*1 CREASY, Appellant-Plaintiff, Carol RUSK,
Lloyd Appellee-Defendant.
No. 08A02-9709-CV-604. Appeals of Indiana.
Court 29, 1998.
June Aug.
Rehearing Denied *2 Todd,
Edgar Bayliff, W.- Bayliff, Ronald S. P.C., Harrigan, Maugans, Kokomo, Cord & Appellant-Plaintiff, ^or Wheeler, Stephen Hermann, C. Renae L. Jennings Taylor P.C., Bouwkamp, Wheeler & Carmel, Appellee-Defendant. OPINION KIRSCH, Judge. Creasy appeals grant
Carol of sum- mary judgment Lloyd favor of Rusk in personal injuries action for she suf- caring fered while for Rusk in a health care facility. The issues we must decide are: I. Whether who is institution disability with a alized owes a caregiver of care to his to re frain from conduct that results in injury caregiver. to the genuine if. Whether issues of material precluding summary judg- fact exist question ment- on the of whether duty was breached. genuine
III. Whether issues of material precluding summary fact judg- exist ment on the of fault alloca- tion.
We reverse. FACTS AND PROCEDURAL HISTORY Lloyd Rusk was admitted to the Brethren (BHC) July Healthcare Center 1992with a primary diagnosis of Alzheimer’s Disease. facility He was admitted to the because he confusion, memory suffered from loss and his wife was him. unable care for BHC, anxious, confused, While Rusk was disoriented, agitated. On several occa- sions, he resisted when staff at- members tempted to remove him from areas of facility belong. he did not On other where occasions, belligerent Rusk was and combat- patients. particu- ive with both staff and' lar, combative, agitated, Rusk was often aggressive hit at and' would staff members him. while cared-for ruling a motion for sum- court when nursing assistant trial a certified required mary judgment we our decision Creasy’s duties base employed at BHC. Alzheimer’s, 56(C) properly pre- Trial Rule materials her to care a short BHC Campbell Spade, Rusk. She attended including to the trial court. sented pathological ef- concerning presentation (Ind.Ct.App.1993). 582-83 *3 Alzheimer’s, not otherwise but had fects of if the Summary judgment granted shall be training on how to care for special received evidentiary matter demonstrates designated Creasy had been those with the disease. to genuine no issue as that there is with by patients on several occasions bruised moving party is that the material fact and Alzheimer’s, she knew that Rusk suf- and judgment a matter of law. entitled to as Alzheimer’s. fered from 56(C); Barga Indiana Rule v. Ind.Trial Inc., Group, N.E.2d Mut. Ins. 687 Farmers Davis, 16,1995, May Creasy and Linda On 575, (Ind.Ct.App.1997), denied 576 trans. employed nursing another certified assistant (1998). summary determining whether BHC, attempted put Rusk to bed. to judgment appropriate, all facts and reason- “very Creasy that Rusk had been was aware against must be construed able inferences evening.” Rec- agitated combative that and moving party. Wickey, 642 N.E.2d at According Creasy: to ord at 228. to holding wrists “[Davis] [Rusk’s] was [Creasy]
keep
hitting
him from
and
[them]
put him in
trying
get
legs
to
his
to
was
I. DUTY
wildly.
hitting
kicking
bed. He
and
has not been
The issue we must decide
time,
[Creasy] sever-
During this
he kicked
person
directly
in Indiana: Does a
addressed
hip
[Her]
al times in
knee and
area.
