Indiana Law Review


Recent Developments in Indiana Tort Law

Jana K. Strain*
Carol A. Nemeth**

This Article discusses significant developments in tort law in Indiana during

the survey period. In light of the breadth of the subject area, this Article is

neither comprehensive nor exhaustive. This Article does not attempt to address

in detail all of the cases applying tort law in Indiana during the survey period, but

attempts to address selected cases in which the courts have interpreted the law

or clarified existing law.

I. Negligence

There were a number of significant developments in the area of negligence
law during the survey period. Among other things, the courts held that, where
duties of care have already been defined by Indiana law, it is unnecessary to

perform an analysis of the reasonableness of a party's conduct under Webb v.
Jarvis^ or to consider what a similarly situated person might do under the

circumstances.

A. Duty of Care

1. Seventeen-year-old Child Must Exercise Reasonable and Ordinary Care

ofan Adult.—In Penn Harris Madison School Corp. v. Howard,^ a seventeen-
year-old high school student fell from a zip-line he had constructed for a school

production and brought suit against the school for the significant injuries he

suffered. A jury awarded the student $200,000 in damages. On appeal, the
school challenged the jury instruction which instructed that the student "was

bound to exercise in regard to his own contributory negligence . . . reasonable
care [that] a person of like age, intelligence, and experience would ordinarily
exercise under like or similar circumstances.''^ The student argued that a
different standard of care applies to contributory negligence than to comparative

fault. The court ofappeals reversed and remanded for a new trial, explaining that
this instruction misstated the standard under Indiana law:

Indeed, Indiana Pattern Jury Instruction No. 5.25 states in relevant part

that "[a] child over the age of fourteen (14) [absent special

circumstances] must exercise the reasonable and ordinary care of an

adult." In this case, [the student] was seventeen years old at the time he
was injured .... Thus, he was charged with exercising the standard of

* Member, Price Waicukauski & Riley, LLC; B.A., 1986, Indiana State University; M.S.,
1990, Butler University; J.D., 1997, Indiana University School of Law—Indianapolis.

** Member, Price Waicukauski & Riley, LLC; B.A., 1991, Indiana University

—

Bloomington; J.D., 1994, Indiana University School of Law—Bloomington.
1. 575 N.E.2d 992 (Ind. 1991).

2. 832 N.E.2d 1013 (Ind. Ct. App.), trans, granted, 841 N.E.2d 188 (Ind. 2005).

3. /J. at 1016 (emphasis added).



1290 INDIANA LAW REVIEW [Vol. 39: 1289

care of an adult absent special circumstances."^

However, the Indiana Supreme Court granted transfer on November 1 , 2005,
but has not yet decided the case. Its decision could clarify or modify the law

regarding the standard of care applicable to children.

2. Duty ofOne Contractor to Another Contractor's Employees.—In Horine
V. Homes by Dave Thompson^ LLC,^ an employee of one subcontractor on a
residential construction project was injured when he fell from a roof after
stepping on loose roofing materials installed by another subcontractor on the

project. He filed suit against both subcontractors for his injuries.^ The trial
court granted the roofer's summary judgment motion on the question of the
employee's negligence.^ On appeal, the employee argued that the roofer had a
duty to "reasonably foreseeable persons who would be working on the roof to
assure that the roofing materials were installed properly.^ The Indiana Court of
Appeals agreed, quoting Guy's Concrete, Inc. v. Crawford'^

[I]n general, a contractor has a duty to use ordinary care both in its work
and in the course of performance of the work. Where an independent
contractor is in control of the construction or premises and the

independent contractor's negligence results in injury to another person

on the premises, the independent contractor may be held liable under
Indiana law.

'^

In a footnote, the court explained that "'it is unnecessary for us to perform the

Webb analysis because our supreme court and this court have already held that
contractors performing work owe a duty to third persons rightfully on the
construction premises.

'"^^

3. Governmental Duty andIncreasedRisk Due to Failure to Warn.—In City
ofMuncie ex rel. Muncie Fire Department v. Weidner,^^ parents filed suit for the
failure of the fire department to protect their child from a downed, live power
line which caused the child's electrocution in an adjacent backyard one day after

the fire department had responded to a complaint and reported the downed wire
to the electric company. ^^ The City of Muncie sought summary judgment on a
number of grounds and, on appeal, argued it was entitled to summary judgment

4. Id.

5. 834 N.E.2d 680 (Ind. Ct. App. 2005).

6. W. at 682.

7. Id.

8. /flf. at684.

9. 793 N.E.2d 288 (Ind. Ct. App. 2003).

10. Horine, 834 N.E.2d at 684 (internal citation omitted) (quoting Guy's Concrete, 793

N.E.2d at 295).

11. Id. at 684 n.3 (quoting Guy 's Concrete, 793 N.E.2d at 294 n.4 (citing Webb v. Jarvis, 575

N.E.2d 992, 995 (Ind. 1991))).

12. 831 N.E.2d 206 (Ind. Ct. App.), reh'g denied (2005), and trans, denied (Ind. 2006).

13. Mat 209.



2006] TORT LAW 1291

because (1) it owed no duty to protect the child from power lines controlled by
the electric company; and (2) it was entitled to immunity either under the

common law or under the Emergency Management and Disaster Law/'^
After reciting the burden on a claim of negligence, the court noted "[a]

governmental unit is bound by the same duty of care as a non-governmental unit

except where the duty alleged to have been breached is so closely akin to one of

the limited exceptions (prevent crime, appoint competent officials, or make
correct judicial decisions)."'^ The plaintiffs conceded that the fire department
owed only the duty it assumed by responding to the neighbor' s call; therefore, the
court noted that the fire department's liability would hinge on the duty it

assumed.'^ Although noting that section 324A of the Restatement (Second) of
Torts^^ "parallels Indiana's doctrine of assumed duty"*^ and that the questions

whether and to what extent a party owes a duty are for the factfinder, the court
explained it may decide the issue as a matter of law if the record contains
insufficient evidence to establish a duty.*^ Rejecting the plaintiffs' argument that

there was an increased risk because the fire department did not warn the child,

the court explained that the standard "is not whether the risk of harm would have
decreased had the fire department acted with reasonable care. Rather, it is

whether the fire department's failure to exercise reasonable care increased the

risk of such harm."^^ Finding no evidence in the record that the child actually

relied on the fire department's actions, the court found, as a matter of law, that

there was insufficient evidence to establish a duty.^^ In a footnote, the court
clarified that it did not intend to suggest that it was necessary to have evidence

that the fire department spoke directly to the child before a duty could be found,

only that the lack of evidence of any reliance precluded a finding of assumed

14. Id. at 211 (citing IND. CODE § 10-14-3 (2005)).

15. Id. at 212.

16. Id

17. The Restatement (Second) Torts § 324A (1965) provides:

One who undertakes, gratuitously or for consideration, to render services to another

which he should recognize as necessary for the protection ofa third person or his things,

is subject to liability to the third person for physical harm resulting from his failure to

exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of harm, or

(b) he has undertaken to perform a duty owed by the other to the third

person, or

(c) the harm is suffered because of reliance of the other or the third person

upon the undertaking.

See Weidner, 831 N.E.2d at 212.

18. Weidner, 831 N.E.2d at 212.

19. Id. (citing Bldg. Materials Mfg. Corp. v. T& B Structural Sys., Inc., 804 N.E.2d 277, 282
(Ind. Ct. App. 2004)).

20. W. at 213.

21. Id



1292 INDIANA LAW REVIEW [Vol. 39: 1289

duty.^^

4. Statutory Duty Owed by Roller Skating Rink Operators.—^The court
construed the statutory duty of roller skating rink operators under a section of the

Indiana Code in St. Margaret Mercy Healthcare Centers, Inc. v. Poland^^ in
which a skater was injured when she fell while skating. The skater alleged that
the rink was negligent in permitting skaters to be "out of control [with] nobody
seem[ing] to be supervising them."^"^ The jury found in favor of the skater and,
on appeal, the rink asserted error in the trial court's use of Pattern Jury

Instruction No. 5.41^^ on incurred risk, which it contended was a misstatement
of the law since Indiana Code section 34-3 1-6-3^^ presumes an assumption of the
risk in the skating context.^^

Construing the statute, the court noted that "[d]ue to the nature of roller

skating, the Indiana Legislature imposed specific duties and responsibilities upon

roller skating rink operators .... [and] also imposed certain duties upon roller
skaters."^^ Moreover, the legislature said that, "if a roller skating rink operator

is in compliance with the specified duties and responsibilities outlined in Section

1, then pursuant to Indiana Code § 34-31-6-4^^ ... the operator is entitled to a

22. Id. at213n.5.

23. 828 N.E.2d 396 (Ind. Ct. App.), trans, denied, 841 N.E.2d 184 (Ind. 2005).

24. Id. Sit 399.

25. The jury was instructed that the "[p]laintiff incurs the risk of injury if she actually knew

of a specific danger, understood the risk involved, and voluntarily exposed herself to that danger."

Id. at 402.

26. The statute provides:

(a) Roller skaters are considered to:

1

.

have knowledge of; and

2. assume; the risks of roller skating.

(b) For purposes of this chapter, risks of roller skating include the following:

1. Injuries that result from collisions or incidental contact with other roller

skaters or other individuals who are properly on the skating surface.

2. Injuries that result from falls caused by loss of balance.

3. Injuries that involve objects or artificial structures that:

A. are properly within the intended path of travel of the roller skater;

and

B. are not otherwise attributable to an operator's breach of the

operator's duties under section 1 [IC 34-31-6-1] of this chapter.

iND. Code § 34-31-6-3 (2005).

27. St. Margaret, ^2^ N.E.ld at 400.

28. Id. at 402.

29. The statute provides:

(a) Except as provided in subsection (b) and notwithstanding IC 34-5 1 -2-6 concerning

comparative fault, the assumption of risk under section 3 of this chapter is a

complete defense to an action against an operator by a roller skater for injuries and

property damage resulting from the assumed risks.

(b) The following applies if an operator has violated any one (1) of the operator's



2006] TORT LAW 1293

complete defense against liability from roller skaters who experience falls due
to collisions and incidental contact."^^ The jury heard conflicting evidence, but
the court concluded that once the jury reached the verdict that the rink failed to

exercise reasonable care in supervising skaters on the floor, it "was compelled

to proceed to I.C. § 34-51-2-6 for a comparative fault analysis regarding

damages, if any."^^ As the evidence was sufficiently probative to support the
jury's finding, the trial court did not abuse its discretion in giving the instruction

on incurred risk.^^

After reciting the standards for statutory interpretation and reiterating the

legislature's statements as to the specific duties and responsibilities of skating

rink operators, the court concluded that it was well within the province of the
jury to determine what percentage fault, if any, should be apportioned among the
parties. ^^ Although the evidence was conflicting, the rink provided no authority

to suggest that the jury was required to apportion some fault to the plaintiff under
the comparative fault analysis, and the jury's verdict apportioning zero fault to

the plaintiff was supported by the evidence and the law.^"^

B. Intervening Cause

1. Foreseeability and Intervening Cause.—In Mayfield v. The Levy Co.,^^ a
steel company employee who worked as a switchman on a train brought suit
against an independent contractor for injuries suffered when he fell into a trench
filled with scalding water. The trench was used to cool slag, a byproduct of
steelmaking. The plaintiff, riding on the train, observed a truck trying to beat the
train to a crossing. Fearing a collision, the plaintiff stepped off the train, landing

on a large piece of slag, which caused him to fall into the trench that the
independent contractor controlled and used to cool the slag.^^ The plaintiff
suffered severe bums.

