Indiana Law Review


Recent Developments in Indiana Tort Law

Milton Augustus Turner

This Article discusses noteworthy tort law in hidiana during the survey

period, October 1, 2008 through September 30, 2009. It is not intended as a

comprehensive or exhaustive overview.

I. Statutory Updates

The survey period saw a number ofnew Acts enacted by the Indiana General
Assembly in a number of areas. The subject matter is neither a comprehensive
nor an exhaustive examination oflegislative updates applicable to tort law during

the survey period. Moreover, Indiana courts have yet to hand down a decision
concerning the legislative updates.

A. Qualified Immunityfor School Personnel

During the survey period, the General Assembly amended Indiana Code
section 20-33-8-8 to grant qualified immunity to school corporation personnel

with respect to a disciplinary action taken to promote student conduct "if the

action is taken in good faith and is reasonable."' Such disciplinary action must

"promote student conduct that conforms with an orderly and effective

educational system."^

B. Qualified Immunityfor Youth Shelters

An entity that "is not operated for profit"^ but "provides, at a minimum,
necessary services to runaway or homeless youths,'"^ is now immune from civil
liability resulting from any act or omission related to admitting, caring for, or

releasing a runaway or homeless youth, including its directors, employees,
agents, or volunteers.^ But the General Assembly created an exception for acts

* J.D. Candidate, 2010, Indiana University School ofLaw—Indianapolis; M.A, Candidate,
2010, Indiana University; B.A., 2005, Wabash College, Crawfordsville, Indiana. I would like to

give great thanks Chris Worden ofThe Worden Law Office, Indianapolis, Indiana, for his tireless

efforts in helping me to perfect and edit this Article, believing in me like a father would his son, and
pushing me to be my best in all things in law and in life. Professor Gerald Magliocca for being the
first to offering his support to me and walking me through the note-writing process, and finally,
Daniel Pulliam for giving me the opportunity to publish my first article.

1. IND. Code § 20-33-8-8(b)(3) (Supp. 2009) (The addition of subsection (b)(3) was the

only change to this section of the statute during the survey period.).

2. Id. § 20-33-8-8(b)(2).

3. Id § 34-30-25-3(1).

4. Id § 34-30-25-3(2).

5. Id. § 34-30-25-4. "Necessary services" are defined as the following:

1

.

Engaging in outreach services to locate and assist runaway or homeless youths.

2. Providing food and access to overnight shelter to a runaway or homeless youth.

3. Counseling a runaway or homeless youth to address inmiediate psychological or



1 054 INDIANA LAW REVIEW [Vol. 43 : 1 053

of"gross negligence or willfiil and wanton misconduct."^ The General Assembly

defined "runaway or homeless youth" as an individual between the ages of

twelve and eighteen years old who is unemancipated, mentally competent, or
lives in a situation described in 42 U.S.C. § 11434a(2)(B)(ii) or §
1 1434a(2)(B)(iii) regardless of whether the parent, guardian, or custodian had

knowledge or gave consent.^

II. Negligence

A. Duty ofCare

In Clary v. Dibble,^ the Indiana Court of Appeals affirmed the trial court's

grant of summary judgment as to the plaintiffs claims of negligence and
respondeat superior.^ The morning of a K&P Roofing Siding & Home
Improvement's ("K&P") golf tournament, Patrick H. Dibble, an independent
contractor, consumed a prescription pain reliever and had a hangover from
drinking the night before. ^^ K&P employees saw that Dibble was visibly
nauseated throughout the day.

^

' Upon leaving the tournament. Dibble struck two
motorcyclists, killing one.'^

The court concluded that K&P did not owe plaintiffs a duty to prevent Dibble
from leaving the golf course impaired. ^^ The court first recited the elements
plaintiffs must establish under the theory ofnegligence as: "( 1 ) defendant's duty

to conform his conduct to a standard ofcare arising from his relationship with the

plaintiff, (2) A failure of the defendant to conform his conduct to that standard
of care, and (3) An injury to the plaintiff proximately caused by the breach."^"^

The court then restated the balancing factors for determining whether a duty
exists: (1) the parties' relationship; (2) the harm's reasonable foreseeability to

emotional problems.

4. Screening a runaway or homeless youth for basic health needs and referring a

runaway or homeless youth to public and private agencies for health care.

5. Providing long term planning, placement, and follow-up services to a runaway or

homeless youth.

6. Referring a runaway or homeless youth to any other assistance or services offered

by public and private agencies.

Id §34-30-25-1.

6. Id § 34-30-25-5.

7. Id § 34-30-25-2.

8. 903 N.E.2d 1032 (Ind. Ct. App.), trans, denied, 919 N.E.2d 546 (Ind. 2009).

9. Mat 1041.
10. Mat 1035.
11. Mat 1036.
12. Id

13. Mat 1040-41.
14. Mat 1038.



2010] TORT LAW 1055

the injured person; and (3) concerns ofpublic policy.*^

The Indiana Supreme Court in Gariup explained that, as between and an

employer, an employee, and third-person motorists potentially "exposed to

significant danger in the event of [the employee's] drunk driving, there existed

a relationship which as a matter of law gave rise to a duty on the part of [the

employer] to exercise ordinary and reasonable care."*^

First, the court could not find that a relationship existed because Dibble was
an independent contractor instead ofan employee, "and therefore, was not under
K&P's influence and control as contemplated by Gariup.'"^^ The court then
found that "K&P did not in any way contribute to Dibble's impairment, where
Dibble had been drinking on his own the night before the tournament and had
taken a 'prescription medication prior to the tournament.

'"^^

The court reasoned that the "foreseeability component of duty requires . .

.

a general analysis of the broad type of plaintiff and harm involved, without
regard to the facts of the actual occurrence."'^ The court found that it was not
reasonably foreseeable for an individual, in Dibble's circumstances on the day
in question, to cause an automobile accident.^^

The court concluded by reasoning that factors including "convenience of
administration, capacity of the parties to bear the loss, a policy of preventing

future injuries, and the moral blame attached to the wrongdoer,"^' are all weighed

in a public policy decision to determine the existence of a duty. The court held
that although society has a legitimate interest in protecting its citizens from

seriously impaired drivers, the demands that the drivers bear responsibility for
their own negligent driving outweigh such an interest.^^

In Witmat Development Corp. v. Dickison^^ the Indiana Court of Appeals

reversed the trial court's grant of summary judgment in favor of the defendants
involving the question of whether the intoxicated plaintiff (Dickison), whose
vehicle struck a tree and fell into a water filled strip pit, was owed a duty by the
property owner, Witmat.^"^ The court explained that Dickison' s estate must
demonstrate that (1) Witmat owed Dickison a duty; (2) Witmat breached the
duty; and (3) the breach proximately caused Dickison' s death.^^ The court,
applied the Webb test to determine whether a duty exists as "(1) the relationship
between the parties; (2) the reasonable foreseeability of the harm to the person

15. Id (citing Estate of Heck ex rel Heck v. Stoffer, 786 N.E.2(i 265, 268 (Ind. 2003)).

16. Id. at 1039 (quoting Gariup Constr. Co. v. Foster, 519 N.E.2d 1224, 1229 (Ind. 1988)).

17. Id

18. Mat 1039-40.
19. Id at 1040 (quoting Clark v. Aris, Inc., 890 N.E.2d 760, 764 (Ind. Ct. App. 2008)).

20. Id

21. Id. (quoting Williams v. Cingular Wireless, 809 N.E.2d 473, 478 (Ind. Ct. App. 2004)).

22. Id

23. 907 N.E.2d 170 (Ind. Ct. App.), trans, denied, 919 N.E.2d 552 (Ind. 2009).

24. Mat 171-72.
25. Id at 173 (citing Winchell v. Guy, 857 N.E.2d 1024, 1026 (Ind. Ct. App. 2006)).



1 056 INDIANA LAW REVIEW [Vol. 43 : 1 053

injured; and (3) public policy concerns.
"^^

The court found that Witmat owed no duty to Dickison.^^ Although
traditionally those who occupy land adjacent to roads and highways have an
obligation "to use reasonable care not to endanger such passage by excavations

or other hazards so close to the road as to make it unsafe to persons using the
road with ordinary care,"^^ Dickison's failed to exert reasonable care, as his

blood alcohol was 0.172 to 0.204 when he died.^^ Also, the plaintiff could not
identify any evidence that the accident happened because Dickison

overcorrected.^^

In Harradon v. Schlamadinger,^^ the court addressed whether a property

owner owes a duty to a two-month old who suffocated while sleeping on the
owner's couch with his mother.^^ The parents sued the defendants, and trial court
granted summary judgment in favor of the defendants.^^

The court held that a landowner is subject to liability for physical harm
suffered by his invitees by a condition on the land if he:

(a) knows or by the exercise of reasonable care would discover the
condition, and should realize that it involves an unreasonable risk of

harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or

will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.^"^

The court concluded that the minor plaintiffs, who were seventeen years old at
the time ofthe incident, must exercise the standard ofcare ofadults.^^ The court
found that because the baby was entirely dependent on the care of his minor
parents, the scope of the defendants' care was limited to a duty to supervise the
plaintiffs.^^ The court also relied on the fact that the baby w^as in their exclusive
care the evening in question.^^

26. Id. (citing Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991)).
27. Id. at 175.

28. Id. (quoting Ind. Limestone Co. v. Staggs, 672 N.E.2d 1377, 1381 (Ind. Ct. App. 1996));

see City of Indianapolis v. Emmelman, 9 N.E. 155, 157 (Ind. 1886).

29. Witmat Dev. Corp. , 907 N.E.2d at 1 74.

30. Mat 175.
31. 9 1 3 N.E.2d 297 (Ind. Ct. App. 2009), trans, denied. No. 75A03-0903-CV- 1 1 4, 20 1 Ind.

LEXIS 44 (Ind. Jan. 14, 2010).

32. Mat 298-99.
33. Mat 298.
34. M at 301 (citing Burrell v. Meads, 569 N.E.2d 637, 639-40 (Ind. 1991); RESTATEMENT

(Second) of Torts § 343 (1965)). All three of these preconditions must be met before a

landowner will be held liable. Id.

35. Id

36. M; see also Davis v. LeCuyer, 849 N.E.2d 750, 757 (Ind. Ct. App. 2006).
37. Harradon, 913 N.E.2d at 1»0\\ see Kelly v. Ladywood Apartments, 622 N.E.2d 1044,

1049 (Ind. Ct. App. 1993) (holding that the "immediate presence" of a supervising parent negates



2010] TORT LAW 1057

The court also concluded that the Schlamadinger's sofa was not a dangerous

condition on the property within the meaning ofthe Restatement.^^ Also, a sofa

is a common household item, not generally presented as an unreasonable risk of
harm to a baby.^^ The court held that "[t]he law does not require the [defendants]

to protect a youthful invitee, such as the baby, from a danger on their premises

which [the parents] themselves created, were fully aware of, and yet consciously

disregarded.'"^^ Due to their exclusive care ofthe baby, the parents owed a duty
to the baby to exercise reasonable care to protect the baby from a condition on

the defendant's property."^

^

B. Res Ipsa Loquitur

In Ziobron v. Squires,^^ the Indiana Court of Appeals affirmed the trial

court's grant ofsummaryjudgment for the defendant medical providers in a case
involving alleged malpractice cause during a vaginal hysterectomy with removal

of ovaries and fallopian tubes and a bladder sling procedure.'*^

The court explained that, under the doctrine ofres ipsa loquitur, negligence
may be inferred where: "1) the injuring instrumentality is shown to be under the
management or exclusive control of the defendant or his servants, and 2) the
accident is such as in the ordinary course ofthings does not happen ifthose who
have management of the injuring instrumentality use proper care.'"*"*

A physician's alleged negligence may be so apparent that, due to res ipsa
loquitur, expert testimony is unnecessary to raise a genuine issue of material

fact."^^ But the physician's care must be so "obviously substandard" that a

layperson could recognize it."^^ The court concluded that, in addition to the
plaintiffs failure to provide sufficient evidence, preparation for the bladder sling

procedure, and the likelihood of symptoms following it developing five years
afterwards, fell outside of the realm of negligible conduct inferable by a
layperson under Indiana precedent."*^

"the policy reasons for shifting the duty of care for a child from" the parent to a third party).

