Indiana Law Review


Recent Development in Indiana Tort Law

Tammy J. Meyer'
Kyle A. Lansberry"

Introduction

Between October 1999 and October 2000, Indiana courts rendered numerous
decisions in the area of tort law that have clarified existing rules of law,

recognized new theories, and provided guidance not only to lower courts, but to
attorneys and litigants. Likewise, legislation adopted by the General Assembly
took effect that changes the face ofwrongful death law. This Article addresses

the past year's cases and legislation and analyzes their effect on the practice of

tort law.

I. Wrongful Death

A. Adult Wrongful Death Statutes

Wrongful death and survival actions are perhaps the most fascinating and

rapidly changing aspect of tort law in Indiana. In addition to the highly

emotional nature of such cases, wrongful death and survival claims typically

present novel and complex legal issues for attorneys and judges.

Under traditional principles ofcommon law in Indiana, there was no right of
action or remedy for the wrongful death of another. However, with the passing

ofthe original Wrongful Death Act in 1 852, our tort system changed. Since that

time, Indiana's Adult Wrongful Death Act has undergone numerous substantive

changes. However, our courts continue to apply the principle that, because a

cause ofaction for wrongful death is purely statutory in nature and in derogation

of the common law, the Wrongful Death Act must be strictly construed. 1

Today, the damages recoverable in an action for the wrongful death of an
adult are, presumably, based on a strict reading ofthe statute, and the foundation

for measuring these damages is the pecuniary loss suffered by those for whose
benefit that action may be maintained; namely, the class ofbeneficiaries set forth
in the statute. Pecuniary loss has been defined as the reasonable expectation of

pecuniary benefit from the continued life of the deceased, to be inferred from

proof of assistance by way of money, services, or other material benefits
rendered by the deceased prior to his or her death.

2
In its present form, Indiana's

Adult Wrongful Death Act is comprised oftwo statutes. The first statute applies

* Lewis & Wagner, Indianapolis, B.S., summa cum laude, 1986, Indiana Wesleyan
University; J.D., summa cum laude, 1989, Indiana University School of Law—Indianapolis.

** Lewis& Wagner, Indianapolis, B.S., cum laude, 1 995, Ball State University; J.D., 1998,
Indiana University School of Law—Indianapolis.

1. See Robinson v. Wroblewski, 679 N.E.2d 1348 (Ind. Ct. App. 1997); Ed Wiersma

Trucking Co. v. Pfaff, 643 N.E.2d 909 (Ind. Ct. App. 1994); Southlake Limousine & Coach, Inc.
v. Brock, 578 N.E.2d 677 (Ind. Ct. App. 1991).

2. See Lustick v. Hall, 403 N.E.2d 1 128 (Ind. Ct. App. 1980).



1 076 INDIANA LAW REVIEW [Vol. 34: 1 075

to individuals who do not classify as a "child" pursuant to Indiana Code section
34-23-2-1 and who are either married or leave dependent children or dependent
next of kin. The second statute, Indiana Code section 34-23-1-2, applies to
unmarried adult persons who leave no dependent children or dependent next of
kin. This statute was recently passed by the Indiana General Assembly, and
applies only to actions that accrue on or after January 1, 2000. The key to
distinguishing which ofthe two statutes applies is to investigate and analyze the
issue of dependency when there is no surviving spouse.

L Adult Wrongful Death: Dependency -Vat first of Indiana's two adult
wrongful death statutes allows a personal representative ofthe decedent's estate

to recover both economic and non-economic damages for the death of an
individual caused by the wrongful act or omission ofanother. The non-economic
damages inure to the exclusive benefit ofthe decedent's widow or widower, and
to the decedent's dependent children or dependent next of kin.

3

During the course of this survey period, the Indiana Court of Appeals
rendered a number of significant decisions interpreting legislative intent and
expanding the scope ofrecovery under Section 34-23- 1 - 1 . However, recognizing

the significance and import of the court of appeals' decisions interpreting this

wrongful death statute and defining and expanding the scope of recovery under

the statute, the Indiana Supreme Court has accepted transfer ofeach ofthe cases,
and the court of appeals' decisions have been vacated. The supreme court has
yet to issue opinions on these cases. For now, the state of the law in this area

remains relatively unchanged.

a. Punitive damages.—Traditional wrongful death law provides that
pecuniary loss is the foundation ofthe wrongful death action. Thus, aside from

the lost earnings of the decedent, Indiana courts will allow the personal

representative of the decedent's estate to recover, on behalf of the decedent's

beneficiaries, lost love, care and affection.
4 To the extent that "companionship"

refers to a type of love, care and affection, the loss of"companionship" can also

be recovered in a wrongful death action.
5
Traditionally, punitive damages were

unavailable in a wrongful death action. However, in Durham v. U-Haul
International

6
and Burton v. Estate of Davis? the Indiana Court of Appeals

recently reversed this position, and held that the damages provision in the general
wrongful death statute was broad enough to allow recovery for punitive
damages.

8
Interestingly, the Burton court rendered its decision after transfer had

been accepted in Durham. The Burton court recognized that the supreme court
had accepted transfer on Durham and vacated the opinion and that it could not
be cited as authority. Nevertheless, the court ofappeals in Burton noted that the

thorough analysis ofthis issue included in theDurham opinion is informative and

3. See IND. CODE § 34-23-1-1 (2000).

4. See Andis v. Hawkins, 489 N.E.2d 78 (Ind. Ct. App. 1986).

5. Challenger Wrecker Mfg., Inc. v. Estate ofBoundy, 560 N.E.2d 94 (Ind. Ct. App. 1 990).

6. 722 N.E.2d 355 (Ind. Ct. App.), vacated by 735 N.E.2d 233 (Ind. 2000).

7. 730 N.E.2d 800 (Ind. Ct. App.), appeal dismissed by 740 N.E.2d 850 (Ind. 2000).

8. Durham, 722 N.E.2d at 360; Burton, 730 N.E.2d at 808.



2001] TORT LAW 1077

consistent with its conclusions in Burton? The Indiana Supreme Court
subsequently accepted transfer in Burton, thereby vacating the court ofappeals'

opinion.

Although the damages recoverable in a wrongful death action may arguably
have been altered by the court of appeals' recent decisions, one thing remains
constant: punitive damages cannot be awarded in a wrongful death action where
the defendant is a governmental entity.

10

b. Survival ofwrongful claim upon death ofbeneficiary. —In Bemenderfer
v. Williams" the Indiana Court of Appeals held that the recovery of wrongful

death damages by a decedent's estate, for the benefit ofthe surviving dependent
beneficiary (widow or widower, dependent children or dependent next of kin),
is not precluded by the death of the beneficiary during the pendency of the
wrongful death action. However, the Indiana Supreme Court has accepted
transfer of this case and vacated the court of appeals opinion.

c. Independent cause of action for loss of consortium. —In line with its
holding expanding the scope of potential recovery under Indiana's Adult

Wrongful Death Act, the Indiana Court of Appeals, in two decisions, held that
a surviving spouse may maintain his or her own cause of action, independent of
a wrongful death action brought by the personal representative ofthe decedent's
estate, for loss of consortium, even if the decedent died instantly. Damages for
such a cause of action were found to extend from the date of the decedent's
death, to the date the marriage would have ended due to the death ofone ofthe
spouses.

12

The ramification of the court of appeals' recent decision allowing an
independent cause ofaction for the spouse ofthe decedent under a theory of loss

of consortium is significant because it may potentially result in a double
recovery. Damages for lost love, care and affection have been allowed under the
general wrongful death statute for some time. Arguably, these could be
considered similar, if not identical, to damages for loss of consortium.
Previously, when consortium damages were only permitted between the time of
injury and the time of death, there was a clear theoretical line between the
damages apportioned between the two causes ofaction. Nowthat line is blurred.
However, in Durham, the court did suggest that ifthe surviving spouse elects to
pursue both the wrongful death claim and the loss of consortium claim at trial,

the trial court must instruct the jury that only a single award is permissible.
13

Nevertheless, because the Indiana Supreme Court has accepted transfer in both
Durham and Bemenderfer, the status of Indiana law remains, in effect,
unchanged.