The trial court granted summary judgment in favor of the independent
contractor, finding (1) that the contractor did not have control over the premises

and therefore had no legal duty to the employee, (2) the independent contractor

did not have superior knowledge with regard to dangers on the premises, and (3)

duties or responsibilities under section 1 [IC 34-31-6-1] of this chapter:

1. The complete defense against an action against an operator under

subsection (a) does not apply.

2. The provisions of IC 34-51-2-6 [comparative fault] apply.

IND. Code § 34-31-6-4 (2005).

30. St. Margaret, 828 N.E.2d at 402-03.

31. Mat 405.
32. Id.

33. Id. at 406-07.

34. Id at 408.

35. 833 N.E.2d 501 (Ind. Ct. App. 2005).

36. Id. at 507.



1294 INDIANA LAW REVIEW [Vol. 39: 1289

there was no evidence establishing that the injury was foreseeable.^^ On appeal,
the court focused solely on the question of proximate cause.^^ Although it was
foreseeable that the independent contractor' s "failure to remove the slag from the

ground or its failure to drain the water might cause injuries to a person walking

near the sump pump area," the court held it was not foreseeable that the failure
to "maintain that area would cause injuries to an individual riding a train."^^

Therefore, "[i]t was not [the independent contractor's] negligent conduct . . .
,

but rather, the negligent, reckless, or intentional conduct of the . . . truck driver

that caused [the] accident. The truck driver's actions constitute an intervening
cause superseding any liability on the part of [the independent contractor].'"^^ As
a result, the independent contractor's conduct was not the proximate cause of the

injuries."^'

C. Comparative Fault

1. Additur and the Impact of Comparative Fault on Derivative Claims.—In
Hockema v. J.S.,^^ the court addressed a matter of first impression: whether
parents can recover medical expenses on a derivative claim if the underlying

claim is barred because the child's fault is greater than fifty percent. A child ran
into the road and collided with a car driven by a seventeen-year-old driver.^^ The
jury found the driver only 33.25% at fault, the child 66.75% at fault, and awarded
the child zero damages."^^ The parents filed a motion to correct error seeking
additur or a new trial, "claim[ing] that the jury erred by not awarding [them]
damages for a percentage of the stipulated medical expenses. '"^^ After a hearing,

the trial court entered judgment in favor of the parents for 33.25% of the
stipulated amount of medical expenses.

"^^

The court of appeals noted that, although the trial court has broad discretion
on a motion to correct error, the remedy of additur or remittitur under Trial Rule

59(J)(5)'^^ "is only available when the evidence is insufficient to support the

37. Id. at 504.

38. Id. 505 n.4 ("Because we conclude that the undisputed material facts establish that [the

independent contractor's] alleged negligence was not the proximate cause of [the employee's]

injuries, we do not address [the] argument that [it] owed him a duty and breached that duty as a

matter of law. ... If we were to address [that] argument, we would likely conclude that . . . [it] is

a question that must be resolved by the trier-of-fact.").

39. Id. at 507.

40. Id.

41. Id.

42. 832 N.E.2d 537 (Ind. Ct. App.), reh 'g denied (2005), and trans, denied (Ind. 2006).

43. Id. at 538.

44. Id.

45. Id. at 540.

46. Id.

47. Ind. TrialR.59(J)(5) provides:

The court, if it determines that prejudicial or harmful error has been committed, shall



2006] TORT LAW 1295

verdict as a matter of law.'"^^ The Indiana Comparative Fault Act, a "modified
fifty percent" comparative fault law, states that "if a claimant is deemed to be
more than fifty percent at fault, then the claimant is barred from recovery.

'"^^

Thus, additur was inappropriate.^° The parents' duty to pay medical expenses is
not a direct injury to the parents but one arising out of the parents' duty to

provide medical care for their child.^^

If the child was not a minor, the medical expenses would be his own, and

the parents would not be obligated to pay them. The right of the parents
to recover the child's medical expenses, hence, rests upon the child's

right to recover and therefore may be appropriately categorized as a
derivative right.^^

Thus, although the parent has a cause of action to recover medical expenses, the

right is derivative and "may be barred [if] the child's comparative
negligence . . . exceeds the negligence of the tortfeasor.

"^^

2. When Comparative Fault Is a Frivolous Defense.—In Stoller v. Totton,^^
the driver of a semi tractor-trailer that struck an automobile when it moved into
the automobile's lane asserted the affirmative defense of comparative fault.^^

During the discovery process, the driver of the semi admitted the auto was in the

lane when he entered it with his semi, but denied requests for admission saying
that he was negligent in his operation of the semi.^^ Further, in response to
interrogatories, the semi driver asserted that he did not see anyone in the lane

when he moved into it^^ and, in his deposition, the semi driver testified that he
did not know of anything the auto driver had done to cause the accident.^^
Despite repeated requests to withdraw the defense and the plaintiff's warning

that she would seek sanctions if he failed to do so, the case was tried to a jury.

take such action as will cure the error, including without limitation the following with

respect to all or some of the parties and all or some of the errors:

(5) In the case ofexcessive or inadequate damages, enter final judgment on the evidence

for the amount of the proper damages, grant a new trial, or grant a new trial subject to

additur or remittitur[.]

See Hockema, 832 N.E.2d at 541.

48. Hockema, 832 N.E.2d at 541 (citing Childress v. Buckler, 779 N.E.2d 546, 550 (Ind. Ct.

App. 2002)).

49. Id. at 542 (citing Ind. Code §§ 34-51-2-6, 34-51-2-7, 34-51-2-14 (2005)).

50. Id.

51. Id.

52. Id.

53. Id. at 543.

54. 833 N.E.2d 53 (Ind. Ct. App.), trans, denied (Ind. 2005).

55. Id. at 54.

56. M.

57. Id at 55.

58. Id



1296 INDIANA LAW REVIEW [Vol. 39: 1289

After three witnesses had testified, the semi driver admitted that he was liable

and withdrew his defense.^^ After enteringjudgment on the jury verdict, the trial

court granted the auto driver's motion for costs and attorney's fees, finding that

the semi driver's defense was frivolous and in bad faith.^^ The semi driver
appealed.

Quoting Grubnich v. Renner,^^ the court explained:

A defense is "frivolous" (a) if it is made primarily to harass or
maliciously injure another, (b) if counsel is unable to make a good faith
and rational argument on the merits of the action, or (c) if counsel is

unable to support the action by a good faith and rational argument for

extension, modification, or reversal of existing law. A defense is
"unreasonable" if, based upon the totality of the circumstances,

including the law and facts known at the time, no reasonable attorney
would consider the defense justified or worthy of litigation. A defense
is "groundless" if no facts exist which support the defense relied upon

and supported by the losing party.
^^

The court noted specifically the many occasions when the driver had the
opportunity to review the facts, the admission of facts that were contrary to his

comparative fault defense theory, and his "repeated[] refus[al] to settle the issue

of liability while continuing to advance a theory that he had no evidence to

support."^^ Stressing that the holding should be limited to the facts and

expressing concerns that the holding may have detrimental effects on settlement
negotiations if expanded, the court clarified:

Where it is clear that liability lies with one party, we encourage
settlement of that issue without fear of the imposition of sanctions. It is

only in the clearest of cases where an affirmative defense is frivolous,

unreasonable, or groundless, yet is maintained until liability is admitted

during the trial that costs and attorney's fees will be appropriate

sanctions.
^"^

Although the court focused on the impact of its holding on settlement, the

language of its holding may actually serve the opposite purpose. As written, the
court suggests it is the admission of liability during trial that is the trigger for the

bad faith finding rather than the absence of evidence in support of the defense.

Framed this way, the holding discourages the admission of liability and may
cause a defendant to choose silence on the issue, forcing a jury verdict, in order

to avoid the risk of a bad faith finding even when the evidence clearly would
support only one outcome.

59. Id.

60. Id.

61. 746 N.E.2d 111 (Ind. Ct. App. 2001).

62. Stoller, 833 N.E.2d at 55 (quoting Grubnich, 746 N.E.2d at 1 19).

63. Id. at 56.

64. Id.



2006] TORT LAW 1297

3. Is Mitigation ofDamages Evidence of Comparative Fault?—In Kocher
V. Getz^^ the Indiana Supreme Court revisited an issue previously decided in
Deible v. Poole^^ which was expressly adopted by the supreme court,^^ but the
holding of which the court of appeals refused to follow in Kocher^'^ At the jury

trial in Kocher, the defendant claimed that "the plaintiff failed to mitigate her

damages [because] she made insufficient efforts to find replacement part-time
employment . . . after the accident."^^

The court explained that the Comparative Fault Act (the "Act") provides, in
part, that the term fault "also includes unreasonable assumption of risk not

constituting an enforceable express consent, incurred risk, and unreasonable

failure to avoid an injury or to mitigate damages ''^^ Explaining Deible, which
addressed this portion of the Act, the court noted that "the obligation of a

plaintiff to mitigate damages customarily refers to the expectation that a person

injured should act to minimize damages after an injury-producing incident."'''

This is different from the allocation of fault under the Act, as the "'[fjailure to

minimize damages does not bar the remedy, but goes only to the amount of

damages recoverable.'"^^ Thus, the trial court's refusal of the defendant's

profferedjury instruction was consistent with the court's adoption of Deible and
should have been affirmed by the court of appeals. Agreeing with Judge

Vaidik's dissent in AToc/i^r, the court explained:

In cases arising under the Act, a defense of mitigation of damages based

on a plaintiffs acts or omissions occurring after an accident or initial

injury is not properly included in the determination and allocation of

"fault" under the Act. The phrase "unreasonable failure to avoid an
injury or to mitigate damages" included in the definition of "fault" under

Indiana Code § 34-6-2-45(b) applies only to a plaintiff's conduct before
an accident or initial injury. An example of such unreasonable failure
to avoid an injury or to mitigate damages would be a claimant's conduct
in failing to exercise reasonable care in using appropriate safety devices,

e.g., wearing safety goggles while operating machinery that presents a

substantial risk of eye damage.^^

The practitioner may want to review the case for style. In footnote three, the
court explained that it wrote the opinion as an experiment, following the style

65. 824 N.E.2d 671 (Ind. 2005).

66. Deible v. Pode, 691 N.E.2d 1313 (Ind. Ct. App.), aff'd, 702 N.E.2d 1076 (Ind. 1998).

67. 702 N.E.2d 1076 (Ind. 1998).

68. /i:oc/i^r, 824 N.E.2d at 674.

69. Id. at 673.

70. Id. (quoting iNfD. CODE § 34-6-2-45(b) (2005) (emphasis added by the court)).

71. /^. at 674.

72. Id. (quoting Deible v. Pode, 691 N.E.2d 1313, 1316 (Ind. Ct. App.), aff'd, 702 N.E.2d

1076 (Ind. 1998)).

73. Id. at 674-75 (internal citations omitted).



1298 INDIANA LAW REVIEW [Vol. 39:1289

recommendations of Bryan Gamer in The Winning BriefJ^ Noting that the style
did not meet with universal approval/^ the court asked for comments from the
public, the bench and the bar.

