E.2d 239 (Ind. Ct. App. 1991). The case proceeded

on a constructive fraud theory when the insurance company told the plaintiff that she

did not need a lawyer and that the insurance company would assist her with any legal
problems. For another instance of an insurance company allegedly misrepresenting the
terms of a release to a person injured by the company's insured, see Fultz v. Cox, 574

N.E.2d 956 (Ind. Ct. App. 1991).

237. Wedzeb Enters, v. Aetna Life & Casualty Co., 570 N.E.2d 60 (Ind. Ct. App.
1991).

238. See Ind. Code §§ 34-4-33-1 to -13 (1988 & Supp. 1991) (recognizing doctrine
of contributory fault); Get-N-Go v. Markins, 544 N.E.2d 484 (Ind. 1989) (discussing

doctrine of incurred risk); Beckett v. Clinton Prairie Sch. Corp., 504 N.E.2d 552 (Ind.

1987).



1464 INDIANA LAW REVIEW [Vol. 25:1419

derstanding of the scope of these defenses, these cases developed no

significant theoretical issues. 239 Three sets of cases, however, suggested

some limitations on the model of due care. The first set of cases involved
instances in which the courts held that the plaintiffs had no duty to

exercise due care on their behalf. In Valinet v. Eskew,240 the defendant

claimed that the plaintiff, who drove past the tree every day for several
years, was contributorily negligent. The Indiana Supreme Court held as
a matter of law that a plaintiff has no duty to inspect the trees along

her route, and cannot be found contributorily negligent unless she has

notice of a tree and appreciates its danger. 241 Likewise, in Handrow v.
Cox,242 the Indiana Supreme Court held that a passenger has no duty

to look out for other cars. 243

These cases are hard to reconcile with a pure model of due care;

indeed, the result in Valinet is especially ironic, as well as internally

239. The most interesting of these "routine" plaintiff conduct cases was Foster v.

Purdue Univ. Chapter, The Beta Mu of Beta Theta Pi, 567 N.E.2d 865 (Ind. Ct. App.
1991), in which the court held that a drunken freshman who fell off a makeshift water
slide intended his injuries because of the substantial certainty that injuries would result

from his actions; thus, his claim was barred by the "intentional acts" exception to the

Comparative Fault Act, Ind. Code § 34-4-33-2(a) (1988). If generally accepted, the court's
generous reading of "substantial certainty" could signal trouble for plaintiffs in a host

of self-inflicted injury cases.

For sometimes contradictory results in cases involving claims of contributory negli-

gence, comparative negligence, and incurred risk, see Brownell v. Figel, 950 F.2d 1285

(7th Cir. 1991) (holding that plaintiff's negligence in operating vehicle while intoxicated

and in resisting arrest barred claim that police failed to communicate severity of accident

to emergency room doctors); McGill v. Duckworth, 944 F.2d 344 (7th Cir. 1991) (finding

that prisoner incurred risk of rape when he knew of other prisoners' sexual interest, knew

other prisoners were following him, and chose to proceed to shower room rather than

avoiding other prisoners); Smith v. Norfolk & Western Ry. Co., 776 F. Supp. 1335 (N.D.
Ind. 1991); Forbes v. Walgreen, 566 N.E.2d 90 (Ind. Ct. App. 1991) (holding that patient's

continued use of wrong prescription even after patient should have realized mistake was

governed by comparative fault principles); Forrest v. Gilley, 570 N.E.2d 934 (Ind. Ct.

App. 1991) (holding that intoxicated plaintiff incurred risk of falling from horse); Hacker

v. Holland, 570 N.E.2d 951 (Ind. Ct. App. 1991) (recognizing existence of contributory

negligence and incurred risk defenses in attorney malpractice action); Hamilton v. Roger

Sherman Architects Group, Inc., 565 N.E.2d 1136, 1138 n.3 (Ind. Ct. App. 1991); Kreigh

v. Schick, 575 N.E.2d 1063 (Ind. Ct. App. 1991); Lilge v. Russell's Trailer Repair, Inc.,

565 N.E.2d 1147 (Ind. Ct. App. 1991); Mead v. Salter, 566 N.E.2d 577 (Ind. Ct. App.

1991); Roddel v. Town of Flora, 580 N.E.2d 255 (Ind. Ct. App. 1991) (holding that
plaintiff's failure to stop when police officers flagged him down was negligence per se

which barred his claim for personal injuries); State v. Snyder, 570 N.E.2d 947 (Ind. Ct.