2. Adult Wrongful Death: Non-Dependency.—After years of debate in the

9. See 730 N.E.2d at 808 n.9.

10. SeelWD. CODE §34-13-3-4 (2000).

11. 720 N.E.2d 400 (Ind. Ct. App. 1999), vacated by 735 N.E.2d 233 (Ind. 2000).

12. See Durham, 722 N.E.2d at 365; Bemenderfer v. Williams, 720 N.E.2d 400, 408 (Ind.

Ct. App. 1998).

13. See Durham, 722N.E.2dat365 n.10.



1 078 INDIANA LAW REVIEW [Vol. 34: 1 075

legislature, the Indiana General Assembly recently passed legislation allowing
a wrongful death claim to be brought by the personal representative ofthe estate
of an unmarried adult with no dependent children or dependent next of kin.

14

The statute is quite restrictive, however. First, it applies only to causes ofaction
that accrue after December 31,1 999. Second, it specifically disallows recovery
for grief, lost earnings ofthe decedent and punitive damages. Third, it requires
that a non-dependent parent or non-dependent child who wishes to recover
damages under the statute prove that the parent or child had a "genuine,
substantial and ongoing relationship" with the adult person before the parent or

child may recover. Finally, the statute caps pecuniary damages (loss ofthe adult
person's love and companionship) to an aggregate of $300,000.

In contrast to Section 34-23-1-1, this statute is relatively concise and

specifically enumerates those elements of damages which are and are not
recoverable. The statute has yet to be interpreted by Indiana's appellate
tribunals, but decisions are certain to arise soon. Given the recent decisions by
the court ofappeals in the context ofdependency related wrongful death actions,

the new statute may serve to assist the Indiana Supreme Court in determining
legislative intent, particularly with respect to punitive damages.

B. Child Wrongful Death Statute

Indiana's Child Wrongful Death Act
13

is something of a misnomer because
the Act codifies not only actions for the death of a child, but also for injury to a

child. However, actions for injury to a child in the State ofIndiana are typically

brought under common law principles ofnegligence and do not necessarily raise
issues under the Act. Child wrongful death actions, on the other hand, will

generally always be governed by the principles set forth in the Child Wrongful

Death Act.

Prior to the adoption of Indiana's Child Wrongful Death Act in 1987,

recovery for the wrongful death of a child was limited to actual pecuniary loss.
In 1 987, the statute was amended to allow a parent to seek recovery for loss of
love and companionship as a result ofthe wrongful death ofa child. There was,

however, athree-year-cap that 1 imited non-pecuniary damages to $ 1 00,000. That

cap expired for causes of action that accrued after October 31, 1990.

Since 1987, Indiana's Child Wrongful Death Act has undergone numerous

changes. In its present form, the statute attempts to identify who is a child, who
may bring the action, what may be recovered and who may recover. During the
course ofthis survey period, the Indiana legislature made no significant changes
to the language ofthe child wrongful death statute. However, the Indiana Court

of Appeals rendered two decisions interpreting the legislative intent behind the

meaning of the word "child," and in one opinion affirmed the constitutionality

of the Act itself.

1. Interpretation ofthe Term "Child
"—As defined by the Child Wrongful

14. SeelND. CODE §34-23-1-2 (2000).

15. See id. §34-23-2-1.



2001] TORT LAW 1079

Death Act, "child" means an unmarried individual without dependents who is
less than twenty years of age, or less than twenty-three years of age and is

enrolled in an institution of higher education or a vocational school.
16

In Sweet

v. Art Pape Transfer, Inc.* 1 the parents of a twenty-one-year-old woman who
was killed brought an action for recovery under the Indiana Child Wrongful
Death Statute. At the time of the decedent's death, she was an employee in a
vocational program and was pursuing studies in the same vocational program.
However, because of her status as an employee at the school, she was not
required to complete the ordinarily required paperwork for enrollment until she

sought her final diploma. The court of appeals discussed the meaning of the
statutory language "enrolled" and recognized the definition of"enroll" provided

in Black *s Law Dictionary: "to register; to make a record; to enter on the rolls of
a court; to transcribe."

18 The court found that the decedent had no reason to
complete a formal enrollment process because of her employment status and,
thus, found that she was enrolled in the program. The court concluded that while
written enrollment was absent in this case, it was both superfluous and not
required by the statute.

19

In Ledbetter v. Ball Memorial Hospital™ the Indiana Court ofAppeals was
faced with a similar issue. In that case, the parents of a twenty-year-old

unmarried woman with no dependents who had died, brought an action under the
Child Wrongful Death Statute. At the time of her death, the decedent was not
enrolled in any institution of higher education or in a vocational school or

program. The defendants moved for summary judgment contending that the
decedent was not a child as defined by the Act because she was twenty-years-old
and not enrolled in an institution of higher learning. In response, the plaintiffs
contended that the decedent was a "child" for purposes of Section 34-23-2- 1(a)
because she had been impeded from pursuing her degree at a vocational school

because ofphysical and mental handicaps. The plaintiffs further contended that
the decedent had continually expressed an intent to return to the vocational

program, but that, at the time of her death, she had not because of her alleged

handicaps. The plaintiffs designated an affidavit ofan instructor for Adult Basic
Education in support of this contention.

21

Although the court of appeals noted that it generally gave a liberal

construction to the Child Wrongful Death Act, as evidenced by its decision in

Sweet, it recognized that in this case there was no link between the decedent and
a higher education program.

22
Despite the sympathy the court expressed for the

great loss the plaintiffs had sustained as parents, it remarked that it could not in

good faith stretch the meaning ofthe statute as far as suggested by the plaintiffs.

16. See id. § 34-23-2- 1(a).

17. 721 N.E.2d 311 (Ind. Ct. App. 1999).

1 8. Id. at 3 13 (quoting Black's Law Dictionary 624 (4th cd. 1968)).
19. See id.

20. 724 N.E.2d 1113 (Ind. Ct. App. 2000).

21. See id. at 11 14-15.

22. &e<rf. at 11 16-17.



1 080 INDIANA LAW REVIEW [Vol. 34: 1 075

Thus, it held that "is enrolled" unambiguously means to be registered in a school
or defacto registered.

23

2. Constitutionality.—In addition to their arguments with respect to the
interpretation of the meaning of the term "child" under the Indiana Child
Wrongful Death Act, the Ledbetter plaintiffs also challenged the constitutionality
of the Act as applied to bar their recovery for the death of their child.
Specifically, the plaintiffs argued that the Act violates the privileges and
immunities clause of the Indiana Constitution.

24

Although the court of appeals recognized that the Child Wrongful Death
Statute treats parents of children ages twenty to twenty-three and not pursuing

post-secondary education differently from the parents ofchildren in the same age
bracket who are pursuing post-secondary education, it explained the rationale for
such treatment as follows: "[T]he inherent characteristics of the group of 20 to
23-year old still pursuing post-secondary education include a dependence on their

parents not generally shared by those who are free to hold jobs at that age."25

The court further noted that the preferential treatment is uniformly applicable
and equally available to all persons similarly situated, that is to all parents of

twenty to twenty-three-year-olds who are enrolled in post-secondary institutions
or programs. In addition, the court observed that the court ofappeals interpreted
"enrolled" liberally while remaining within the clear meaning ofthe statute. The
court concluded that because it must exercise substantial deference to legislative

discretion, it is not free to conclude that a better law might have included all

children under twenty-three who are, for any reason, dependent on their parents.
For these reasons, the court of appeals found that the Child Wrongful Death

statue does not violate the Indiana Constitution as applied to the plaintiffs' claim

for damages.
26

II. Wrongful Birth and Wrongful Prolongation of Life

During the course of this survey period, the Indiana Supreme Court and the
Indiana Court of Appeals had occasion to determine whether Indiana law

recognizes separate causes of action for "wrongful birth" and "wrongful

prolongation of life" respectively. In Bader v. Johnson?
1
the Indiana Supreme

Court determined it unnecessary to characterize a plaintiffs' cause of action as

"wrongful birth" because the claims alleged in the complaint were properly

governed by the Indiana Medical Malpractice Act.
28

The supreme court noted

that "wrongful birth" claims were generally described as causes of actions

brought by the parents of a child born with birth defects alleging that, due to

negligent medical advice or testing, they were precluded from making an

23. A*, at 11 17.

24. See id.; see also Ind. Const, art. I, § 23.

25. Ledbetter, 724 N.E.2d at 1 1 1 8.

26. See id.

27. 732 N.E.2d 1212 (Ind. 2000).