4. Supervising Parent as Nonparty.—In Witte v. Mundy ex rel. Mundy^^ the
Indiana Supreme Court addressed a question of law for which there was no prior
clear precedent. In Witte, a five-year-old child was struck by a car driven by a
minor, and the child's mother filed suit, both as her child's next friend and on her

own behalf.^^ Among other things, the driver asserted the mother's negligent
supervision as an affirmative defense. Just two days before trial, the mother was
permitted to dismiss without prejudice her individual claim. The child sought to
preclude evidence ofher mother's negligent supervision. In response, the driver,

who had resisted the dismissal, sought leave to amend her answer to name the
mother as a nonparty. The trial court granted the child's motion in limine
regarding her mother's negligent supervision and denied the driver's motion to

add the mother as a non-party.^^

At trial, over the child's objection, the trial court permitted the defendant to

question the mother about her supervision of the child and to question the child

about her bicycle safety training. The jury returned a defense verdict, and the
child filed a motion to correct error, alleging that permitting the driver to solicit

information regarding negligent supervision violated the court' s prior order. The
trial court granted the motion to correct error, and the driver appealed.^^ The
court of appeals affirmed the grant of a new trial on grounds that the trial court
should have allowed the defendant to name the mother as a nonparty.

On transfer, the supreme court agreed with the court of appeals that the
mother was a proper non-party.*® Although a child under seven is considered to
be of such tender years that she is incapable of judgment or discretion and

therefore not capable of negligence, "[i]t is another thing to conclude that an

adult's negligent supervision cannot be a contributing cause to the child's injury

relieving a third party of some or all liability."**

[U]ntil 1995, a "non-party" was defined as "a person who is, or may be
liable to the claimant in part or in whole for the damages claimed but

who has not been joined in the action as a defendant by the claimant."
Under that definition, it would not have been proper to [name the
mother] a nonparty because, as [the child's] mother, she would not be
liable [for her child's] injuries. However, the definition of nonparty was
amended in 1995 to define a nonparty as "a person who caused or

74. Id. at 673 n.3 (citing Bryan Garner, The Winning Brief 139-47 (2d ed. 2004)).

75. Id. (citing Richard A. Posner, Against Footnotes, 38 COURT REV. 24 (Summer 2001)).

76. 820 N.E.2d 128 (Ind. 2005).

77. Mat 131.
78. Id.

79. Id.

80. Id. at 133.

81. Id.



2006] TORT LAW 1299

contributed to cause the alleged injury, death, or damage to property but
who has not been joined in the action as a defendant." This provision
was presumably [changed] to permit employers of injured workers to be
named as nonparties even though under workers compensation law they
have no tort liability to a worker injured by accident on the job.*^

As the court observed, the whole purpose of the comparative fault statute is to
make a tortfeasor liable to an injured person in proportion to the tortfeasor's
fault.^^ Thus, even though the mother would have been immune from suit by her
child, the defendant should have been allowed to name her as a nonparty so that
the jury could have determined whether any fault on the part of the mother

contributed to causing the accident.^"^ Although it was error to refuse to add the
mother as a nonparty and to instruct the jury on comparative fault, the error was
not grounds for a new trial because it was invited by the child.^^ Under the
doctrine of invited error, which is grounded in estoppel, "a party may not take
advantage of an error that she commits, invites, or which is the natural

consequence of her own neglect or misconduct."^^ Finally, while the grant of a
new trial is reversed only for an abuse of discretion, "an error of law is an abuse
of discretion."^^ Here, the trial court erred on a point of law, even though there

was no clear precedent, and as a result, it abused its discretion.
^^

5. Immunity Under the Guest Statute.—In KLLM, Inc. v. Legg^^ the Indiana
Court of Appeals considered two significant issues under the Indiana Guest

Statute for which there was no direct Indiana precedent: first, when a rider's
status is determined for purposes of the guest statute, and, second, the definition

of "in or upon" under the statute.^^ The Indiana Guest Statute is in derogation of

82. Id. (internal citations omitted) (quoting IND. CODE §§ 34-4-33-2(a) (1995); 34-6-2-88

(2004)).

83. Id.

84. Id.

85. Id.

86. Id. at 134 (internal quotation marks omitted) (citation omitted).

87. Id. (internal quotation marks omitted).

88. Id.

89. 826 N.E.2d 136 (Ind. Ct. App.), trans, denied (Ind. 2005).

90. Id. at 141-44. The court cites Indiana Code section 34-30-11-1, the Indiana Guest

Statute, which provides:

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

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

(1) the person's parent;

(2) the person's spouse;

(3) the person's child or stepchild;

(4) the person's brother;

(5) the person's sister; or

(6) a hitchhiker;

resulting from the operation of the motor vehicle while the parent, spouse, child or



1300 INDIANA LAW REVIEW [Vol. 39: 1289

the common law and must be strictly construed, which the court explained
"involves a close, conservative adherence to the literal or textual

interpretation."^' After discussing the history of the Indiana Guest Statute, the

court of appeals rejected the personal representative's argument that the

hitchhiker, picked up by a truck driver in Tennessee, ceased being a hitchhiker

in Louisville, Kentucky, when the driver offered to let him continue to ride with
him to Indiana after the hitchhiker was unable to connect with his girlfriend in
Louisville. The statute provides that a hitchhiker is "a passenger who has
solicited a ride in violation of [Indiana Code section 9-21-17-16],"^^ which
prohibits a person from standing in the road "for the purpose of soliciting a ride

. . . unless the person ... is faced with an emergency on the roadway."^^ Finding

no Indiana law on the subject, the court considered cases from the Missouri

Supreme Court^"^ and the Washington Supreme Court^^ and concluded that the
decedent was a hitchhiker at the beginning of the journey and, "[b]ecause there

was no interruption in their journey," his status did not change.^^

As to the second question, whether the hitchhiker was "in or upon" the
vehicle at the time of his injuries,^^ the court again found no controlling Indiana

law. Analogizing from an insurance case construing the term, however, the court

agreed with the interpretation given to "upon" in that case and concluded that a

person "is not required to be physically inside the vehicle at the time" of the

accident, but may be "'upon' a motor vehicle if a sufficient relationship exists
between that person and the vehicle" at the time of the accident.^^ In this case,

the hitchhiker left the vehicle only temporarily to assist the driver in backing the

vehicle into a parking space. The undisputed evidence indicated that both
intended he would re-enter the vehicle and continue the journey. In contrast, the
actions of the child in C.M.L. ex rel. Brabant v . Republic Services^"^ were not in

stepchild, brother, sister, or hitchhiker was being transported without payment in or

upon the motor vehicle unless the injuries or death are caused by the wanton or willful

misconduct of the operator, owner, or person responsible for the operation ofthe motor

vehicle.

IND. Code § 34-30-1 1-1 (2005).

91. KLLM, 826 N.E.2d at 140 (citing C.M.L. ex rel Brabant v. Republic Servs., Inc., 800

N.E.2d 200, 208-09 (Ind. Ct. App. 2003)).

92. M at 141 (quoting iND. Code § 34-6-2-57 (2005)).
93. Id,

94. Lines v. Teachenor, 273 S.W.2d 300, 303 (Mo. 1954) ("The general rule is that the status

of a rider is determined at the outset of the trip.").

95. Bateman v. Ursich, 220 P.2d 314, 315 (Wash. 1950) ("[T]he nature of the relationship

between the operator . . . and a rider therein is to be determined as of the time of the beginning of

the transportation.").

96. KLLM, 826 N.E.2d at 142.

97. Id. at 143.

98. M. at 144.

99. 800 N.E.2d 200 (Ind. Ct. App. 2003). The court of appeals held that the guest statute did

not bar a child's negligence action against his stepfather and his stepfather's employer because the



2006] TORT LAW 1301

"furtherance of his and his stepfather's journey." ^^ Accordingly, the hitchhiker

was "in or upon" the vehicle at the time of his injury, and his claim was barred
by the Guest Statute.

^^^

n. Wrongful Death'^^

In Horn v. Hendrickson,^^^ the court ofappeals followed the Indiana Supreme
Court's holding in Bolin v. Wingert,^^ that "only children born alive fall under

Indiana's Child Wrongful Death Statute."^^^ Horn was six months pregnant and
her unborn fetus died as a result of an automobile collision. She sued the

defendant driver for the wrongful death of her fetus, and the driver moved to
dismiss for failure to state a claim. Although the defendant conceded that the

six-month-old fetus was viable, she argued that under Bolin, there is no wrongful
death claim for the death of an unborn child.

*^^

In affirming the dismissal of the claim, the court was bound to apply the
controlling precedent of Bolin, although it recognized an important factual

distinction between Bolin and this case: Horn's unborn child was viable, while
Bolin involved an eight to ten-week-old fetus. '°^ However, the court reasoned
that the Indiana Supreme Court's holding in Bolin "categorically precludes all
parents from bringing a wrongful death claim for the death of a viable or non-
viable fetus."'^'

As a matter of first impression, the court found that the Bolin opinion, as
applied to the facts of Horn, renders the child wrongful death statute

unconstitutional under the Equal Privileges and Immunities Clause of Article I,

Section 23 of the Indiana Constitution. '°^ The court concluded that "there are no
inherent differences between parents of a child bom alive and parents of a viable
fetus."* ^° Nevertheless, the court affirmed the dismissal because it did not "hold

that the statute is unconstitutional on its face but that it is unconstitutional as
interpreted by our supreme court."**' As such, the court could not attempt to

boy was not "in or upon" the garbage truck driven by his stepfather when he was struck. Id. at 209.

The boy had exited the vehicle to urinate. Id.

100. /^LLM, 826 N.E.2d at 144.

101. Id.

1 02. For discussion ofcases involving the wrongful death statutes and the Medical Malpractice

Act, see infra Part VI.F.

103. 824 N.E.2d 690 (Ind. Ct. App. 2005).

104. 764 N.E.2d 201 (Ind. 2002).

105. Horn, 824 N.E.2d at 693, 703.

106. Id.

107. See id. at 694.

108. Id.

109. Mat 701.
110. Id.

111. Mat 703.



1302 INDIANA LAW REVIEW [Vol. 39: 1289

overrule Bolin indirectly on constitutional grounds.''^

The court of appeals strongly suggested that the supreme court reconsider its
holding in Bolin}^^ However, it does not appear that Horn petitioned for transfer

to the supreme court, so it will be interesting to see if the supreme court revisits

the issue if given the opportunity in the future.

HI. Intentional Torts

A. Malicious Prosecution

As a matter of first impression, the court of appeals held that a claim for
malicious prosecution may be based on a counterclaim.^"^ In this case, an
attorney sued his client to recover his fees, and the client asserted a counterclaim

for legal malpractice. The attorney then brought a claim for malicious
prosecution of the legal malpractice claim. After analyzing cases from other

jurisdictions, the court concluded that the "filing of a counterclaim constitutes

an initiation of a proceeding" and, therefore, may support a claim for malicious
prosecution.

^^^

The court also held that a malicious prosecution claim is not collaterally
estopped by the denial of a motion for sanctions under Rule 1 1 or Indiana Code
section 34-52- 1 - 1 . ^ ^^ In the underlying case, the attorney won summaryjudgment
both on his claim for unpaid fees and the malpractice claim. The attorney also
sought attorney fees for "obdurate behavior" under Indiana Code section 34-52-
1-1 and Indiana Trial Rule 11, but his request was denied. In rejecting the
client's argument that the attorney was collaterally estopped from bringing the
malicious prosecution action, the court explained that the elements which must

be shown to obtain statutory attorney fees under Indiana Code section 34-52-1-1

are not identical to the elements that must be shown to establish malicious
prosecution.'*^

B. Spoliation ofEvidence

1. First Party Intentional Spoliation of Evidence,—Answering a certified
question from the United States District Court for the Southern District of

Indiana, in Gribben v. Wal-Mart Stores^ Inc.,^^^ the Indiana Supreme Court
concluded that Indiana law does not recognize a claim for "first-party" negligent

or intentional spoliation ofevidence. * '^ After considering the various approaches

112. Id.

113. Mat 695-96, 701.
1 14. Crosson v. Berry, 829 N.E.2d 184 (Ind. Ct. App.), trans, denied, 841 N.E.2d 186 (Ind.

2005).