38. Harradon, 9 1 3 N.E.2d at 302 (Ind. Ct. App. 2009); see also Restatement (Second) of

Torts § 343(a) (1965).

39. Harradon, 913 N.E.2d at 302 (citing Lowden v. Lowden, 490 N.E.2d 1 143, 1 146-47

(Ind. Ct. App. 1986)).

40. Id. (citing Johnson v. Pettigrew, 595 N.E.2d 747, 752 (Ind. Ct. App. 1992)).

41. Id

42. 907 N.E.2d 118 (Ind. Ct. App 2008). Although this is a medical malpractice case, this

has been included in the survey due to its discussion res ipsa loquitur.

43. Id at 120.

44. Id at 125 (citing Syfii v. Quinn, 826 N.E.2d 699, 704 (Ind. Ct. App. 2005)).

45. Id at 123 (citing Syfu, 826 N.E.2d at 703; Wright v. Carter, 622 N.E.2d 170, 171 (Ind.

1993)).

46. Id (quoting Malooley v. Mclntyre, 597 N.E.2d 314, 319 (Ind. Ct. App. 1992)).

47. Id. at 126-27. The court compared Hostetter's bladder sling procedure to a number of

cases. See id. (citing Wright v. Carter, 622 N.E.2d 170, 171 (Ind. 1993) (wiring left in patient's



1058 INDIANA LAW REVIEW [Vol. 43: 1053

C. Negligence Per Se

The Indiana Court of Appeals addressed one case of statutory negligence

during the survey period. In Lindsey v. DeGroot,^^ the court affirmed the trial

court's grant of summary judgment in favor of DeGroot Dairy."^^ Plaintiffs
alleged that DeGroot was negligent based on a preliminary injunction (later

vacated) issued by the Indiana Department of Environmental Management
(IDEM) against DeGroot for manure runoff

^^

The court restated the broad principle of negligence per se: "statutory
negligence is not predicated upon any test for ordinary or reasonable care, but

rather is founded in the defendant's violation ofa specific requirement oflaw."^^

The court did note that an "unexcused or unjustified violation" ofa statutory duty

is negligence per se.^^ But simply committing statutory negligence fails to

automatically translate to "liability per se.""^^ Regardless of an established

violation of a statutory duty, no actionable claim arises without first showing

proximate cause between the violation and the injury.
^'^

The court found that the IDEM preliminary injunction concerned a manure
runoff not affecting the Lindseys' land.^^ The court was not convinced that any
of DeGroot's alleged or actual 2002 Continued Feeding Operation violations
harmed the value of the Lindseys' land as a foreseeable consequence.^^ In fact,

the court found that the land value increased despite the violations."

D. Causation

In Sparks v. White,^^ the court addressed whether defendants were entitled

to summary judgment based on lack ofproximate cause where the plaintiffwas

body following procedure)); Ball Mem'l Hospital v. Freeman, 1 96 N.E.2d 274 (Ind. 1 964) (poison

administered into patient); Funk v. Bonham, 183 N.E. 312 (Ind. 1932) (sponge left in patient's

torso); Cleary v. Manning, 884 N.E.2d 335 (Ind. Ct. App. 2008) (patient's oxygen mask ignited

from sparks emanating surgical instruments); Gold v. Ishak, 720N.E.2d 1 175 (Ind. Ct. App. 1999),

Stumph V. Foster, 524 N.E.2d 812 (Ind. Ct. App. 1988) (patient's rib broken during chiropractor's

attempt to treatment migraine headaches), Klinger v. Caylor, 276 N.E.2d 848 (Ind. 1 97 1 ) (surgical

padding left in intestinal tract), Ciesiolka v. Selby, 261 N.E.2d 95 (Ind. Ct. App. 1970) (mesh left

in patient's torso).

48. 898 N.E.2d 1251 (Ind. Ct. App. 2009).

49. Id at 1265.

50. Mat 1260 &n.3.
51. Id (quoting Smith v. Cook, 361 N.E.2d 197, 199 (Ind. App. 1977)).

52. Id (quoting Town ofMontezumav. Downs, 685 N.E.2d 108, 112 (Ind. Ct. App. 1997)).
53. Id (citing Inland Steel v. Pequignot, 608 N.E.2d 1378, 1383 (Ind. Ct. App. 1993)).

54. Id (citing Inland Steel, 608 N.E.2d at 1383).

55. /c/. at 1260-61.

56. /^. at 1261-62.

57. Id

58. 899 N.E.2d 21 (Ind. Ct. App. 2008).



2010] TORT LAW 1059

injured after she drove off the road and struck the Sparkeses' mailbox.^^ The

Sparkses argued that, even if they owed a duty, they were entitled to summary
judgment because they did not proximately cause plaintiffs injuries.

^^

The court noted that proximate cause is a factual issue not properly resolved

by summary judgment.^' The court held that "[a]n act or omission is said to be
a proximate cause ofan injury ifthe resulting injury was foreseen, or reasonably
should have been foreseen, as the natural and probable consequence ofthe act or

omission."^^ The court also held that "the plaintiffs burden of proof on
foreseeability is higher for purposes ofproximate cause than for purposes ofthe

duty analysis."^^

The court concluded that, regardless of the plaintiffs possible violation of
her own duty to maintain control ofher vehicle, the Sparkses could have foreseen
that plaintiffwould drive out of her lane, cross oncoming traffic, leave the road
and unavoidably hit their mailbox.^"* Moreover, the court concluded that a jury

should address the allocation of fault because it is a "real possibility" that the

plaintiffwas more than fifty percent at fault for her injuries suffered, regardless
of the foreseeability.^^ The court concluded that the trial court did not err in
denying the plaintiffs motion for summaryjudgment and reversed and remanded
the cause to the trial court.^^

In Cook V. Ford Motor Co.^^ the court addressed whether the act of a child
unbuckling her seatbelt before a vehicular collision was an intervening and
superseding cause in the chain of causation.^^ Peter Cook read the page in his
1997 Ford truck manual regarding air bag, but failed to see or read the sun visor

warning regarding passenger seating in relation to seat belts and air bags.^^

When the truck was involved in a low-speed rear-end coUision,^^ his daughter,
Lindsey, was sitting unbuckled in the front passenger seat.^^ When the airbags
deployed, Lindsey was injured.^^

The Cooks sued Ford Motor Co. for failure to wam.^^ The court granted
summary judgment for defendants, noting that "[t]he alleged failure to give

59. Mat 22.
60. Mat 29.
61. Id. (citing Rhodes v. Wright, 805 N.E.2d 382, 388 (Ind. 2004); Hedrick v. Tabbert, 722

N.E.2d 1269, 1273 (Ind. Ct. App. 2000)).

62. Id. (citing Funson v. Sch. Town of Munster, 849 N.E.2d 595, 600 (Ind. 2006)).
63. Id. at 29-30 (citing Goldsberry v. Grubbs, 672 N.E.2d 475, 479 (Ind. Ct. App. 1996)).

64. Id at 29.

65. Id. at 30.

66. Id.

67. 913 N.E.2d 311 (Ind. Ct. App. 2009), trans, denied, 929 N.E.2d 785 (Ind. 2010).

68. Mat 328-31.
69. Mat 316-17.
70. Mat 317.
71. Id.

11. Id

73. Id.



1 060 INDIANA LAW REVIEW [Vol. 43 : 1 053

adequate warnings was not the proximate cause ofthe harm because [the Cooks]
failed to reads the warnings provided."^"*

The court noted that the defendant's act or omission only need serve as one
proximate cause to the injury, not the only proximate cause^^ "Proximate cause

is primarily a question of fact to be determined by the jury and therefore,

ordinarily is not properly resolved on summaryjudgment."^^ The court held that
"[c]hildren between the ages of seven and fourteen are required to exercise due

care for their own safety under the circumstances of a child of like age,
knowledge, judgment, and experience and there is a rebuttable presumption they

are incapable of negligence."^^ A reasonably foreseeable intervening act does
"not break the chain of causation," meaning that the first wrongful act may "still
be considered the proximate cause of an injury."^^

The court concluded that the question ofwhether Lindsey broke the chain of
causation is a jury question.^^ There is no dispute that the Cooks followed the

seat belt instructions when they placed Lindsey in the front seat, but Lindsey
occasionally unbelted her seat belt in the past and that this time was no
different.^^ Because Lindsey was eight years old, there was a rebuttable
presumption that she was incapable of negligence.^' The court held that at best
ajury question existed "whether Lindsey failed to exercise the due care required

of her for her own safety under these circumstances and, if so, whether her
failure was an intervening cause sufficient to break any chain of causation
leading back to Ford."^^

The court also held that ajury should decide whether the backseat and airbag
instructions were an adequate warning to the danger ofairbag deployment.^^ The
court also found that Lindsey' s injury could have been prevented had the Cooks

74. /J. at 318.

75. Id. at 328 (quoting Hassan v. Begley, 836 N.E.2d 303, 307 (Ind. Ct. App. 2005)); see IND.

Code §34-51-2-1 (2009).

76. CooK 913 N.E.2d at 328 (citing Sparks v. White, 899 N.E.2d 21, 29 (Ind. Ct. App.

2008)).

77. Id. at 329 (citing Creasy v. Rusk, 730 N.E.2d 659, 662 (Ind. 2000)).

78. Id. (citing Briesacher v. Specialized Restoration and Constr., Inc., 888 N.E.2d 188, 194

(Ind. Ct. App, 2008); Conder v. Hull Lift Truck, Inc., 435 N.E.2d 10, 14 (Ind. 1982) (when an

individual, other than the alleged tortfeasor, acts in a way that affects the chain of causation, said

act is an intervening cause, breaking the chain of causation if unforeseeable)).

79. Cook, 9 1 3 N.E.2d at 329-30 (citing Control Techniques, Inc. v. Johnson, 762 N.E.2d 1 04,

1 07 (Ind. 2002) (foreseeability concerning intervening causes from the original wrongdoer is jury

question); Underly v. Advance Mach. Co., 605 N.E.2d 1186, 1189 (Ind. Ct. App. 1993)

(foreseeability concerning intervening misuse is a jury question), superseded by statute as stated

in 790 N.E.2d 1023 (Ind. Ct. App. 2003)).

