Indiana Law Review


Recent Developments in Indiana Tort Law

Ann L. Thrasher Papa*

This Article discusses developments in tort law in Indiana during the survey

period, October 1, 2006, through September 30, 2007. The subject ofthis Article
is such that the Article does not attempt to contain either a comprehensive or

exhaustive examination of all tort cases decided during the survey period.

I. Negligence 1

A. Duty of Care

The Indiana Court of Appeals explained the modern rule, or foreseeability
doctrine, used with regard to negligence claims and the work of contractors in
Bond v. Walsh & Kelly, Inc. 2 In Bond, Rory Bond ("Bond") was seriously
injured while riding as a passenger in a Jeep Wrangler when the Jeep' s passenger
side tires dropped off a pavement edge onto a shoulder.

3
Although the road had

been recently paved, there was a drop off from the paved road to the shoulder.4

The passenger side windshield hit a utility pole and the Jeep rolled over.5 Bond
sued the Town of Merrillville ("Town"), the Jeep's driver, and Walsh & Kelly,
Inc. ("Walsh"), the contractor that paved the road.

6 The appeal only involved the
trial court's summary judgment in favor of Walsh.7

The court of appeals explained that the former rule, the acceptance rule, no
longer applies to claims ofnegligence and contractor work.

8 The acceptance rule
provided "that contractors do not owe a duty to third parties after the owner has
accepted the [contractor's] work."

9

The current rule, referred to as the modern rule or the foreseeability doctrine,

* Project Attorney, Ice Miller LLP; Adjunct Professor, Indiana University School of

Law—Indianapolis. B.A. and Women's Studies Certificate, 1993, Indiana University

—

Bloomington; J.D., 2001, Indiana University School of Law—Indianapolis.
1

.

The Indiana Court of Appeals's decision in Filip v. Block, 858 N.E.2d 143 (Ind. Ct. App.

2006), decided during the survey period, was vacated by the Indiana Supreme Court's opinion in

Filip v. Block, 879 N.E.2d 1076 (Ind. 2008). The Indiana Supreme Court's decision will not be

addressed in detail herein because it is outside the current survey period. Nevertheless, the issues

in the court's decision were related to: (1) a procedural question about the use of designated

evidence, (2) the discovery rule and statute of limitations as applied in a negligence action arising

out of a fire loss, and (3) whether an insurance agent breached her duty to advise in procurement

of insurance and subsequent notification of inadequate coverage. Filip, 858 N.E.2d at 146, rev 'd,

879 N.E.2d 1076 (Ind. 2008).

2. 869 N.E.2d 1264, 1266 (Ind. Ct. App. 2007).

3. Id. at 1265.

4. Id.

5. Id. at 1265-66.

6. Id. at 1266.

7. Id.

8. Id.

9. Id. (citing Blake v. Calumet Constr. Corp., 674 N.E.2d 167, 170 (1996)).



1 346 INDIANA LAW REVIEW [Vol. 4 1 : 1 345

set forth by the Indiana Supreme Court in Peters v. Forster,
10

"provides that a

contractor is liable for injuries or death of third persons after acceptance by the

owner where the work is reasonably certain to endanger third parties if

negligently completed."
11 The modern rule does not create absolute liability for

the contractor and does not abrogate the elements of negligence: duty, breach of

duty, and proximate cause.
12

Furthermore, "[t]here is no breach of duty, and

consequently no negligence, where a contractor merely follows the plans or

specification given to him by the owner so long as the plans are not so obviously

dangerous or defective that no reasonable contractor would follow them."
13

In Bond, the court of appeals affirmed the trial court's grant of summary

judgment in favor of Walsh
14
and reasoned first that there was no assertion that

the repaving plans followed by Walsh were "on their face, obviously dangerous

or defective."
15

Furthermore, there was never an assertion that Walsh paved the

roadway in a negligent manner.
16 The designated evidence provided that Walsh

completed the work expected from it, and the Town had the striping and shoulder
stone placement responsibilities.

17
Therefore, the court concluded that "the

designated evidence does not create a genuine issue of material fact as to whether

the plans were so obviously dangerous or defective that no reasonable contractor

would follow them."
18

Another court of appeals case decided during the survey period was
Precedent Partners I, L.P. v. Hulen.

19 The facts of this case are likely not
uncommon as neighborhoods develop and residential areas become more densely
populated. Michelle Hulen ("Hulen") was riding her bicycle along a road in her
neighborhood, "The Meadows, when she turned onto a cross street and collided
with a pickup truck driven by Jose Guardado," a contractor hired to do drywall
work at a residence in The Meadows.20 Hulen suffered serious and permanent
physical injuries.

21

Hulen filed suit against several organizations, private and government, and
individuals, but the appeal discussed herein involved only a summary judgment
grant in favor of defendants Precedent Partners I, L.P. ("Precedent") and The

10. 804 N.E.2d 736, 742 (Ind. 2004).

1 1

.

Bond, 869 N.E.2d at 1266 (citing Peters, 804 N.E.2d at 742). In adopting this modern

rule, the Indiana Supreme Court "embraced the trend reflected in the Restatement (Second) oftorts

and stated that the new approach is 'consistent with traditional principles of negligence upon which

Indiana's scheme of negligence law is based.'" Id. (quoting Peters, 804 N.E.2d at 742).

12. Id.

13. Id. (citing Peters, 804 N.E.2d 742).

14. Id. at 1267.

15. Id. at 1266.

16. Id. at 1266-67.

17. Id. at 1267.

18. Id.

19. 863 N.E.2d 328 (Ind. Ct. App. 2007).

20. Id. at 330.

21. Id.



2008] TORT LAW 1347

Meadows homeowners' association (the "Association").22 Hulen argued on
appeal that there were "genuine issues of material fact whether Precedent and the

Association were negligent in the design and maintenance of the median at the

location of the accident and in failing to post signs 'directing or warning of

construction traffic."'
23 The court of appeals disagreed.

The court first found that the case was not a premises liability matter because
there was no designated evidence showing that Precedent or the Association did

anything on the property they owned that created a hazardous condition that
caused Hulen' s accident.

24 The court reasoned that Hulen was riding on a public
street, she was not an invitee or licensee of Precedent or the Association, and

neither of the two defendants had control over the truck's driver or the company
for which he worked.

25

The court also found that neither Precedent nor the Association had a duty
to redirect construction traffic or post warning signs because there was "simply

no evidence of a danger posed to residents from construction traffic."
26

In

conclusion, the court of appeals held, "[t]he law does not impose a duty on a

business to guard against injury to the public from the negligent acts of someone
over whom the business has no control and which injury occurs off the business'
premises."

27 The trial court's denial ofPrecedent's and the Association's motion
for summary judgment was reversed and the case remanded.28

B. Res Ipsa Loquitor

In Cincinnati Insurance Co. v. Davis,
29

the Indiana Court of Appeals faced

an appeal from a trial court's grant of summary judgment in favor of three
defendants on the plaintiffs' negligence claim.

30 The plaintiffs were Cincinnati
Insurance Company and Indiana Insurance Company (collectively, "the
Insurers").

31 The defendants were "Dr. T. Brandon Davis ("Davis"), Arbor
Neuropsychological Assessment Clinics, Inc. ("Arbor"), and Culligan United

State Filter ("Culligan")."
32 The court of appeals reversed the trial court and

found that summary judgment was not appropriate as to any of the three

22. Id.

23. Id. at 331 (quoting Brief for Appellant at 30).

24. Id. at 332 (citing St. Casimir Church v. Frankiewicz, 563 N.E.2d 1331, 1333 (Ind. Ct.

App. 1990)).

25. Id. The court stated in dicta, "Regardless, the undisputed designated evidence shows that

the vegetation and light fixtures in the median did not obscure either [the driver's] or [Hulen' s]

view as they approached the intersection." Id.

26. Id. at 333.

27. Id. (citing Snyder Elevators, Inc. v. Baker, 529 N.E.2d 855, 859 (Ind. Ct. App. 1988)).

28. Id.

29. 860 N.E.2d 915 (Ind. Ct. App. 2007).

30. Id. at 917.

31. Id.

32. Id.



1348 INDIANA LAW REVIEW [Vol. 41:1345

defendants.
33

Davis used an office space insured by the Insurers on Wednesdays only.
34

The office had a water filtration system, which was serviced by Culligan.
35

After

flooding was discovered in the office building, a water leak was "traced to the

Culligan filtration system in Davis's office."
36 The Insurers paid over $100,000

in claims related to the flooding, and sued the defendants for negligence.
37

At separate times, the trial court granted motions for summary judgment in

favor of each defendant that basically stated the same reason for the ruling:

"Insurers had 'designated no evidence tending to show negligence on the part of

[Davis]' and had failed to establish the applicability of res ipsa loquitor."
38

After

first establishing jurisdiction over the appeals, the court of appeals addressed

each defendant's summary judgment.
First, with regard to Davis's summary judgment, the court examined the res

ipsa loquitor doctrine, which is a qualified exception to the rule that "'the mere

fact that an injury occurred will not give rise to a presumption of negligence.'"
39

Res ipsa loquitor means "'the thing speaks for itself.'"
40 The doctrine

is premised upon the assumption that in certain instances an occurrence

is so unusual that, absent a reasonable justification or explanation, those

persons in control of the situation should be held responsible. While the

occurrence oftentimes is "unusual" in the sense of being rare or bizarre,

that is not a prerequisite to the application of the doctrine.
41

The court restated the rule that, in summaryjudgment, it is the moving party
who must first establish a lack of genuine issue of material fact, and the
respondent who then must come forward with contrary evidence.42 The court
concluded that Davis was not entitled to summaryjudgment because the evidence
designated by both Davis and the Insurers indicates that the water leak was
caused by "acts that suggest a failure to exercise reasonable care" and "the
incident more probably resulted from negligence as opposed to another cause."