115. Mat 191.
116. M. at 193-94, 196.

117. M. at 193-94.

118. 824 N.E.2d 349 (Ind. 2005).

119. Mat 355.



2006] TORT LAW 1303

taken in other states, the court concluded:

Notwithstanding the important considerations favoring the recognition

of an independent tort of spoliation by parties to litigation, we are
persuaded that these are minimized by existing remedies and outweighed

by the attendant disadvantages. We thus determine the common law of
Indiana to be that, if an alleged tortfeasor negligently or intentionally

destroys or discards evidence that is relevant to a tort action, the plaintiff

in the tort action does not have an additional independent cognizable

claim against the tortfeasor for spoliation ofevidence under Indiana law.

It may well be that the fairness and integrity of outcome and the
deterrence ofevidence destruction may require an additional tort remedy
when evidence is destroyed or impaired by persons that are not parties
to litigation and thus not subject to existing remedies and deterrence.

But the certified questions are directed only to first-party spoliation, and

we therefore decline to address the issue with respect to third-party
spoHation.^^"

2. Third Party Spoliation.—The Indiana Court of Appeals held, in
Glotzbach v. Froman,^^^ that the exclusivity provisions of the Worker's

Compensation Act did not preclude a third party spoliation claim because the

spoliation claim is not a "personal injury" claim within the scope of the Act.'^^

The supreme court granted transfer on November 9, 2005.'^^ The reader should
be aware of the transfer and watch for further developments.

C. Fraud

1. Constructive Fraud Based on Promise ofFuture Conduct.—In Siegel v.
Williams, ^^"^ the court addressed the issue of constructive fraud based on a

promise of future conduct in a case involving an attorney's representations to his

former clients that fraudulently induced them to settle their legal malpractice
claim. The clients filed a malpractice claim against their lawyer and the lawyer
told his former clients' new lawyer that he would settle the claim for $25,000
because that was all he had and if the former clients were awarded a judgment
over $25,000, he would file for bankruptcy. *^^ When the clients later discovered
that this was untrue, they filed an action against their attorney for fraudulent
inducement to settle and were awarded a judgment of $100,000.'^^

120. Id.

121. 827 N.E.2d 105 (Ind. Ct. App.), reh'g denied, trans, granted and opinion vacated, 841

N.E.2d 189 (Ind. 2005).

122. /e/. at 111.

123. 841 N.E.2d 189 (Ind. 2005).

124. 818N.E.2d510(Ind.Ct. App. 2004).

125. Mat 512.
126. Mat 513.



1304 INDIANA LAW REVIEW [Vol. 39: 1289

In affirming the judgment against the attorney, the court first held that there

was actual fraud based on the attorney's misrepresentation that he only had a

present ability to pay a judgment of $25,000.^^^ The court also found that the
lawyer's false threat to file bankruptcy if there was a judgment over $25,000
supported a claim for constructive fraud. '^^ Although a promise about future

conduct will not support a claim for actual fraud, it may form the basis for
constructive fraud if the promise induces someone "to place himself in a worse
position than he would have been in . . . and if the party making the promise

derives a benefit." '^^ The elements of constructive fraud were satisfied here.
Because the defendant was also an attorney of record in the malpractice case, the
clients' new lawyers had "'a right to rely upon any material misrepresentations
that may have been made by opposing counsel ... as a matter of law.'"*^^ In
addition, the clients' reliance benefited their lawyer because he was able to settle
the malpractice claim for less than it was worth and it placed the clients in a
worse position than they would have been otherwise. In the fraud action, an

expert testified that the clients' underlying negligence claim against Wishard

Memorial Hospital was worth between $100,000 and $150,000. However, the
clients settled that case because their lawyer failed to file a notice of tort claim

against the hospital as required under the Indiana Tort Claims Act.^^^

rv. Emotional Distress

A. Death ofa Fetus

In Ryan v. Brown,^^^ the mother developed severe blood pressure problems
in the thirty-fourth week of pregnancy which ultimately resulted in the fetus's
death in utero. The parents filed suit under the Medical Malpractice Act,
alleging the wrongful death ofthe baby, along with claims for negligent infliction

of emotional distress.
^^^ The court of appeals affirmed the trial court's

determination that the parents were barred by the Child Wrongful Death Statute

from seeking recovery for the fetus ' s death under the Medical Malpractice Act. '
^^

111. Mat 5 14.
128. Mat 516.
129. Mat 515.
130. M (quoting Fire Ins. Exch. v. Bell, 643 N.E.2d 310, 313 (Ind. 1994)).
131. M. at 5 1 2- 1 3. Note that client Marjorie Williams was not a patient at the hospital when

she was stuck by a hypodermic needle hidden in the bed of her daughter who had been diagnosed

with AIDS. Since she was not a patient of the hospital, her negligence claim against the hospital

lay outside the purview of the Medical Malpractice Act. See Peters v. Cummins Mental Health,

Inc., 790 N.E.2d 572, 577 (Ind. Ct. App. 2003). Accordingly, the tort claim notice was still

required. See Jeffries v. Clark Mem'l Hosp., 832 N.E.2d 571, 573 (Ind. Ct. App. 2005), discussed

in infra Part VI.H.

132. 827 N.E.2d 112 (Ind. Ct. App. 2005).

133. Mat 116.
134. Mat 117-18.



2006] TORT LAW 1305

Rejecting the doctor's argument that the parents could not maintain

emotional distress claims once the wrongful death claim was dismissed, the court

concluded that the mother had suffered the necessary impact under Shuamber v.
HendersoW^^ because of the impact the miscarriage had on her physical

condition. ^^^ Thus, the mother was entitled to pursue her claims and could

recover "all emotional damages that she suffered that are directly related to her

miscarriage."^^^ The court reached a similar conclusion as to the father's claim.
Even though the father did not directly witness his son's death and only learned
of it from the doctor, he had to tell his wife of the death. Moreover, he was
present when the doctor unsuccessfully attempted to induce labor, rode with his
wife in the ambulance as she was transferred to another hospital, was present
when the baby was finally delivered, and held his dead son after the delivery. ^^^

These facts were sufficient to support a claim under the bystander rule.'^^

B. The Impact Rule and Prior Relationship

In Helsel v. Hoosier Insurance Co,,^^^ the court of appeals considered an

issue of first impression, whether the lack of a prior relationship precluded

recovery for negligent infliction of emotional distress. The plaintiff was
traveling by motor vehicle when another vehicle crossed the centerline in front
of and collided with his vehicle. ^"^^ The plaintiff observed the head of the
passenger in the other vehicle coming toward his window, but lost sight of him
when his airbag deployed. After the impact, the plaintiff noticed that no one in
the other vehicle was moving and assumed the passenger had died. This

information was confirmed by a paramedic in the ambulance. ^"^^ He later learned
that the driver of the other vehicle had also died. The plaintiff did not know
either the passenger or the driver. When he filed suit for his injuries, he alleged,
among other claims that he suffered psychological injuries as a result of
witnessing the other people's deaths.

'"^^

Although finding no Indiana case "in which a plaintiff obtained recovery

when the victim was not at least an acquaintance," the court concluded "there is
no relationship requirement contained in the direct impact test," which requires

only "'an emotional trauma which is serious in nature and of a kind and extent

normally expected to occur in a reasonable person.
'"^"^"^

Because the plaintiff was

directly involved in the impact and may proceed under the direct impact test, his

135. 579 N.E.2d 452 (Ind. 1991).

136. /?};««, 827 N.E.2d at 119-21.

137. /J. at 121.

138. Mat 122-23.
139. Mat 124.
140. 827 N.E.2d 155 (Ind. Ct. App.), trans, denied, 841 N.E.2d 181 (Ind. 2005).

141. Mat 156.
142. Id.

143. Id.

144. Id. at 157 (quoting Shuamber v. Henderson, 579 N.E.2d 452, 456 (Ind. 1991)).



1 306 INDIANA LAW REVIEW [Vol. 39: 1289

lack of prior relationship was no bar to recoveryJ"*^ Moreover, even though the
plaintiff did not directly see the other persons' deaths, the evidence regarding

what he saw immediately before his airbag deployed was sufficient to survive

summary judgmentJ"^^

C The Impact Rule and Property Damage
In Ketchmark v. Northern Indiana Public Service Co.^^^ the court of appeals

refused to extend negligent infliction of emotional distress to cover claims for

property damage where "there was no impact to the plaintiffs' persons, the
plaintiffs were not the bystanders ofan accident with impact on [another person],

and . . . there was no threat of injury to either of the plaintiffs' persons."'"^^ The
plaintiffs filed claims for emotional distress when their home of forty-five years
exploded due to a natural gas leak related to work being done by the gas company
on the plaintiffs' gas lines and gas meter. ^"^^ Fortunately, the plaintiffs had left

the house shortly before the explosion and learned of it only upon returning home
after dinner.

*^^

Judge Crone dissented, noting that the "'impact rule' is a legal fiction that

was created to protect juries from the difficult task of evaluating claims in which

the alleged damages might be fraudulent, i.e., emotional trauma."'^' After
explaining the history of the rule. Judge Crone noted that Indiana courts have

undercut the rule significantly and urged that:

the time has come to clear the decks of the so-called "impact rule" and
to allow the tort of negligent infliction of emotional distress to stand on

its own inherent elements. If we trust jurors to determine whether a
criminal defendant should live or die, then we should consider them
capable of deciding whether a claimant's serious emotional trauma is

both legitimate and reasonable, without imposing any artificial

impediment to recovery.
'^^

V. Legal Malpractice

In Price v. Freeland^^^ the court of appeals reversed the trial court's denial

of the defendant's motion for summary judgment on both proximate cause and
damages. '^"^ The bankruptcy trustee for Consolidated Industries hired lawyer

145. Id.

146. Id.

147. 818 N.E.2d 522 (Ind. Ct. App. 2004).

148. Id at 523.

149. Id at 522-23.

150. Id at 523.

151. Id. at 526 (Crone, J., dissenting).

152. Id at 526-27.

153. 832 N.E.2d 1036 (Ind. Ct. App. 2005)

154. Id at 1044.



2006] TORT LAW 1307

Gary Price to bring a declaratoryjudgment action against its insurers to establish

coverage as to class action claims allegedly arising from defective furnaces

manufactured by Consolidated. At the direction of the bankruptcy judge, Price

entered into a stipulation with the insurers as to what constituted an "occurrence"

under the policy. ^^^ Daniel Freeland, as bankruptcy trustee of the Estate of

Consolidated, subsequently sued Price and his firm alleging that in stipulating as

to the meaning of "occurrence," Price had committed malpractice.

Freeland filed an affidavit in opposition to Price's motion for summary
judgment. The court found the affidavit to be improper with respect to
Freeland' s assertion that the stipulation "is not an accurate statement of the

law."^^^ The court explained that such an assertion is a legal conclusion, which
is inadmissible under Indiana Evidence Rule 704(b). '^^ The court found that
there was no genuine issue of material fact as to proximate cause because the
stipulation as to the meaning of occurrence under the policy was not binding on
the bankruptcy court. ^^^ In fact, the stipulation was a nullity because "'questions
of law are beyond the power of agreement by the attorneys or parties. '"^^^ As
such, it could not be the proximate cause of any harm to Freeland.