80. Mat 328-29.
81. Mat 329.
82. Id. (citations and footnotes omitted).

83. Mat 330.



2010] TORT LAW 1061

placed her in the backseat. ^"^ While the vehicle instruction told parents in

equivocal language to do so "if possible," they also did not address the role

airbags play in affecting the safety of children in the front seat.^^ The court

concluded that "Ford failed to negate an element of the Cooks' failure to warn

claim as a matter of law," rendering summary judgment inappropriate.^^ The
court reversed and remanded the case for further proceedings.^^

In Foddrill v. Crane,^^ the court addressed circumstances under which a

plaintiff need not present expert testimony in order to establish proximate

cause.^^ Plaintiff was injured after being struck in her vehicle while at a traffic
light.^^ At trial, the defendant proposed instruction that the jury should not infer
negligence from a rear end collision, which the court denied.^ ^ Moreover, the

jury apportioned one-hundred percent fault to defendant.^^ On appeal, defendant
claimed that Crane failed to produce sufficient expert testimony to establish that

a breach of duty proximately caused her injuries.^^

The court noted that proximate cause "requires, at a minimum, causation in
fact-that is, that the harm would not have occurred 'but for' the defendants'
conduct."^"^ Rather than rely on speculation, the plaintiffmust "present evidence

of probative value based on facts, or inferences to be drawn [therefrom],
establishing both that the wrongful act was the cause in fact of the occurrence
and that the occurrence was the cause in fact of her injury."^^

The court found sufficient evidence of"but-for" causation, as defendant was
possibly using his cell phone at the time ofthe accident.^^ He claimed that it was
inoperative.^^ Although, he was seen holding it as he exited the vehicle and later
was seen placing calls with it.^^ The court next concluded that no expert
testimony was required to show a causal relationship between the accident and
Crane's injuries following the accident.^^ Generally, courts consider plaintiffs

competent to testify to an injury that is objective in nature without expert

testimony. ^^° But "[w]hen the issue of cause is not within the understanding of

84. Mat 334.
85. Mat 326-27.
86. Mat 331.
87. M
88. 894 N.E.2d 1070 (Ind. Ct. App. 2008), trans, denied, 915 N.E.2d 982 (Ind. 2009).

89. Id at 1077-78.

90. Mat 1074-75.
91. Mat 1075.
92. M
93. Mat 1077-78.
94. Mat 1077.
95. Id

96. Id

97. Id

98. Id

99. Mat 1078.
100. Mat 1077.



1 062 INDIANA LAW REVIEW [Vol. 43 : 1 053

a lay person, testimony of an expert witness on the issue is necessary."^^^

Although Crane's physician was unable to definitely say that the collision caused
Crane's injuries, the injuries' nature were objective "inasmuch as [the physician]

was able to detect their physical manifestations."'^^ The court concluded that a
layperson could understand the causal connection in the absence of an expert's

help.'''

In Kovach v. Caligor Midwest, ^^^ the Indiana Supreme Court addressed
whether a failure to warn was the proximate cause of the patient's death.

'^^

Following surgery, nine-year-old Matthew Kovach was administered
acetaminophen with codeine in a medicine cup with a volume a little more than

30 milliliters (mL).''^ The nurse testified that she only administered the 15 mL
prescribed for him, but Matthew's parents claimed that the cup was completely
full.'^^ Shortly after being discharged, Matthew went into respiratory arrest and
died of asphyxia.''^ The Kovachs sued the medicine cup's distributor and
manufacturers.

'^^

At trial, the court admitted the affidavit of a pharmacist who found the
measuring cup unsuitable for precision measurement and needing an appropriate

warning.' '^ The trial court eventually granted summaryjudgment in favor ofthe
defendants.

' '

' The Indiana Court ofAppeals reversed, holding that "( 1 ) the trial
court did not abuse its discretion in admitting [the] affidavit," and (2) a genuine

issue of fact precluded the plaintiffs claims against the defendants."^ On
proximate cause, the court held that "the missing warning is in essence a

presumption of causation.""'

The supreme court found issue ofcausation dispositive to all four claims."''
Issues of causation-in-fact and scope of liability compose proximate cause.

"^

The burden is on the plaintiff to show that "but for the defendant's allegedly
tortious act or omission, the injury at issue would not have occurred.""^ Scope

101. Id.

102. Mat 1077-78.
103. Id.

104. 913 N.E.2d 193 (Ind. 2009).

105. Mat 196-97.
106. Mat 195.
107. Id

108. Id

109. Mat 195-96.
110. Mat 196.
111. Id

112. Id

1 13. Id (citing Ortho Pharm. Corp. v. Chapman, 388 N.E.2d 541, 555 (Ind. App. 1979)).

1 14. Id at 197; see also Ford Motor Co. v. Rushford, 868 N.E.2d 806, 810 (Ind. 2007); 63

Am. Jur. 2d Products Liability § 724 (1997).

115. Kovach, 913 N.E.2d at 197 (citing City of Gary ex rel. King v. Smith & Wesson Corp.,
801 N.E.2d 1222, 1243-44 (Ind. 2003)).

116. Id at 198 (citing Smith & Wesson Corp., 801 N.E.2d at 1243-44).



2010] TORT LAW 1063

ofliability requires that the injury be "a natural and probable consequence ofthe

defendant's conduct, which in the light of the circumstances, should have been

foreseen or anticipated."^*^

On transfer, the Indiana Supreme Court concluded that the undisputed facts
failed to establish a causal connection between Matthew's overdose and the

precision-measuring nature of the measuring cup in question.**^ The court first

found that Matthew's death could not be attributed to any alleged defects in the

cup itself**^ It was an undisputed fact that if there was an overdose in this case,
it was not caused by an imprecise measurement ofmedication attributable to any
alleged defects in the cup itself. *^^ Instead, the accident was due to "an erroneous
double dosage of 30 mL of codeine when [he] was only supposed to receive 15
mL."*^* This precluded any need to address the admissibility of the physician's

expert testimony. *^^ The undisputed fact that the cup at issue could result in a
twenty to thirty percent margin of error fails to account for the one hundred

percent error in codeine administration.*^^

The Indiana Supreme Court also distinguished the application of the Ortho
rule from the court of appeals in disposing of the failure-to-wam claim. ^^'^ The
court noted that the Ortho rule, which holds that a missing warning would have
been read and obeyed had it been present, *^^ ignores the reality that "[t]he

plaintiff invoking the presumption must still show that the danger would have
been prevented by an appropriate warning was the danger that materialized in the
plaintiffs case."*^^ In this case, even ifthe Ortho rule were applied, and a nurse

would have read a warning that the cup were not designed for precision
measurement, the court would have to conclude that Matthew's cause of death
was the result of imprecise measurement, which is already established not to be
the case.*^^ The court unanimously concluded that the Defendants had
established that the cup's alleged defects had not caused Matthew's death and

affirmed the trial court's grant of summary judgment in their favor. *^^

117. Id. (citing Smith & Wesson Corp., 801 N.E.2d at 1244).
118. Id.

119. Id

120. Id

121. Id

122. Id

123. Id

UA. Id at 199.

125. Id (citing Ortho Pharm. Corp. v. Chapman, 388 N.E.2d 541, 555 (Ind. App. 1979)).

126. Id. Compare Ortho Pharm. Corp., 388 N.E.2d at 555; Nissen Trampoline Co. v. Terre

Haute First Nat'l Bank, 332 N.E.2d 820, 826-27 (Ind. Ct. App. 1975), rev'd on procedural

grounds, 358 N.E.2d 974 (1976), with 2 Dan B. Dobbs, The Law of Torts § 367 (2001) and 1
David G. Owen et al., Madden & Owen on Products Liability § 9: 1 1 (3d ed. 2000).

127. /Covac/z, 913N.E.2datl99.

128. Mat 200.



1 064 INDIANA LAW REVIEW [Vol. 43 : 1 053

E. Infliction ofEmotional Distress

In Lindsey v. DeGroot,^^^ the court addressed an alleged and intentional

trespass of Lindsey' s disputed property by a DeGroot employee and intentional

infliction ofemotional distress. *^^ This portion ofthe Article discusses Lindsey'

s

intentional infliction of emotional distress claim.

Intentional infliction of emotional distress is defined as one who: "(1)

[e]ngages in extreme and outrageous conduct (2) [w]hich intentionally or

recklessly (3) [cjauses (4) [s]evere emotional distress to another."^^^

In affirming summaryjudgment, the court concluded that DeGroot's actions
did not constitute "outrageous" behavior as contemplated under law.*^^

DeGroot's dairy farm operated largely within Indiana regulations, and their

activity was not extreme, atrocious, and intolerable beyond all possible bounds
of decency.

'^^ The court also could not find evidence that DeGroot intended to
cause emotional distress.

'^"^

F. Assumption ofRisk

In Spar v. Cha,^^^ the Indiana Supreme Court held that, among other things,
"incurred risk is not a defense to medical malpractice based on negligence or lack

of informed consent."'^^ Brenda Spar suffered complications arising from a

laparoscopic surgery to repair a perforated bowel and Spar sued.^^^ Following

a jury verdict in favor of the defendant. Spar appealed.
^^^ The court of appeals

reversed and remanded, holding that "except where a patient has disregarded her

physician's instructions, incurred risk is not a defense to claims of lack of

informed consent or negligent performance of a medical procedure."*^^

The court has defined the largely obsolete defense of "incurred risk" or
"assumption of risk" in four ways:

1

.

"Express," in which "the plaintiff has given his express consent to

relieve the defendant ofan obligation to exercise care . .
.

, and agrees to

take his chances as to injury from a known or possible risk."
2. "Implied primary," in which "the plaintiffhas entered voluntarily into

some relation with the defendant which he knows to involve the risk,"

129. 898 N.E.2d 1251 (Ind. Ct. App. 2009).

130. Id at 1256.

131. M at 1264 (citing Cullisonv. Medley, 570 N.E.2d 27, 31 (Ind. \99\)); see also Bradley
V. Hall, 720 N.E.2d 747, 752-53 (Ind. Ct. App. 1999).

132. Lindsey, 898 N.E.2d at 1264-65.

133. Id

134. Id at 1265.

135. 907 N.E.2d 974 (Ind. 2009).

136. Id at 976.

137. Mat 976-78.
138. Id at 979.

139. Id (citing Spar v. Cha, 881 N.E.2d 70, 70, 74-75 (Ind. Ct. App. 2008)).



2010] TORT LAW 1065

and is deemed to have impliedly agreed to relieve the defendant of
responsibility, and to take his own chances. A spectator at a baseball
game consents to the game's proceeding without precautions to protect
from being hit by the ball.

3. "Implied secondary," in which "the plaintiff, aware of a risk created

by the negligence ofthe defendant, proceeds or continues voluntarily to

encounter it." An example is an independent contractor who knows that
he has been furnished by his principal with a machine in dangerous
condition but reasonably continues to work with it.
4. "Unreasonable," in which the plaintiffs conduct in voluntarily

encountering a known risk is itself unreasonable, and amounts to
contributory negligence.