43

The court also concluded, based upon the designated evidence, that the res
ipsa loquitor doctrine might just apply to this case, and therefore a genuine issue

33. Id. at 925-26.

34. Id. at 918.

35. Id.

36. Id.

37. Id. The Insurers complaint originally named Davis and Culligan as defendants. Id. at

919. The complaint was amended later to include Arbor. Id. This case involved numerous

pleadings to the trial court. Id.

38. Id. (quoting Brief for Appellant at 7 1 ).

39. Id. at 923 (quoting Gold v. Ishak, 720 N.E.2d 1 175, 1 180 (Ind. Ct. App. 1999)).

40. Id. (quoting Rector v. Oliver, 809 N.E.2d 887, 889 (Ind. Ct. App. 2004)).

41. Id. (quoting Shull v. B.F. Goodrich Co., 477 N.E.2d 924, 926 (Ind. Ct. App. 1985)).

42. Id. at 924 (citing Jarboe v. Landmark Cmty. Newspapers of Ind., 644 N.E.2d 118, 123
(Ind. 1994)).

43. Id.



2008] TORT LAW 1349

of material fact remained as to the applicability of the res ipsa loquitor doctrine.
44

The court found that res ipsa loquitor can apply even when there are multiple
defendants and multiple causes because it "'is not a rule which fixes the

proximate cause of an injury, but only a rule of evidence allowing a permissible

inference of negligence under a certain set of facts."'
45

As to defendant Arbor, the court of appeals swiftly reversed the trial court's
entry of summary judgment in its favor.

46
Arbor did not file an appellate brief,

and the trial court's basis for granting Arbor's summary judgment was the same

as the basis for granting Davis's summary judgment.
47 The court reasoned that

because Davis's arguments failed on appeal, reversal was likewise appropriate

for Arbor's appeal.
48

The court of appeals lastly addressed Culligan's motion for summary
judgment. Both Culligan and the Insurers agreed on appeal that res ipsa loquitor

did not apply to Culligan.
49 However, the Insurers argued on appeal that because

Culligan failed to designate any evidence in support of its motion for summary
judgment, it thereby "failed to designate evidence negating [the Insurers'] 'theory

of ordinary negligence.'"
50 The court of appeals agreed and reversed the

summary judgment in Culligan's favor because "Culligan failed to demonstrate

the absence of a genuine issue of material fact as to its causation of the insureds'

damages."
51

C. Infliction ofEmotional Distress

During the survey period, Indiana appellate courts decided a few notable

cases regarding negligent infliction of emotional distress. The Indiana Supreme

Court answered certified questions from the United States District Court for the

Southern District of Indiana in a case involving the death of a fiancee
52

and

decided on appeal a case involving passengers on an airline flight during which

a French citizen on the flight smoked a cigarette and behaved erratically.
53 The

Indiana Court of Appeals decided a case involving a collision between a truck

and motorcycle, when the husband of the victim on the motorcycle witnessed the

44. Id. at 924-25.

45. Id. (quoting N.Y., Chi. & St. Louis R.R. Co. v. Henderson, 146 N.E.2d 531, 541 (Ind.
1958)). Davis's last argument on appeal was basically that the Insurers had not carried their burden

of proof at trial. Id. at 925. The court concluded that the only issue on appeal was whether there

was a genuine issue of material fact as to whether Davis caused the leak that caused the damage.

Id.

46. Id.

47. Id.

48. Id.

49. Id. at 926.

50. Id. (quoting Brief for Appellant at 16).

51. Id.

52. Smith v. Toney, 862 N.E.2d 656, 663 (Ind. 2007).

53. Atl. Coast Airlines v. Cook, 857 N.E.2d 989, 1000 (Ind. 2006).



1350 INDIANA LAW REVIEW [Vol. 41:1345

collision.
54 The court of appeals also decided a case involving insurance

coverage for negligent infliction of emotional distress, but its opinion was

vacated by the Indiana Supreme Court after this survey period and will therefore

be discussed in detail in the next Survey issue.
55

In Smith v. Toney,
56
the United States District Court for the Southern District

of Indiana certified the following questions to the Indiana Supreme Court:

1. Under the test elaborated in Groves v. Taylor for bringing a

bystander claim of negligent infliction of emotional distress, are the

temporal and relationship determinations regarding whether a

plaintiff 'actually witnessed or came on the scene soon after the

death of a loved one with a relationship to the plaintiff analogous to

a spouse, parent, child, grandparent, grandchild, or sibling' issues of

law or fact, or are they mixed questions of law and fact?

2. If an issue of law, is a fiancee an 'analogous' relationship as

used in Groves and is 'soon after the death of a loved one' a

matter of time alone or also of circumstances?
57

The court concluded "that (1) the temporal and relationship determinations
under Groves are questions of law; (2) a fiancee is not 'analogous to a spouse'

under Groves; and (3) 'soon after the death of a loved one' is a matter of both

time and circumstances."
58 The court held that although a spouse may assert

claims for negligent infliction of emotional distress even when he or she did not
suffer physical injury or impact, a fiancee may not assert such a claim.59

Furthermore, the spouse must "have learned of the incident by having witnessed

the injury or the immediate gruesome aftermath."
60

In Smith, Amy Smith ("Smith") drove by an auto collision that caused the
death of her fiancee, Eli Welch ("Welch").61 Welch's vehicle collided with a
tractor-trailer driven by James Toney ("Toney"), and owned by John Christner
Trucking Company ("Trucking Company").62 Smith did not stop at the scene,
but she claimed that she saw Welch's hand.63 However, there was evidence that
Welch's body was placed in a body bag and the coroner's vehicle prior to Smith

54. Clancy v. Good, 858 N.E.2d 653, 655 (Ind. Ct. App. 2006), trans, denied, 869 N.E.2d

457 (Ind. 2007).

55. State Farm Mut. Auto. Ins. Co. v. Jakupko, 856 N.E.2d 778 (Ind. Ct. App. 2006), ajf'd,

881 N.E.2d 654 (Ind. 2008).

56. 862 N.E.2d 656.

57. Id. at 657. The Indiana Supreme Court was referring to the test elaboration in Groves v.

Taylor, 729 N.E.2d 569 (Ind. 2000).

58. Sroif/i, 862 N.E.2d at 663.

59. Id. at 657.

60. Id.

61. Id. at 658.

62. Id.

63. Id.



2008] TORT LAW 1351

driving by the scene.
64

The court found that the requirements of the parties' relationship and
proximity of the plaintiff to the scene, as set forth in the Groves test for bystander

recovery under negligent infliction of emotional distress, are questions of law.
65

The court first included a brief history ofhow this tort claim has evolved, starting
with the impact rule, the modified impact rule, and the direct involvement rule

from Groves.
66 The court then restated the three factors of the direct impact rule:

"the severity of the victim's injury, the relationship of the plaintiff to the victim,

and [the] circumstances surrounding the plaintiff's discovery of the victim's

injury."
67

To support its conclusion, the court reasoned that these factors come from
public policy considerations and are utilized to distinguish legitimate claims of

emotional distress from illegitimate ones.
68

Therefore, the court concluded that

they are issues of law for a court to resolve.
69

The court next concluded that a fiancee is not analogous to a spouse under
the Groves test.

70 The court relied on policy reasons as set forth in out-of-state
cases because it had not had the chance to consider the question previously.

71

The court agreed with those courts' results, but fashioned its own rationales.72

First, the court found that "marriage affords a bright line and is often adopted by

the legislature in defining permissible tort recovery."
73

Second, the court

reasoned that "drawing the line at marriage for 'bystander' claims of negligent

infliction of emotional distress avoids the need to explore the intimate details of

a relationship that a claimant asserts is 'analogous' to marriage."
74

Third, the

court reasoned that "limiting defendants' liability to spouses addresses the need

to limit the array of persons to whom a negligent defendant is potentially
liable."

75

Lastly, the court concluded "that the proximity requirement under Groves is

both a matter of time and circumstances."
76

It had not previously addressed this

issue and therefore looked to other cases that had for guidance.
77

In the end, the

64. Id.

65. Id.

66. See id. at 659-60. "Groves followed Bowen v. Lumbermens Mutual Casualty Co., . .
.

,

517 N.W.2d 432 (Wis. 1994) in adopting this test." Id. (citing Groves v. Taylor, 729 N.E.2d 569,

572 (Ind. 2000)).

67. Id. at 660.

68. Id.

69. Id.

70. Id.

71. Id. at 660-61 &n.2.

72. Mat 661.
73. Id.

74. Id.

75. Id. at 662.

76. Id.

77. Id. at 662-63 & n.3.



1352 INDIANA LAW REVIEW [Vol. 41:1345

court held that in addition to the requirement that a plaintiff witness "at or

immediately following the incident," the plaintiff must also view the scene

"essentially as it was at the time of the incident, the victim must be in essentially

the same condition as immediately following the incident, and the claimant must

not have been informed of the incident before coming upon the scene."
78

This

rule furthers two of the policy concerns of bystander claims, that the claim must

be genuine and recovery must not be unduly burdensome on the defendant.
79

The Indiana Supreme Court utilized the modified impact rule when it decided
another case about negligent infliction of emotional distress during the survey

period, Atlantic Coast Airlines v. Cook* In Atlantic Coast Airlines, the

plaintiffs, Bryan and Jennifer Cook (the "Cooks"), alleged that they suffered
from emotional distress due to circumstances occurring on their non-stop flight

from Indianapolis to New York on a thirty-two passenger plane.81 Their flight
was on February 8, 2002, five months after the tragedies of September 11, 2001,

and less than two months after Richard Reid attempted to detonate explosives

hidden in his shoe on a flight from Paris to Miami.
82

Tickets were handled by

Delta Airlines ("Delta"), Atlantic Coast Airlines ("Atlantic") operated the flight,

and Globe Security Services ("Globe") provided security for the airport.
83

During their flight, a French citizen, Frederic Girard ("Girard") acted erratically,

smoked cigarettes, shouted in French, moved from seats often, stomped his feet,
approached the cockpit of the plane, and exhibited other odd behaviors.