Finally, the court found there was no evidence ofdamage to Freeland. *^^ The
parties reached a settlement in the declaratoryjudgment action, and Consolidated

did not have to pay anything to individual claimants.
'^^

VI. Medical Malpractice

A. Physician Duty to Warn

In Cox. V. PauU^^^ the Indiana Supreme Court held "that a health care
provider who receives notice of possible dangerous side effects of a treatment is
not strictly liable for failure to warn a patient who [previously] received the
treatment from the provider."^^^ However, the provider "may be held liable for
failure to make reasonable efforts to warn the patient."

^^"^

Cox, a former patient, filed suit against an oral surgeon alleging that he

breached a duty to warn of a government recall of a type of dental implant that

the surgeon had used on the patient in 1984. In late 1989, the patient began to

experience various symptoms, including vertigo, neck pain, headaches, fatigue,

and insomnia. The symptoms progressed but her family doctor could not identify

155. /J. at 1038-39.

156. Mat 1042.
157. Id.

158. /^. at 1043.

159. Id. (quoting Yelton v. Plantz, 77 N.E.2d 895, 899 (Ind. 1948)).

160. Mat 1043-44.
161. Id.

162. 828 N.E.2d 907 (Ind. 2005).

163. Mat 909.
164. Id.



1308 INDIANA LAW REVIEW [Vol. 39: 1289

their cause. In September 199 1 , the surgeon received an announcement from the

FDA of a recall of Vitek implants. ^^^ In early 1992, the surgeon instructed his
staff to search patient files to identify any patients who had received the
implants. For an unknown reason, his staff conducted a second search in 1994.
However, Cox was not identified and notified of the recall until 1996. A
subsequent MRI revealed that Cox's implants were extensively damaged. '^^

The court held that Cox "raised an inference that [the surgeon] was negligent
by showing that he did not notify [her] until several years after he received the

[recall] notice."'^^ Therefore, under the doctrine of res ipsa loquitor, once Cox
showed that she was not notified of the recall, the burden shifted to the surgeon

"to explain what steps he took to notify [her] or why no steps were taken." '^^

The surgeon testified that he did not know why Cox was not identified until 1996
and hypothesized that her file might not have been in the office at the time his

staff searched for patients with the implant (explaining that he had separated his

practice from another doctor in 1989). The court then concluded that the surgeon
failed to meet his burden and that Cox was entitled to partial summaryjudgment
as a matter of law.^^^

B. Res Ipsa Loquitor

In Baflour v. Kimherly Home Health Care, Inc.,^^^ the court of appeals
addressed the doctrine of res ipsa loquitur, noting that the doctrine is "especially

applicable in cases where ... a health care provider leaves a foreign object in a

patient's body."^^' The defendant health care company provided post-operative
abdominal wound care for Balfour after liposuction. Balfour alleged that a nurse
left a piece of 4x4 gauze in her wound.

^^^

In holding that the trial court erred in entering summary judgment for the
home health care company, the court found that there was a genuine issue of
material fact as to whether the company was negligent in failing to remove the
gauze. ^^^ Although Balfour could not prove the exact date of negligence, the

evidence showed that the gauze was placed in the wound at some point between
March 12 and 16, 1999, and was present on March 16, when the defendant was
"the only health care provider in charge of [Balfour's] wound care" and the
defendant's nurse changed the dressing. ^^"^ Thus, the nurse had "exclusive

control of the injuring instrumentality at that time and it was [her] responsibility

165. Mat 909-10.
166. M. at 910.

167. Mat 912.
168. Id.

169. Mat 913-14.
170. 830 N.E.2d 145 (Ind. Ct. App. 2005).

171. Id. &t 149.

172. Id. at 147.

173. Id at 147-48.

174. Mat 149.



2006] TORT LAW 1309

to exercise reasonable care in removing all 4x4' s from the wound."*^^ The court
found that the inference of negligence created by the res ipsa loquitur doctrine

was sufficient to defeat a summaryjudgment motion, even though the defendant
presented some evidence tending to establish the lack of negligence.

'^^

In another medical malpractice case, Ross v. Olson,^^^ the plaintiff was not

entitled to a res ipsa loquitor instruction where he alleged that during his bilateral

knee replacement surgery a surgical chisel partially severed his artery. '^^ The
court of appeals explained that the doctrine of res ipsa loquitor was "designed to
create an evidentiary presumption of negligence from circumstantial evidence,"

but here, "there was direct evidence of causation."'^^ Expert witnesses who
testified agreed that the chisel severed his artery, although they disagreed

concerning the exercise of due care.^^°

C. Statute ofLimitations in Class Actions

In Ling v. Webb,^^^ the court of appeals held that the filing of a proposed

medical malpractice class action complaint with the medical review board does

not toll the two-year statute of limitations under the "Class Action Tolling

Rule."^^^ Under that rule, "'the commencement of a class action suspends the
applicable statute of limitations as to all asserted members of the class who
would have been parties had the suit been permitted to continue as a class

action.
'"'^^

Citing Indiana Trial Rule 3, which states that a "civil action is

commenced by filing with the court a complaint or such equivalent . . .
document," the court concluded that the filing of a proposed class action

complaint with the medical review board does not commence an action for
purpose of the Class Action Tolling Rule.*^"^

The court noted that its holding was consistent with provisions of the
Medical Malpractice Act, including Indiana Code section 34-18-8-7, which
permits claimants to simultaneously file a proposed complaint with the

Department of Insurance and a complaint in the trial court, as long as the court

complaint does not contain information identifying the defendants.
^^^

175. Mat 149-50.
176. Id. at 150.

177. 825 N.E.2d 890 (Ind. Ct. App.), trans, denied, 841 N.E.2d 181 (Ind. 2005).

178. /J. at 893-94.

179. /^. at 894.

180. Id.

181. 834 N.E.2d 1 137 (Ind. Ct. App. 2005).

182. Id. at 1145.

183. Id. at 1141 (quoting Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974)
(emphasis added by court)).

184. Id. at 1 142 (quoting IiSFD. TRIAL R. 3 (emphasis added by court)).

185. Id. at 1 143-44; iND. CODE § 34-18-8-7 (2005).



1310 INDIANA LAW REVIEW [Vol. 39: 1289

D. Increased Risk ofHarm/Loss of Chance

In Sawlani v. Mills, ^^^ the court of appeals addressed the issue of the proper

jury instruction on damages in a case involving a radiologist' s failure to diagnose

breast cancer from a mammogram where the plaintiff had not yet sustained any
physical harm as a result of the radiologist's alleged negligence. Mills had a
mammogram in September 1997, which was interpreted by Dr. Sawlani. ^^^ She
had another mammogram twenty months later and was diagnosed with breast
cancer. She then underwent a lumpectomy, radiation, and chemotherapy.'^^

The court observed that in Alexander v. Scheid,^^^ the Indiana Supreme Court
has adopted the "loss of chance" doctrine for cases such as this where the injury

resulting from the negligence has not yet "come to its full potential."'^ The
court distinguished this type of case from situations, such as that addressed by

the Indiana Supreme Court in Mayhue v. Sparkman^^^ where a physician is
negligent and the patient dies, but the patient's illness already results in a

probability of dying that is greater than fifty percent.
'^^

In rejecting the physician's proposed jury instruction, the court explained

that, as indicated by the supreme court in Scheid, damages in a loss of chance

case are not the same as damages in a case governed by Section 323 of the

Restatement.'^^ Damages for loss ofchance are "based upon 'the reduction ofthe
patient's expectancy from her pre-negligence expectancy' and the jury must

'attach a monetary amount' to the patient's loss of life expectancy." '^"^ The court
then concluded that "the trial court's damages instruction, while not as complete

as it should be, was not an erroneous statement of the law."'^^

E. Informed Consent

In Mullins v. Parkview Hospital, Inc.,^^^ a patient stated a claim for battery

where she did not consent to a medical student's presence in the operating room
or the student's performance of a medical procedure. '^^ Although the patient

Mullins made it very clear that she did not even want students in the operating

186. 830 N.E.2d 932 (Ind. Ct. App.), trans, denied, 841 N.E.2d 188 (Ind. 2005).

187. Id. Sit935.

188. /^. at 935-36.

189. 726 N.E.2d 272 (Ind. 2000).

190. Sawlani, 830 N.E.2d at 939 (citing Scheid, ll(i N.E.2d at 273).

191. 653 N.E.2d 1384 (Ind. 1995) (adopting RESTATEMENT (SECOND) OF TORTS § 323

(1965)).

192. Sawlani, 830 N.E.2d at 939.

1 93

.

Id. at 947 (explaining that damages under the Restatement "are determined by subtracting

the decedent's postnegligence chance of survival from the prenegligence chance of survival" and

multiplying the total damages by the percent of chance lost).

194. Id. (quoting Scheid, 726 N.E.2d at 282).

195. Mat 948.
196. 830 N.E.2d 45 (Ind. Ct. App. 2005), reh'g denied (2006).

197. Id. at 51-52.



2006] TORT LAW 1311

room, her anesthesiologist and surgeon'^* allowed a student to perform an

intubation on Mullins prior to a hysterectomy. In performing the procedure, the

student lacerated Mullins' s esophagus and Mullins had to undergo a subsequent

procedure to repair the damage.*^

In concluding that Mullins stated a claim for battery, the court distinguished

a line of cases which held that claims "based on the doctrine of informed consent

sound in negligence" and not battery.^^ Here, it was not simply a matter of
whether Mullins gave informed consent but whether she had consented at all to

the procedure performed by the student.^®'

As to Mullins' s negligence claims, the court held that whether the hospital
complied with the standard of care in allowing the student to perform the

procedure was not within the common knowledge oflaypersons.^"^ Accordingly,
expert testimony was required regarding the issue of informed consent.^^^

F. Medical Malpractice Act Does Not Provide Independent Cause of
Actionfor Damagesfor Wrongful Death

The supreme court, in Chamberlain v. Walpole,^^ addressed the question of
whether non-pecuniary damages could be recovered under the Medical
Malpractice Act where such damages would not otherwise be available under the
Wrongful Death Act.^^^ It concluded that they may not because the Act does not
create new substantive rights or new causes of action.^^

Walpole's father died following surgery for a hernia repair, and Walpole

brought a malpractice action against the doctors seeking damages for loss of the

love, care, affection, and services of his father.^®^ Walpole conceded that, as a
non-dependent adult, he could not recover such damages under the Wrongful
Death Act, but argued that the Medical Malpractice Act should be interpreted to

create such a remedy independent ofthe Wrongful Death Act.^^* Walpole argued
that he fit within the Act's definition of "patient" because he was his father's

198. In a footnote, the court of appeals expressed concern that the same law firm represented

both the anesthesiologist and the surgeon, noting the potential for a conflict of interest. Id. at 50

n.l.

199. W. at 50-51.

200. Id. at 53-54 (citing Bowman v. Beghin, 713 N.E.2d 913, 916 (Ind. Ct. App. 1999) but

distinguishing the Mullins case based on Cacdac v. West, 705 N.E.2d 506, 511-12 (Ind. Ct. App.

1999)).

201. /^. at54.

202. Id at 57.

203. Idat5S.

204. 822 N.E.2d 959 (Ind. 2005).

205. /rf. at 960-61.

206. /rf. at963.