[her]
disability
with a mental
owe
institutionalized
popped
yelled out
[she]
lower back
caregiver
to his
to refrain from con-
left
pain
with
from
lower back and
[her]
caregiver?
injury
to the
duct that results
knee.”
against
parties argue
for and
the wisdom
Record at 228.
rule,
adopting
general
used in several
Rusk,
Creasy
against
a civil suit
seek-
filed
jurisdictions,
mentally
in-
disabled
other
injuries she suf-
ing monetary damages for
for their
tortious
dividuals be held liable
of the incident. The trial
fered as a result
regard to the individuals’
activities without
granted Rusk’s motion for
capacity
actions or
mental
to control their
owe a
judgment concluding that Rusk did not
understand the
thereof. Such
duty Creasy,
Creasy
the risk
to
incurred
general
rule is embodied in the Restate-
comparative
injuries,
of her
(Second)
provides:
Torts which
“Un-
ment
proximately
all other fault
fault exceeded
child,
insanity
or
less the actor is
other
Creasy
contributing
injuries,
to her
and that
deficiency
does not relieve the actor
bring
forth
that Rusk
had failed
evidence
liability
not
for conduct which does
any duty owed to her.
had breached
man
conform to the standard of a reasonable
appeals.
under
like circumstances.” Restatement
(1964).
§
(Second)
283B
While
of Torts
AND DECISION
DISCUSSION
man
the Restatement uses the reasonable
summary judgment
is to
purpose
adults, regardless
their men-
standard for
litigation about which there can be no
end
for a
capacity,
tal
the standard of conduct
dispute
factual
and which
be determined
person of
child is “that of a reasonable
like
Arnold,
law.
v.
as a matter of
Sizemore
experience
age, intelligence, and
under like
697,
(Ind.Ct.App.1995). When
N.E.2d
§
circumstances.” Id.
283A. Such a stan-
summary judgment
reviewing a
on a
decision
takes a child’s mental
into ac-
dard
motion,
applies
this court
the same standard
§
count. Id.
283B cmt. a.
Wickey
Sparks,
does the trial court.
v.
children,
incor-
regard
With
Indiana has
(Ind.Ct.App.1994), trans.
642 N.E.2d
(1995). Thus,
by
porated the Restatement
standard into a
we are not bound
denied
analysis. The three tiers are:
findings
conclusions entered
three-tiered
“[Cjhildren
age
years
of 7
“Although
under the
are
the case of
it
adults
has
incapable
impracticable
been deemed
conclusively presumed to be
and unwise to
contributory negligence
determine
being eontributorily negligent, from 7 to 14
party
basis of
mentally
whether the
presumption
they may
a rebuttable
exists
slow-witted,
thereof,
acute or inclined to be dull or
guilty
spe-
be
and over
absent
deficient,
although
not
circumstances,
chargeable
cial
are
absolutely
who is so
intelligence
devoid of
exercising
standard
care of an
apprehend apparent
as to be unable to
adult.”
danger
exposure
and to avoid
to it cannot
(Ind.Ct.
Martz,
Bailey v.
guilty
be
of negligence.
said
be
Knowl-
Diamond,
App.1986) (citing
Smith
edge
appreciation
peril
are essential
(Ind.Ct.App.1981)),
1177-79
contributory negligence,
elements of
age category,
trans. denied.1 In the middle
evidence is admissible
plaintiffs
to show a
*4
of
in
the standard
care is
accord with the
jury
mental condition to aid
in
the
deter-
the
Restatement: whether
child exercised
mining
appre-
whether he understood and
the care under the circumstances of a child of
Am.Jur.,
danger.
ciated the
Negli-
38
age, knowledge, judgment
like
experi
and
gence,
p.
Sec. 201 882.”
long ago recognized
ence.
Id. This court
475, 39
Id. at
N.E.2d at 779.
“the wisdom of the rule which
a
holds child to
subsequently
This court
appli-
limited the
proportionate
the exercise of care
to its ca
foregoing principles
cation of the
in Kroger
pacity.” Baltimore & Ohio Southwestern
Haun,
403,
v.
177 Ind.App.
Co.
379 N.E.2d
Hickman,
315, 318,
R.R.
v.
Ind.App.
Co.
40
(1978).
questions
1004
One of the
decided in
(1907).