App. 1991); Whitten v. Kentucky Fried Chicken Corp., 570 N.E.2d 1353 (Ind. Ct. App.

1991).

240. 574 N.E.2d 283 (Ind. 1991).

241. Id. at 287.

242. 575 N.E.2d 611 (Ind. 1991).

243. Id. at 614.



1992] TORTS 1465

inconsistent, because the court had appealed to the model of due care

in defining the defendant's duty. In both cases, it appears that the court

believed that the plaintiffs' lack of control over the accident-causing

instrumentality (whether the tree or the car in which the plaintiff was

riding) absolved them of any responsibility for their own safety. If
broadly interpreted, this model of relationship and control suggests a

very different basis for a plaintiff's liability for her own conduct, as
well as a new language to which plaintiffs seeking to avoid liability for

their conduct can appeal.

The second set of cases involved the viability of the sudden emergency
doctrine. In Compton v. Pletch 2M the Indiana Supreme Court held that
the sudden emergency doctrine survived the passage of the Comparative

Fault Act, so that a defendant's failure to use reasonable care in the

face of an emergency of the plaintiff's making could bar the plaintiff's

case.
245 Here, of course, there is no direct inconsistency with the model

of plaintiff's due care, but the holding highlights, as does Valinet, that

the issue of duty is not resolved consistently even for both parties in

a single case.

A third pair of cases reveals an inconsistency of another type. In
Foster v. Purdue University Chapter, The Beta Mu of Theta Beta Pi246
the court of appeals held that a drunken fraternity member could not
sue the fraternity for the negligent supply of alcohol to minors like

himself.
247

Rejecting the plaintiff's argument that he did not significantly

participate in the decision to throw a party at which alcohol would be

served, the court appealed to the rule that members of unincorporated
associations cannot sue the association for injuries which result from

the association's decisions to engage in certain conduct.248 On the other
hand, in Robbins v. McCarthy, 2*9 a passenger and a driver, who had
been drinking heavily together, were subsequently involved in an accident.

As a defense to the passenger's suit against the driver, the driver in-
terposed a defense of "complicity" based on the passenger's drinking
and his purchase of drinks for the driver. According to the defendant,

this defense was not subject to the Comparative Fault Act and would

244. 580 N.E.2d 664 (Ind. 1991).

245. In Frito-Lay v. Cloud, 569 N.E.2d 983 (Ind. Ct. App. 1991), the court of

appeals also found that the sudden emergency doctrine had survived the passage of the

Comparative Fault Act. Cf. Brownell v. Figel, 950 F.2d 1285 (7th Cir. 1991) (finding

that the last clear chance doctrine also survived passage of the Act, but finding the

doctrine inapplicable on the facts of the case).

246. 567 N.E.2d 865 (Ind. Ct. App. 1991).

247. Id. at 872.

248. Id. at 870.

249. 581 N.E.2d 929 (Ind. Ct. App. 1991).