28. See id. at 1216.



2001] TORT LAW 1081

informed decision about whether to conceive a potentially handicapped child or,

in the event of a pregnancy, to terminate it.
29

The court concluded that labeling
the plaintiffs' cause of action as wrongful birth "adds nothing to its analysis,

inspires confusion, and implies the court has adopted a new tort," which it
declined to do.

30

In Estate ofTaylor v. Muncie MedicalInvestors, L.P. ,
3

' the estate ofa former

resident ofthe defendant healthcare institution brought a multi-count complaint

against the healthcare institution that included a claim under the theory of

wrongful prolongation of life. On appeal from the trial court's entry ofsummary
judgment, the plaintiff argued that although no Indiana courts have directly

addressed the issue, it is logical for Indiana to adopt a tort for wrongful

prolongation of life. Specifically, the plaintiffargued that if Indiana does not do

so, then there is no enforcement mechanism to protect a patient's right to refuse
medical treatment and a family's right to make medical decisions for
incapacitated relatives.

32 The court ofappeals concluded, however, that creation
of a new cause was unnecessary because the procedures set forth in Section 16-
36-1-8 adequately protect the rights and interests of patients, their families and

their healthcare providers and could have protected the rights ofthe decedent and

the estate in this case.
33

III. Medical Malpractice

Once again during this survey period, the Indiana Supreme Court and Indiana
Court of Appeals decided several significant cases concerning medical

malpractice.

A. Amounts Recoverable

In Poehlman v. Feferman?* the Indiana Supreme Court found that, under
Indiana's Medical Malpractice Act, the limitations on the amounts recoverable

are limitations on damage amounts and do not include collateral litigation
expenses. Additionally, the court held that each debtor is individually

responsible under the Act for its own collateral litigation expenses associated
with its settlement or judgment figure. Finally, the court found that the post-

judgment interest statute fully applies to medical malpractice judgments.
35

In Poehlman, the plaintiffreceived ajudgment for $345,263, plus court costs

against Dr. Feferman. Dr. Feferman's insurance carrier paid $ 1 03,733.09 to the

county clerk to satisfy what Dr. Feferman owed pursuant to Indiana's
Malpractice Act. This represented the $100,000 the doctor owed, together with

29. See id. atl216n.3.

30. Mat 1216.
31. 727 N.E.2d 466 (Ind. Ct. App. 2000).

32. See id at 470.

33. See Ind. CODE §16-36-1-8 (2000).
34. 717 N.E.2d 578 (Ind. 1999).

35. See id at 582-84.



1082 INDIANA LAW REVIEW [Vol. 34:1075

postjudgment interest and court costs. The plaintiff filed a petition for payment
of damages from the Patient's Compensation Fund, and a declaration as to the
interest liability of Dr. Feferman, his insurance carrier, and the Fund. By
stipulation ofthe parties, $100,000 was released from the county clerk, and the
fund paid the remaining judgment of $245,263. What remained to be resolved
was the issue of post judgment interest and court costs.36

The Indiana Supreme Court disagreed with the court ofappeals and held that
the Act did not limit collateral financial obligations associated with litigation,
such as post-judgment interest and court costs, because these arose separately by
operation of law and were regulated by other statutes.

37
The court went one step

further and addressed who was responsible for the collateral litigation expenses.
The court found that each judgment debtor is individually responsible for its
collateral litigation expenses even when those are added to a settlement or
judgment figure and the result exceeds the Act's statutory damage limits.38

Only one month later, the Indiana Supreme Court in Emergency Physicians

ofIndianapolis v. Pettit,
39

issued a related ruling. In Pettit, the court held that a

healthcare provider is responsible for prejudgment interest even if the entire

amount ofthejudgment equals the maximum amount recoverable under Indiana'

s

Medical Malpractice Act, thus causing the total judgment debt to exceed the
40

cap.

Thus, after Poehlman and Pettit, a plaintiffcan recover prejudgment interest,
post-judgment interest and court costs from a healthcare provider, the provider's

insurer, and the fund above and beyond the statutory cap, with the exception that

prejudgment interest is not recoverable by statute from the fund. These decisions

give plaintiffs a little relief from Indiana's rather stringent medical malpractice

damage cap. Nevertheless, in Indiana Patient 's Compensation Fund v. Wolfe,
41

the court refused to expand the recovery under the Act any further, holding that

a parent who has a derivitative claim, based on loss of services, does not
constitute a "patient" under the Act to entitle the parents to a separate statutory
damage cap.42

B. Statute ofLimitations

In last year's Survey Edition, it was noted that the Indiana Supreme Court
rendered several opinions concerning the constitutionality of the statute of

limitations as applied to Indiana's Medical Malpractice Act.
43 The same is true

36. See /d. at 580.

37. See & at 581.
38. See id.

39. 718 N.E.2d 753 (Ind. 1999).

40. See id. at 755.

41. 735 N.E.2d 1 187 (Ind. Ct. App. 2000).

42. See id.

43. See Tammy J. Meyer & Kyle A. Lansberry, Recent Development in Indiana Tort Law,
33 Ind. L. Rev. 1545, 1592-95 (2000).



2001] TORT LAW 1083

during this survey period. In Boggs v. Tri-State Radiology, Inc.,
44

the Indiana

Supreme Court reaffirmed that the statute of limitations is "constitutional as
applied to patients who discover the malpractice well before the expiration ofthe
limitations period, but some time after the act of malpractice."45 The court
specifically did not address the situation where the discovery ofthe malpractice
occurs on the eve of the statute of limitations. In that instance, the court left
room for the possibility that such a late discovery might run afoul ofthe Indiana
Constitution.

46

The Indiana Court of Appeals was confronted with another statute of
limitations situation which ran afoul ofthe Constitution in Ling v. Still-well

41
In

Ling, the court held that even though the patient had died, it was not known until
after the two year statute of limitations that the patient's death was part of a
criminal investigation involving a nurse's role in suspicious deaths at the

hospital. Therefore, it could not reasonably be expected that the personal

representative should have discovered the death to be a result of medical

malpractice.
48

C. Loss ofChance

During this survey period the Indiana Supreme Court issued three opinions
concerning the issue of"loss ofchance." In Alexander v. Scheid

49
the court was

confronted with four key issues surrounding an increased risk of harm and a
decreased chance of long-term survival.

First, the court addressed whether a reduced chance of survival, which
mathematically equates to a decrease in life expectancy is itself a compensable
injury, even when the plaintiffs ultimate injury is uncertain. The court answered
this in the affirmative.

50
Second, the court addressed how the injury should be

valued. Finding that reduced life expectancy is compensated in other contexts,
the court held that application of those same principles was appropriate.
Therefore, the injury is valued at the reduction of the patient's expectancy from
her pre-negligence expectancy.

51
Third, the court held that the plaintiff could

maintain an action for negligent infliction of emotional distress under the

modified impact rule—the impact being what the plaintiff suffered (i.e., the

44. 730 N.E.2d 692 (Ind. 2000).