1086, 1087
81 N.E.
Kroger was whether the doctrine of contribu-
Restatement,
Unlike the
which treats chil-
tory negligence required
plaintiffs
the
actual
differently
dren
in
than adults
terms of the
knowledge
peril
of the
or whether construc-
each,
required
standard of care
of
Indiana
knowledge
tive
would suffice. This court
has
willingness
indicated a
to factor in an
Wray
first noted that the
court’s reliance on
capacity
determining
adult’s mental
when
Jurisprudence authority
the American
“re-
person responsible
whether to
a
hold such
veals that
the
section
cited
deals with the
negligence.
Drug
for
In Riesbeck
Co. v.
extenuating
age,
existence of
circumstances —
467,
Wray,
Ind.App.
111
combativeness. Record at 255. It is foresee an patient able that when Alzheimer’s be A.Relationship the Parties Between in presence comes combative of his care Thus, giver, caregiver injured. will be In determining whether a relation foreseeability in weighs factor favor of ship parties upon exists between two which a imposing duty. based, duty may be legal there must be some part knowledge purported on the of the tort Policy C. Public Concerns may feasor that his or her him conduct draw legal relationship public policy or her into a with another. concerns involved with 1253, Clinard, duty by imposing Dant v. on an men- T.S.B. institutionalized tally patient pas- (Ind.Ct.App.1990) charged disabled are the cause of (party being 1256 Supreme negligence knowledge must of situ sionate debate. The with have Wisconsin public policy has stated the concerns surrounding Court ation or circumstances relation as: ship). In extenuating the absence of circum
stances, relationship patient in between a by “where a loss must be borne one of two facility caregivers a health care persons, innocent it him shall be borne it, working facility in the is sufficient who occasioned it also held and has been legal duty. public policy which to base a requires the enforcement Nonetheless, principles precautions monitoring, releasing, fault scheme. utory negligence of contrib in reasonable applied have in been in cases warning patient physician his whom had volving negligence the determination of and the given immunizations which vaccinations and/or See, comparative e.g., determination of fault. patient caused to lose while driv- consciousness Dean, 247, (Ind.Ct. Walters v. 497 254 N.E.2d Farms, Pryor, ing). See Perdue Inc. v. 683 also 413, Kroger, App.1986); Ind.App. 177 379 239, (Ind.1997) (stating N.E.2d 241 determi- N.E.2d at 1010. legal duty may nation of three factors consider forth in Webb in other set addition to “various supreme recently 3. The court has stated that the Thus, factors.”). analytical a different frame- balancing "provides extremely Webb test use capacity work could be utilized which mental analysis, necessarily method of ful but not a fourth factor to be where is considered infirmi- test, determining exclusive of [a] the existence ty Howell, of the tortfeasor at issue. Our result under duty under Indiana law." Cram v. 680 1096, analysis 1997) (Ind. such an would be the same as that (holding 1097 n. 1 motion, 12(B)(6) using purposes which we reach the Webbv. Jarvis method- of Indiana Trial Rule physician duty persons ology. owed to to take third
447
liability
in order that those interest-
incredible to assert that a tortfeasor would
person,
in the estate of the
ed
insane
as
pretend insanity’
‘simulate or
pro-
over a
otherwise, may
or
in-
relatives
be under
longed period of time and even be institu-
him
ducement
restrain
and that
tort-
being
tionalized
order to avoid
held lia-
may
pretend
feasors
not simulate or
insan-
damages
ble for
for some future civil act.”
ity
wrongful
causing
to defend their
acts
(quoting Meyer).
Id.
recognized
The court
damage to others.”
rejected
that other courts “have
the common
Family
v.
Gould American
Mut. Ins.
law rule within the limited context of se
282,
198 Wis.2d
543 N.W.2d
verely mentally
persons
disabled
confined in
(quoting
Meyer’s Guardianship,
In re
public
institutions based on similar
policy
(1935)).
Wis.
N.W.
These
(citing Mujica
considerations.” Id. n. 7
v.
public policy
prompted
considerations
Wis- Turner,
(Fla.Dist.Ct.App.