84

Bryan Cook ("Bryan") enlisted the assistance of other passengers to help
protect the flight and passengers from Girard.

85
Bryan never had physical contact

with Girard, although he approached Girard more than once, ordering him to sit
down.

86 The issues on this appeal were limited to three claims in Atlantic's
petition for transfer: "(1) the Cooks' claim for emotional distress damages is
precluded by Indiana's modified impact rule; (2) the [c]ourt of [a]ppeals erred in
reversing summary judgment in favor of Atlantic Coast on the Cooks' breach of
contract claim[,] . . . and (3) the Cooks' negligence claim is preempted by federal
law."

87

The court affirmed the court of appeals' s decision with regard to the
breach of contract and preemption claims, but did not agree with the court of
appeals on "whether the trial court erred in denying Atlantic's] motion for
summary judgment on the Cooks' claim for [negligent infliction] of emotional

78. Id. at 662-63.

79. Id. (citing Finnegan ex rel. Skoglind v. Wis. Patients Comp. Fund, 666 N.W.2d 797, 802-

03 (Wis. 2003); Rosin v. Fort Howard Corp., 588 N.W.2d 58, 61 (Wis. Ct. App. 1998)).
80. 857 N.E.2d 989 (Ind. 2006).

81. Id. at 991-92.

82. Id. at 991.

83. Id.

84. Id. at 992.

85. Id.

86. Id.

87. /</. at993.



2008] TORT LAW 1353

distress."
88 The supreme court applied Indiana's modified impact rule and

concluded that the trial court erred in denying Atlantic summaryjudgment on the
claim.

89 The modified impact rule is as follows:

When ... a plaintiff sustains a direct impact by the negligence of another
and, by virtue of that direct involvement sustains an emotional trauma

which is serious in nature and of a kind and extent normally expected to

occur in a reasonable person, . . . such a plaintiff is entitled to maintain

an action to recover for that emotional trauma without regard to whether

the emotional trauma arises out of or accompanies any physical injury

to the plaintiff.
90

The court found that the modified impact rule retains the requirement that a
direct physical impact occur, but that impact does not need to cause physical

injury to the plaintiff.
91

Furthermore, "the emotional trauma suffered by the

plaintiff does not need to result from a physical injury caused by the impact.

The court also answered the question of what degree of impact is required:

»92

[W]hen the courts have been satisfied that the facts of a particular case
are such that the alleged mental anguish was not likely speculative,
exaggerated, fictitious, or unforeseeable, then the claimant has been

allowed to proceed with an emotional distress claim for damages even
though the physical impact was slight, or the evidence ofphysical impact
seemed to have been rather tenuous.

93

In this case, the Cooks argued that actual and constructive physical impacts
occurred.

94 The Cooks listed "'increased breathing, sweating, pulse, heart rate,
adrenaline, and acuteness of the senses'" as the constructive physical impacts.

95

The court, however, declined to adopt the "constructive impact" theory proposed
by the Cooks.96 The Cooks listed breathing cigarette smoke and feeling
vibrations from Girard's stomping feet as actual physical impacts.

97 The court
observed that to hold that these alleged actual physical impacts satisfy the direct

physical impact requirement of the rule would "at the very least . . . stretch[] the
outer limits of the impact requirement."

98 The court also found, assuming that
breathing cigarette smoke and feeling vibrations are direct physical impacts, that

88. Id. at 994.

89. Mat 1000.
90. Id. at 995-96 (quoting Shuamber v. Henderson, 579 N.E.2d 452, 456 (Ind. 1991)).

91. Id. at 996 (citing Ross v. Chema, 716 N.E.2d 435, 437 (Ind. 1999); Conder v. Wood, 716

N.E.2d 432, 435 (Ind. 1999); Shuamber, 579 N.E.2d at 452).

92. Id.

93. Id. (alteration in original) (citing Bader v. Johnson, 732 N.E.2d 1212, 1221 (Ind. 2000)).

94. Id. at 998.

95. Id. at 998-99 (quoting Brief for Opposition to Petition for Transfer at 4).

96. Id. at 999.

97. Id. at 998.

98. Id. 2X999.



1354 INDIANA LAW REVIEW [Vol. 41:1345

such impacts are "'slight' and 'the evidence of physical impact seem[s] to have

been rather tenuous.'"
99

Because the direct physical impact was slight and the evidence tenuous, the

court examined the Cooks' alleged mental anguish to make sure it was not

'"speculative, exaggerated, fictitious, or unforeseeable.'"
100

After reviewing the

evidence and testimony, the court determined that the Cooks' mental and

emotional distress was basically transitory, occurring at the time of the events,

and disappearing when the flight ended.
101

After the flight, the court found that

the Cooks were generally "'bothered,' 'concerned,' and 'nervous,'" which the

court found to be normal feelings in the world, and in particular, with regard to

air travel since September 11, 200 1.
102 The court found the Cooks' alleged

mental anguish to be "speculative."
103

The court held "allowing an emotional distress claim to proceed based on the

Cooks' lingering mental anguish would essentially abrogate the requirements of

Indiana's modified impact rule" because the direct impact was "slight to

nonexistent" and the alleged mental anguish was "speculative."
104 The court then

held that in this regard the trial court should have granted Atlantic Coast's

motion for summary judgment. 105

A couple of weeks after the Indiana Supreme Court's decision in Atlantic
Coast Airlines, the court of appeals also decided a case involving the modified

impact rule, Clancy v. Goad.
106

In Clancy, one of the issues was whether the trial
court properly included a jury instruction on the modified impact rule.

107 Tim
Clancy ("Clancy"), the defendant, argued that the modified impact rule did not

apply to the case brought against him by Dianna and Robert Goad ("Dianna" and
"Robert" individually, or the "Goads" collectively).

108 The court held that it was
proper to instruct the jury about the rule because it could apply to the case.

109

In this case, Clancy fell asleep while driving his truck, "crossed the center-

line of State Road 231," and collided with Dianna, who was riding her
motorcycle.

1 10
Dianna suffered numerous severe injuries, including a severed leg

99. Id. (alteration in original) (quoting Bader v. Johnson, 732 N.E.2d 1212, 1221 (Ind.

2000)).

100. Id. (quoting Bader, 732 N.E.2d at 1221).

101. Id.

102. Id. at 1000.

103. Id.

104. Id.

105. Id.

106. 858 N.E.2d 653 (Ind. Ct. App. 2006), trans, denied, 869 N.E.2d 957 (Ind. 2007).

1 07. Id. at 655. The other issues in Clancy involved whether the damages were excessive. Id.
Dianna Goad was awarded $10 million, and Robert Goad was awarded $1 million. Id. The court
ruled that they were not, but rather were "reasonable in light of the evidence presented at trial." Id.

108. Id.

109. Id.

110. Id.



2008] TORT LAW 1355

and a two-week long coma.
111

Robert was riding his own motorcycle, but
swerved to avoid a collision with Clancy.

112
Robert nonetheless did an

emergency maneuver to stop his motorcycle quickly so he could help his wife,

and suffered minor scrapes and bruises on his leg that hit the pavement.
113

Clancy argued that the instruction should not have been given because the

modified impact rule did not apply to Robert's claim of negligent infliction of

emotional distress (for which ajury awarded him $ 1 million).
l u

Clancy objected

to the trial court and argued on appeal that Robert did not suffer an unintentional

impact.
1 15

Additionally, in his appeal, Clancy argued that Robert failed to present

evidence that Clancy was negligent to Robert "personally" 116

The court of appeals first addressed Clancy's latter argument. It held that
Clancy waived the argument because he did not object on this ground to the trial

court.
117 Even if Clancy had not waived the argument, it would have failed

because the jury found Clancy was negligent to Dianna, Clancy did not object to
this finding, and the finding "provided Robert with proofof negligence in the tort

underlying his negligent infliction claim and, consequently, with an adequate

foundation upon which to base his recovery."
118

Before ruling on Clancy's argument that Robert did not suffer an impact, the

court examined Robert's involvement in the accident because

"[D]irect impact" is properly understood as the requisite measure of

"direct involvement" in the incident giving rise to the emotional trauma.

Viewed in this context, we find that it matters little how the physical
impact occurs, so long as that impact arises from the plaintiff's direct
involvement in the tortfeasor's negligent conduct}

19

Clancy argued that Robert's maneuver was deliberate, and the only impact on
Robert was '"between his feet and the highway.'"

120
Therefore, Clancy argued,

the impact on Robert was not a direct impact under the modified impact rule.
121

Robert, however, argued that even though he voluntarily stopped his motorcycle

causing his leg to scrape the pavement, that impact was a result of his direct
involvement in the collision between Clancy and Dianna and therefore meets the

direct impact requirement of the modified impact rule.
122

The court of appeals agreed with Robert and found that the evidence

111. Mat 655-56.
112. Mat 655.
113. Id. at 656.

114. Id.

115. Mat 660.
116. Id. at 660-61.

117. Id. at 661.

118. Id.

1 19. Id. at 662 (quoting Conder v. Wood, 716 N.E.2d 432, 435 (Ind. 1999)).