^"^^

Express or implied "consent must be based on actual knowledge ofthe risk,

not merely 'general awareness ofa potential for mishap.
'"'"*'

Implied assumption

of the risk is an affirmative defense that relieves a defendant of the duty of care

concerning negligence. ^"^^ They may not require an affirmative defense pleading
under Trial Rule 8, "because they negate an element of the claim," and the

burden is on the defendant. '"^^ But implied secondary assumption ofrisk fails to

"negate the defendant's duty or breach.
"^"^"^

In affirming the court ofappeals, the Indiana Supreme Court agreed with the

court of appeals' conclusion that "assumption of risk—whether in the express,
primary, or secondary sense—has little legitimate application in the medical
malpractice context."'"^^ The court held that "the disparity in knowledge between
professionals and their clientele generally precludes recipients of professional

services from knowing whether a professional's conduct is in fact negligent.
"^^^

Thus, "there is virtually no scenario in which a patient can consent to allow a

healthcare provider to exercise less than 'ordinary care.'"*"^^ Even ifthe defense

140. Id. at 979-80 (quoting RESTATEMENT(SECOND)OFTORTS § A96Kcm!i.c{\965)); see also

W. Page Keeton et al., Prosser and Keeton on The Law of Torts § 68, at 480-8 1 , 496-97.
141. Spar, 907 N.E.2d at 981 (quoting Clerk v. Wiegand, 617 N.E.2d 916, 918 (Ind. 1993);

Beckett v. Clinton Prairie Sch. Corp., 504 N.E.2d 552, 554 (Ind. 1987)).

142. Id. ; see also Get-N-Go, Inc. v. Markins, 544 N.E.2d 484, 486 (Ind. 1 989); KeetonetAL.,

supra note 140, § 68, at 480-81.

143. Spar, 907 N.E.2d at 981; see also RESTATEMENT (SECOND) OF TORTS § 496G cmt. c

("Assumption of risk . . . comes into question only where there would otherwise be a breach of

some duty owed by the defendant to the plaintiff. It is then a defense, which relieves the defendant

ofthe liability to which he would otherwise be subject. The burden ofproof is therefore upon the

defendant."); DAN B. DOBBS, THE LAW OF TORTS, § 250 (2001) (footnotes omitted).
144. Spar, 907 N.E.2d at 981; see also Richardson v. Marrell's, Inc., 539 N.E.2d 485, 486

(Ind. Ct. App. 1989), trans, denied (Nov. 7, 1989).

145. 5^^r, 907 N.E.2d at 982.

146. Id. (quoting Morrison v.MacNamara, 407 A.2d 555, 567 (D.C. 1979) (citations omitted);

accord Smith v. Hull, 659 N.E.2d 185, 194 n.6 (Ind. Ct. App. 1995)).

147. Id. (quoting Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 884 (Del. Super. Ct.



1 066 INDIANA LAW JIEVIEW [Vol. 43 : 1 053

were available, the court could not find any evidence that Spar "incurred the risk

of negligent care."^"^^

The court concluded that assumption ofthe risk was not a defense to Spar's
claim that she lacked informed consent.

'"^^ A patient may waive the right to be
informed, but the physician does not need to make a disclosure ifthe patient has
requested as much.'^^ A patient who waives informed consent assumes only the
risks associated with nondisclosure. Here, the court found no evidence that

"Spar waived her right to informed consent or otherwise assumed the risks

related to negligent nondisclosure disclosure."'
^^

G. Rescue Doctrine

In Franciose v. Jones,
^^^

the court of appeals affirmed the Porter County

Superior Court's entry of judgment against Ray Ramirez, III and Mark P.
Franciose.

'^^
Ramirez lost control ofhis truck in snowy weather, crashed into the

interstate guardrails, and was stuck in the passing lane.'^"^ A traffic jam formed
around the accident.

'^^
Franciose 's vehicle approach the traffic jam and hit

Ramirez's passenger, Aaron A. Jones, as Jones attempted to push the stranded

truck offthe interstate.
'^^

Jones sued Ramirez and Franciose claiming that they

acted negligently and injured him.'^^ On appeal, the defendants claimed that the
trial court erred in rendering the following jury instruction:

A rescuer is one who undertakes physical activity in a reasonable attempt
to rescue persons or property from imminent peril. The rescue doctrine
is designed to encourage and reward humanitarian acts. Ifyou fin[d] that

Aaron Jones attempted to move the disabled vehicle off the roadway in
a reasonable attempt to prevent further harm, then you may fmd that his
actions were both reasonable and foreseeable as to Ray Ramirez. '^^

Among the six issues raised on appeal by the defendants, this Article addresses

2005)). The Indiana Supreme Court did not agree with the court ofappeals' conclusion that failure

to follow instruction of a healthcare provider is the only exception; however, the court does not

address other circumstances where the defense would apply. Id. & n.2.
148. Mat 983.
149. Id.

150. Id.; see, e.g., DEL. CODE ANN. tit. 18, § 6852(b)(2) (2006); Ind. Code § 34-18-12-8;

Arato V. Avedon, 858 P.2d 598, 609 (Cal. 1993); Holt v. Nelson, 523 P.2d 211,219 (Wash. App.

1974).

151. 5pflr,907N.E.2dat983.

152. 907 N.E.2d 139 (Ind. Ct. App.), trans, denied, 919 N.E.2d 558 (Ind. 2009).

153. Id ait 142.

154. Id

155. Id

156. Mat 142-43.
157. Id

158. Id at 152 (citing Tr. Vol. IV p. 223-24).



2010] TORT LAW 1067

whether the trial court erred in its jury instruction concerning the rescue

doctrine.
^^^

The court recited the Indiana Supreme Court's adopted version ofthe rescue

doctrine, "which is a rule that '[o]ne who has, through his negligence,
endangered the safety of another may be held liable for injuries sustained by a
third person in attempting to save such other from injury. '"^^^ The doctrine was

intended to "encourage and reward humanitarian acts."^^' In order for a

defendant to be liable, the injured third party "must actually act to rescue

someone who is endangered by the defendant's actions."'^^ A rescuer is defined
by the court as "one who actually undertakes physical activity in a reasonable and
prudent attempt to rescue."'^^

In affirming the trial court's entry ofjudgment, the court first concluded that

the designated evidence supports the instruction.
^^"^ The court found Jones had

acted out of concern "for the safety ofothers
''^^^ The court found that "[t]he

passage ofa short amount oftime from the initial accident does not mean that the
peril created by the accident dissipated or that the continuity between the

commission ofthe wrong and the effort to avert its consequences was broken."^^^
Furthermore, Jones's actions comports with the public policy surrounding the

doctrine, which encourages "Good Samaritan efforts."'^^
The court further concluded that the jury instruction is a correct statement of

the law.'^^ The court read the instruction as properly leaving to the jury the
question of whether Jones acted reasonably during the accident, instead of

shifting the burden of proof to Ramirez'^^

The court finally concluded that the instruction did not substantially affect
Ramirez's right when it informed the jury that he could be held liable for Jones'
injuries if Jones acted to protQCt property from imminent peril. ^^^ Even when a
jury is given an incorrect instruction on the law, reversal will not occur unless the

party seeking a new trial shows a reasonable probability that substantial rights
of the complaining party or the results of the proceeding have been adversely

affected.'^' Given the "ample evidence that Jones acted in an attempt to rescue

159. Id. at 143.

160. Id. at 151 (citing Neal v. Home Builders, Inc., 1 1 1 N.E.2d 280, 284 (Ind. 1953) (citation
omitted), reh 'g denied).

161. M at 152 (citing Heck v. Robey, 659 N.E.2d 498, 502 (Ind. 1995), abrogated on other
grounds by Control Techniques, Inc. v. Johnson, 762 N.E.2d 104 (Ind. 2002)).

162. Id

163. Id (citing Lambert v. Parrish, 492 N.E.2d 289, 291 (Ind. 1986)).

164. Mat 154.
165. Id at 152 (citing Tr. Vol. II p. 214).

166. Id at 152-53.

167. Mat 153.
168. Mat 154.
169. Mat 153-54.
170. Mat 154.
171. M; see also Penn Harris Madison Sch. Corp. v. Howard, 861 N.E.2d 1 190, 1 195 (Ind.



1 068 INDIANA LAW REVIEW [Vol. 43 : 1 053

human life—^that is, the lives of approaching motorists," in addition to the fact
that the instruction defines a rescuer as one who attempts to rescue "persons or
property from imminent peril," the court could not say that Ramirez's substantial

rights were affected.
^^^

III. Legal Malpractice

In In re Recker,^'^ the Indiana Supreme Court addressed whether two
attorneys who shared office space and had access to each other's files could
ethical represent two clients in related matters. ^^"^ James R. Recker and Laura

Paul were court-appointed to represent "AB" in a Child in Need ofServices case
and "XY" in a criminal case, respectively. ^^^ Both Respondent and Paul shared
an office in adjoining cubicles with limited amenities arranged by the county in

the public defender's office. ^^^ XY and AB shared a prison cell.^^^
The prosecutor in AB's case approached Paul concerning a possible deal for

XY in exchange for information about AB's alleged battery. ^^^ Paul, not
knowing Recker represented AB, informed Recker ofthe potential deal, revealing
AB's name but not XY's name.^^^ Recker then called James Holder, a private
attorney handling a separate matter for AB, and informed him that AB was
talking to cellmates concerning his case.'^^ Holder suspected XY as the
informant.

'^^ The prosecutor eventually learned of the situation and separated
XY and AB.'^^ The State charged and convicted AB ofmurder, and XY testified
athistrial.'^^

The Indiana Disciplinary Commission ("Commission") filed a verified
complaint charging Recker with violating 1 .6(a), 1 .8(b), and 1 .8(k) ofthe Indiana

Rules of Professional Conduct. '^"^ After a hearing officer found that Recker did

not engage in misconduct, the Commission filed a petition for review by the
court.

'^^

A "firm" or "law firm" is defined as "a lawyer or lawyers in a law

2007) (quoting Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939, 944 (Ind. 2001)); Wallace

V. Rosen, 765 N.E.2d 192, 196 (Ind. Ct. App. 2002).

172. Franciose, 907 N.E.2d at 154.

173. In re Recker, 902 N.E.2d 225 (Ind. 2009).

174. Id. ?A11^.

175. Id.

176. Id.

177. Id 2ii 226-21.

178. Mat 227.
179. Id

180. Id

181. Id

182. Id

183. Id

184. Id

185. Id



2010] TORT LAW 1069

partnership, professional corporation, sole proprietorship or other association

authorized to practice law; or lawyers employed in a legal services organization

or the legal department of a corporation or other organization."'^^ "[T]wo

practitioners who share office space and occasionally consult or assist each other
ordinarily would not be regarded as constituting a firm."'^^ But "ifthey present

themselves to the public in a way that suggests that they are a firm or conduct
themselves as such, then they should be regarded as a firm."'^^ Mutual access to

client information is an important factor to weigh in determining firm status or

not.'^^

The court concluded that Recker and Paul's office-sharing arrangement did
not constitute a firm.'^^ Although their common space, staff, letterhead, and
phone line might suggest a firm, the Putnam County courts and not the attorneys
arranged the office.'^' The attorneys did not hold themselves out for business to
the public at the arranged office; instead, the two used their office exclusively for

court-assigned cases.
'^^

In Harris v. Denning,^^^ the Indiana Court of Appeals affirmed the trial

court's grant of summary judgment on Thomas P. Harris' suit against Richard
Denning and the Indiana Public Defender, Susan K. Carpenter, on claims of

deceit, collusion, fraud, and misrepresentation.'^"* Denning was a deputy public
defender who represented Harris in a petition for post-conviction relief(PCR) on
two counts of murder in 1993.'^^ In support of his PCR claims, Harris asked
Denning to order his probable cause hearing's transcript, but for over a year and
a half, Denning indicated to Harris repeatedly that he had made the order. '^^

Denning and the Public Defender's Merit Review Committee investigated
Harris's PCR claims and concluded that they lacked merit. '^^ Denning stopped
representing Harris as mandated by Indiana Post Conviction Rule l(9)(c), but
Denning had yet to receive the transcript. '^^ Harris subsequently filed suit pro

se against Carpenter and Denning, and the trial court entered summaryjudgment
in favor of Denning and Carpenter. '^^

In affirming summaryjudgment in favor ofCarpenter and Denning, the court

1 86. Id. (quoting IND. PROF. CONDUCT R. 1 .0).
1 87. Id. (citing Ind. Prof. Conduct R. 1 .0 cmt. 2).
188. Id. (citing Ind. Prof. Conduct R. 1.0 cmt. 2).
1 89. Id. at 227-28 (citing iND. Prof. Conduct R. 1 .0 cmt. 2).
190. Mat 229.
191. Id

192. Id

193. 900 N.E.2d 765 (Ind. Ct. App. 2009).