45. Id. at 697.

46. See id. at 698. It should also he noted that Justice Sullivan dissented in Boggs stating that

ifthe two year statute of limitations applied to those discovering the medical malpractice at the time

of the alleged malpractice or within the two year statute of limitations but did not apply to those

discovering the malpractice until after the two year statute of limitations, the two year statute of

limitations was unconstitutional as applied. See id. at 700-01 (Sullivan, J., dissenting).

47. 732 N.E.2d 1270 (Ind. Ct. App. 2000).

48. See id. at 1275.

49. 726 N.E.2d 272 (Ind. 2000).

50. See id. at 275-81.

51. See id 282-83



1 084 INDIANA LAW REVIEW [Vol. 34: 1 075

destruction of healthy lung tissue because of the failure to diagnose). This, the
court held, constituted "direct involvement."

52
Finally, the court found that the

plaintiff could maintain a cause ofaction for the aggravation ofher pre-existing
condition.

53

The Indiana Supreme Court touched on the "loss of chance" or "increased
risk of harm" once again in Cahoon v. Cummings,54 finding that the damages
awarded "are to be proportional to the increased risk attributable to the
defendant's negligent act or omission."

55 On the same day that Cahoon was
decided, the Indiana Supreme Court issued a related opinion in Smith v.
Washington,

56
holding that the measure ofdamages, for an act ofnegligence that

increased the risk of an injury that was at least equally likely to occur in the
absence of negligence, is to be in proportion to the increased risk attributable to
the defendant's negligence.

57

IV. Negligence

A. Analyzing the Scope ofthe Duty ofCare

1. Mental Capacity as aFactor in the Determination ofDuty.—The issue of
whether a person's mental capacity should be factored into the existence of a

legal duty has been an issue that has challenged both courts and litigants for

years. In 1998, in Creasy v. Rusk,
5* the Indiana Court of Appeals likened this

novel issue to that involving the mental capacity of a child. In Creasy, Judge

Kirsch, writing for the Indiana Court of Appeals, determined that Indiana has

indicated a willingness to factor in an adult's mental capacity when determining
whether to hold an adult person responsible for negligence. Consequently, it held

that a person's mental capacity, "whether that person is a child or an adult, must

be factored into the determination of whether a legal duty exists."
59

In June of 2000, the Indiana Supreme Court accepted transfer in Creasy to
examine the state of Indiana law in this area. Specifically, the court was called
upon to decide the issue ofwhether the general duty ofcare imposed upon adults
with mental disabilities is the same as that for adults without mental disabilities
and whether the facts of the plaintiffs case were such that the general duty of

care imposed upon adults with mental disabilities should be imposed upon him.
60

The Indiana Supreme Court initially noted that most jurisdictions the general
duty of care imposed on adults with mental disabilities is the same as that for

52. See id

53. See id at 283-84.

54. 734 N.E.2d 535 (Ind. 2000).

55. Id. at 541.

56. 734 N.E.2d 548 (Ind. 2000).

57. See id at 549-51.

58. 696 N.E.2d 442 (Ind. Ct. App. 1998), rev 'd, 730 N.E.2d 659 (Ind. 2000).

59. Id at 446.

60. See Creasy, 730 N.E.2d at 661

.



2001] TORT LAW 1085

adults without mental disabilities.
61

Thus, the majority ofjurisdictions hold that

"[a]dults with mental disabilities are held to the same standard ofcare as that of
a reasonable person under the same circumstances without regard to the alleged
tort-feasor's capacity to control or understand the consequences of his or her

actions."
62

This general duty of care imposed by the majority of outside jurisdictions

differed significantly from that imposed by the court of appeals in Creasy.

Specifically, the intermediate appellate court in Creasy found that, based on its
review and analysis of judicial precedent in Indiana, that a person's mental

capacity must be factored into the determination of a legal duty's existence.63

Although the Indiana Supreme Court agreed that the appellate court
accurately stated Indiana law at the time of its ruling, it concluded that the law

is in need of revision.
64

In reviewing the Restatement rule that mental capacity

does not excuse a person from liability for conduct which does not conform to

the standard of a reasonable manner or like circumstances, the court noted that
it was founded upon general considerations of public policy.

In deciding whether Indiana should adopt this generally accepted rule, the

court turned to an examination of contemporary public policy in Indiana as

embodied in enactments of our state legislature.
65 The court then discussed

Indiana legislative enactments reflecting a policy to de-institutionalize persons

with disabilities and integrate them into society. Although the court recognized
that contemporary public policy favors community treatment and integration, and
that the Restatement rule may appear to be at odds with those policies, it
balanced such considerations with those public policy reasons cited for holding

individuals with mental disabilities to a standard ofreasonable care in negligence

claims, and ultimately rejected the court of appeal's approach in favor of the

Restatement rule. Accordingly, the court held that a person with mental

disabilities is generally held to the same standard ofcare as that of a reasonable
person under the same circumstances without regard to the alleged tortfeasor's
capacity to control or understand the consequences of his or her actions.

66

However, in applying the Restatement rule to the facts ofthis particular case,
the Indiana Supreme Court held that the relationship between the plaintiff and
defendant, coupled with public policy concerns, dictated that the defendantowed
no duty ofcare to the plaintiff. In so finding, the court reasoned that the plaintiff

was not a member ofthe public at large unable to anticipate or safeguard against
the harm that she encountered, but instead a caregiver of patients with
Alzheimer's disease who was aware ofher patients' tendency to exhibit signs of
violence and combativeness. It found that the plaintiff was "employed to

61. See id.

62. Id.

63. See Creasy, 696 N.E.2d at 446.

64. See Creasy, 730 N.E.2d at 662.

65. See id. at 664 (citing Schornick v. Butler, 185 N.E. 111,112 (Ind. 1933)).

66. See id. at 666-67.



1 086 INDIANA LAW REVIEW [Vol. 34: 1 075

encounter, and knowingly did encounter, just the dangers which injured" her.
67

The court likened this situation to those under the fireman's rule. That rule
provides that firemen or other public safety officials responding in emergencies

are owed only the duty of abstaining from positive wrongful acts.68 The court
found that public safety officials and caregivers, such as the plaintiff, are
similarly situated in that they are "specifically hired to encounter and combat
particular dangers," and by accepting such employment assume the risk
associated with their respective occupations.

69

Finally, citing public policy reasons, the court stated that it would be contrary
to public policy to hold the defendant owed a duty to the plaintiffwhen it would
place "too great a burden on him because his disorientation and potential for
violence is the very reason he was institutionalized and needed the aid of
employed caretakers."

70
Accordingly, the Indiana Supreme Court affirmed the

trial court's entry of summary judgment in favor of the defendant.71

The Indiana Supreme Court's decision in Creasy may hinder the defense of
an individual who is mentally disabled by exempting evidence of such disability
from the determination ofthe duty ofcare owed by that individual. However, the
supreme court's apparent willingness to set forth an exception to that exemption
will likely lead to further issues before our courts on this interesting facet of

Indiana law in the near future.

2. Trees andNatural Conditions.—-In Miles v. Christensen?2 the parents of
a motorcyclist who was killed when he was struck by a dead tree that had fell
from the defendant landowners' rural property, brought a wrongful death action
against the landowners. The tree that struck the decedent had been dead for a
number of years and was visible from the perimeter of the property. The
plaintiffs alleged in their complaint that the defendants were negligent in failing

to maintain their real estate in a reasonably safe condition and in failing to

inspect their land and correct the danger caused by the dead tree. The defendants
subsequently moved for summary judgment, claiming in part that they had no
duty of care to the plaintiffs' son, and thus could not have incurred liability for

his death. The trial court denied the defendants' motion for summaryjudgment,
and the defendants brought an interlocutory appeal.