120. Id. (quoting Appellant's Reply Brief at 10).

121. Id.

122. Mat 663.



1356 INDIANA LAW REVIEW [Vol. 41:1345

presented "demonstrates a sufficient level of involvement in the tortfeasor's

negligent conduct to support a trial court's instruction on the modified impact

rule."
123 The court found "that it was proper for the trial court to instruct the jury

on the modified impact rule as a potential avenue by which Robert could be

entitled to recover from Clancy."
124

n. Legal Malpractice

A. Legal Malpractice Claims Not Assignable

In State Farm Mutual Automobile Insurance Co. v. Estep,
125

the Indiana

Supreme Court reaffirmed its previous holding that legal malpractice claims are

not assignable.
126

This case involved a general assignment pursuant to which the

assignee sued an attorney for "negligence and breach of duty to defend."
127 The

court concluded that the assignment was invalid,
128

basing its decision upon the

policy concerns of "'preserving] the sanctity of the client-lawyer relationship"

and avoiding ultimate "'disreputable public role reversal.'"
129

B. Dual Representation

Another notable legal malpractice case during the survey period was Van
Kirk v. Miller,

,

130
decided by the Indiana Court of Appeals. This case involved

dual representation and a signed conflict waiver.
131

Under Indiana law, the elements of legal malpractice are: (1)
employment of an attorney, which creates a duty to the client; (2) failure
of the attorney to exercise ordinary skill and knowledge (breach of the
duty); and (3) that such negligence was the proximate cause of (4)
damage to the plaintiff. 132

A defendant need only negate one element of a legal malpractice claim to avoid
liability.

133

The court of appeals affirmed the trial court's grant of summaryjudgment in
favor of the defendants, Ward Miller and the law firm of More, Miller, Yates &

123. Id.

124. Id.

125. 873 N.E.2d 1021 (Ind. 2007).

126. Id. at 1025-26 (citing Picadilly, Inc. v. Raikos, 582 N.E.2d 338 (Ind. 1991)).
127. Id. at 1026.

128. Id.

129. Id. at 1025 (quoting Picadilly, 582 N.E.2d at 342).

130. 869 N.E.2d 534 (Ind. Ct. App.), trans, denied, 878 N.E.2d 218 (Ind. 2007).
131. Mat 536.
132. Id. at 540-41 (quoting Clary v. Lite Machs. Corp., 850 N.E.2d 423, 430 (Ind. Ct. App.

2006)).

133. Id. at 541 (citing Legacy Healthcare, Inc. v. Barnes & Thornburg, 837 N.E.2d 619, 624
(Ind. Ct. App. 2005)).



2008] TORT LAW 1357

Tracey ("Miller"), and against the plaintiff, Thomas Van Kirk ("Van Kirk"). 134

The court first addressed the conflict waiver. In this case, the parties agreed that
Miller's dual representation of Van Kirk and Mark Summers ("Summers") (a
buyer and seller) was "a concurrent conflict of interest that triggered Indiana

Professional Conduct Rule 1.7."
135 The disagreement, however, was "whether

that conflict was consentable . . . and whether Van Kirk gave informed consent
when he signed the conflict waiver." 136

The court of appeals concluded that the conflict of interest was consentable
and Miller could represent both parties "ifhe obtained a valid conflict waiver for

the dual representation because Van Kirk's and Summers's "interests [were]
'generally aligned . . . even though there [were] some difference[s],'"

137
and

Miller was hired to merely "draft the agreement memorializing the terms that

Summers and Van Kirk had independently negotiated." 138 The court also
concluded that the conflict waiver was valid because Van Kirk was adequately
informed by Miller of the dual representation and concurrent conflict of

interest.

The court next addressed Miller's alleged breach of duty, a requirement of
a successful claim for legal malpractice.

140
"In Indiana, an attorney is generally

required 'to exercise ordinary skill and knowledge.'"
141 Van Kirk alleged that

Miller breached his duty by favoring Summers during his dual representation and
also by representing Summers after Van Kirk terminated his attorney-client
relationship with Miller.

142

The court first found that the facts were not in dispute, thereby only
questions oflaw remained.

143 The court also dismissed Van Kirk's argument that
Miller breached his duty to Van Kirk by including a contingency provision in the
agreement between Van Kirk and Summers, because in fact, Van Kirk requested
the inclusion of that provision.

144 The court also dismissed Van Kirk's argument
that Miller breached his duty by favoring Summers during the dual representation
because there was no evidence presented to support the contention.

145

Lastly, the court concluded that Miller did not breach his duty to Van Kirk
despite his continued representation of Summers after Van Kirk ended his
attorney-client relationship with Miller, even though Miller represented Summers

134. Mat 536.
135. Id. at 541.

136. Id.

137. Id. at 542 (quoting Ind. Prof'l Conduct R. 1.7 cmt. 28).

138. Id.

139. Id. at 543-44.

140. Id. at 544 (citing Clary v. Lite Machs. Corp., 850 N.E.2d 423, 430 (Ind. Ct. App. 2006)).

141. Id. (quoting Rice v. Strunk, 670 N.E.2d 1280, 1283-84 (Ind. 1996)).

142. Id.

143. Id.

144. Mat 545.
145. Id.



1358 INDIANA LAW REVIEW [Vol. 41:1345

in the sale of the property at issue in the Van Kirk and Summers agreement.
146

The court reasoned that Miller was hired by Van Kirk and Summers "to represent

them in 'the preparation of a proposed sale and closing documents'" and that it

was not automatic legal malpractice on Miller's part because the deal was not

closed.
147 The court affirmed the trial court's grant of summary judgment in

favor of Miller.
148

m. Medical Malpractice

Several medical malpractice cases other than those surveyed herein were

decided during the survey period, and at least one case decided by the Indiana

Court of Appeals during the survey period was affirmed in part and reversed in

part by the Indiana Supreme Court outside of the period.
149

Those cases not

surveyed in detail herein relate to the constitutionality ofthe statute oflimitations

in the Indiana Medical Malpractice Act
150

and to claims against Indiana's Patient

Compensation Fund.
151

A. Defendant Identity Confidentiality Statute

The Indiana Supreme Court decided a case of first impression in Kho v.
Pennington,

152 when it concluded that the trial court erred in granting summary
judgment to defendants Ruby Miller ("Miller"), Deborah Pennington, and
Findling Garau Germano &Pennington, P.C. ("Pennington") on plaintiffEusebio

146. Id. at 546.

147. Id. The court declined to develop arguments for the parties related to Indiana

Professional Conduct Rule 1.9, which provides that attorneys owe a continued duty to former

clients because none were raised in the appeal. Id. at 546 n.8.

148. Id. at 546.

149. See Ho v. Frye, 865 N.E.2d 632 (Ind. Ct. App. 2007), aff'd in part, rev'd in part, 880
N.E.2d 1192 (Ind. 2008).

150. Herron v. Anigbo, 866 N.E.2d 842 (Ind. Ct. App. 2007) (holding that statute of

limitations in the Indiana Medical Malpractice Act is unconstitutional as applied to plaintiff

quadriplegic); Brinkman v. Bueter, 856 N.E.2d 1231 (Ind. Ct. App. 2006) (statute of limitations

in the Indiana Medical Malpractice Act is unconstitutional as applied to plaintiff with preeclampsia

and eclampsia), rev'd on other grounds, 879 N.E.2d 549 (Ind. 2008).

151. Two similar cases were handed down on March 16, 2007: Indiana Patient's
Compensation Fund v. Winkle, 863 N.E.2d 1 (Ind. Ct. App.), trans, denied, 878 N.E.2d 212 (Ind.

2007) and Indiana Patient's Compensation Fund v. Butcher, 863 N.E.2d 1 1 (Ind. Ct. App. 2007).
In Winkle, the court of appeals held that "the Winkles' unborn child is not a 'patient' pursuant to

the [Medical Malpractice] Act and because [the Winkles] therefore have no one from whom their
negligent infliction of emotional distress claims can derive, they are not entitled to separate

statutory caps for their emotional damages." Winkle, 863 N.E.2d at 1 1. In Butcher, even though

the Butchers' unborn child was a victim for purposes of the Medical Malpractice Act, the court held

that because the Butchers' deceased child, Samuel, was the only actual victim of malpractice, the

Butchers' "recovery is limited to one $1,250,000 cap." Butcher, 863 N.E.2d at 19-20.

152. 875 N.E.2d 208 (Ind. 2007).



2008] TORT LAW 1359

Kho, M.D.'s ("Kho") claim of statutory negligence.
153

Kho's claim of statutory

negligence was based upon the defendant identity confidentiality statute, part of

the Indiana Medical Malpractice Act, found at Indiana Code section 34- 1 8-8-7.
154

The court held "that the doctor's claim against the malpractice claimant and her
attorneys for violation of the statutory defendant identity confidentiality

provision presents a cognizable negligence action for violation of an express

statutory duty."
155

In Kho, Miller, as personal representative of the Estate of Tracy Merle Lee

("Lee"), filed a complaint for medical negligence with the Indiana Department

of Insurance, as required by the Indiana Medical Malpractice Act.
156

However,

prior to a determination by a medical review panel, Miller filed a complaint with

the Scott Circuit Court.
157 Kho filed a motion for summary judgment, claiming

he did not provide medical services to Lee, which prompted Miller and

Pennington to voluntarily dismiss their state claim again Kho.
158 Kho then filed

a complaint against Miller and Pennington for falsely naming him in the
malpractice lawsuit.