194. Id at 766.

195. Mat 766-67.
196. Id

197. Id

198. Id

199. Id at 167-IS.



1070 INDIANA LAW REVIEW [Vol. 43: 1053

concluded that respondeat superior cannot apply to Carpenter.^^^ "[A] public

defender cannot be held liable for the professional malpractice of her

deputies."^^^ Carpenter, as public defender, could not interfere in any deputy

public defender's relationship with a client by controlling the decisions that the

deputy made in the exercise of his professional judgment.^^^ Therefore, any
liability attributed to Denning could not extend to Carpenter.^^^ Furthermore, the

court affirmed summaryjudgment in favor ofDenning "because Harris failed to
establish any injury or damages as a result ofDenning' s alleged deceit, fraud, or

failure to obtain the transcript of the probable cause hearing."^^"*

IV. Damages

A. Collateral Source Rule: Reasonable Value ofMedical Services

In Stanley v. Walker,^^^ the Indiana Supreme Court, in a 3-2 decision,
affirmed and remanded the trial court's award of $70,000 in damages, with

reductions, to plaintiff in an automobile accident suit following the trial court's

200. Id at 768.

201

.

Id (quoting Diaz v. Carpenter, 650 N.E.2d 688, 691 (Ind. Ct. App. 1995)).

202. Id

203. Id

204. Id at 769.

205. 906 N.E2d 852 (Ind. 2009). The Indiana General Assembly attempted to reject the

Supreme Court's opinion. House Bill 1255 passed the House ofRepresentatives 57-40, but it died

in the Senate Judiciary Committee. H.B. 1255 provides as follows:

In a personal injury or wrongful death action, the court shall allow the admission into

evidence of:

(1) proof of collateral source payments other than:

(A) payments of life insurance or other death benefits;

(B) insurance benefits for which the plaintiff or members ofthe plaintiffs family

have paid for directly;

(C) payments made by:

(i) the state or the United States; or

(ii) any agency, instrumentality, or subdivision of the state or the United

States;

that have been made before trial to a plaintiffas compensation for the loss or

injury for which the action is brought; or

(D) a writeoff, discount, or other deduction associated with a collateral source

payment.

(2) proof of the amount of money that the plaintiff is required to repay, including

worker's compensation benefits, as a result of the collateral benefits received; and

(3) proof of the cost to the plaintiff or to members of the plaintiffs family of collateral

benefits received by the plaintiff or the plaintiffs family.

It should be noted that these legislative actions fall outside of this article's survey period.



2010] TORT LAW 1071

denial of defendant's request to admit evidence ofplaintiffs discounted medical

bills.^^^ Plaintiff introduced original medical bills during trial that totaled at

$11,570, but those bills did not reveal $4750 in discounts bargained between

plaintiffs medical service providers and his insurer.^^^ Defendant subsequently

sought to admit the Discount Rate into evidence, "complete with an offer of

proof," and plaintiff objected on the grounds that such an admission would

violate the Indiana collateral source statute.^^^ The trial court agreed with
plaintiff, holding that "'anything flowing from the insurance benefit purchased

by the plaintiff. . .' would thus be prohibited under the collateral source statute,"
including Discount Rates.^^^

The court explained the development of the modem day iteration of the
collateral source statute. At common law, the collateral source rule prevented
defendants from admitting evidence ofcompensation received by claimants from

sources excluding the defendant, to reduce damage awards.^'^ This left liable
defendants responsible for the entirety of the consequences of their conduct no

matter what secondary compensation plaintiffs may have acquired through first-
party insurers, agreements, or gratuity.^' ^ The General Assembly abrogated the
common law rule when it passed the collateral source statute in order to permit
evidence of collateral source payments with the exception of specified

exceptions.^'^

The collateral source statute's purpose is "to determine the actual amount of

206. Stanley, 906 N.E.2d at 859. The court did remand the case back to the trial court and

reduced their original award for damages by $4750; however, it left the door open for retrial should

plaintiff seek it. Id.

207. Id. at 854. This means that plaintiffs medical providers were only paid $6820 fi-om his

insurance company ("Discount Rate"), which represents the $1 1570 minus the Discount Rate of

$4750. Id.

208. M; see also IND. Code § 34-44-1-2.
209. Stanley, 906 N.E.2d at 854.

210. Id

211. Id (citing Shirley V. Russell, 663 N.E.2d 532, 534 (Ind.1996); Shirley v. Russell, 69 F.3d

839, 842 (7th Cir. 1995)).

212. Id., at 854-55. The modem collateral source statute provides:
In a personal injury or wrongftil death action, the court shall allow the admission into

evidence of:

(1) proof of collateral source payments other than:

(A) payments of life insurance or other death benefits;

(B) insurance benefits for which the plaintiff or members of the plaintiffs family

have paid for directly; or

(C) payments made by:

(i) the state or the United States; or

(ii) any agency, instrumentality, or subdivision of the state or the United

States; that have been made before trial to a plaintiffas compensation for the

loss or injury for which the action is brought[.]

iND. Code §34-44-1-2.



1 072 INDIANA LAW REVIEW [Vol. 43 : 1 053

the prevailing party's pecuniary loss and to preclude that party from recovering

more than once from all applicable sources for each item of loss sustained in a
personal injury or wrongful death action."^ '^ Simultaneously, the statute

preserves the common law rule "that collateral source payments should not
reduce a damage award if they resulted from the victim's own foresight-both
insurance purchased by the victim and also government benefits-presumably

because the victim has paid for those benefits through taxes."^*"^

The court held that concluded that courts must use the reasonable value of
medical services in determining damaged to injured parties.^ '^ The court
deteimined that the fairest approach would be to make the defendant liable for
a reasonable value for medical services, independent of the original bill.^^^ The
court explained that in order forjuries to determine reasonable value, they might

require, among other things, "the amount of the payments, amounts billed by
medical service providers, and other relevant and admissible evidence to be able

to determine the amount of reasonable medical expenses."^'^

The court concluded that the collateral source statute could not bar evidence
ofDiscount Rates to determine the reasonable value ofmedical services.^ ^^ The
court held that when the reasonable value ofmedical services is in dispute, "[t]he
opposing party may produce contradictory evidence to challenge to
reasonableness of the proffered medical bills, including expert testimony.

"^^^

While not dispositive, the bill actually paid comports with reasonableness of

medical expenses and services.^"^ The court found that the trial court "should
have also referred to the discounted amount actually paid" when it found that
"Statements of charges for medical, hospital or other health care expenses for

diagnosis or treatment occasioned by an injury constitute prima [facie] evidence
that the charges are reasonable and fair."^^'

B. Excessive Punitive Damages

In Clark V. Simbeck,^^^ the court ofappeals examined a trial court's award of

$738,500 compensatory and $60,000 punitive damages to a victim, who was
kicked in the head between thirty to fifty times causing severe injuries to his face

213. Stanley, 906 N.E.2d at 855; see also IND. CODE § 34-44-1- 1(1 )-(2).
214. ^-tow/ey, 906N.E.2dat855.

215. Mat 858.
216. Id

217. Id

218. Id

2 1 9. Id. at 856. Compare iND. R. EviD. 413, with Cook v. Whitsell-Sherman, 796 N.E.2d 271,

277 (Ind. 2003).

220. Stanley, 906 N.E.2d at 856; see also Smith v. Syd's, Inc., 598 N.E.2d 1065, 1066 (Ind.

1992).

221. 5/a/7/ey, 906 N.E.2d at 859.

222. 895 N.E.2d 315 (Ind. Ct. App. 2008).



2010] TORT LAW 1073

and head.^^^

The victims of a brutal battery sued the defendants civilly following the
batterers' convictions.

^^"^ The batterers, who were without counsel, waived
liability at the court's suggestion, resulting in a waiver of a jury trial.^^^ At the

conclusion ofthe bench trial, the court grantedjudgment and money damages in
favor of the Simbecks.^^^ Ofthe four issues the court addressed on appeal, the
court focused on whether the trial court erred in ordering defendants to pay

punitive damages to each of the plaintiffs.
^^^

Punitive damage awards are reviewed de novo.^^^ The Indiana Supreme
Court held that "a defendant's financial condition and ability must be considered

when such an award is made."^^^ The court reasoned:

An award that not only hurts but permanently cripples the defendant
goes too far. A life of financial hopelessness may be an invitation to a
life of crime. Perpetual inability to get the financial burden of a

judgment off his back leaves a defendant with few alternatives. . . . [A]

staggering punitive damages award is not merely a useless act. It also
traps the plaintiffand defendant forever in a creditor-debtor relationship

that offers little if any financial reward to the plaintiff and seems far

more likely to lead to nothing but travail for both.^^^

The court concluded that the trial court's award of punitive damages was
excessive.^^ * The evidence presented to the court indicated that neither defendant
had significant assets.^^^ Clark's job paid $13.00 an hour and Biddle apparently

had no income."^^^ In dissent, ChiefJudge Baker, acknowledged the StroudtuIq,

but believed that defendant's conduct in question was "so egregious, so
malicious, and so brutal that the relatively nominal punitive damages award of

$60,000 [was] warranted."^^^

223. Mat 317.
224. Id

225. Id

226. Id

227. Id

228. Id at 320 (citing Stroud v. Lints, 790 N.E.2d 440, 443 (Ind. 2003)).

229. Id (citing Stroud, 790 N.E.2d at 446-47).

230. Id at 320-01 (citing Stroud, 790 N.E.2d at 446).

231. Id.; see also iND. CODE § 34-52-2-1 (2008); Becker v. Fisher, 852 N.E.2d 46, 48 (Ind.

Ct. App. 2006); Coffman v. Rohrman, 811 N.E.2d 868, 872-73 (Ind. Ct. App. 2004).

232. Clark, 895 N.E.2d at 321.

233. Id

234. Id. (Baker, C.J., dissenting).



1 074 INDIANA LAW REVIEW [Vol. 43 : 1 053

V. Premises Liability

A. Possessors ofLand

The Indiana Supreme Court addressed a matter offirst impression inJackson
V. ScheibleP^ In Jackson, the court addressed the question of "under what

circumstances a vendor of land may be liable to a third party for harm resulting
from the condition of trees on the land near a highway."^^^ Travis Scheible was
struck and killed by an oncoming car as he attempted to cross the street from

behind a mature tree overhanging a sidewalk.^^^ The tree was on property owned
by Ronald Smith, who purchased it from Fred Jackson and his wife nearly six
months before the accident.^^^

Travis' mother, Christine Scheible brought a wrongftil death action against

the former and current owners ofthe property on which the tree was located.^^^
The trial court granted summary judgment in favor of the Jacksons without
issuing an opinion," but the court ofappeals reversed, holding that "a vendor may
be liable for harm caused by the condition of sold property if the vendor retains
control of the property.