So.2d
general
consin to subscribe to the
rule
1991);
Gant,
(Fla.
Anicet
Lilge Repair, v. Russell’s Trailer1 FRIEDLANDER, J., dissents with (Ind.Ct.App.1991). 1150-5 separate opinion. plaintiff must have had more than a general potential mishap; awareness of a SULLIVAN-,'Judge, concurring. had,actual knowledge she must have of the subject I concur to a respect caveat with specific risk. Id. 1151. Under the Com majority dissenting opinions’ analysis Act, parative Creasy preclud Fault would be “duty”. recovering if ed from Rusk the amount of fault greater, to her was than attributed Dickson, speaking Justice for the court in the fault attributed to Rusk. See IC 34-4-33- Co., Gariup Construction Inc. v. Foster 4(a). (1988) Ind., 1224, 1227, 519 N.E.2d noted that duty determination is made “not without Here, Creasy was familiar with car and, difficulty”, in quoting from a well-re ing patients, including for Alzheimer’s Rusk. “ treatise, garded concluded that better ‘[n]o She was aware that Rusk from Al suffered general statement can be made than that the very agitat zheimer’s and knew that he was where, duty courts will find a in general, ed evening and combative on the that she persons reasonable recognize would it and injured. say We cannot as a matter of agree Tidmarsh, Jay it exists.’” See law, however, that undisputed these facts , Tort Languages Duty Law: The 25 Ind. only Creasy’s lead to the conclusion that fault (1992). L.Rev. 1419 greater than Rusk’s. Such a determina reason, It is for perhaps, that we have tion is best left to the finder of fact. Rusk past' in the principié articulated the that: judgment was not entitled to as a matter of imposes law on the basis that fault was “The Law but one common law comparatively greater duty duty than Rusk’s. and that is to use due care
(citation omitted).
is the same
relations,
for all
regard
without
to the facts
IV. Breach
of the case.” South Eastern Indiana Nat
finally
The trial court
found that
ural
Ingram
Gas
Inc. v.
1st
Rusk was
summary judgment
entitled to
be
Ind.App.,
Dist.
Creasy
bring
cause
did not
forth evidence
a.-corollary
As
premise
to this
we have
that Rusk
breached
owed to her.
said:
required
was not
to do so. Under
standard,
Indiana’s
judgment
“the
“[T]he substantive'
law establishes
party séeking summary judgment must dem
met, i.e.,
standard
care which must be
any genuine
onstrate the absence of
issue of
care. The
reasonable
standard is a fixed
issue,
fact as to a
only
determinative
independent
one and is
of the conduct of
then is
required
the non-movant
to come
but
required
others
the conduct
contrary
forward with
evidence.” Goldsber
up
individual to measure
to the fixed stan
*8
ry,
(quoting
Reversed.
capacity.
affected
tbe actor’s mental
It is
patient will
creasing
that the
be
the chances
agree
that I
for this reason
institutionalized”).
inappropriate and
judgment was
the trier of
matter should be submitted to
person
whether a
We are asked to decide
fact for determination.6
Alzheimer’s is
with advanced
institutionalized
injures
in
if
out and
a
liable
tort
he strikes
FRIEDLANDER,
dissenting.
Judge,
employed by
institution.
I
caretaker
in
such
readily acknowledge that
some cases
in
I
that the trial court was correct
believe
this, summary
inappro-
judgment
be
as
Rusk
summary judgment
favor of
granting
question
a material
of fact
priate because
respectfully
from the
and therefore
dissent
concerning whether
the defendant’s
exists
contrary.
holding to
majority’s
stage
has advanced to
Alzheimer’s disease
indicates,
majority
we are confront-
As the
patient-defendant has no
where the
of first im-
ed in this case with
his violent behavior.
to
or control
decided
pression in Indiana. The issues
believe, however, that this is such a
I do not
heightened practical and so-
herein take on
case.
because, unfortunately, Al-
importance
cial
initially admitted to the Breth-
Rusk was
study
is not rare. One
zheimer’s disease
(BHC)
Healthcare Center
because
ren
of
prevalence
of Alzheimer’s disease
shows
him confused
Alzheimer’s condition rendered
increasing
age group,
to 74
3% the 65
memory
to such an
suffering
and
loss
range,
high as
in the 75 to 84
and as
18.7%
longer care for
extent that his wife could no
Evans,
range.