159 The trial court granted summary judgment against Kho,
which the Indiana Court of Appeals affirmed.

160 The Indiana Supreme Court
granted transfer to address "whether violation of the defendant identity

confidentiality provision of Indiana Code [section] 34-18-8-7 in the Indiana
Medical Malpractice Act may give rise to an action for damages." 161

The Indiana Medical Malpractice Act requires that certain claims be
considered first by a medical review panel before an action should be filed in

state court.
162

Nevertheless, Indiana Code section 34-18-8-7 provides an
exception to the rule, which includes the following restriction: "[the] complaint

filed in court may not contain any information that would allow a third party to
identify the defendant[.]"

m
In Kho, the defendant was easily identifiable from

Miller's state court complaint.
164

To reach its conclusion that Kho filed an actionable claim against Miller and
her attorneys for naming him in the state court malpractice action and its order
that summary judgment was erroneously granted in favor of Miller and
Pennington, the Indiana Supreme Court examined the "long and continuous
history" in Indiana courts that "recogniz[es] negligence actions for statutory

153. Mat 216.
154. Id.

155. Id.

156. Id. at 209 & n.l (citing Ind. Code §§ 34-18-8-4, 34-18-10-1 to -26 (1998)).
157. Id. at 209-10.

158. Id. at 210.

159. Id.

160. Id.

161. Id.

162. Id. at 211 (citing Ind. Code § 34-18-8-4 (2004)).
163. Id. (quoting Ind. CODE § 34-18-8-7(a)(l) (2004)).
164. Id.



1360 INDIANA LAW REVIEW [Vol. 41:1345

violations."
165 The court found additional support in Restatement Second of

Torts sections 285 and 286 (1965), and "authoritative treatises."
166

B. "Increased Risk ofHarm " Standard

In Wolfe v. Estate of Custer ex rel Custer,
161

the Indiana Court of Appeals

affirmed the trial court's denial of defendant Richard Wolfe, D.O.'s ("Wolfe")

motion to correct error, which he filed after the trial court denied his motion for

judgment on the evidence.
168 The court of appeals entered judgment on the jury

verdict in favor of the plaintiff, Estate of Custer ("Custer"), for $432,000.
169

Wolfe essentially argued on appeal that there was not sufficient evidence to

support the jury's verdict or the damages awarded.
170

More specifically, Wolfe argued that there was insufficient evidence of
proximate cause

because the alleged increased risk of harm was "unquantified" and was

not shown to be a "substantial factor" in [plaintiffs] damages and that

the evidence presented regarding damages did "not establish that those

bills [we]re reasonable and necessary" or "that they were proximately

caused by anything that Dr. Wolfe did or did not do."
171

The court examined the history of the "increased risk of harm" standard as
adopted by the Indiana Supreme Court from Restatement (Second) of Torts

section 323 in Mayhue v. Sparkman112 and as applied to certain medical
malpractice cases.

173
Both parties agreed that the increased risk of harm standard

applied in the case, which requires that a "plaintiff must demonstrate that: ( 1) the

doctor was negligent; (2) the negligent act increased the risk of harm; and (3) the
'negligence was a substantial factor in causing the plaintiffs harm.'"

174

The court rejected Wolfe's first argument that Custer failed to prove that the
increased risk of harm caused by Wolfe was a substantial factor in causing the
harm suffered by Custer. 175 The court quoted the Indiana Supreme Court's
finding that "once the plaintiff proves negligence and an increase in the risk of

harm, the jury is permitted to decide whether the medical malpractice was a

165. Id. at 212 (citing, e.g., City of Indianapolis v. Garman, 848 N.E.2d 1087, 1088 (Ind.

2006)).

166. Id. at 213 (citing Dan Dobbs, The Law of Torts §§ 133-142 (2001); William L.
Prosser, Handbook of the Law of Torts 190-205 (4th ed. 1971)).

167. 867 N.E.2d 589 (Ind. Ct. App.), trans, denied, 878 N.E.2d 212 (Ind. 2007).

168. Id. at 602.

169. Id.

170. Id. at 598.

171. Id. at 594-95 (quoting Transcript of Record at 629-30).

172. Id. at 596 (citing Mayhue v. Sparkman, 653 N.E.2d 1384, 1388 (Ind. 1995)).
173. Id.

1 74. Id. at 597 (quoting Mayhue, 653 N.E.2d at 1388).

175. Id. at 598.



2008] TORT LAW 1361

substantial factor in causing the harm suffered by the plaintiff,"
176

and concluded

that Custer presented sufficient evidence from which the jury could infer that

Wolfe's negligence was a substantial factor in the harm.
177

The court also rejected Wolfe's second argument that Custer's evidence was
faulty because it failed to quantify the increased risk ofharm.

178 The court found
that Custer did in fact present evidence in the form of expert testimony

quantifying the risk of harm
179

and stated in a footnote that "quantification of the

increased risk is likely not required in order for a plaintiff to prove causation."
180

Likewise, the court found in favor of Custer as to Wolfe's final arguments

that the medical bills presented by Custer were not reasonable or necessary, nor

causally related to Wolfe' s acts or omissions.
181 The court reached its conclusion

by reasoning that Wolfe was required to present evidence to dispute the expenses

presented as evidence by Custer or risk the inference that the "medical bills are

admissible to show that the medical services performed were necessary." 182 The
court also found that Wolfe's argument as to causation failed "[b]ecause the

application of [Restatement (Second) of Torts section] 323 replaces the

requirement of showing a causal relationship under the traditional proximate

cause analysis."
183

C. Wrongful Death or Survival Act?

The court of appeals addressed another case of first impression in Atterholt
v. Robinson,

184
in which it decided that the Indiana Patient Compensation Fund

("Fund") "should have been allowed to contest the theory of recovery .... And
because recovery under the [wrongful death statute] or the Survival Act hinges

on whether the victim dies as a direct result of the tortfeasor's actions, the Fund
should have been allowed to present evidence regarding the cause of . . .

death."
185

Claimants are allowed to plead a wrongful death action or,

alternatively, a survival action, but tortfeasors can only be held liable for one, not

both.
186

The Fund argued that the Estate of Irene Gray ("Robinson") could only
recover excess damages pursuant to the wrongful death statute ("AWDS"), but

176. Id. (quoting Mayhue, 653 N.E.2d at 1388).

177. Id.

178. Id. at 599.

179. Id.

180. Id. at 599 n.10 (citing McKellips v. St. Francis Hosp., Inc., 741 P.2d 467, 475 (Okla.

1987)).

181. Id. at 601.

182. Id. (quoting Wilkinson v. Swafford, 811 N.E.2d 374, 387 (Ind. Ct. App. 2004)).

183. Id.

184. 872 N.E.2d 633 (Ind. Ct. App. 2007).

185. Id. at 643.

186. Id. at 640 (citing Best Homes, Inc. v. Rainwater, 714 N.E.2d 702, 705 (Ind. Ct. App.

1999)).



1362 INDIANA LAW REVIEW [Vol. 41 : 1345

Robinson argued that she could recover "damages pursuant to the Survival

Act."
187 Each of their arguments was based upon the amount of recovery, and

each argued the theory most economically beneficial to themselves.
188

The court first held that "because the underlying settlement [agreement

between Robinson and the healthcare provider] did not specify whether it

awarded damages pursuant to either the AWDS or the Survival Act, the Fund
should have been allowed to advocate for the proper theory of recovery."

189

However, the court also found that despite the trial court's pretrial order

precluding admission of cause of death to support its arguments about the proper

recovery theory, "the Fund admitted at oral argument that it proffered all of its

evidence regarding the proper theory of compensation."
190

Therefore, the trial

court's error in issuing the pretrial order was harmless.
191

Lastly, the court held

that there was sufficient evidence to support the trial court's findings of fact

supporting its decision to award damages pursuant to the Survival Act,
192

and the

amount of damages awarded was "within the scope of damages" and therefore

not excessive.

IV. Premises Liability

The premises liability cases decided during the survey period addressed
issues related to visitor status

194
and falls.

195 The facts of these cases involve
gravel,

196 snow and ice, 197 mail carriers, 198 and an unstable wooden step. 199 The
first case in this section, decided by the Indiana Court of Appeals, addressed an
issue of first impression, when it was faced with defining the duty of a real estate
broker to a prospective buyer when the real estate broker shows a house.200

In Masick v. McColly, Christine Masick ("Masick") suffered injuries when
she fell at a residential construction site, which residence and property was
owned by Hollendale Builders ("Hollendale").201 At the time of her fall, Masick

187. Id. at 641.

188. Id.

189. Id. at 644.

190. Id. at 644-45.

191. Id. at 645.

192. Id.

193. Id. at 646-47.

194. Masick v. McColley Realtors, Inc., 858 N.E.2d 682 (Ind. Ct. App. 2006).

195. Gilpin v. Ivy Tech State Coll., 864 N.E.2d 399 (Ind. Ct. App. 2007); Denison Parking,

Inc. v. Davis, 861 N.E.2d 1276 (Ind. Ct. App.), trans, denied, 869 N.E.2d 462 (Ind. 2007); Masick,

858 N.E.2d 682; Olds v. Noel, 857 N.E.2d 1041 (Ind. Ct. App. 2006).

196. See Gilpin, 864 N.E.2d 399.

197. See Denison Parking, Inc., 861 N.E.2d 1276.

198. See Olds, 857 N.E.2d 1041.

1 99. See Masick, 858 N.E.2d 682.

200. See id.

201. Id. at 684.



2008] TORT LAW 1363

was with a real estate agent fromMcColly Realtors ("McColly"), which had been

hired by Hollendale.
202

Masick fell when she stepped onto a wooden step in the
garage.

203 The step was built and owned by Hollendale and was moved between
houses during construction projects.

204
"[T]he step was not attached to

anything."
205

Also present in the residence at the time of Masick' s fall was an

employee of Saxon Drywall ("Saxon").
206

Masick sued McColly and Saxon,

claiming that both companies were negligent for not warning her of the

dangerous step.
207

The court of appeals first affirmed the trial court's grant of summary
judgment in favor of Saxon.