73

In determining what, if any, duty is owed by a landowner as to trees and
other natural conditions on the land, the Indiana Court ofAppeals looked to the

Indiana Supreme Court's decision in Valinet v. Eskew™ in which the Indiana
Supreme Court addressed a landowner's liability for injuries resulting from such

67. 7</.at667.

68. See id. at 668 (citing Heck v. Robey, 659 N.E.2d 498, 501 (Ind. 1995); Sands v. Wesley,

647 N.E.2d 382, 384 (Ind. Ct. App. 1995)).

69. Id.

70. Id. at 669.

71. See id. at 670.

72. 724 N.E.2d 643 (Ind. Ct. App.), trans, denied, 735 N.E.2d 237 (Ind. 2000).

73. See id. at 644-45.

74. 574 N.E.2d 283 (Ind. 1991).



2001] TORT LAW 1087

natural conditions. In Valinet, the court adopted Section 363 ofthe Restatement

(Second) ofTorts which addresses harm caused by natural conditions ofland and
imposes liability for harm only when that land is urban in nature.75

The defendants in Miles, basing their argument upon the language of the
Restatement, asserted that the law does not impose a duty on the owners of rural
land to remove or inspect for dead trees located adjacent to a public roadway.
Observing that their land was located in a rural area and that the dead tree that
fell was a natural condition of their land, the defendants argued that they were
not liable for his death because they owed no duty to exercise reasonable care for
the prevention ofharm that a natural condition oftheir rural land might cause.76

While accepting the defendants' argument rested on a distinction between
urban and rural land, the court of appeals found that the determination of a

landowner's duty does not hinge solely upon the urban/rural distinction. First,
the court found no language in Valinet indicating that the distinction may alone
form a basis for determining whether a duty exists. Rather, Valinet called for a
more sophisticated analysis of the duty question, requiring a consideration of
factors such as traffic patterns and land use. Additionally, Valinet did not

purport to set forth every factor that is pertinent to a determination of the

landowner's duty. The court stated that although classification of land as either

urban or rural may provide a useful starting point for determining a landowner's
duty ofcare as to natural conditions, it could not conclude that Valinet intended

the duty inquiry to consist solely of making such a classification.
77

Second, the court of appeals took into account public policy considerations

that weighed in favor of recognizing that a landowner may owe a duty of
reasonable care as to natural land conditions that threaten outsiders. In this

regard, the court observed that virtually every usable piece ofproperty in Indiana

is adjacent to a roadway or highway. As such, the court felt that sound public
policy dictated that keeping roadways free from obstructions and hazards is

effectuated by imposing, under certain circumstances, a duty of reasonable care

as to those who, while outside of the land, suffer harm from the land's natural
conditions. Thus, the court abrogated the urban/rural distinction with respect to

whether a landowner owes a duty to remove decaying or dead trees located on
their land so as to protect people traveling on a public highway.

78

3. Ingress andEgress. —On the same date that the Indiana Court ofAppeals
rendered its decision in Miles, it rendered a second decision with respect to a

landowner's duty ofcare in relation to a roadway adjacent to his or her property.

In Sizemore v. Templeton Oil Co.,
19

the plaintiff fell and injured himself on a
piece of asphalt at the edge of a large pothole located in the right of way when
the state road adjacent to the landowner's business gave way underneath him.
The plaintiff subsequently sued the landowner and town alleging that all three

75. See id at 285.

76. Miles, 724 N.E.2d at 646.

77. See id. at 646.

78. See id. at 646-47.

79. 724 N.E.2d 647 (Ind. Ct. App. 2000).



1088 INDIANA LAW REVIEW [Vol. 34:1075

entities negligently caused his injuries. The trial court entered summary
judgment in favor of the town and landowner, and the plaintiff subsequently
appealed.

80

The plaintiffs argued on appeal that the landowners' duty to provide a safe
means of ingress and egress to its premises included a duty with respect to the
pothole. However, the court of appeals disagreed. Specifically, the court of
appeals found no precedent standing for the proposition that a duty to provide
safe ingress and egress to a commercial property extends to a duty with regard
to the condition of the adjacent highway right-of-way when that condition was
not created by or related to a defendant's use of his own property. On the
contrary, the court noted that current Indiana law indicates the opposite result.

81

B. Comparative Fault Act

The Indiana Comparative Fault Act82 applies generally to damages actions
based on fault that occurred on or after January 1, 1985. The primary objective
ofthe Act was to modify the common law rule ofcontributory negligence under
which a plaintiff was barred from recovery where he or she was only slightly
negligent.

83 The Act seeks to achieve this result through proportional allocations
offault, in showing that each person at fault contributed to cause injury bears his

or her proportionate share ofthe total fault contributing to the injury.
84

Since its

inception, the Indiana Comparative Fault Act has been the subject ofnumerous
court decisions analyzing its scope and interpreting its provisions: During this

survey period, Indiana courts rendered a numberofdecisions clarifying the intent
of the legislature and interpreting the Act in relation to fundamental principals

of common law and public policy considerations.
/. Credits/Set-offs. —In Mendenhall v. Skinner & Broadbent Co.,85 the

Indiana Supreme Court addressed the issue ofwhether a defendant who suffers
judgment in a tort case is entitled to credit for money paid by a settling co-
defendant who has not been added back under the non party provisions of the
Comparative Fault Act. The supreme court held that the party suffering the
judgment is not so entitled.86

Indiana courts have traditionally followed the one satisfaction principal,

which holds that a court should recognize settlement agreements and credit the
funds received by the plaintifftowards thejudgment against a co-defendant. The

80. See id. at 649.

81

.

Id. at 653 (citing State v. Flanigan, 489N.E.2d 1216, 1217 (Ind. Ct. App. 1996) (holding

that the owner of commercial premises adjacent to a public highway has no duty to a patron who

was injured when struck by an automobile as that patron was crossing or walking along such

highway)).

82. Ind. Code § 34-51-2-1 (2000).

83. See IPALCO v. Brad Snodgrass, Inc., 578 N.E.2d 669 (Ind. 1991).

84. See Bowles v. Tatom, 546 N.E.2d 1 188 (Ind. 1989).

85. 728 N.E.2d 140 (Ind. 2000).

86. See id. at 145.



2001] TORT LAW 1089

principal behind this credit is that the injured party is entitled to only one

satisfaction for a single injury and the payment by one joint tortfeasor inures to

the benefit of all.
87

This policy was articulated long before enactment of the
Comparative Fault Act, and in Mendenhall the supreme court was faced with the
task of determining whether the Act necessitates change in this common law
practice.

88

The plaintiffs argued that the amounts received in settlement did not survive
the Comparative Fault Act and that the Act makes the non-party defense the
defendants' sole method for reducing liability when another party settles.
Conversely, the defendants maintained that credits or set-offs did survive the Act.

The court recognized the absence ofcontrolling precedent and based its decision
in Mendenhall on public policy considerations As could be anticipated, each of
the parties urged differing public policy concerns in their determination of

whether credits survived the Comparative Fault Act. The plaintiffs asserted that
the court should consider the risks that a plaintiffincurs when settling and argued
that, depending on the accuracy ofa plaintiffs predictions about the amount of
damages ajury may find, or the percentage offault that thejury will assign to the
settling defendant, a plaintiff may suffer a penalty or gain a windfall. On the
other hand, the defendants argued that if non-settling defendants did not receive

credits, plaintiffs would be unjustly enriched if they both receive a favorable

verdict and receive partial or full recovery from settling co-defendants.
89

After discussing the potential for double recovery under our system of

comparative fault, the supreme court found that the ability ofcourts to implement

the common law policy ofcredit under the Comparative Fault Act is best served
by a rule that obliges defendants to name the settling non-party ifthey are to seek
credit for settlement.