D. et
47% in the 85 and over
By May
when
sustained
him.
al,
Alzheimer’s Disease in
Prevalence of
injuries,
at
her
Rusk had been
resident
Persons,
Community Population
Older
years. During
BHC for more than three
Assoc.
262 Journal of the American Medical
time,
continued
the Alzheimer’s disease
(1989). It can be inferred that as the
occurrence,
progress. By the time of the
increases,
will
average age of Americans
so
by aggressiveness,
his condition was marked
the incidence of Alzheimer’s disease. Office
belligerence, and violent behavior directed at
Assessment, Losing Million
Technology
others. All of these behaviors are character-
Confronting
Tragedy
Al-
Minds:
stage
istic of a
the advanced
zheimer’s Disease and other Dementias
Alzheimer’s.7
(Pub.
OTA-BA324). Many
those who
No.
Ayres
practical
a licensed
develop
require institutionali-
Sharon
the disease will
(while
employed at BHC. At the time of the
at 76-27
some retain
nurse
See id.
zation.
occurrence, Ayres
had worked
BHC
personality
their normal
traits as the disease
Ayres
changes
approximately
years.
nine
submitted
progresses, “others exhibit drastic
serious,
stating that Rusk was in the
complex management
an affidavit
that can create
physicians,
stage
in-
of Alzheimer’s and was there-
problems
caregivers
and
advanced
aside,
Generally,
changes
displayed.
that are
would also note that the trial
ioral
6. As an
I
recognized stages
used the term "incurred risk” to describe
there are four
of Alzheimer's—
warranting summary judgment
middle, advanced,
the doctrine
early,
and terminal'—-which
respective parties
in their
disorientation,
the
arguments.
use
same term
by worsening
are marked
levels of
It is not uncommon for the terms
failure,
deterioration,
memory
intellectual
"incurred risk” and "assumed risk” to be used
personality change. Neurological
impairment
interchangeably
little,
reported
There is
decisions.
apparent in the advanced and terminal
becomes
any, practical
applica
in the
if
difference
stage,
stages
advanced
illness.
In the
principle
contained within the doc
tion
(1) dependence
symptoms
on others for
include:
However,
is the
trines.
the term "assumed risk”
(such
food,
daily
requirements
life
shel
relating
appropriate
the defense
term describe
ter,
(2)
protection);
responses
verbal
have
exposed to a risk
to a claim made
one who is
asked;
inabili
little correlation to what is
City
(cid:127)arising
relationship.
within a contractual
o
*9
ty
by
needs other than
resort to
to communicate
f
(1990) Ind.App.,
v. Allen
552 N.E.2
Alexandria
d
noisiness,
yelling,
and
caustic behavior such as
out;
likely
striking
such behavior is also
to occur
Russ,
any relationship to needs. Lee R.
without
progressive
illness that has
7. Alzheimer's is
McQuade,
Freeman,
Stanley
& J.