"^"^^

Both parties relied on the Restatement rule that "[a] possessor of land in an

urban area is subject to liability to persons using a public highway for physical

harm resulting from his failure to exercise reasonable care to prevent an
unreasonable risk ofharm arising from the condition oftrees on the land near the
highway."^"*' The court adopted the Restatement definition of"possessor" as "a
person who is in occupation of the land with intent to control it."^"*^ The court
noted that a common theme throughout premises liability is "actual control over
the condition causing the injury" is a common theme throughout premises
liability cases.^"*^ Also, "a vendor in a land-sale contract will have no liability

under [Restatement] section 363 because the vendor no longer occupies or

controls the condition of the property," regardless of who retains legal title as
security.

^'^'^

In affirming the trial court's grant ofsummaryjudgment, the court concluded
that as a matter of law, Smith was liable as possessor of the land under section

235. 902 N.E.2d 807 (Ind. 2009).

236. Mat 810.
237. Mat 809.
238. Id.

239. Id.

240. Id

241. M. at 810 (citing Restatement (Second) of Torts § 363(2) (1965) as adopted in

Valinet v. Eskew, 574 N.E.2d 283, 285 (Ind. 1991)).

242. Id. (citing Restatement (Second) of Torts § 328E(a) (1965)).

243. Id (citing Risk v. Schilling, 569 N.E.2d 646, 647-48 (Ind. 1991); Olds v. Noel, 857

N.E.2d 1044, 1046 (Ind. Ct. App. 2006); Harris v. Traini, 759 N.E.2d 215, 225 & n.l 1 (Ind. Ct.
App. 2001)).

244. Id (citing Skendzel v. Marshall, 301 N.E.2d 641, 646 (Ind. 1973)).



2010] TORT LAW 1075

343, regardless ofFred's retention of equity.^"^^ The plaintiffacknowledged that

vendors generally have no post-sale liability, but argued that this does not apply

to Fred because he continued to act like a landowner following the sale.^"^^ But

the court concluded that evidence in support ofFred's landowner status instead

evinced a "keen interest in the maintenance of the Property," which "does not

translate into his control over the property.
"^"^^

B. Proportional Fault

In Cox V. Matthews^^^ the Indiana Court of Appeals affirmed a suit for
damages including a jury assessment of proportional fault. ^"^^ Plaintiff Alan

Matthews was injured when a loader, operated by the defendant Larry Cox, drove
into him and crushed him.^^^ Defendant-contractor, Tube City, LLC employed
Cox.^^^ Following a jury trial in the Lake County Superior Court, the jury

assessed no fault against Matthew's employer. Beta Steel, 5.83% against
Matthews, and 94.17% of fault against Tube City.^^^ Tube City maintained that
the percentages of fault were "clearly against the weight of the evidence."^"

The court in affirming thejudgment and thejury assessment.^^"^ "The process

by which a jury analyzes the evidence, reconciles the views of its members, and

reaches a unanimous decision is inherently subjective and is entitled to maximum
deference."^^^ In this case. Tube City conceded during its opening statement that
a contract existed between Cox and Matthews.^^^ Additionally, "evidence
indicated that the backup alarm on the front loader that Cox was operating was
not functioning properly.

"^^^

C. Obvious Dangers

In Smith v. King^^^ the Indiana Court ofAppeals addressed whether the trial

court erred when it found that homeowners did not owe a duty to a contractor
who fell through an uncovered opening in their unfinished home.^^^ Jeffery

245. Mat 812.
246. MatSn.
247. Mat 812.
248. Cox V. Matthews, 901 N.E.2d 14 (Ind. Ct. App.), trans, denied, 915 N.E.2d 995 (Ind.

2009).

249. Mat 24.
250. Mat 17.
251. Id

252. Mat 18, 24.
253. Mat 23.
254. Mat 24.
255. Id. (citing Paragon Family Rest. v. Bartolini, 799 N.E,2d 1048, 1056 (Ind. 2003)).

256. Id

257. Id

258. 902 N.E.2d 878 (Ind. Ct. App. 2009).

259. Mat 879-80.



1 076 INDIANA LAW REVIEW [Vol. 43 : 1 053

Harbrecht, while constructing the residence of general contractor Gerhard King

("Gerhard") and Christine King, left an open hole in the stairs.^^^ Kenneth E.

Smith, Jr. sustained personal injuries suffered after he fell through the uncovered

stairway opening.^^' Kenneth and his wife filed a complaint against the Kings

and Harbrecht,^^^ and the trial court entered summary judgment for the Kings
concerning Smith's claims.

^^^

In affirming summary judgment, the court first concluded that the Kings
owed no duty as homeowners to Kenneth, because the danger of the hole was
known and obvious.^^"^ The court found the real issue to be whether "the Kings
were required to maintain the property in a reasonably safe condition for

independent contractors and their employees."^^^ The court restated the general

rule that property owners must maintain their property in a "reasonably safe

condition for business invitees, including independent contractors and their

employees."^^^ A property owner does not, however, have a "duty to furnish the
employees ofan independent contractor a safe place to work, at least as that duty

is imposed on employers."^^^ The issue of liability turns on whether "the
defendant was in control of the premises when the accident occurred."^^^ The
court also looks to whether a landowner in those circumstances could have

prevented any foreseeable danger.^^^ The evidence demonstrated that Kenneth

was aware of the opening in the residence before to his accident, because he
climbed into it using a ladder previously.^^^

The court next addressed the issue of Gerhard's liability as general

260. Id.

261. Mat 880.
262. Id. The trial court also found that the Kings were not vicariously liable for Harbrecht's

negligence. This issue was not raised on appeal. Id.

263. Id

264. Mat 882.
265. Id

266. Id at 88 1-82 (citing Merrill v. KnaufFiber Glass GmbH, 771 N.E.2d 1258, 1264-65 (Ind.

Ct. App. 2002)); see also RESTATEMENT (SECOND) OFTorts § 343 ( 1 965) (defining the duty owed

by landowners, which Indiana has adopted as: "A possessor of land is subject to liability for

physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by

the exercise ofreasonable care would discover the condition, and should realize that it involves an

unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or

realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable

care to protect them against the danger"); Restatement (Second) of Torts § 343A(a) (1965)

states that "[a] possessor of land is not liable to his invitees for physical harm caused to them by

any activity or condition on the land whose danger is known or obvious to them, unless the

possessor should anticipate the harm despite such knowledge or obviousness."

267. Smith, 902 N.E.2d at 881-82 (citing Merrill, 11\ N.E.2d at 1264-65).

268. Id. at 882 (citing Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2004)).

269. Id

210. Id



2010] TORT LAW 1077

contractor.^^' The general rule of the duty owed by a general contractor is that
"an employer does not have a duty to supervise the work of an independent
contractor to assure a safe workplace and consequently is not liable for the

negligence of the independent contractor."^^^ Five exceptions to this rule, as

recognized in Indiana, include:

(1) where the contract requires . . . intrinsically dangerous work; (2)
where one party is by law or contract charged with performing the

specific duty; (3) where the performance ofthe contracted act will create

a nuisance; (4) where the act to be performed will probably cause injury

to others unless due precaution is taken; and (5) where the act to be

performed is illegal.^^^

Although "a contractor has a duty to use reasonable care both in his or her

work and in the course ofperformance,"^ '''^ the plaintiffs did not argue to the trial
court that the defendants were liable based on Gerhard's negligence as general

contractor, and therefore, waived their right to appeal this issue.^^^

Finally, the court concluded that Gerhard did not assume a duty to Kenneth

when he nailed a plywood sheet atop the opening.^^^ One may raise a duty of
care by conduct, creating "a special relationship between the parties and a

corresponding duty to act in the manner of a reasonably prudent person.
"^^^

Gerhard's single instance of nailing the plywood sheet as a safety precaution

does not raise a jury question regarding assumed duty because it was not
sufficient to "constitute a deliberate attempt to control or actively supervise

safety at the job site."^^^ "[0]ne or two instances of safety precautions taken by
the defendant does not raise a jury question as to whether a duty was
assumed.

"^^^

D. Natural Conditions Upon the Land

The final damages case decided during the survey period is May v. George?^^

In this case, Dwight R. May sued Jerry George after a tree that fell from George's
property landed on May's truck, injuring May.^^^ The trial court granted

271. Mat 883.
272. Id. (quoting Stumpf v. Hagerman Constr. Corp., 863 N.E.2d 871, 876 (Ind. Ct. App.

2007)).

273. Id. (citing Stumpf, 863 N.E.2d at 876).

274. Id (citing Peters v. Forster, 804 N.E.2d 736, 734 (Ind. 2004)).

275. Id

276. Mat 884.
277. Id at 883 (quoting Merrill v. KnaufFiber Glass GmbH, 77 1 N.E.2d 1258, 1270 (Ind. Ct.

App. 2002)).

278. Id at 884 (quoting Merrill 771 N.E.2d at 1271).

279. Id (citing Robinson v. Kinnick, 548 N.E.2d 1 167, 1 170 (Ind. Ct. App. 1989)).

280. 910 N.E.2d 818 (Ind. Ct. App. 2009).

281. Mat 820-21.



1 078 INDIANA LAW REVIEW [Vol. 43 : 1 053

George's motion for summary judgment.^^^
The court concluded that George owed no duty to May.^^^ The court recited

the Indiana Supreme Court's interpretation of the Valinet rule, which denies

liability for landowners for physical harm caused by others or natural conditions

upon their land.^^"^ The general exception to this rule applies when the landowner
has "actual knowledge of a dangerous natural condition, regardless of

location."^^^ Moreover, possessors of land in urban areas may be subject to
liability for failing to "exercise reasonable care to prevent an unreasonable risk

of harm arising from the condition of trees on the land near [a] highway."^^^

Although continuous inspections are not required to satisfy a duty to motorists

under Valinet, periodic inspections oftrees may be reasonably required in some
Circumstances.

The court found that George ' s land was rural, excluding him from the Valinet
exception for urban possessors ofland.^^^ The property was used for agricultural
purposes, was not near any city, town, business, or residence.^^^ Also, May failed
to designate evidence to the contrary, making this a clear-cut distinction from

former cases.
^^^

The court then found that the tree was a natural condition on George's
land.^^' "A natural condition is iand that was not changed by any acts of
humans' and includes 'the natural growth of vegetation, such as weeds, on land

that is not artificially made receptive to them.'"^^^ The tree in question was
approximately sixty years old, and no evidence suggested that other trees or

282. Id. at 820.

283. Mat 826.
284. Id.; see generally Valient v. Eskew, 574 N.E.2d 283, 285 (Ind. 1991) (adopting

Restatement (Second) of Torts § 363 (1965) and stating that whether a duty is imposed on a

landowner to prevent harm caused by falling trees requires the consideration offactors such as land

use and traffic patterns); Restatement (Second) of Torts § 363 ( 1 965) (stating the rule that "( 1

)

[e]xcept as stated in Subsection (2), neither a possessor of land, nor a vendor, lessor, or other

transferor, is liable for physical harm caused to others outside ofthe land by a natural condition of

the land. (2) A possessor of land in an urban area is subject to liability to persons using a public
highway for physical harm resulting from his failure to exercise reasonable care to prevent an

unreasonable risk of harm arising from the condition of trees on the land near the highway.").