90
The supreme court concluded that "the one satisfaction

rule and the benefits of settlement are best advanced to affording litigating

defendants a credit where a thorough allocation ofdamages by thejury provides

the court with a respectable basis upon which to adjust a judgment to avoid a

double credit."
91

Thus, it held that to request a credit, the litigating defendant

must add the settling defendant as a non-party under the Comparative Fault Act.
In light ofthe fact that the defendant had not named the settling co-defendant as
a non-party for purposes of comparative fault allocation, the court determined

that the defendant was not entitled to receive a credit for the amount of the
plaintiffs settlement with the co-defendant.

92

For practicing attorneys, the import of the supreme court's ruling in

Mendenhall is clear. If you intend to seek a credit for the amount for which a
plaintiffhas settled with a co-defendant, you must name that individual or entity
as a non-party defendant for purposes of comparative fault allocation.

87. See id. at 141.

88. See id.

89. See id. at 143.

90. See id. at 144.

91. Id. at 145.

92. See id.



1090 INDIANA LAW REVIEW [Vol. 34: 1075

2. Non-Party Defense. —The issue of whether one defendant may assert a
challenge to a summary judgment ruling that operates to dismiss another
defendant from a case under the Indiana Comparative Fault Act was addressed
by the court of appeals in U-Haul International Inc. v. Nulls Machine &
Manufacturing Shop.

93
In U-Haul, the defendant was sued by the estate of a

driver killed in an automobile accident caused by the defendant's driver.

Investigation by the defendants led to a determination that alleged manufacturing
defects in certain valves may have been a cause for the accident. U-Haul named
the manufacturer of the valves as a non-party defendant for purposes of
comparative fault allocation, and the plaintiffs subsequently amended their
complaint and brought a products liability action again each of the valve
manufacturers. The valve manufacturers filed motions for summary judgment
that were opposed by U-Haul. Ultimately, the trial court granted summary
judgment in favor ofthe valve manufacturers and against the plaintiffs. U-Haul
filed a motion to correct error challenging the ruling, which was denied by the
trial court. U-Haul subsequently appealed the decision.

94

On appeal, the valve manufacturers contended that U-Haul lacked standing
to challenge a grant of summary judgment in their favor. To challenge the
dismissal ofthe valve defendants, the court noted that U-Haul must demonstrate
that it had a stake in the outcome of the ruling.

95 To demonstrate a personal
stake, a party must prove that it is in immediate danger of sustaining a direct

injury as the result of the conduct at issue.
96

Generally, a "defendant does not

have standing to appeal ajudgment rendered in favor ofa co-defendant unless the
defendant suffered some prejudice as a result of the entry ofjudgment in favor
of the co-defendant."

97
Thus, the court determined that for U-Haul to have

standing, it must demonstrate that it was prejudiced by the valve manufacturers'
summary dismissal from the case.

U-Haul contended that it was prejudiced by the summary dismissal because
of the application of Indiana's Comparative Fault Act. Specifically, it argued
that having been dismissed from the action, the valve manufacturers could not be

named as non-parties and any fault the jury would have allocated to them would
be allocated instead to U-Haul. As a result, U-Haul contended it was prejudiced
by the valve manufacturers summary dismissal because it exposed it to a chance
of greater liability for damages resulting from the accident.

98

The Indiana Court ofAppeals noted that this was a case of first impression.
After examining rulings from courts in other jurisdictions, the court of appeals

determined that two approaches could govern the determination of this issue.
99

93. 736 N.E.2d 271 (Ind. Ct. App. 2000).

94. See id. at 273-74.

95. Id. at 275 (citing Shand Mining, Inc. v. Clay County Bd. of Comm'rs., 671 N.E.2d 477

(Ind. Ct. App. 1996)).

96. See id.

97. Id. at 279.

98. See id. at 275.

99. See /</. at 275-78.



2001] TORT LAW 1091

Under the first analysis, a remaining co-defendant would have standing to
challenge the dismissal of a co-defendant via summary judgment so long as the
remaining co-defendant can demonstrate that the dismissal of the co-defendant

negatively impacted the complaining party's interest in the litigation.
100

Under
the second analysis, before considering the nature of the complaining co-

defendants interest, the court must determine whether that party preserved the

issue of standing.
101

The court next examined Indiana law with an eye toward
which of the two approaches is more compatible with that taken by Indiana
courts in similar circumstances. The court determined that in Indiana a defendant
must demonstrate that it has a stake in the outcome and will potentially suffer
prejudice as a result of a co-defendant's dismissal. Because the dismissal of a
co-defendant from a case subjects a remaining defendant to greater potential

liability under the Comparative Fault Act, the court agreed with those courts that

determined that this is sufficient to confer standing upon a co-defendant to appeal

such a ruling.'
02

The court of appeals noted, however, that the remaining co-defendant must
also preserve the error at the trial court level. Because U-Haul opposed the valve
manufacturer's motions for summaryjudgment in the trial court by filing a brief
in opposition to the motion and by filing a motion to correct error following the

ruling, it concluded that U-Haul had standing to appeal summary judgment in
favor of the valve manufacturers.

103

3. Municipality Initiating Suit, —In Warrick County v. Waste Management
ofEvansville,

m
Warrick County filed suit against a waste management company

and its driver alleging that the driver negligently operated a heavy truck and

damaged a county bridge. The defendants moved for summaryjudgment on the
basis that the county did not suffer damages as a result of their alleged

negligence. Specifically, they argued that the bridge that was destroyed by the
garbage truck had no value and that, because it needed to be replaced, the county
did not suffer any damages when it was required to re-route traffic and replace
the bridge. The trial court granted summary judgment in favor of the
defendants.

105

On appeal, the county argued that the Indiana Comparative Fault Act is not
applicable to the present cause of action due to the "governmental entities and

public employee exception." This provision makes the Act inapplicable to tort
claims against governmental entities or public employees under Indiana's Tort

Claims Act.
106 The court of appeals disagreed. Although the court recognized

that there are inequalities occasioned by the application of the governmental

100. See, e.g., Hammond v. N. Am. Asbestos Corp., 565 N.E.2d 1343 (111. App. Ct. 1991);
Roller v. Liberty Mut. Ins. Co., 546 N.W.2d 799 (Wis. Ct. App. 1994).

101. See, e.g.. Tinker v. Kent Gypsum Supply, Inc., 977 P.2d 627 (Wash. Ct. App. 1999).

102. See id. at 280.

103. See id.

104. 732 N.E.2d 1255 (Ind. Ct. App. 2000).

105. See id. at 1257-58.

1 06. IND. Code § 34-5 1 -2-2 (2000).



1 092 INDIANA LAW REVIEW [Vol. 34: 1 075

entity exception contained in the Comparative Fault Act, it stated that the
legislature accepted the applicability of the Act only for those cases against
governmental entities under the Tort Claims Act.

107
Thus, the court found that

exception to Indiana's Comparative Fault Act has no application to the situation
at hand where the governmental entity has sued a private entity.

108

As to the issue of damages, the court noted that the issue concerning the
proper measure of damages when a bridge is damaged is a question of first
impression in Indiana. It further noted that determination ofthis issue is further
complicated because the cost of the replacement bridge will reflect the cost of
modern design with maximum load capacity and safety features that were not
present in the damaged bridge. After analyzing rulings ofotherjurisdictions on
this issue, the court concluded that:

when a bridge must be replaced as a result of the negligent acts of
another, the governmental entity is injured to the extent of the value of

the bridge, when considering such factors as the original cost, the age of
the property, its use and utility from both economic and social viewpoint,

its condition, and the cost of restoration or replacement.
109

C. Mitigation ofDamages

In Medlock v. Blockwell" the Indiana Court ofAppeals attempted to clarify
the issue ofa injured party's duty to mitigate his or her damages. The plaintiffs
brought suit against the defendant for personal injuries as the result of an

automobile accident. Following the accident the plaintiffs were taken to a local

emergency room where they were treated for their injuries. However, after the
accident they failed to seek and follow through with recommended medical
treatment. The evidence also established that the couple resumed their normal
activities.