208 The court reasoned that "Saxon did not have
sufficient control over the step to subject it to liability for failure to warn Masick

about it."
209 Saxon was merely present at the residence, and its employees merely

used the step themselves.
210

"Saxon did not construct, design, own, or maintain

the step."
211

The court of appeals next concluded that McColly also did not have
sufficient control over the premises, pursuant to premises liability standards, to

give rise to a duty to warn Masick of the dangerous step.
212

However, the court

reversed the trial court's grant of summary judgment in favor of McColly when
it held that real estate brokers, like prospective landlords, have a duty to warn

prospective buyers of hidden defects known to the broker, but not known to the
tenant or buyer.

213

The court of appeals found that the scope and nature of a real estate broker'

s

duty to a prospective buyer under the facts of this case presented a case of first

impression.
214

In reaching its decision, the court "decline[d] to impose a duty on

real estate brokers unless they have control over the premises sufficient to

independently give rise to a duty to warn under recognized premises liability

principles."
215

This was the same reasoning the court used with regard to
Saxon.

216

However, the court then looked more specifically at policy arguments made

202. Id.

203. Id.

204. Id.

205. Id.

206. Id.

207. Id. at 684-85.

208. Id. at 687.

209. Id. at 685.

210. Id. at 686.

211. Id.

212. Id. at 692.

213. Id.

214. Mat 687.
215. Id. at 688.

216. See supra notes 209, 211 and accompanying text.



1364 INDIANA LAW REVIEW [Vol. 41:1345

by the parties and set forth in Hopkins v. Fox & Lazo Realtors?
11 The court of

appeals agreed with the dissent in Hopkins:

Because of the newly-created duty to inspect and warn, brokers

forced to defray the cost of the additional liability insurance will simply

add costs to the commission. Moreover, as the majority recognizes, the

broker still would retain the right of either contribution or

indemnification from the homeowner. Thus, in the end, the homeowner
will pay even more to insure against injuries that might occur in the

home, while the brokers will have no more incentive to inspect and warn

than they did before today's decision.

In addition, the smart homeowner, saddled with new costs will
simply increase the asking price for the house. Therefore, the potential

buyer will have to pay more for a house, which has had costs added to

the purchase price, all in the name of the buyer's protection.
Rather than serving the public, the majority' s decision will add extra

layers of litigation, paperwork, and cost to the already complex and

expensive process of selling and buying a house.
218

The court, while declining to impose a duty on the real estate broker to
inspect the house before showing it, agreed that "a broker is obliged to warn a
prospective buyer of a latent defect in the premises when the broker is aware of
it."

219 The court reversed the trial court with regard to McColly because it found
there was "a genuine issue of material fact as to whether such a duty arose and
whether the [real estate broker] breached it."

220

Earlier in 2007, the court of appeals decided the fairly straightforward

premises liability case Gilpin v. Ivy Tech State College,
221

which involved a slip
and fall due to gravel.

222
In Gilpin, the court affirmed the grant of summary

judgment in favor of the defendant Ivy Tech State College ("Ivy Tech").223 The
court concluded that Paul Gilpin ("Gilpin") "was a licensee when he slipped on
gravel and fell in the street while on the way to restrooms" at Ivy Tech.224

Additionally, the court concluded that "Gilpin was aware of the gravel before he
fell and, consequently, the gravel was not a latent danger about which Ivy Tech
should have warned Gilpin."225

The court first examined Gilpin' s status when he entered Ivy Tech' s property
because determining a person's visitor status is the first step in resolving a

217. Masick, 858 N.E.2d at 689-91 (citing Hopkins v. Fox & Lazo Realtors, 625 A.2d 1 1 10,
11 19-20 (N.J. 1993)).

218. Id. at 690-91 (quoting Hopkins, 625 A.2d at 1123 (Garibaldi, J., dissenting)).

219. Id. at 691.

220. Id.

22 1

.

864 N.E.2d 399 (Ind. Ct. App. 2007).

222. Id. at 400.

223. Id.

224. Id.

225. Id.



2008] TORT LAW 1365

premises liability case.
226 When a person enters property of another, he is an

invitee, licensee, or trespasser.
227 The duty owed to the visitor by the landowner

is defined by the visitor's status.
228

"[A]n invitee is a person who is invited to
enter or to remain on another's land whereas a licensee is privileged to enter or

remain on the land by virtue of permission or sufferance."
229

The court agreed with Ivy Tech and determined that Gilpin was a licensee
when he entered Ivy Tech's land.230 The court examined the evidence in a light
favorable to Gilpin and determined that no reasonable person could conclude that

Gilpin was invited to enter the land by Ivy Tech to use its public restrooms.
231

The court found no evidence that "Ivy Tech encouraged, desired, induced, or
expected Gilpin ... to use its restroomsf,] Gilpin . . . plann[ed] to pursue his own
educational objectives," or that Gilpin entered the Ivy Tech building to speak
with Ivy Tech personnel regarding his son for any reason.

232

The duty owed to a licensee is "to refrain from willfully or wantonly
injuring" the licensee "or acting in a manner to increase his peril."233 This duty
includes "the duty to warn a licensee of any latent danger on the premises of

which the landowner has knowledge,"
234

with "latent defined as concealed or

dormant."
235 The court found that Gilpin did not claim that Ivy Tech acted

willfully or wantonly, and then concluded that Ivy Tech had no duty to warn
Gilpin of the gravel because it was not a latent danger.236 Gilpin knew of the
gravel before he fell.

237

Another "slip and fall" case decided by the Indiana Court of Appeals during

the survey period was Denison Parking, Inc. v. DavisP* Also very
straightforward, the issue in this case was whether an owner of property abutting
a public sidewalk has a duty to a pedestrian to keep the sidewalks in a reasonably

safe condition.
239 The court concluded that the property owner does not.240 In

Denison Parking, Barbara Davis was walking on a sidewalk abutting Market
Square Arena when she slipped on ice and fell.241

226. Id. at 401 (citing Rhoades v. Heritage Invs., LLC, 839 N.E.2d 788, 791 (Ind. Ct. App.

2005)).

227. Id. (citing Rhoades, 839 N.E.2d at 791).

228. Id. (citing Rhoades, 839 N.E.2d at 791).

229. Id. at 402 (alteration in original) (quoting Rhoades, 839 N.E.2d at 792).

230. Id. at 403.

231. Id. at 402.

232. Id.

233. Id. at 403 (citing Rhoades, 839 N.E.2d at 791).

234. Id. (quoting Rhoades, 839 N.E.2d at 791).

235. Id. (citing Black's Law Dictionary 887 (7th ed. 1999)).
236. Id.

237. Id.

238. 861 N.E.2d 1276 (Ind. Ct. App.), trans, denied, 869 N.E.2d 462 (Ind. 2007).

239. Id. at 1277.

240. Id.

241. Id. at 1277-78.



1366 INDIANA LAW REVIEW [Vol. 41:1345

The court found generally that defendant property owners can be held liable

only if they create more dangerous conditions on abutting public sidewalks and

"if [the] plaintiff's injuries are 'directly attributable to that condition,'" or if the

property owner creates artificial conditions "that increase risk and proximately

cause injury to persons using those sidewalks."
242

The court continued and determined that even if it had analyzed the case and

facts under the Restatement (Second) of Torts section 342(A), which was used

by the court in Webb v. Jarvis
243

to determine whether Denison Parking owed a
duty to Davis, Denison Parking would still not be liable.

244
Pursuant to Webb, a

court looks to three factors, the third of which is a public policy balancing test.
245

The Denison Parking court found that a separate analysis "would fail the

'balancing' test set forth in Webb, in favor of the third 'public policy' prong."
246

The court found that society favors encouraging private parties to conduct snow
removal.

247

In the end, the Denison Parking court held that Denison Parking owed no
common law duty to Davis, by assumption or otherwise, and Denison Parking did
not owe Davis a statutory duty because municipal codes are not enacted to
protect individuals, but rather, municipalities.

248
The trial court's denial of

Denison Parking's motion for summary judgment was reversed, and the case
remanded.

249

In Olds v. Noel,
250

the court of appeals addressed issues related to injuries

sustained after a mail carrier slipped and fell on snow and ice along a private
sidewalk of a single-family residential dwelling that was being rented at the
time.

251 The court of appeals affirmed the trial court's grant of summary
judgment in favor of the defendants, Steven and Rita Noel ("Noels"), and against
the plaintiff, James H.S. Olds, m ("Olds").252

Olds argued that summary judgment was inappropriate because the Noels,
as the homeowners and landlords, owed Olds a duty to clear the sidewalk upon
which Olds fell.

253 The court cited the general rule regarding maintenance and
conditions of real property: '"whether a duty is owed depends primarily upon
whether the defendant was in control of the premises when the accident

242. Id. at 1280-81 (quoting Lawson v. Lafayette Home Hosp., Inc. 760 N.E.2d 1 126, 1 130
(Ind. Ct. App. 2002)).

243. 575 N.E.2d 992, 995 (Ind. 1991).

244. Denison Parking, 861 N.E.2d at 1280.

245. Id.

246. Id.

247. Id.

248. Id. at 1280-81.

249. Id. at 1281-82.

250. 857 N.E.2d 1041 (Ind. Ct. App. 2006).

251. Id. at 1042.

252. Id.

253. Id.



2008] TORT LAW 1367

occurred.'"
254

In the landlord-tenant context, Indiana courts have held: "'As a

general rule, in the absence of statute, covenant, fraud or concealment, a landlord

who gives a tenant full control and possession of the leased property will not be
liable for personal injuries sustained by the tenant or other persons lawfully upon

the leased property.'"
255

Olds argued that a "well-recognized exception" to the general rule should

apply to his case, that landlords have a duty of reasonable care to maintain

common areas over which the landlord has retained control.256 The court found,
however, that "Indiana courts to date have recognized common areas on rental
properties only in apartment complexes, duplexes, or other multi-unit properties

where tenants lease property subject to leases specific to each individual rental

unit."
257

This case involved "an undivided, single-family dwelling."
258

Furthermore, the Noels specifically did not retain control over the sidewalks,

pursuant to their lease agreement with the tenants, and there was one common
lease signed on the same date by the tenants.