207. W. at 960-61.

208. W. at 961.



1312 INDIANA LAW REVffiW [Vol. 39:1289

representative and child, and that he could assert a derivative claim.^^^ The Act
states that a derivative claim includes "the claim of a parent or parents, guardian,

trustee, child, relative, attorney, or any other representative of the patient

including claims for loss of services, loss of consortium, expenses, and other

similar claims."^^° He reasoned that this language meant that he could pursue a
claim for "loss of his father's love, care and affection."^^^

The supreme court rejected his argument, explaining that the Act's

definition of a "patient" to include both the person who was injured and
a person who has a derivative claim . . . does not imply that the [Act]
creates a new claim . . . [but] merely requires that claims for medical
malpractice that are otherwise recognized under tort law and applicable

statutes be pursued through the procedures of the [Act].^^^

The court also noted that the Act was designed to limit, not expand liability for
medical malpractice.^

^^

Consistent with this reasoning, the court stated in Chamberlain that it agreed

with the reasoning of the court of appeals in Breece v. Lugo,^^^ and it was
denying transfer in that case, which held that the Medical Malpractice Act does

create a claim for death of a fetus. Similarly, in Ryan v. Brown,^^^ the court of
appeals held that the Medical Malpractice Act does not create a remedy separate
from the Indiana Wrongful Death of a Child Statute for the wrongful death of a

viable fetus.^^^ As the court observed, the Indiana Supreme Court previously
held, in Bolin v. Wingert,^^^ that "only children who are bom alive can bring a
claim under Indiana's Child Wrongful Death Statute."^^^ Therefore, the Ryans
could not bring a claim under the Wrongful Death Statute because their son was
not bom alive.^^^ Furthermore, the court held that, pursuant to Chamberlain,
because the Ryans could not bring a claim for their son's death under the Child
Wrongful Death Statute, they were also barred from bringing a claim for
wrongful death under the Medical Malpractice Act.^^^

209. Id.

210. Id. (citing Ind. Code § 34-18-2-22 (2005)).
211. Mat 961-62.
212. Mat 963.
213. Id.

214. 800 N.E.2d 224 (Ind. Ct. App. 2003).

215. 827 N.E.2d 1 12 (Ind. Ct. App. 2005); see supra Part II.D.

216. /^ya/z, 827 N.E.2d at 117-18.

217. 764 N.E.2d 201 (Ind. 2002).

218. Ryan, 827 N.E.2d at 1 17 (citing Bolin, 764 N.E.2d at 207).

219. Id.

220. Mat 117-18.



2006] TORT LAW 1313

G. Tort Claims Act Inapplicable

In Jejfries v. Clark Memorial Hospital,^^^ the Indiana Court of Appeals

clarified that a medical malpractice claim against a governmental entity, such as

the defendant county hospital, is governed exclusively by the Medical

Malpractice Act.^^^ As such, the plaintiff was not required to comply with the
notice provisions ofthe Indiana Tort Claims Act.^^^ The trial court had dismissed
the plaintiffs complaint after determining that the Tort Claims Act applied

because the *"[h]ospital is a political subdivision, but not a political subdivision

of the state.
'"^^"^ The court rejected the trial court's finding that a "political

subdivision" and a "political subdivision of the state" had distinct meanings, and

found that there was "no differentiation between" the two terms.^^^

H. Periodic Payments Agreement

The court of appeals addressed an issue of first impression regarding a
periodic payments agreement in Patient's Compensation Fund v. Hicklin?^^
Under the version of the Act applicable at the time, a health care provider was

liable for up to $100,000 per occurrence, and this liability could be discharged

by either paying the claimant the full $100,000 or by purchasing a periodic

payments agreement through a third party at a total cost of more than $75,000.^^^

Welbom Baptist Hospital had an agreement to make an immediate payment of
$75,000 to the patient's estate plus a future payment of $1 directly to the estate

one week later. The estate then sought excess damages from the Patient's
Compensation Fund.^^^

In reversing the trial court's denial of the Fund's motion to dismiss, the court

observed that "the 'cost of the periodic payments agreement' is defined as 'the

amount expended by the health care provider ... at the time the periodic

payments agreement is made, to obtain the commitment from a third party to
make available money for use as future payment. '"^^^ The court concluded that
the hospital's own two payments did not meet these requirements because there
was no periodic payments agreement purchased from a third party.^^^ As the
court described,

it is . . . clear that Section 4(b) permits health care providers and their

221. 832 N.E.2d 571 (Ind. Ct. App. 2005).

222. Mat 573.
223. Id. (citing iND. Code § 34-13-3-8 (2005)).
224. Id.

225. Mat 573-74.
226. 823 N.E.2d 705 (Ind. Ct. App. 2005).

227. Id. at 707-08 (citing Ind. Code § 34-18-14-2 to -4 (2005) (formerly Ind. Code § 27-12-

14-2 to -4 repealed by P.L. 1-1998, sec. 221)).

228. Mat 708.
229. Id. (quoting iND. CODE § 34-18-14-1).

230. Mat 708-09.



1314 INDIANA LAW REVIEW [Vol. 39:1289

insurers to save thousands of dollars by purchasing periodic payments

agreements in lieu of lump-sum payments, [but] nothing in the rationale

and policy underlying the Act indicates that the legislature intended that

a health care provider could satisfy its obligation under the statute by

making two direct payments to the claimant totaling $75,001.^^^

/. Contributory Negligence ofPatient

In Sawlani v. Mills,^^^ the court also addressed whether the patient's failure

to obtain a second mammogram within one year after her initial mammogram, as
advised by the defendant radiologist, was evidence ofcontributory negligence.^^^

In affirming the trial court's grant of judgment on the evidence, the court

explained that the doctor's alleged negligence was complete at the time of the
mammogram in September 1 997, and Mills' s alleged contributory negligence did
not occur until September 1 998 when she failed to have a second mammogram.^^"^
Because the patient's negligence was "wholly subsequent" to the alleged
malpractice, contributory negligence was inapplicable.^^^ However, the court
noted that an instruction on mitigation of damages was appropriate.^^^

J. No Cause ofAction Under Statute Imposing Duty ofHospital Peer Review

Longa V. Vicory^^^ was yet another case arising out of the tragic deaths at the
Vermillion County Hospital from 1993 to 1995, in which patients were murdered

by nurse Orville Lynn Majors. The families of patients who were murdered filed
proposed complaints "alleging in part that certain members of the hospital's
medical staff had committed medical malpractice [by] failing to provide proper

peer review" under Indiana Code section 16-21-2-7.^^^

Although the plaintiff conceded that there was no private right of action
under the statute,^^^ he argued that the doctors nevertheless had a "non-delegable

duty to provide peer review."^'*^ In rejecting the plaintiffs argument, the court

observed that "Indiana Code section 16-21-2-7 malces the medical staff

231. Mat 710.
232. 830 N.E.2d 932 (Ind. Ct. App.), trans, denied, 841 N.E.2d 188 (Ind. 2005); see supra

Part VI.D.

233. Mat 941-43.
234. Mat 943.
235. Id. (citing Harris v. Cacdac, 512 N.E.2d 1 138, 1 140 (Ind. Ct. App. 1987)).

236. Id.

237. 829 N.E.2d 546 (Ind. Ct. App. 2005).

238. Id. at 547. This case was before the court on interlocutory appeal of a certified question

from the Vermillion Circuit Court. Id. at 546.

239. See Roberts v. Sankey, 813 N.E.2d 1 195 (Ind. Ct. App. 2004), trans, denied, 831 N.E.2d

742 (Ind. 2005). In Roberts, another case arising out ofthe Vermillion County Hospital deaths, the

court held that this statute does not create a private right of action.

240. Z^/iga, 829 N.E.2d at 549.



2006] TORT LAW 1315

responsible for peer review to the governing board, not to patients or the general

public."^"^^ The court also noted that Indiana Code section 16-21-2-8 provides
peer review committee members with immunity.^"^^ The court reasoned that it
would be absurd to allow suits against doctors who are not members of the peer
review committee while immunizing those who are.^'^^ In so holding, however,
the court stressed the importance of peer reviews and noted that the plaintiffs

were not without a remedy, but they could not hold the defendant doctors

responsible for the alleged failures of the conunittee.^"^

vn. Premises Liability

A. Liability ofa Principal to the Independent Contractor or Its Employees

The Indiana Supreme Court granted transfer to consider liability of a
landowner to an independent contractor or its employees in PSI Energy, Inc. v.

Roberts^^^ an asbestos case tried before a jury. The plaintiffs claims centered
on two theories: premises liability and principal-independent contractor

vicarious liability.^"^^ Under the comparative fault act, thejury allocated thirty-six
percent of the fault to the employer/independent contractor.^"^^

The court considered whether any of the exceptions to the general rule that
a principal is not liable for the negligence of an independent contractor would

apply.^"^^ Indiana law recognizes five public policy-based exceptions to this

general rule, and the plaintiff asserted that two appHed in this case: "(1) the

'intrinsically dangerous' exception
—

'where the contract requires the

performance of intrinsically dangerous work,' and (2) the 'due precaution'

exception
—

'where the act will probably cause injury to others unless due

precaution is taken.
'"^"^^ Although acknowledging that it previously had

described asbestos as '"an inherently dangerous substance ... a toxic foreign

substance ... an inherently dangerous product . . . and a hazardous foreign

substance,
'"^^^

the court rejected the plaintiff s claim that asbestos is "inherently

or intrinsically dangerous."^^* The court explained, "[w]e agree that working
with asbestos can be perilous, but that is not enough to render it intrinsically

dangerous as that term is used to establish liability for actions of an independent

241. Id.

242. Id.\ IND. Code § 16-21-2-8 (2005).

243. Lowga, 829 N.E.2d at 549.

244. Id.

245. 829 N.E.2d 943 (Ind.), ajfd on reh 'g, 834 N.E.2d 665 (Ind. 2005).

246. Mat 948.
247. Mat 950.
248. Id.

249. Id.

250. Id. at 954 (quoting Covalt v. Carey Canada, Inc., 543 N.E.2d 382 (Ind. 1989)).

251. Mat 955.



1316 INDIANA LAW REVIEW [Vol. 39:1289

contractor."^^^ Even though the "consequences ofmesothelioma can be horrific,"

the court noted that proper precautions could have minimized the harms to the

plaintiff; therefore, "asbestos is not intrinsically dangerous such that anyone

hiring a contractor to address it incurs strict liability for injuries sustained from

exposure to it."^^^ The court then rejected the plaintiffs "due precaution"
argument, concluding that, absent circumstances that create unique hazards, the

responsibility of taking due precautions lies with the employer/independent

contractor, not with the principal.
^^"^

Having rejected all of the plaintiff's claims as to the vicarious liability of the

principal for the independent contractor' s actions, the court considered the claims

under premises liability theories. The court noted that landowners often hire
independent contractors because they have specialized tools and skills, which the

landowners are entitled to rely upon.^^^ "A principal who hires an independent
contractor to address a problem on [its] premises is no different from one who
engages a contractor for work elsewhere and should have no broader exposure
to liability for the contractor's acts."^^^ The principal has no duty to, in effect,
supervise the work of the independent contractor or to assure that it uses
appropriate safety equipment.^^^ Therefore, "a landowner . . . has no liability to

an independent contractor or the contractor's employees for injuries sustained

while addressing a condition as to which the landowner has no superior

knowledge."^^^

Justice Dickson, concurring in result and dissenting with a separate opinion

joined by Justice Rucker, stated:

I respectfully contend that the Court today employs unnecessary

draconian methodologies to provide protection for landowners and other

entities that employ independent contractors to eliminate or ameliorate
dangerous conditions. Except for genuine intrinsically dangerous

activities, such interests already receive significant protection under the

"due precautions" exception and Restatement § 343A(1). More
significant, I submit, is the constraint intrinsic to the comparative fault

allocation system itself.^^^

Noting the jury's allocation of fault, which Justice Dickson characterized as
showing "clear recognition of the significant role ofthe independent contractor,"

he concluded, "[j]ustice is better served by trusting the sound judgment of civil
juries than by erecting protective judicial doctrines."^^^

252. Id.

253. Id.

254. Id at 956.

255. /J. at 961.