Attor
pro-
Bruce F.
stages according to the
been divided into
76.12(1994).
neys
§
gression
Medical Advisor
clinical and behav-
of the characteristic
(1)
appreciate
consequences
fore unable to
the
of
Whether
the defendant committed a
rejects
majority
Ayres’s
wrong
kicking,
his actions. The
twisting,
pulling
back;
Ms.
ground
leg
statement on the
left
there is noth-
ing
qualifying
in her affidavit
her as an ex-
(2) Whether the defendant
of
is relieved
pert
testimony.
witness to offer such
I dis-
responsibility for his actions because of
agree with this conclusion.
have;
deficiency
might
that he
(3)
percentage
The defendant’s
of fault for
provides
Ind. Evidence Rule 702
that a
causing
injuries
by
the
sustained
the
qualified
by
witness
be
an expert
as
plaintiff;
skill,
“knowledge,
experience,
virtue of
train
(4)
plaintiff
Whether
incurred the risk of
ing,
Any
or education.”
one characteristic
conduct,
wrongful
and,
defendant’s
if
may qualify
alone
expert.
an individual as an
so,
percentage
her
of fault for incur-
State,
Fleener v.
(Ind.Ct.App.
whether a expert as an rests tiff would be entitled to if recover fault (cid:127) within the sound discretion of the trial court. disregarded. were Id. (Creasy’s Record at 188 Designation of Gen- uine Issues Material Fact That Preclude Ayres’s affidavit states that she is a li- Entry Summary Judgment on Defen- nurse, practical censed signifying that she Motion). view, my dant’s In designation the had at training necessary least the medical of issues Creasy reflects that did not chal- obtain that importantly, license. More the lenge regarding the assertion the advanced Ayres affidavit states that had worked condition, nature of Rusk’s and does not do years BHC for nine at the time upon Rather, appeal. so now Creasy’s argu- injured. view, my In practical experi- the ments both in opposing summary judg- the gained through ence working with Alzheim- ment motion and in appealing ruling the* er’s on a basis for nine regular thereon assumed -as true the assertion that years, specifically through working with incapable Rusk’s condition him rendered Rusk on years, occasion for three qualified understanding consequences the of his ac- Ayres expert an purpose for the of ren- tions. dering opinion regarding whether Rusk level, At the trial parties focused stage the advanced of Alzheimer’s and arguments upon their question and the whether appreciate he was able to the conse- trial court judgment upon rendered quences of his actions. Again upon this basis. appeal, parties significant It is also degree to me that the argument have their concentrated disability placed of Rusk’s was never at issue question of whether a with advanced by Creasy. sought summary judgment Rusk paid Alzheimer’s can be liable in tort to his on the basis that Alzheimer’s disease ren- while, parties caretakers. All the have incapable him appreciating dered the con- question treated the of whether Al- Rusk’s sequences Ayres’s of his supporting actions. zheimer’s him incapable appreci- rendered prove affidavit both asserted and tended to ating consequences of his actions as if it stage Rusk was Al- advanced issue-they were not an háve assumed that it zheimer’s and was unable to I majority did. believe the errs charac- response of his action. terizing as a of fact a matter motion, Creasy Rusk’s designated genu- six parties regarded have as settled. There- precluded fore, ine issues of material fact that my analysis proceeds upon assump- summary judgment, including: tion that Rusk’s- him Alzheimer’s rendered
452 may in cases such policy considerations the
incapable
appreciating
public pol-
liability. The
preclude
sometimes
his actions.
(1)
in
include:
icy concerns identified Gould
decide,
view,
my
in
is left for us to
What
parties
to innocent third
providing recourse
person in the
law: Is a
pure question of
(2)
acts;
person’s
by the disabled
harmed
liable in tort
stage of Alzheimer’s
advanced
responsible for
providing incentive for those
injure
paid caretakers
that
for his actions
person to shield others
mentally disabled
majority
facility?
the
special care
As
in a
by the disabil-
that
be caused
from harm
recently
indicates,
jurisdictions have
several
(3)
possibility
faking
obviating the
ity; and
In each
precisely the same issue.
addressed
escape
liability.
civil
disability to
a mental
cases,
concluded
the court
of those recent
view,
counsel
my
the same concerns
In
because,
liable
patient was not
that
the
liability in the instant case.
against imposing
not owe
things,
patient
the
did
among other
duty to refrain from
caregiver a
regarded as an
fairly be
cannot
v. No
injury-inflicting conduct. See Colman
public,
as that
“innocent” member of
Home,
Inc., 968
tre Dame Convalescent
Creasy had
in this context.
term is used
(D.Conn.1997) (predicting Con
F.Supp. 809
in
knowledge
dangers
inherent
express
Marshall,
law); Herrle v. Estate
necticut
general
in
Alzheimer’s
dealing with
1761,
Cal.Rptr.2d 713
Cal.App.4th
53
45
fact, Creasy
In
particular.
in
and with Rusk
(Fla.