285. May, 910 N.E.2d at 823 (quoting Valient, 51A N.E.2d at 285).

286. Id. (quoting Restatement (Second) of Torts § 363 (1965)); see also Valient, 574

N.E.2d at 285.

287. May, 910 N.E.2d at 824 (quoting Valient, 574 N.E.2d at 286).

288. Id. ; see generally Valient, 51A N.E.2d at 285.

289. May, 9 1 N.E.2d at 824.

290. Id; Miles v. Christensen, 724 N.E.2d 643, 646 (Ind. Ct. App. 2000) (holding that

"determination of a landowner's duty does not hinge solely upon the 'urban'/'rural' distinction,"

but also factors such as traffic patterns and land use must be taken into account when determining

a landowner's liability).

291. Mj>;,910N.E.2dat824.

292. Id (quoting Spears v. Blackwell, 666 N.E.2d 974, 977 (Ind. Ct. App. 1996)).



2010] TORT LAW 1079

manmade objects interfered with the natural condition of the tree.^^^
In affirming summary judgment, the court concluded that there was not

sufficient evidence to support May's assertion that George knew or should have
known that the tree was in a dangerous condition.^^"* The court agreed with the
trial court's rejection ofphotographs and affidavits introduced by May to create
an issue offact, because none ofthe evidence would have aided May's argument

and May failed to supplement discovery at trial.^^^

VI. Worker's Compensation

In Beatty v. LaFountaine^^^ the Indiana Court of Appeals affirmed the trial

court's grant ofsummaryjudgment in favor ofthe defendant.^^^ In Beatty, James
Thad Martin, while delivering logs for LaFountaine Logging caused a tractor-
trailer collision with Rodger Beatty and Nora K. Beatty which resulted in Nora
Beatty's death.^^^ Representatives of Beatty's estate brought a wrongful death

action against LaFountaine.^^^ The court previously addressed circumstances of
this case three separate times.^^^

It is long-standing Indiana law "that a principal is not liable for the

negligence of an independent contractor."^^' The Indiana Supreme Court
established a ten-factor test to distinguish employees from independent

contractors:

(a) The extent of control which, by the agreement, the master may
exercise over the details of the work;

(b) whether or not the one employed is engaged in a distinct occupation

or business;

(c) the kind ofoccupation, with reference to whether, in the locality, the

work is usually done under the direction of the employer or by a
specialist without supervision;

(d) the skill required in the particular occupation;

(e) whether the employer or the workman supplies the instrumentalities,
tools, and the place ofwork for the person doing the work;

(f) the length of time for which the person is employed;

(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the

employer;

293. Id.

294. Id. at 825.

295. Id

296. 896 N.E.2d 16 (Ind. Ct. App. 2008), trans, denied, 915 N.E.2d 982 (Ind. 2009).

297. Mat 17-18.
298. Mat 17-19.
299. Id

300. Id. at 18; see Walker v. Martin, 887 N.E.2d 125 (Ind. Ct. App.), trans, denied, 898

N.E.2d 1233 (Ind. 2008) (most recent of the three prior appeals).

301. Beatty, 896 N.E.2d at 20 (citing Walker, 887 N.E.2d at 131).



1 080 INDIANA LAW REVIEW [Vol. 43 : 1 053

(i) whether or not the parties believe they are creating the relation of

master and servant; and

(j) whether the principal is or is not in business.^^^

Although one's status as an employee or independent contractor is generally a

question of fact, such an issue may be resolved as a question of law if the facts
are undisputed.^^^ Although courts must consider all ten factors, and no one

factor should be dispositive, "'extent of control' is the single most important

factor.'"""

In this case, the court applied the same analysis as it employed in the last

appeal concerning similar facts to affirm the trial court's conclusion that Martin

was an independent contractor instead of an employee.^"^ The court reasoned

that, "except for being told where to pick up and deliver the logs, all of the

details ofhow the job was to be done were left to Martin's discretion."^"^ It was
determined that others engaged in hauling logs locally were considered

specialists.^"^ Moreover, Martin never maintained regular, continuous hours with

LaFountaine, nor did Martin earn a profit from the transport of the logs.^"^ The
court determined that the only factor that weighed in favor ofan employee status

for Martin is the fact "that LaFountaine was a business engaged in the procuring
and selling of timber logs."^"^

Notwithstanding the status of Martin, the court also concluded that

LaFountaine did not assume a nondelegable duty to the plaintiff concerning the

safety of the tractor-trailer.^*" The court reasserted the "long-standing general
rule" that "a principal is not liable for the negligence of an independent

contractor" with only limited exceptions.^' ' But the court declined to apply any

of the exceptions to LaFountaine's duty.^'^

302. Id. at 20-21 (listing the factors found in RESTATEMENT (SECOND) OF AGENCY § 220(2)

(1958) as adopted by Indiana) (citing Moberly v. Day, 757 N.E.2d 1007, 1010 (Ind. 2001)).

303. Mat 20.
304. Id. at 21 (quoting Walker, 887 N.E.2d at 131; Moberly, 757 N.E.2d at 1010); see also

RESTATEMENT (SECOND) OF AGENCY § 220(2) (1958).
305. Beatty, 896 N.E.2d at 22.

306. Mat 21.
307. Id

308. Id

309. Id at 22.

310. Id

311. Id (quoting Selby v. N. Ind. Pub. Serv. Co., 85 1 N.E.2d 333, 337 (Ind. Ct. App. 2006)

(stating the exceptions to the Selby rule are that: "(1) where the contract requires the performance

of intrinsically dangerous work; (2) where the principal is by law or contract charged with

performing the specific duty; (3) where the act will create a nuisance; (4) where the act to be

performed will probably cause injury to others unless due precaution is taken; and (5) where the

act to be performed is illegal." Such duties are "deemed 'so important to the community' that the

principal should not be permitted to transfer those duties to another.")).

312. Mat 23.



2010] TORT LAW 1081

VII. Defamation and Tortious Interference

A. Invasion ofPrivacy

In Vargas v. Shepherd,
^^^

Dr. Elian M. Shepherd treated Ruben Vargas for
injuries Vargas sustained while working at an apartment complex.^ '"^ During a

subsequent lawsuit between Vargas and the apartment, Shepherd reviewed

Vargas's medical records and prepared a report concerning them for the
apartment's lawyer.^ ^^ Believing that Shepherd impermissibly disclosed his

medical history, Vargas sued Shepherd alleging invasion ofprivacy, and breach

of fiduciary duty.^'^ The Lake County Superior Court granted the Shepherd's
motion for summary judgment.^ ^^

The court recited the elements for invasion ofprivacy as: "(1) intrusion upon
seclusion; (2) appropriation oflikeness; (3) public disclosure ofprivate facts; and

(4) false-light publicity."^ '^ The court noted that "disclosure of private facts
occurs when a person gives 'publicity' to a matter that concerns the 'private life'
of another, a matter that would be 'highly offensive' to a reasonable person and
that is not of legitimate public concern."^

^^

A narrow interpretation ofthe publicity element "requires communication to
the public at large or to so many persons that the matter is substantially certain
to become one of public knowledge."^^^ However, a more liberal view permits
"a disclosure to be actionable even if not made to the public at large, as long as
it is made to a 'particular public' with a special relationship to the plaintiff."^^^

In affirming the trial court's grant of summary judgment in favor of
Shepherd, the court concluded that Shepherd revealed no confidential

information related to Vargas' treatment.^^^ The court found that Shepherd
merely reiterated information to the apartment's attorney.^^^ Therefore, Shepherd

could not have committed an invasion of privacy by disclosing confidential
information concerning Vargas's medical records.^^"*

313. 903 N.E.2d 1026 (Ind. Ct. App. 2009).

314. Mat 1029.
315. Id.

316. Id.

317. Id

318. Id at 1031 (citing Munsell v. Hambright, 776 N.E.2d 1272, 1282 (Ind. Ct. App. 2002),

trans, denied, 792 N.E.2d 39 (2003)).

319. Id. (quoting Munsell, 776 N.E.2d at 1282).

320. Id. (quoting Munsell, 776 N.E.2d at 1282).

321. Id

322. Id

323. Id. (quoting Doe v. Methodist Hosp., 690 N.E.2d 681, 692 (Ind. 1992)).

324. Id



1 082 INDIANA LAW REVIEW [Vol. 43 : 1 053

B. Libel & Slander

In West V. Wadlington,^^^ the court ofappeals reversed and remanded the trial

court's dismissal ofa defamation and invasion ofprivacy-false light suit.^^^ This

portion ofthe Article only discusses the defamation claims. Rosalyn West, Betty

Wadlington, Jeanette Larkins were members ofthe Mt. Olive Missionary Baptist
Church.^^^ Wadlington sent an email to Larkins viciously attacking West's

character and accusing her of plotting to oust a pastor.^^^ Larkins received the

message at her government address and forwarded it to eight-nine other fellow

church members.^^^ West brought a defamation and invasion ofprivacy and false
light suit in Marion County Superior Court against Wadlington, Larkins, and

Larkins's employer, the City of Indianapolis.^^^ The court granted the
Defendants' motion to dismiss citing that the case would become "'excessively
entangled' in church policies and doctrines."^^'

The Brazauskas I rule prohibits courts from analyzing defamation claims
because it would require it to "engag[e] in an impermissible scrutiny ofreligious

doctrine."^^^ Determining defamation under neutral principles of law had

previously only been applied to disputes involving church property.^^^ "[T]he

First Amendment effectively prohibits civil tribunals from reviewing these
reasons to determine whether the statements are either defamatory or capable of

a religious interpretation related to the employee's performance ofher duties."^^"^

In Wadlington, like Brazauskas /, the alleged defamatory statements were made
in the context ofthe termination of a church employee; therefore, addressing the

issue would require the court so to "intrude into a purely ecclesiastical
dispute."^^^

The court could not "state with the level of certainty called for in summary
judgment proceedings that the statements contained in Wadlington' s letter

remained a purely intra-church dispute."^^^ West argued that because Larkins
used a government email account to send the letter to others, there is a

325. 908 N.E.2d 1 157 (Ind. Ct. App. 2009).

326. Mat 1168.
327. Mat 1159.
328. Mat 1159-61.
329. Mat 1161.
330. Id. at 1 1 59. The City ofIndianapolis was included as a defendant in the lawsuit because

they employed Larkins (through the Indianapolis Metropolitan Police Department) at all times

relevant in this case.

331. Id.

332. Id. at 1 1 65 (citing Brazauskas v. Fort Wayne-South Bend Diocese, Inc., 714 N.E.2d 253,

262 (Ind. Ct. App. 1999)).

333. Id. (citing Brazauskas, 714 N.E.2d at 262).

334. Id. (quoting Brazauskas, 714 N.E.2d at 762).

335. Id. at 1 166. The court did note that Brazauskas I is discernible from the case at bar. Id.

336. Id



2010] TORT LAW 1083

"reasonable possibility" that recipients attributed the email to the City."^ The

Defendants referred to Larkins' affidavit, which provided that "to the best ofmy
knowledge all ofthe email addresses identified in [the email] belong to members
ofor are associated with the Church."^^^ The court found that the affidavit failed

to state that "only Church members have access to the email addresses or that
only Church members saw the email Larkins forwarded.