259 The court declined to accept
Olds's argument that because the Noels reserved a right of entry to the property

(a common lease provision), they never transferred complete control of the
premises to the tenants.

260 The court lastly declined to accept Olds's argument
that public policy warrants expanding the exception to the general rule to the

facts of his case.
261 The court reminded Olds that he did not pursue the legal

remedy available to him in this case, to sue the tenants who were in control and
possession of the premises at the time of the fall.

262

V. Indiana Tort Claims Act

There were at least two notable Indiana Tort Claims Act ("ITCA") cases

decided during the survey period. One from each of the appellate courts will be
surveyed below. The Indiana Supreme Court decided a case based upon a section
of the ITCA that provides immunity based upon losses resulting from temporary
conditions caused by weather.

263 The Indiana Court of Appeals decided a case

254. Id. at 1043-44 (quoting Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2004)).

255. Id. at 1044 (quoting Pitcock v. Worldwide Recycling, Inc., 582 N.E.2d412, 414 (Ind. Ct.

App. 1991)).

256. Id. (citing Rossow v. Jones, 404 N.E.2d 12, 14 (Ind. Ct. App. 1980)).

257. Id. (citing Aberdeen Apartments v. Cary Campbell Realty Alliance, Inc., 820 N.E.2d 158

(Ind. Ct. App. 2005) (apartment complexes); Dawson v. Long, 546 N.E.2d 1265 (Ind. Ct. App.

1998) (duplex); Flott v. Cates, 528 N.E.2d 847 (Ind. Ct. App. 1998) (home divided into three

apartments)).

258. Id.

259. Mat 1044-45.
260. Id. at 1045-46.

261. Id. at 1046-57.

262. /d. at 1047.

263. See Hochstetler v. Elkhart County Highway Dep't, 868 N.E.2d 425 (Ind. 2007).



1 368 INDIANA LAW REVIEW [Vol. 4 1 : 1 345

involving a claim of an incarcerated defendant against prison officers.
264

In Hochstetler v. Elkhart County Highway Department,
265

the Indiana

Supreme Court affirmed a trial court ruling that granted summary judgment for

various county entities on plaintiff Marvin Hochstetler' s ("Hochstetler")

negligence suit.
266

Hochstetler sued the highway department, county

commissioners, and county sheriff claiming the entities negligently and

carelessly maintained the county road upon which Hochstetler wrecked his

motorcycle into a tree that had fallen into a county road after a storm the night

before.
267

The Indiana Supreme Court found that even though "more recent law

established through the Indiana Tort Claims Act recognizes that state and local

governments may have tort responsibility for damages flowing from negligence,"
state and local governments may be immune from the negligence under certain
circumstances.

268 The applicable provision of the ITCA in Hochstetler was
Indiana Code section 34-13-3-3(3), which "creates immunity for losses resulting

from '[t]he temporary condition of a public thoroughfare . . . that results from

weather.'"
269

The court examined previous case law construing the applicable provision

of the ITCA and found that it previously determined that "immunity under this
section contains two key concepts[.]"

27° The first concept is that the condition
must have truly been "caused [by] weather" as distinguished from "poor

inspection, design, or maintenance."
271 The second concept is that the condition

must be "'temporary.'"
272

In affirming the trial court and thereby dismissing the

negligence claims against the county entities based upon the ITCA, the Indiana
Supreme Court reasoned that in this situation, the storm caused many trees to fall
onto roadways and the highway crews worked to clear the trees for hours.

273

In Smith v. Indiana Department of Correction,
21* Eric Smith ("Smith"), the

incarcerated plaintiff, filed a negligence claim against prison officers based upon
the manner in which the officers allegedly treated Smith during a cell
extraction.

275
The cell extraction was ordered because Smith refused to obey

orders of the officers at the same time that other prisoners were purposefully

264. See Smith v. Ind. Dep't of Com, 871 N.E.2d 975 (Ind. Ct. App.), trans, denied, 878
N.E.2d 220 (Ind. 2007), cert, denied, 128 S. Ct. 1493 (2008).

265. 868 N.E.2d 425.

266. Id. at 426.

267. Id.

268. Id. (citing Ind. Code Ann. §§ 34-13-3-1 to -25 (West 2007)).
269. Id. (alteration and omission in original) (quoting Ind. Code Ann. § 34-13-3-3(3)).
270. Id. (citing Catt v. Bd. of Comm'rs of Knox County, 779 N.E.2d 1, 4-6 (Ind. 2002)).
27 1

.

Id. at 426-27 (citing Catt, 779 N.E.2d at 4).

272. Id. at 427 (citing Catt, 779 N.E.2d at 6).

273. Id.

21A. 87 1 N.E.2d 975 (Ind. Ct. App.), trans, denied, 878 N.E.2d 220 (Ind. 2007), cert, denied,

128 S. Ct. 1493(2008).

275. Id. at 980-81.



2008] TORT LAW 1369

flooding their cells.
276 The court held that because "[e]nforcing discipline and

maintaining prison security is clearly within the prison officers' scope of

employment,"
277

Smith cannot prevail against the officers individually because

they "are shielded from liability in their official capacity under the Indiana Tort

Claims Act."
278

VI. Business Torts

A. Fraud and Misrepresentation

The case of Benge v. Miller?
19

decided by the Indiana Court of Appeals

during the survey period, stands for the proposition that the causes of action for

fraud, constructive fraud, and home improvement fraud are distinct causes of
action and one may recover for home improvement fraud while losing its claim
for fraud or constructive fraud.

280
In this case, the defendant argued that the trial

court erred when it entered judgmentfor the plaintiff on the home improvement
fraud count while at the same time entered judgment against the plaintiff on the
fraud and constructive fraud counts.

281

The court of appeals held that the trial court did not err in this respect and
found that to prove fraud and constructive fraud a "plaintiff must show a material
misrepresentation of a past or existing fact" and reliance on the material

misrepresentations.
282 On the other hand, to prove home improvement fraud, a

plaintiff must show only one of the following: "that the home improvement
supplier either [(1)] misrepresented a material fact or promised performance that

he did not intend to perform, or [(2)] used or employed deception to cause the
plaintiff to enter into the contract, or [(3)] entered into an unconscionable

contract."
283

Furthermore, unlike with fraud and constructive fraud, there is "no

reliance requirement in the home improvement fraud statute."284

B. Commercial Interference & Malicious Prosecution

The Indiana Court ofAppeals addressed two intentional torts in Government
Payment Service, Inc. v. Ace Bail Bonds.2*5 First, the court reversed the trial
court and held that there was no intentional interference with business
relationships by Government Payment Service, Inc. ("GPS") as against Ace Bail
Bonds, American Bail Bond Company, Bertholet Bail Bond, and Express Bail

276. Id. at 986.

277. Id.

278. Id. (citing Ind. Code §§ 34-13-3-1 to -5 (2004)).
279. 855 N.E.2d 716 (Ind. Ct. App. 2006).

280. Id. at 721. (citing Brief for the Appellee at 17).

281. Id.

282. Id. (citing Wheatcraft v. Wheatcraft, 825 N.E.2d 23, 30 (Ind. Ct. App. 2005)).

283. Id. (citing IND. CODE § 35-43-6-12 (2004)).
284. Id.

285. 854 N.E.2d 1205 (Ind. Ct. App. 2006), trans, denied, 869 N.E.2d 455 (Ind. 2007).



1 370 INDIANA LAW REVIEW [Vol. 4 1 : 1 345

Bond (collectively, the "Bail Agents").
286

Second, the court affirmed the trial

court and held that GPS failed to prove malicious prosecution by the Bail Agents,
and GPS's counterclaim to that effect should be denied.

287

In reaching its conclusion regarding the intentional interference with business

relationship claim, the court first listed the elements of the tort as: "(1) the

existence of a valid relationship; (2) the defendant's knowledge of the existence

of the relationship; (3) the defendant's intentional interference with that

relationship; (4) the absence of justification; and (5) damages resulting from

defendant' s wrongful interference with the relationship."
288 The court noted that

the Indiana Supreme Court additionally requires that the defendant must have

acted illegally to achieve the complained of end result.
289

The court of appeals also concluded that there was no evidence that the Bail
Agents or their clients had any valid business relationship with the government

entities with whomGPS had contracts, such as contracts, property or other rights,
access to incarcerated defendants flowing from a valid business relationship, or

consideration paid by the Bail Agents for such access.
290

Furthermore, the court

of appeals concluded that

[t]here is also no evidence that GPS intentionally interfered, or could
interfere, with the relationship which Bail Agents claim to have had with

the governmental entities . . . [because] [i]t was the governmental
entities, not GPS, who adopted the cash bail programf, and] . . . who
restricted the access of the Bail Agents to the jails and the incarcerated

defendants.
291

Lastly, with regard to GPS's malicious prosecution counterclaim, the court
held that because the original action granting the temporary restraining order

against GPS was not terminated in GPS's favor, but rather, the permanent
injunction was issued on the merits at a later time by a different trial court, GPS
failed to prove malicious prosecution on the part of the Bail Agents.