256. Id

257. Id

258. Id

259. Id. at 968 (Dickson, J., dissenting).

260. Id.



2006] TORT LAW 1317

B. Duty to Protectfrom Third Party Criminal Acts

The court addressed the scope of a premises owner's duty in several cases
during the survey period. In Lane v. St. Joseph 's Regional Medical Center,^^^ the
court of appeals found that there is a duty to maintain protection for patients in

a hospital emergency room from harm by third parties.^^^ The plaintiff was
sitting in the waiting area when a teenage boy entered the hospital with his
mother.^^^ With no warning or provocation, the teenager suddenly began
attacking the plaintiff. The court noted that the hospital emergency room has a
much higher potential for violence than other areas because "[v]iolent and
intoxicated individuals, those involved in crimes, and people injured in domestic

disputes are routinely brought to the emergency room for treatment.
"^^"^

However, the court affirmed summary judgment for the hospital on grounds that
any breach of this duty was not the proximate cause of the plaintiffs injuries
based on the lack of foreseeability of the violence.^^^ The court held that, just as
the plaintiff had no reason to foresee this attack, neither did the hospital, and

therefore it was entitled to judgment as a matter of law.^^^

Judge Vaidick concurred in part and dissented in part, disagreeing with the

court's conclusion as to foreseeability. ^^^ Noting that the issue of proximate

cause is generally a question of fact for the jury, Judge Vaidick also noted that

although the plaintiff was surprised by the violence, this does not necessarily
mean that "a trained security officer stationed in or near the emergency room
would [not] have been able to prevent the attack by picking up on warning signs"

that a lay bystander might have missed.^^^

In Dennis v. GreyhoundLines, Inc. ,^^^ the court ofappeals found that genuine
issues of material fact precluded summary judgment when a bus passenger was
attacked in the restroom of the bus terminal.^^^ The court noted that this case
"exposes the distinct difference in Indiana's summary judgment procedure and
the federal procedure."^^^ Under the Indiana standard, "the party moving for
summary judgment has the burden of establishing no genuine issue of material
fact exists . . . [and] only when it has met this burden does the burden shift to the
nonmovant to establish that a genuine issue does exist."^^^ Unlike under the

261. 817 N.E.2d 266 (Ind. Ct. App. 2004).

262. Mat 273.
263. Mat 268.
264. Id. at 273.

265. M. at 273-74.

266. Mat 274.
267. Id. at 274-75 (Vaidick, J., concurring and dissenting).

268. Mat 275.
269. 831 N.E.2d 171 (Ind. Q. App.), trans, denied, 841 N.E.2d 188 (Ind. 2005).

270. M. at 175.

271. Mat 173.
272. Id.



1318 INDIANA LAW REVIEW [Vol. 39:1289

federal rule, "'[m]erely alleging that the plaintiff has failed to produce evidence

on each element [of his claim] is insufficient to entitle the defendant to summary
judgment. '"^^^ Noting that Greyhound designated evidence relevant to the issue

of whether it breached its duty, the court concluded that the evidence fell short

of establishing, as a matter of law, that it actually met its duty.^^"^ The court also

stated that Greyhound would have been entitled to summaryjudgment under the
federal rules, as the plaintiff had designated little evidence substantiating his

claim that Greyhound breached its duty of care.^^^

In Zambrana v. Armenta^^^ a bar patron brought suit after he was shot in a
gunfight between a bar employee and another patron. Addressing the bar

owner's duty, the court noted that the Indiana Supreme Court no longer requires
application of the "totality of the circumstances" test to determine duty, but now
requires only an inquiry into the issue of foreseeability, since the duty to business

invitees is well-settled.^^^ Landowners must "take reasonable precautions to

protect their business invitees from foreseeable criminal attacks."^^^ Because the

bar was located in East Chicago, in an area "where gang activity and crime were

prevalent," it was foreseeable that weapons brought onto the premises might lead
to escalating confrontations.^^^ In fact, the bar attempted to keep weapons out by
frisking male patrons. The guns at issue in this case were in the hands of the
bouncer and a patron who obtained the gun from a female patron who was not
searched on entry.^^^ Under these circumstances, the evidence supported a
finding of foreseeability, and therefore liability.^^^

vm. Torts Actions Against Government

A. Immunity Under the Indiana Tort Claims Act

1 . Law Enforcement Immunity.—
a. Collision caused during pursuit of suspect.—The Indiana Court of

Appeals issued conflicting opinions regarding whether police operating a vehicle

in pursuit of a suspect are immune under the law enforcement immunity
provision of the Indiana Tort Claims Act.^^^ Under Indiana Code section 34-13-
3-3, a governmental entity or employee is not liable for a loss resulting from

"[t]he adoption and enforcement of or failure to adopt or enforce a law (including

rules and regulations), unless the act of enforcement constitutes false arrest or

273. Id. (quoting Jarboe v. Landmark Cmty. Newspapers, 644 N.E.2d 1 18, 123 (Ind. 1994)).

274. Mat 174.
275. Id. at 175.

276. 819 N.E.2d 881 (Ind. Ct. App.), reh'g denied, and trans, denied (Ind. 2005).

277. Id. at 886-87 (citing Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048 (Ind. 2003)).

278. Mat 887.
279. Mat 888.
280. Id at 885.

281. M. at 888.

282. Ind. Code §§ 34-13-3-1 to -25 (2005).



2006] TORT LAW 1319

false imprisonment."^^^

In Chenoweth v. Estate ofWilson^^"^ the court of appeals held that the police

department was immune from liability to the estate of a driver killed in a
collision with a police officer that occurred while the officer was pursuing a
suspected drunk driver.^^^ The court reasoned that "'enforcement of the law' as
that phrase is used to evoke the application of immunity under the Act 'means

compelling or attempting to compel the obedience of another to laws.'"^^^ The
court found that the officer was attempting to enforce the law while he pursued
the suspect and was entitled to immunity as a matter of law.^^^

On the other hand, in East Chicago Police Department v. Bynum^^^ the court
affirmed the trial court's denial of summary judgment for a police department
under similar facts.^^^ The plaintiffs contended that Indiana Code section 34-13-

3-3(8) did not grant immunity for the police officers' alleged breach of their

statutory duty of reasonable care under various motor vehicle safety statutes,

including Indiana Code section 9-21-1-8.

Although acknowledging that the officers' "act of pursuing gang members
and a warrant violator would constitute enforcement of a law as contemplated by

[Indiana Code section] 34-13-3-3(8)," the court concluded that "the legislature
did not intend to abolish the duty of authorized emergency vehicle drivers to

drive with due regard for the safety of all persons."^^^

283. Id. § 34-13-3-3(A)(8).

284. 827 N.E.2d 44 (Ind. Ct. App. 2005).

285. Id. at 48.

286. Id. (quoting St. Joseph County Police Dep't v. Shumaker, 812 N.E.2d 1 143, 1 150 (Ind.

Ct. App. 2004), trans, denied, 831 N.E.2d 737 (Ind. 2005)).

287. Id.

288. 826 N.E.2d 22 (Ind. Ct. App. 2005).

289. Id. at 30.

290. Id. Ind. Code §9-21-1-8 (2005) provides:

a) This section applies to the person who drives an authorized emergency vehicle

when:

( 1

)

responding to an emergency call

;

(2) in the pursuit of an actual or suspected violator of the law; or

(3) responding to, but not upon returning from, a fire alarm.

(b) The person who drives an authorized emergency vehicle may do the following:

(1

)

Park or stand, notwithstanding other provisions of this article.

(2) Proceed past a red or stop signal or stop sign, but only after slowing down as

necessary for safe operation.

(3) Exceed the maximum speed limits if the person who drives the vehicle does

not endanger life or property.

(4) Disregard regulations governing direction of movement or turning in

specified directions.

(c) This section applies to an authorized emergency vehicle only when the vehicle is

using audible or visual signals as required by law. An authorized emergency

vehicle operated as a police vehicle is not required to be equipped with or display



1320 INDIANA LAW REVIEW [Vol. 39: 1289

In Patrick v. Miresso,^^^ relied on heavily by the court in Bynum, the court

concluded that to the extent there is an irreconcilable conflict between Indiana

Code section 34-13-3-3(8) (providing immunity) and section 9-21-1-8 (regarding
liability of drivers of emergency vehicles), section 9-21-1-8 prevails.^^^ In so

holding, the court noted that section 9-21-1-8 was enacted first and is more

specific. The court presumed that the legislature was aware of that section in
enacting section 34-13-3-3(8). The court also reasoned that "repeal by
implication" is disfavored and that the court must strictly construe the Indiana

Tort Claims Act. Accordingly, the court concluded that "the legislature did not

intend to abolish the longstanding duty of emergency vehicle drivers to 'drive

with due regard for the safety of all persons'" as required under section 9-21-1-

8(d)(l).^^^ Note that the Patrick case is currently before the Indiana Supreme

Court on a petition to transfer.^^"^

b. Failure to prevent suicide.—^The city was entitled to immunity for a
police officer's failure to prevent a suicide in Savieo v. City ofNew Haven?^^
Police responded to a family member's call regarding a threat by Jon Savieo to

shoot himself.^^^ Police officers and Savieo' s son then searched his home, but

did not search his person or the chair in which he was sitting. Savieo told them

he had sold the gun and made the suicide threat to get attention. One of the
responding officers, who was also a friend of Savieo, dismissed the other officers
and then asked Savieo to join him on the front porch to discuss matters. Savieo
then shot himself.

^^^

The court of appeals held that the city was immune from liability under the
law enforcement immunity provision of the Indiana Tort Claims Act.^^^ The
court rejected the plaintiff^ s argument that law enforcement immunity did not

apply because suicide is not a criminal act.^^^ As the trial court found, the police
officer could have detained Savieo pursuant to Indiana Code section 12-26-4-1,

which allows a police officer to detain a person if the officer has reasonable

grounds to believe that the person is mentally ill, dangerous, or in immediate

red and blue lights visible from in front of the vehicle,

(d) This section does not do the following:

( 1

)

Relieve the person who drives an authorized emergency vehicle from the duty

to drive with due regard for the safety of all persons.

(2) Protect the person who drives an authorized emergency vehicle from the

consequences of the person's reckless disregard for the safety of others.

291. 821 N.E.2d 856 (Ind. Ct. App.), trans, granted, 831 N.E.2d 747 (Ind. 2005).

292. /J. at 867-68.

293. Id.

294. 5^^ 831 N.E.2d 747 (Ind. 2005).

295. 824 N.E.2d 1272, 1275-76 (Ind. Ct. App.), trans, denied, 841 N.E.2d 178 (Ind. 2005).

296. Id at 1273.

297. Id.

298. Id at 1275-76 (citing Ind. Code § 34-13-3-3(8) (2005)).
299. /J. at 1276.



2006] TORT LAW 1321

need of treatment.^^^ The court of appeals reasoned that, although this statute
does not criminalize such conduct and cannot be enforced in that sense, it grants

police officers discretion to compel a person's obedience to the police power of
the state, which is "the very essence of law enforcement.