111

Following a jury verdict in favor of the plaintiffs where they were assigned

forty-nine percent comparative fault, the plaintiffs filed a motion to correct error

and a motion for a new trial, both of which were denied by the trial court. On
appeal, the plaintiffs claimed that thejury verdict finding them forty-nine percent
at fault was clearly erroneous and could only have been reached as a result of
confusion, inattention, corruption, passion or prejudice. The defendant argued
that the jury properly applied the law instructed with respect to mitigation of

damages and fault, and contended that the plaintiffs' failure to minimize their
injuries and to avoid aggravating their injuries made them at fault for their
damages. The court of appeals agreed with the defendant.

112

107. See Waste Mgmt., 732 N.E.2d at 1261; IND. CODE § 34-51-2-2 (2000).

108. See Waste Mgmt, 732 N.E.2d at 1261.

109. Id. at 1260.

1 10. 724 N.E.2d 1 135 (Ind. Ct. App. 2000).

111. See id. at 1136.

112. See id. at 1137.



2001] TORT LAW 1093

In its jury instruction defining the element of fault, the trial court instructed

the jury that the doctrine ofmitigation ofdamages imposes a duty on an injured
party to exercise reasonable diligence and ordinary care in attempting to

minimize his or her damages or avoid aggravating his or her injury. The trial
court further instructed the jury that the injured party is required to use the same
care and diligence as a person of ordinary prudence under like circumstances.

The trial court went on to instruct the jury on fault allocation under Indiana's
Comparative Fault Act, which defines "fault" as including an "unreasonable

failure to . . . mitigate damages."
113 On appeal, the plaintiffs relied upon the

court of appeals' holding in Deible v. Poole"* to support their claim that the
verdict was against the weight of the evidence. In Deible, the plaintiff was
stopped at a traffic light when the defendant's car struck her car from behind.
The defendant admitted that he was responsible for the collision at trial and the
plaintiff was entitled to some damages, yet maintained that the plaintiff had
failed to mitigate her damages. On appeal, the Deible court held that the failure
to mitigate damages is a defense to the amount ofdamages the plaintiffis entitled

to recover once a defendant has been found to have caused injury, but it is not a

defense to the ultimate issue of liability.
115

In Medlock, the court explained that Deible was limited to the unique
situation where a defendant admits liability for a tort and admits that the plaintiff

is entitled to recovery. It went on to state that this case is a distinguishable from

Deible in that the jury*s verdict did not go to the ultimate issue of liability. The
court noted that the Indiana General Assembly decided that, under our
comparative fault system, "fault" includes a failure to mitigate damages. While

the court stated that it believed that the better policy would be to treat mitigation

of damages as a damage issue rather than a fault allocation issue, it recognized
that the legislature has rejected this approach.

116

It appears evident from the Metlock decision that the panel ofthe court did

not agree with the Legislature's mandate that failure to mitigate damages be
treated as a fault allocation issue. However, the court did not seem overly
troubled by the legislative mandate, finding that in cases such as this, where there

is evidence of a failure to mitigate damages, the end product of the damage
calculation remains the same.

117

D. Loss ofOpportunity

Federal courts in Indiana are often called upon to render opinions

interpreting Indiana law on issues that remain unresolved by either the Indiana

Supreme Court or its appellate courts. During the course of this survey period,
the District Court for the Southern District ofIndiana was called upon to do just

1 13. Id. (quoting iND. CODE § 34-6-2-45 (2000)).
1 14. 691 N.E.2d 1313 (Ind. Ct. App. 1998), ajfdy 702 N.E.2d 1076 (Ind. 1998).

115. Skew* at 1316.

116. See id. at 1138.

117. See id.



1 094 INDIANA LAW REVIEW [Vol. 34: 1 075

this in the context of the lost chance doctrine.

In Wright v. St, Mary's Medical Center o/Evansville, /wc.,
118

a patient sued

the defendant hospital that had removed the patient's malfunctioning artificial
heart valve but failed to preserve it for her use. The plaintiff had requested that
the hospital hold the valve so that it could be evaluated by an independent
laboratory to determine whether its condition qualified the plaintifffor benefits

under a settlement agreement reached with the valve manufacturer pursuant to
a class action lawsuit. Unfortunately, the hospital lost the valve and was unable
to give it to the plaintiff, who then filed a complaint against the hospital for
having negligently lost her heart valve.

119

The district court began its analysis ofwhether the plaintiff was entitled to
damages for loss ofthe opportunity to recover under the settlement agreement by
noting that the plaintiffs claim raises the issue ofwhether the court should apply

the much-debated "loss ofa chance" doctrine. The court explained that:

[traditional causation principles utilize an ex post test which requires

courts to contemplate what would have probably happened "but for" the
defendant's breach ofcontract or breach of duty and tort. The "loss of
chance" doctrine, by contrast, is based upon the value ofan opportunity
itself determined ex ante.

120

The court noted that some courts review chances as interests for the protection
in their own right, while others have rejected the theory. 121

The district court recognized that the issue ofwhether the loss of a chance
is compensable in Indiana has only been addressed in the medical malpractice

context. In Mayhue v. Sparkman, 122 the Indiana Supreme Court rejected the loss
ofchance doctrine in the medical malpractice setting in favorofthe "Restatement

approach," which "does not recognize chances of being worthy ofprotection in

their own right."123 Given that the Indiana Supreme Court rejected the loss of
chance doctrine in the medical malpractice setting, the District Court for the

Southern District of Indiana determined that it was unlikely that they would
recognize it in the case at hand. First, the court found that the supreme court's

conclusion in Mayhue indicated a reluctance to carve out a new doctrine of
recovery for plaintiffs in this area.

124
Second, the court found that recognition

of a loss of chance doctrine is more compelling where the law is compensating
the loss ofa chance at life, rather than a loss ofa chance at, as here, some purely
economic gain. The court concluded that "[bjecause Indiana law has not
recognized the loss of an opportunity as damages in a negligence or breach of
contract action, and because the Indiana Supreme Court has explicitly rejected

118. 59 F. Supp.2d 794 (S.D. Ind. 1 999).

119. See id at 796-98.

120. Mat 801.
121. See id

122. 653 N.E.2d 1384 (Ind. 1995).

123. Mat 1388.
124. See Wright, 59 F. Supp.2d at 801.



2001] TORT LAW 1095

the doctrine in medical malpractice situations ... the doctrine is unavailable in

Indiana."
125

The district court's opinion in Wright, although not a conclusive statement
of Indiana law, is highly persuasive authority for an argument that the loss of

chance doctrine will not be applicable in negligence cases brought in Indiana.

However, until the Indiana Court of Appeals or Indiana Supreme Court speaks
to this issue, the opportunity for a loss of chance cause of action remains.

Nevertheless, practicing attorneys should be cautious to bring such an action

unless the circumstances ofthe particular case rise to a level that may influence
a state court to disagree with the findings ofthe Federal District Court in Wright,

and distinguish the Indiana Supreme Court's holding in Mayhue.

V. Statute of Limitations Defense—Fraudulent Concealment

In Doe v. Shults-Lewis Child& FamilyServices, Inc. 9
m

the Indiana Supreme
Court clarified issues concerning the Statute of Limitations when an adult
plaintiff asserts a claim for tortuous conduct committed against him or her as a
child and brings an action beyond the statute of limitations against a defendant

who is not a parent. In Shults-Lewis, two women who had been foster children
at the Shults-Lewis home sued the home for repeated sexual abuse suffered at the
hands of one of the home's employees. Both women left the home in the late
1960s and did not bring suit until 1990, well into adulthood. PlaintiffJane F. did
not bring suit until 1990 because, until then, she did not realize the connection

between the abuse and her psychological distress. PlaintiffJane I., however, did

not bring suit until 1990 because she did not remember anything regarding the
abuse until that year, after having had several conversations with Jane F. and

other members of the group home about the abuse. 127 The defendant
subsequently filed a motion for summaryjudgment, arguing that the plaintiffs'
claims were time barred, and the trial court entered judgment in the defendant's
favor.