292 The court
therefore affirmed the trial court's order denying GPS's counterclaim.293

vn. Intentional Torts

A. Defamation

During the survey period, Indiana appellate courts decided no less than three

286. Id. at 1210.

287. Id. at 1210-11.

288. Id. at 1 209 (citing Felsher v. Univ. of Evansville, 755 N.E.2d 589, 598 n.21 (Ind. 2001 )).

289. Id. (citing Brazauskas v. Fort Wayne-South Bend Diocese, Inc., 796 N.E.2d 286, 291
(Ind. 2003)).

290. Id.

291. Id. at 1209-10.

292. Id. at 1211.

293. Id.



2008] TORT LAW 1371

cases regarding suits for defamation. One of these cases, from the Indiana
Supreme Court, made new law. In Kelley v. Tanoos,294 the Indiana Supreme
Court decided a defamation case based upon the qualified privilege defense. The
defendant in Kelley, Daniel Tanoos ("Tanoos"), made statements to plaintiffPaul
Kelley' s ("Kelley") employer accusing Kelley of firing a shotgun at Tanoos.

295

When the statements were made, the police were conducting an investigation,
and they knew of and cooperated with Tanoos's decision to make the accusatory
statements.

296 The police gave Tanoos questions to ask and wired him so the
conversation would be recorded.

297
Nevertheless, Kelley was never charged with

a crime related to the shooting.
298

Kelley subsequently sued Tanoos for defamation for the statements made
during the taped conversation.

299 The trial court granted Tanoos' s motion for
summary judgment "without findings of fact or conclusions of law."300 "The
[c]ourt of [a]ppeals reversed and remanded, holding that" there were genuine

issues of material fact regarding the defamation claim and that Tanoos's

statements were not qualifiedly privileged.
301

The Indiana Supreme Court
affirmed the trial court, and held that "Tanoos is protected from liability for

defamation in these circumstances because the statements were made to assist
law enforcement investigate criminal activity."

302

The Indiana Supreme Court relied on the qualified privilege doctrine to
decide the case. "A qualified privilege protects 'communications made in good
faith on any subject matter in which the party making the communication has an

interest or in reference to which he has a duty, either public or private, either

legal, moral, or social, if made to a person having a corresponding interest or
duty.'"

303
Furthermore, communications to law enforcement officers are

protected by the qualified privilege "[t]o 'enhance[] public safety by facilitating

the investigation of suspected criminal activity.'"
304

Whether the privilege
applies is a question of law for the court.

305

294. 865 N.E.2d 593 (Ind. 2007).

295. Mat 595.
296. Id. at 596.

297. Id.

298. Id.

299. Id.

300. Id.

301. Id.

302. Id. at 595.

303. Id. at 597 (quoting Bals v. Verduzco, 600 N.E.2d 1353, 1356 (Ind. 1992)).

304. Id. (second alteration in original) (quoting Holcomb v. Walter' s Dimmick Petroleum, Inc.,

858 N.E.2d 103, 108 (Ind. 2006)). In Holcomb, also decided by the Indiana Supreme Court during

the current survey period, the court held that the defendant's statements to a police officer, relaying

that she believed the plaintiff had driven from the gas station without paying for pumped gasoline,

could not be the basis for claims of false arrest, false imprisonment, defamation, or abuse of

process, because such statements were qualifiedly privileged. Holcomb, 858 N.E.2d at 105.

305. Kelley, 865 N.E.2d at 597 (citing Bals, 600 N.E.2d at 1356).



1372 INDIANA LAW REVIEW [Vol. 41:1345

Even though the Indiana Supreme Court found the common interest privilege
to be inapplicable,

306
it found the public interest privilege to be applicable.

307

Both of these privileges are qualified privileges. This decision created new law
in Indiana. As the court noted, Indiana had not yet adopted the Restatement

(Second) of Torts section 598 comment f reading of the public interest

privilege.
308 Comment f provides that the public interest privilege "affords

protection to a private citizen who publishes defamatory matter to a third person
even though he is not a law enforcement officer, under circumstances which, if

true, would give to the recipient a privilege to act for purposes of preventing a

crime or of apprehending a criminal or fugitive from justice."
309 The court

cautioned, however, that extending the public interest privilege to protect

communications of private citizens is not without its limits.
310

The public interest privilege applies only to communications made to private
citizens if the statements further the same interest as communications made to
law enforcement officers.

311
"That interest is grounded in a public policy

intended to encourage private citizens and victims not only to report crime, but

also to assist law enforcement with investigating and apprehending individuals

who engage in criminal activity."312

In Hamilton v. Prewett
313

the Indiana Court of Appeals affirmed a trial

court' s grant of summaryjudgment on a defamation claim involving a website.
314

"The law of defamation was created to protect individuals from reputational
attacks."

315 To win a defamation claim, four elements must be proven: "(1) a
communication with defamatory imputation, (2) malice, (3) publication, and (4)
damages."

316 To determine whether defamatory imputation exists, courts will
look "'among other factors, ... the temper of the times [and] the current of
contemporary public opinion.'"

317

The court determined that no Indiana court has addressed the relationship
among defamation and parody, which was at issue in Hamilton, and looked to
case law from other jurisdictions and secondary sources for guidance.

318 The

306. Id. at 598-99.

307. Id. at 601.

308. Id. at 600.

309. Id. (quoting Restatement (Second) of Torts § 598 cmt. f (1977)).
310. Id.

311. Id.

312. Id. at 601.

313. 860 N.E.2d 1234 (Ind. Ct. App.), trans, denied, 869 N.E.2d 459 (Ind. 2007).
314. Id. at 1247.

315. Id. at 1243 (citing Journal-Gazette Co. v. Bandido's, Inc., 712 N.E.2d 446, 451 (Ind.

1999)).

316. Id. (citing Lovings v. Thomas, 805 N.E.2d 442, 447 (Ind. Ct. App. 2004)).
Communications can be per se defamatory, in which case damages are presumed without proof, but
that form of defamation is not applicable in Hamilton. Id.

3 1 7. Id. (quoting Bandido \s, 7 1 2 N.E.2d at 452 n.6).

318. Id. at 1243-44.



2008] TORT LAW 1373

court concluded "that defamation and parody are mutually exclusive."
319 The

court reasoned that "'parody' is speech that one cannot reasonably believe to be

fact because of its exaggerated nature," whereas defamation requires a "false

statement of fact."
320 The court warned, however, that an action may still lie for

defamatory imputation of fact that is "couched in humor" because the key to the
analysis is whether the information is factual.

321

The Hamilton court disagreed with the plaintiff's arguments and concluded
that the website at issue was a parody despite the factual differences between this
case and Hustler v. Falwell,

322
a U.S. Supreme Court case wherein defendant

Falwell's claim of intentional infliction of emotional distress was dismissed on
summaryjudgment because the cartoon about which he complained was deemed
to be a parody rather than defamatory imputation of fact.

323

B. Battery

In Mullins v. Parkview Hospital, Inc.
,

324
the Indiana Supreme Court affirmed

the trial court's grant of summary judgment to defendant LaRea VanHoey
("VanHoey"), a then student of a University of St. Francis emergency medical

technician certification program.
325 The plaintiffs, W. Ruth Mullins and Johnce

Mullins, Jr. (collectively "Mullins"), sued VanHoey for battery for injuries Ruth
Mullins suffered as a result of VanHoey' s attempt to intubate Mullins.

326
In

affirming the trial court, the Indiana Supreme Court concluded that there was no
evidence that VanHoey intended to harm Mullins, a prerequisite to a successful
battery claim.

327

The court first examined the limited consent that Mullins gave to her doctors.
Mullins consented to the surgery, but crossed out those portions of the consent

form allowing "'the presence of healthcare learners'" and photography and

videotaping of the procedure.
328

Nevertheless, the gynecologist and

anesthesiologist attending Mullins 's surgery allowed VanRoey, a student, to

319. Id. at 1244 (citing Browning v. Clinton, 292 F.3d 235, 248 (D.C. Cir. 2002); Victoria

Square, LLC v. Glastonbury Citizen, 891 A.2d 142, 145 (Conn. Super. Ct. 2006); Kiesau v. Bantz,

686 N.W.2d 164, 176-77 (Iowa 2004); Stein v. Marriott Ownership Resorts, Inc., 944 P.2d 374,

380 (Utah Ct. App. 1997). The Hamilton court also relied heavily on the U.S. Supreme Court's

opinion in Hustler v. Falwell,4&5 U.S. 46, 57 (1988), which discussed parody with regard to actual

malice in an intentional infliction of emotional distress claim. Id.

320. Id.

321. Id. at 1245 (citing Hamilton, 860 N.E.2d at 1251 (Najam, J., concurring)).

322. 485 U.S. 46 (1988).

323. Hamilton, 860 N.E.2d at 1245-47.

324. 865 N.E.2d 608 (Ind. 2007).

325. Id. at 609.

326. Id.

327. Id.

328. Id.



1374 INDIANA LAW REVIEW [Vol. 41:1345

attempt to intubate Mullins, which resulted in injury.
329

The court found that "[e]very actor in a medical context, however, is not

obligated to obtain consent," and "the burden falls on a physician to obtain a

patient's consent for treatment."
330

In this case, the physician and

anesthesiologist did obtain consent from Mullins for her surgery; however,

neither passed along to VanHoey that Mullins did not consent to the presence of
students.

331
Based upon VanHoey' s status as a student, the court held that "she

was under no obligation to obtain consent herself or inquire into the consent

under which [the anesthesiologist] was acting."
332

Because VanHoey was not obligated to obtain or know ofMullins 's consent,
the Mullinses had to "establish the traditional elements of battery," which
includes intent to cause harm.

333 The court found that the Mullinses did not
allege that VanHoey intended her acts to cause harm to Mullins, and there were
no facts or evidence supporting a proposition that VanRoey intended to harm
Mullins.

334
Therefore, the court affirmed the trial court's grant of summary

judgment in favor of VanRoey, "a student following a curriculum and the
instructions of her superiors" who had no intent to cause harm.335

329. Id.

330. Id. at 610 (citing Culbertson v. Mernitz, 602 N.E.2d 98, 101 (Ind. 1992)).
331. Mat 611.
332. Id.

333. Id.

334. Id.

335. Id. at 612.