"^°'

The court also found that the City was immune under the common law,
stating that "[t]o the extent that the police are expected to prevent threatened

suicides in noncustodial cases, we conclude that this duty is so closely akin to the
duty to prevent crime that it should be treated as fitting within that limited

exception to the general rule of governmental liability."^^^

2. Discretionary Function Immunity.—In Madden v. Indiana Department of
Transportation,^^^ a class action brought by train passengers who were injured
in a collision with a tractor-trailer, the Indiana Court of Appeals addressed the

applicability of discretionary function immunity. The collision occurred near an
intersection where two sets of tracks intersect Midwest Steel Road at which the
traffic control light was designed, controlled, and maintained by the Indiana
Department of Transportation ("INDOT").^^'^ Midwest Steel Road runs
perpendicular to U.S. 12. The intersection was such that the tractor, which was
pulling dual tandem-trailers, turned north onto Midwest Steel Road from U.S. 12
and when the train gates lowered, he was caught in a space between the two sets
of train tracks. While the tractor was trapped, it was hit by a westbound
commuter train.^^^ The plaintiffs alleged that INDOT was negligent in failing to
keep northbound traffic on Midwest Steel Road clear when a train was
approaching.^^^

The court of appeals reversed the trial court's grant of summaryjudgment to
INDOT based on discretionary function immunity under Indiana Code section
34-13-3-3(7).^^^ In order to prove discretionary function immunity, INDOT had
the burden "to demonstrate it had considered setting the traffic signals to account

for northbound traffic."^^^ Although INDOT asserted that it could not present
such evidence because it was privileged under 23 U.S.C. § 409, the court held
that the privilege did not relieve INDOT of its burden of proof.^^^ As the court
stated, "legislatures create evidentiary privileges to shield selected information

from discovery, [but] those shields may not be wielded as swords at the will of
a party."

^^^

300. Id.

301. Id. at 1276.

302. Id. at 1277-78.

303. 832 N.E.2d 1 122 (Ind. Ct. App. 2005).

304. Mat 1125.
305. Id.

306. Mat 1125-26.
307. Mat 1129.
308. Mat 1127.
309. Mat 1128.
310. Id.



1322 INDIANA LAW REVIEW [Vol. 39: 1289

In Chandradat v. State,
^^^

a suit arising out of an accident that occurred in an

interstate construction zone, the State was not entitled to discretionary function

immunity under Indiana Code section 34-13-3-3(7) for its alleged negligence in
the placement of traffic control signs regarding lane restrictions.^'^ An INDOT
project engineer testified that the contractor was responsible for placing lane

restriction signage in compliance with the standards set forth in the Indiana

Manual on Uniform Traffic Control Devices for Streets and Highways, and that

the contractor's work was conducted pursuant to the plans, specifications, and
direction of INDOT. Additionally, the engineer testified that he did not
determine where the signs would be placed, but that he implemented the plan.

The court determined that the placement of signs was not part of the planning for
the construction but was part of its implementation.^ ^^ As such, discretionary
function immunity did not apply.

^'"^

IX. Workers Compensation

The courts addressed several issues related to the Workers Compensation Act
during the survey period. Several provided guidance of significant note.

A. Standing to Seek an Order ofMandate

In State ex. rel. Steinke v. Coriden,^^^ an attorney who practices before the
Worker's Compensation Board of Indiana filed a Verified Complaint for Writs

of Mandate, alleging that members of the Board violated the Worker's
Compensation Act. The court found the attorney lacked standing under the
general rule of standing because he did not have a personal stake in the outcome

of the litigation, despite his argument that he was injured because, as an attorney
who practices before the Board, he lacked access to a full-time Board, as required
under the statute.^ '^ The court similarly concluded that the attorney lacked public
standing because the rights created under the Worker's Compensation Act are

private, and the nexus of harm to the public is not direct enough to confer
standing under a public interest exception.^'^ Finally, in dicta addressing the

right to seek mandamus on a more general level, the court noted that mandamus
usually seeks to compel the defendant to perform a specific act, whereas in this

case, the act sought to be compelled was the more general request that the Board
comply with the rules pertaining to membership requirements.^'^ As the Board
is an administrative body under the executive branch of state government, "the
task of insuring that candidates for membership ... are eligible to serve . . .

311. 830 N.E.2d 904 (Ind. Ct. App.), trans, denied, 841 N.E.2d 187 (Ind. 2005).

312. Mat 911.
313. Id.

314. Id.

315. 831 N.E.2d 751 (Ind. Ct. App.), trans, denied, 841 N.E.2d 188 (Ind. 2005).

316. Mat 754.
317. M. at 755-56.

318. M. at 757.



2006] TORT LAW 1323

properly falls upon the executive branch, not to the judiciary.
"319

B. Temporary Employee/Co-Employee

In Jennings v. St. Vincent Hospital & Health Care Center^^^ the court
considered whether the worker's compensation system provided the exclusive

remedy to a nurse employed by a temporary employment agency to work in a
hospital, where she was injured. The court of appeals, calling this a "seemingly
unresolveable case," indicated it was taking the opportunity to "point out a
deficiency in our current system of worker's compensation."^^' Applying the

seven factor test of dual employment adopted by the supreme court in Hale v.
Kemp^^^ the court concluded that the hospital was an employer under the Act, as
was the temporary agency, so that the nurse's exclusive remedy against both was
under the Act.^^^ The court concluded by noting that:

While the worker's compensation scheme fulfills many needs, the rates
employers pay (when they are not otherwise self-insured) will be

materially affected by the safety of the workplace they provide to their

"employees." Here, we have an employer without a "workplace" and
one with. The one with the workplace is shielded from traditional tort
liability because it qualifies as a "co-employer." The entire scheme
should be reviewed by our General Assembly in light of our ever
shrinking and "flat" world.^^"^

C. Equitable Estoppelfrom Asserting the Statute ofLimitations

In Binder v. Benchwarmers Sports Lounge,^^^ the court considered the affect
of representations related to the employment relationship on the statute of
limitation defense. The plaintiff worked at various times for the defendant bar
owner.^^^ On one occasion when he was working in the bar, the plaintiff was
injured when he tried to break up a fight. The plaintiff timely filed a claim with
the Indiana Worker's Compensation Board. Nearly two years after the incident,

during the course ofthe worker' s compensation litigation, the attorney for the bar

owner informed the plaintiffs attorney that the plaintiff was "not acting in the

course and scope of his employment at the time of the injury."^^^ Only after the
statute of limitations had run, did the plaintiff learn that the bar owner claimed
that the plaintiff was not an employee and only working security for a third party

319. Id. at 758.

320. 832 N.E.2d 1044 (Ind. Ct. App. 2005), reh 'g denied, and trans, denied (Ind. 2006).

321. Id. at 1047.

322. 579 N.E.2d 63 (Ind. 1991).

323. Jennings, 832 N.E.2d at 1054.

324. Id. at 1055.

325. 833 N.E.2d 70 (Ind. Ct. App. 2005).

326. Id. at 72.

327. Id. at 74.



1324 INDIANA LAW REVIEW [Vol. 39: 1289

at the time of the injury.

The plaintiff promptly filed suit and the bar owner raised the statute of
limitations as a defense.^^^ The trial court granted summary judgment on the
statute of limitations defense. Although there was no dispute the claim was filed

more than two years after the injury, the plaintiff contended that the defendant

should be estopped from asserting the limitations defense because of its

representations regarding employment before the statute ran.^^^

On appeal, the defendant took the position that the statement that the plaintiff
was not acting within the scope of his employment reflected the position that he

was not an employee. The court noted that anyone who is familiar with worker'

s

compensation law would understand this statement "to presume, rather than to

deny, employment.""^ Because the bar owner's attorney regularly handled

worker' s compensation claims, the court concluded that she presumably knew the
law and that her letter was "intentionally deceptive."^^^ The court concluded that
this was a material misrepresentation regarding whether the bar would challenge

the plaintiffs status as an employee and that the plaintiff was entitled to rely

upon opposing counsel's representation.^^^ The court applied the doctrine of
equitable estoppel and reversed summary judgment on the statute of limitations
defense.^^^

The lesson to the litigator is, of course, that opposing counsel is entitled to
rely upon your representations. Quoting the supreme court, the court reminded

that it has declined

to require attorneys to burden unnecessarily the courts and litigation

process with discovery to verify the truthfulness of material

representations made by opposing counsel. The reliability of lawyers'
representations is an integral component of the fair and efficient

administration of justice. The law should promote lawyers' care in
making statements that are accurate and trustworthy and should foster

the reliance upon such statements by others.
^^"^

X. Tort Prejudgment Interest Statute Preempts Common Law

During the survey period, the Indiana Court of Appeals twice held that the

Tort Prejudgment Interest Statute^^^ preempts the common law right to
prejudgment interest."^ Initially, in Simon Property Group, LP. v. Brandt

328. Id. at 12.

329. Mat 73.
330. Id. at 14.

331. Id.atl5.

332. Id. at 76.

333. Id

334. Id at 75 (quoting Fire Ins. Exch. v. Bell, 643 N.E.2d 310, 312-13 (Ind. 1994)).

335. Ind. Code §§ 34-51-4-1 to -9 (2005).

336. Simon Prop. Group, L.P. v. Brandt Constr., Inc., 830 N.E.2d 981, 994 (Ind. Ct. App.



2006] TORT LAW 1325

Construction, Inc., the court noted that prejudgment interest is allowable under

the common law "when the damages are capable of being determined by
reference to some known standard, such as fair market value."^^^ Pursuant to the
statute, however, a trial court may award prejudgment interest if the plaintiff
makes a written offer of settlement within the time period specified by statute,

for a specified amount, and according to particular payment terms.^^^ In

determining that the statute preempts the common law, the Simon court stated:

In our view, in passing this statute the legislature intended to preempt

common law prejudgment interest in tort cases. To hold otherwise
would be to render the statute and its requirements virtually

meaningless—a party who failed to fulfill the statute's requirements
could merely turn to the common law for relief. Thus, to agree with
Landlord is, essentially, to say that notwithstanding the statutory

requirement that a tort plaintiff must make a qualifying settlement offer
to recover prejudgment interest, we will allow plaintiffs who fail to do
so to recover anyway. Such a result would be tantamount to decimating

the statute altogether, which we shall not do.^^^

Recently, the Indiana Supreme Court denied a petition to transfer in this case.

2005), reh'g denied, and trans, denied (Ind. 2006); see also Gregory & Appel Ins. Agency v.
Philadelphia Indem. Ins. Co., 835 N.E.2d 1053, 1065 (Ind. Ct. App. 2005), trans, denied (Ind.

2006).

337. Simon, 830 N.E.2d at 993 (citing 4-D Bldgs., Inc. v. Palmore, 688 N.E.2d 918, 921 (Ind.

Ct. App. 1997)).

338. 5^^lND. Code §34-5 1-4-6 to -7. Ind. Code §34-5 1-4-6 provides:

This chapter does not apply if:

( 1

)

within one ( 1 ) year after a claim is filed in the court, or any longer period determined

by the court to be necessary upon a showing ofgood cause, the party who filed the claim

fails to make a written offer of settlement to the party or parties against whom the claim
is filed;

(2) the terms of the offer fail to provide for payment of the settlement offer within sixty

(60) days after the offer is accepted; or

(3) the amount of the offer exceeds one and one-third (1 1/3) of the amount of the

judgment awarded.

339. Simon, 830 N.E.2d at 994.