On appeal, the court of appeals reversed the trial court's entry of summary
judgment in favor of the defendant as to plaintiff Jane I. only, finding that
fraudulent concealment had been sufficiently invoked by Jane I. The Indiana
Supreme Court subsequently granted transfer to address the circumstances in
which a plaintiff could bring a claim of childhood sexual abuse against a non-

parent outside ofthe statute of limitations.
128

The supreme court began its analysis by noting that fraudulent concealment
is an equitable doctrine that "operates to estop a defendant from asserting the

statute of limitations as a bar to a claim whenever the defendant, by his or her

own actions, prevents the plaintiff from obtaining the knowledge necessary to

125. 7rf.at803.

126. 718 N.E.2d 738 (Ind. 1999).

127. See id. at 742-43.

128. Id.



1 096 INDIANA LAW REVIEW [Vol. 34: 1 075

pursue a claim."
129

The court then went through a lengthy analysis of its prior
decision in Fager v. Hundt™ where it addressed those circumstances in which
a plaintiffcould bring a claim ofchildhood sexual abuse against a parent outside
ofthe statute of limitations.

131
In Fager, the supreme court held that the doctrine

of fraudulent concealment "should be available to the plaintiff to estop a
defendant from asserting the statute of limitations 'when he has, either by
deception or by a violation of duty, concealed from the plaintiff material facts
thereby preventing the plaintifffrom discovering a potential cause ofaction."'132

The Fager court concluded that when this occurs, equity will toll the statute of
limitations until the equitable grounds cease to operate as a reason for delay.

133

Specifically, the Fager court's framework for analysis provided that where
an adult plaintiff alleges that a parent engaged in tortuous conduct against the
plaintiff as a child, the plaintiff has the burden of establishing that the parent

engaged in intentional felonious conduct and must invoke the equitable doctrine

by pointing to facts "showing that her lack of memory resulted from a
concealment caused by the defendant's deception or breach of duty."

134
The

equitable grounds cease as a reason for delay when that "person, once becoming
an adult, knows or should have discovered that a childhood injury was sustained
as a result of the defendant's tortuous conduct."

135 The Fager court concluded
that a plaintiff claiming that repressed memory caused the delay in filing suit
against his or her parent must show that the defendant's breach of duty or
wrongful conduct caused them to repress the memory ofthe intentional felonious
conduct. The plaintiff must also show that the claim was brought within a
reasonable amount of time after the memories were recovered.

136

Although the Supreme Court cited its previous holding in Fager with
approval, it distinguished the present case, finding that the defendant served as

plaintiffs' foster care parents/guardians and not their adoptive or biological

parents. After analyzing Indiana law with respect to guardianship ofminors, the

court concluded that when an adult plaintiff asserts a claim for tortuous conduct
committed against him or her as a child, and brings an action beyond the statute
of limitations against the defendant who is not a parent, the plaintiff is required
to:

( 1 ) show his or her parent(s) did not know ofthe tortuous conduct, or the
parent(s) knew of the tortuous conduct and colluded to conceal the
tortuous conduct; (2) prove the tortious act alleged; (3) show that the
defendant, through his own actions, breached a duty to inform or

129. Id. at 744 (citing Fager v. Hundt, 610 N.E.2d 246 (Ind. 1993)).

130. 610N.E.2dat246.

131. See Doe, 718 N.E.2d at 744-45.

132. Fager, 610 N.E.2d at 251.

133. See id.

134. Id. at 252.

135. Id. at 251.

136. See id. at 251-52.



2001] TORT LAW 1097

engaged in wrongful conduct which prevented the plaintiff from
discovering the cause of action within the statutory period; (4) provide

expert opinion evidence which supports the validity ofthe phenomenon
ofrepressed memory and opines that plaintiffactualI ly repressed memory
of the abuse; and (5) show that the plaintiff exercised due diligence in
commencing her action after the equitable grounds ceased to operate
(i.e., recovered her memories), and therefore brought the claim within a

reasonable time after recovering memories of the events.
137

Applying this standard to the plaintiffs' claims, the court held that Jane F.'s

claims were barred because: "where the plaintiffactually retains memories ofthe
events, there is nothing to cause the delay ofthe commencement ofthe cause of
action. There was nothing to prevent [Jane F.] from bringing the claim when her
legal disability ended at age 18."

138
In contrast, Jane I.'s claims were not time-

barred because she had no memory ofthe events that presented sufficient acts to
invoke the equitable doctrine offraudulent concealment, which tolled the statute

of limitations.
139

VI. Emotional Distress

In last year's Survey Edition, Groves v. Taylor,*
40 was addressed since the

case refused to expand Indiana's impact rule.
141

Rather, the Indiana Court of

Appeals in Groves invited the Indiana Supreme Court to modify and expand

Indiana law concerning the impact rule and claims for emotional distress.
142

During this survey period, the Indiana Supreme Court accepted the court of
appeals' invitation, granted transfer, vacated the trial court judgment and the

court of appeal's opinion, and remanded the case to the trial court. The Indiana
Supreme Court held that where the direct impact test is not met, a bystander may
establish "direct involvement" by proving that the plaintiffwitnessed or came on
the scene soon after the death or severe injury of a loved one.

143

One further expansion ofthe tort ofemotional distress may be on the horizon
as predicted by the United States District Court for the Northern District of

Indiana in Patel v. United Fire & Casualty Co. 144 In Patel, the district court
predicted that Indiana law would permit an insured injured by the bad faith

conduct of an insurer is entitled to recover damages based upon traditional tort

principles of compensation for resultant injuries actually suffered, including

emotional distress.
145

Should Indiana appellate courts adopt such a position, this

1 37. Shults-Lewis, 7 1 8 N.E.2d at 746 (citations omitted).

138. Id at 747 n.3.

139. See id. at 748.

140. 71 1 N.E.2d 861 (Ind. Ct. App. 1999), vacated by 729 N.E.2d 569 (Ind. 2000).

141. See Meyer & Lansberry, supra note 43, at 1 572.
142. S«?711N.E.2dat864.

143. &*729N.E.2dat569.

144. 80 F. Supp. 2d 948 (N.D. Ind. 2000).

145. See id. at 958.



1098 INDIANA LAW REVIEW [Vol. 34: 1075

could have a significant impact upon the law of bad faith in Indiana.

VII. Malicious Prosecution

In a case of first impression, the Indiana Court of Appeals held in City of
New Haven v. Reichhart, 146 that where a qualified petitioner brings a legitimate
claim against a governmental entity in the manner prescribed by law, that entity
is prohibited from pursuing a malicious prosecution claim against the petitioner

regardless of the petitioner's motivation in bringing the petition.
147

The court found that the United States Supreme Court's treatment of"sham"
litigation under the Sherman Anti-Trust Act was instructive.

148
The court of

appeals noted that the Supreme Court has repeatedly found that evidence ofanti-
competitive intent or purpose alone does not transform otherwise legitimate

activity into a sham. Similarly, the court ofappeals pointed out that pursuant to

the National Labor Relations Act, even an improperly motivated lawsuit could

not be enjoined as an unfair labor practice unless such litigation is baseless.
149

In conclusion, the court of appeals held that the First Amendment protects
a citizen's right of petition regardless of merit. So, when a qualified petitioner
brings a legitimate claim against a governmental entity in the manner prescribed
by law, that entity cannot pursue a malicious prosecution claim regardless ofthe

motivation behind the institution of the claim.
150

146. 729 N.E.2d 600 (Ind. Ct. App. 2000).

147. See id. at 606.

148. See id. (citing Prof 1 Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508

U.S. 49, 58(1993)).

149. See id.

150. See id.