"^^^

The court concluded that the emails "could be defamatory without any

question of religious doctrine or practice.
"^"^^ Communications that impute

criminal conduct is considered per se defamation.^"^' Although the court

concluded that the emails fail to show that West physically attacked the former
pastor and his family, the court could reasonably infer such.^"^^ A claim in
Wadlington's letter calling West an "evil spirit," "a one-woman wrecking crew,"
and stating that she behaved disrespectfully,^"*^ "could be considered defamatory

in a secular sense."^"*"*

Finally, the court concluded that it did not have to view the letter entirely in

a religious context.^"*^ To conclude otherwise "would allow someone to shield
any number of defamatory statements simply by framing them in the context of
a religious dispute."^"*^

In Dugan v. Mittal Steel USA, Inc.,^"^^ Mittal Steel USA, Inc. fired Christine
Dugan following a North America Security Solutions (NASS) investigation into
a theft ring.^"*^ Mittal subsequently rehired Dugan following arbitration.^"*^
Dugan filed suit against Mittal, NASS, and Mittal employee Jay Komorowski
claiming defamation per se and intentional infliction ofemotional distress. In her

complaint, Dugan alleged the following:

6. In April 2004, [Mittal employee] Komorowski told Kevin Vana, chief
of security at Mittal, that [Dugan] was stealing time by working on
Sundays on a "core exchange" scheme with her boss, Albert Verdusco,
allegedly an attempt to defraud [Mittal], [Komorowski] also accused

[Dugan] of stealing an air compressor from [Mittal].

7. On or about September 9, 2004, [Komorowski] told Jim McClain and

337. Id

338. Id (alteration in original).

339. Id

340. Mat 1167.
341. Id (citing Kelley v. Tanoos, 865 N.E.2d 593, 596 (Ind. 2007)).

342. Id

343. Id

344. Id. at 1 1 67-68 (citing Kliebenstein v. Iowa Conference ofUnited Methodist Church, 663

N.W.2d 404, 405-08 (Iowa 2003)).

345. Mat 1168.
346. Id

347. 911 N.E.2d 692 (Ind. Ct. App. 2009).

348. Id at 694.

349. Id



1 084 INDIANA LAW REVIEW [Vol. 43 : 1 053

Zigmund GorroU, employees of [Mittal], that [Dugan] was working on
a "core exchange" (theft) of welding machines with her boss, Albert

Verdusco.^^^

The trial court granted summaryjudgment in favor ofDefendants, and Dugan
appealed only on the issue of defamation.^^^

The court defined the tort of defamation as a communication "that tends to
harm a person's reputation by lowering the person in the community's estimation
or deterring third persons from dealing or associating with the person."^^^ The
elements ofdefamation are: "(1) ^ communication with defamatory imputation,

(2) malice, (3) publication, and (4) damages."^^^ "Communications are

considered defamatory per se when they impute 1) criminal conduct; 2) a
loathsome disease; 3) misconduct in a person's trade, profession, office, or

occupation; or 4) sexual misconduct to the plaintiff.
"^^"^

The defense to defamation is the doctrine of qualified privilege.^^^ In order
to prove qualified privilege, one must establish "good faith, an interest to be

upheld, a statement limited in its scope to this purpose, a proper occasion, and

publication in a proper manner to the appropriate parties only."^^^ Once the
defendant has established the privilege, the burden shifts to the plaintiffto show
abuse by establishing "that: (1) the communicator was primarily motivated by
ill will in making the statement; (2) there was excessive publication of the
defamatory statements; or (3) the statement was made without belief or grounds
for belief in its truth."^^^

The court concluded that although Komorowski's statements concerning
paragraph six were defamatory per se,^^^the public interest privilege protected the

statements.^^^ The public interest privilege is applied to "'communications made
to law enforcement to report criminal activity' on the basis that such statements

'enhanc[e] public safety by facilitating the investigation of suspected criminal
activity.

'"^^^ Komorowski's statements made to Kevin Vana "relate to suspected
criminal activity at Mittal."^^^ But it was undisputed that Komorowski made the

350. Id. at 696 (citing Appellant's App. at 28) (alterations in original).

351. Mat 694.
352. Id. at 695 (citing Kelly v. Tanoos, 865 N.E.2d 593, 596 (Ind. 2007)).

353. Id. (citing Hamilton v. Prewett, 860 N.E.2d 1234, 1243 (Ind. Ct. App. 2007)).

354. Id at 695-96 (citing Trail v. Boys & Girls Clubs ofNw. Ind., 845 N.E.2d 130, 137 (Ind.
2006) (citations and quotations omitted)).

355. Mat 697.
356. Id (citing Schrader v. Eli Lilly & Co., 639 N.E.2d 258, 262 (Ind. 1994)).
357. Id (citing Coachmen Indus., Inc. v. Dunn, 719 N.E.2d 1271, 1276 (Ind. Ct. App. 1999)

(citation omitted)).

358. Id. at 696.

359. Mat 698.
360. Id. at 697 (citing Kelley v. Tanoos, 865 N.E.2d 593, 600 (Ind. 2007) (alterations in

original)).

361. Id



2010] TORT LAW 1085

statements in good faith.^^^ Dugan failed to offer anything beyond unsupported
assertions that Komorowski abused the privilege.^^^

But the court reversed the grant ofsummaryjudgment concerning paragraph
seven of Dugan's complaint because there was no indication that the common
interest privilege protected Komorowski's statement concerning the core
exchange.^^"^ The qualified privilege of common interest "protects
communication made in connection with membership qualifications, employment
references, intracompany communications, and the extension ofcredit."^^^ Here,

Komorowski said in his deposition that:

A. I do remember the one time that employees were very-hourly
supervisors were upset with what was going on [i.e., NASS's theft
investigation at Mittal] and had very much concern. And since I was
their supervisor we kind of had a quick meeting of some of their
questions. And I was to stop the rumors and calm them down.
Q. Okay. What were the rumors?
A. No one was sure if more people were going to be terminated. That
was really the biggest thing. They were-everyone was on edge. Was the
investigation over? Which I really didnot know. Were more going to be
terminated? Which I did not know. Were they themselves going to be
terminated? I mean, these were-

Q. Were any of the rumors about Albert Verduczo [sic] taking
equipment from the company?
A. Yes.

Q. Were those-was this talked about in this supervisor's [sic] meeting?
A. Yes.''^

The court was unconvinced that the statement "was made for the purpose of
'facilitating the investigation of suspected criminal activity'" making the public
interest privilege inapplicable.^^^ The court failed to see how Komorowski's
statements were limited to the purpose of upholding his interest concerning an

admission that "he did not know whether the investigation was over or whether
more employees would be terminated."^^^ Thus, the court concluded that Mittal
failed to establish that the common interest privilege protected the statement.^^^

C Tortious Interference with a Contractual Relationship
The Indiana Court of Appeals addressed a number of cases concerning

362. Mat 698.
363. Id.

364. Id. at 700.

365. Id at 698 (citing Kelley, 865 N.E.2d at 597-98).

366. Id. at 699-700 (citing Appellees' App. at 151 (p. 23 ofKomorowski's deposition).

367. Id at 698 (citing Kelley, 865 N.E.2d at 600).

368. Mat 700.
369. Id



1 086 INDIANA LAW REVIEW [Vol. 43 : 1 053

tortious interference during the survey period. A key issue, among the four
addressed by the court in Stoffel v. Daniels^^^ concerned whether the trial court
properly denied the plaintiffs' declaratory and injunctive action on the grounds

of tortious interference. ^^^ In 2008, Indiana enacted legislation abolishing the

office oftownship assessor.^^^ Plaintiff, and Huntington township assessor, Joan

Stoffel, individually and as Representative ofClass ofState Township Assessors

brought suit against Indiana Governor Mitchell E. Daniels, State of Indiana,

Commissioner Cheryl Musgrave, and the Indiana Department of Local

Government Finance (DLGF).^^^ The trial court granted the DLGF's motion to
dismiss,^^"* and on appeal, Stoffel asserted, among other things, that DLGF
wrongly interfered with "her contractual right to her public office."^^^

The court recited the elements to tortious interference with a contract as, "( 1

)

the existence of a valid and enforceable contract; (2) defendant's knowledge of

the existence of the contract; (3) defendant's intentional inducement of breach

of the contract; (4) the absence ofjustification; and (5) damages resulting from

defendant's wrongful inducement of the breach."^^^

The court briefly concluded that tortious interference with a contractual
relationship was impossible because no contract could exist in this instance.^^^
As a township assessor, Stoffel was considered a "public officer," which is
defined as "one who holds an elective or appointive position for which public
duties are prescribed by law."^^^ The court reaffirmed the long-held rule that the
duties of a public officer are based in the law, legislative will, and constitutional

protections against interference, instead ofcontract or "obligations which cannot

be changed or impaired."^^^

The court returned to the issue oftortious interference less than a month later
in Columbus Medical Service Organization v. Liberty Healthcare Corp?^^
Columbus Medical Services Organization won a competitive bid to provide
medical staffing services at Logansport State Hospital over its competitor.

Liberty Healthcare Corporation.^^ ^ Liberty filed suit against Columbus alleging
that, but for Columbus's false representations in submitting its bid. Liberty would

370. 908 N.E.2d 1260 (Ind. Ct. App. 2009).

371. Mat 1263.
372. Mat 1263-65.
373. Id. at 1265.

374. Id. at 1266.

375. Id at 1270.

376. Id. (citing Bilimoria Computer Sys., L.L.C. v. Am. Online, Inc., 829 N.E.2d 150, 156

(Ind. Ct. App. 2005)).

377. Id at 1271.

378. Id (citing Mosby v. Bd. of Comm'rs, 186 N.E.2d 18, 20 (1962)).

379. Id. ; see generally State ex rel Black v. Burch, 80 N.E.2d 294, 299 (Ind. 1 948); State ex.

rel Yancey v. Hyde, 28 N.E. 186, 187 (Ind. 1891); Stuckey v. State, 560 N.E.2d 88, 91 (Ind. Ct.

App. 1990);Mosbyv.Bd. of Comm'rs, 186N.E.2d 1 8, 20 (Ind. App. 1962).

380. 91 1 N.E.2d 85 (Ind. Ct. App. 2009).

381. Mat 87-91.



2010] TORT LAW 1087

have acquired the winning bid and the Hospital would have retained six medical

staff.^^^

The trial court concluded that Columbus made knowing substantial false
representations, constituting tortious interference.^^^ Although the court of

appeals did not address Columbus' uncontested findings concerning unjustified

interference on appeal, the court did hold, among other things, that tortious
interference with a business relationship "requires some independent illegal
action."^'"

Conclusion

Indiana tort law saw significant changes in the area of damages since the
previous survey period. Stanley v. WalkeP^^ will have a lasting effect on the way
practitioners plan long-term litigation strategies and frame methods for recovery

for their clients. Practitioners should pay close attention to the Indiana General

Assembly during the following survey periods to see ifthe legislature undertakes

further action in reaction to the supreme court's decisions concerning excessive

punitive damages and determining reasonable value of medical services.

382. Mat 91.
383. Mat 92-93.
384. Id at 95 (citing Brazauskas v. Fort Wayne-South Bend Diocese, Inc., 796 N.E.2d 286,

291 (Ind. 2003)).

385. 906 N.E2d 852 (Ind. 2009).