1466 INDIANA LAW REVIEW [Vol. 25:1419

absolutely bar a claim by a person with some complicity in the defendant's
wrongful conduct. Noting that complicity developed from the dram shop
cases and thus, was not a creature of the common law, the court refused
to extend the doctrine beyond its present bounds. Unless complicity rises

to the level of contributory negligence or incurred risk, the court said,

it does not reduce or bar a plaintiff's claim for damages.250

The inconsistency of result in Foster and Robbins is obvious. Both
involved the negligent supply of alcohol, and both involved a plaintiff

with some measure of complicity in the defendant's conduct. Yet the
minimal complicity of the plaintiff in Foster was sufficient to bar his

claim, while the overt complicity of the plaintiff in Robbins was in-

sufficient. The only way to explain the different results is the model of
duty on which each case was based. Foster based its view of the

defendant's duty on a model of relationship and control. 251 Carrying

this model over to the plaintiff's conduct, it found that the relationship

of fraternity member to fraternity absolved the fraternity of responsibility
for its actions toward a member. Robbins, however, proceeded on the

notion that a driver owes a duty to avoid foreseeable injury. That same

model of due care was used to measure the plaintiff's conduct, so that

the court was unwilling to change to a relationship-based model of

complicity to define the plaintiff's duty.

Unlike Valinet and Compton, Foster and Robbins are internally

consistent in their use of a single model to impose duty on both plaintiffs

and defendants. Yet, their initial choice of different models for duty

analysis (relationship in Foster and due care in Robbins) dooms the
factually similar conduct of plaintiffs to disparate outcomes.

IV. The Direction of Duty in Indiana

In this Article I traced the four approaches—relationship, due care,
public policy, and community values—which Indiana courts have used
in deciding questions of duty and personal responsibility. Because my
study has been empirical rather than normative, I have not attempted

to suggest which approach (or combination of approaches) is best. 252

My more modest goals have been to point out the muddle of present
duty analysis in Indiana and to demonstrate that any consistent theory

will require revamping of significant portions of the law of duty. It is

easy to declare, as Webb v. Jarvis does, a new test for duty. It is

250. Id. at 931.

251. See supra notes 122-24 and accompanying text.

252. To explain my own normative vision of tort law, which answers the duty
question through a combination of community value and utilitarian considerations, is an

enterprise far removed from the purpose and scope of this Article.



1992] TORTS 1467

difficult to apply that analysis to existing duty rules, many of which
cannot be justified under Webb's analysis. If Indiana's law of duty is

ever to lose its arbitrary and contradictory flavor, however, the courts

must have the courage to test even the most traditional rules of obligation

and responsibility in the crucible of consistent analysis.

Indiana courts will ultimately need to decide whether they will impose

a consistent analysis for determining the parties' duties within the broader

context of the direction of tort law. It is impossible to answer the

question "What should be the test of duty?" without some sense of
the nature, the history, and the aspirations of the tort system, 253 as well

as the costs and benefits of its alternatives. 254 Webb v. Jarvis, which
declared a comprehensive new test for duty, failed to provide that sense.
It is hardly surprising, therefore, that this "test" was ignored—even by
the Indiana Supreme Court itself—before the year was out.

253. For various perspectives on these matters, see American Law Institute, 1
Enterprise Responsibility for Personal Injury, 29-33 (1991) [hereinafter Enterprise

Responsibility]; Guido Calabresi, The Cost of Accidents (1970); Richard A. Posner,

Economic Analysis of Law §§ 6.1 to -.16 (3d ed. 1986); Steven Shavell, Economic
Analysis of Accident Law (1987); Guido Calabresi & Jon T. Hirschoff, Toward a Test
for Strict Liability in Torts, 81 Yale L.J. 1055 (1972); Richard A. Epstein, A Theory
of Strict Liability, 2 J. Legal Stud. 151 (1973); James A. Henderson, Jr., Expanding

the Negligence Concept: Retreat from the Rule of Law, 51 Ind. L.J. 467 (1976); George
L. Priest, The Invention of Enterprise Liability: A Critical History of the Intellectual
Foundations of Modern Tort Law, 14 J. Legal Stud. 416 (1985); Robert L. Rabin, The
Historical Development of the Fault Principle: A Reinterpretation, 15 Ga. L. Rev. 925
(1981); Ernest J. Weinrib, Understanding Tort Law, 23 Val. L. Rev. 485 (1989).

254. See, e.g., Enterprise Responsibility, supra note 253, at 33-50; Stephen D.

Sugarman, Doing Away With Personal Injury Law (1989).