Turner,
(1996);
24
Mujica v.
582 So.2d
attended Rusk and
was aware before she
denied; Anicet v.
Dist.Ct.App.1991), review
“very agitated
injured
he had been
that
Gant,
(Fla.Dist.Ct.App.1991),
So.2d 273
228,
evening”,
that
Record
combative
denied;
Family
American
Gould v.
review
kicking wildly imme-
hitting
that he
450,
Co.,
543 N.W.2d
Mut. Ins.
198 Wis.2d
Holding Rusk
diately before the incident.
(1996);
Almy, 297
but see McGuire
negligence
under those cir-
accountable
(1937)
323,
(imposing
N.E.2d 760
Mass.
“places
great
too
a burden on
cumstances
liability
person for intentional
on insane
potential
him because his disorientation and
Cook,
88,
torts);
App.Div.
Vooren v.
Van
very
reason he was institu-
for violence is
(imposing civil
75 N.Y.S.2d
employed
aid of
tionalized and needed the
liability
“suffering from a defective
on one
Gould,
at 287.
543 N.W.2d
caretakers.”
battery).
agree
I
reasoning” for assault and
Mey-
upon which the
The second rationale
cases,
reasoning in those
ex
with the basic
provides
premised is that it
incen-
er rule is
aspects
opinions that
cept
certain
of those
for
mentally
responsible
for those
dis-
tive
below,
fully
and would
explained
will be
more
him.
In the instant
abled
to restrain
Rusk was entitled to
hold that
case,
family placed
long-term
him in a
Rusk’s
duty.
judgment
lack of
staffed, and
facility
equipped,
care
which was
brief,
appellate
Creasy points out
her
As
others,
for, among
Alzheim-
intended to care
juris-
American
widely accepted
it is
in most
exhibiting
patients, including those
vio-
er’s
mentally
are
that
disabled adults
dictions
every-
doing, they
In
did
lent behavior.
so
objective
person stan-
to an
reasonable
held
I
thing they
to restrain Rusk and
could do
responsible for
thereby
dard and are
deemed
further, humane restraint
cannot conceive of
they
regardless of their
torts
commit
In
circum-
sought.
have
that
could
comprehend their actions. See
capacity to
stance,
obviously
to do more
is not
incentive
Family Mut. Ins.
v. American
Gould
a valid consideration.
450,
I disagree majority’s do not with the con- public policy
clusion that require concerns degree patient’s
consideration of the
impairment deciding when
duty. majority’s opinion, however, cre- (“[t]he sliding greater
ates a pa- scale degree impairment,
tient’s the more the public policy weigh against impos- concerns SQUARE, Subsidiary BUILDERS ing duty on him for the reasons set forth Kmart, Kmart, Corporation, 448) Gould”, Op. arguably at renders Appellants-Defendants, summary judgment practically. unavailable assigns because it the determination of the v. degree impairment exclusively to Daryle HAINES, Appellee-Plaintiff. agree I gen- factfinder. While with the eral rule that persons disabled are No. 45A03-9710-CV-364. ordinarily responsible torts, their it apply should not where “circumstances total- Appeals Court of of Indiana. ly negate the rationale behind the rule.” Gould, view, at In my N.W.2d 287. June patient injuring institutionalized Alzheimer’s compensated, trained caretaker is one set negates liability circumstances that and is
appropriate summary disposition.
Finally, reject I Creasy’s argument
Gould, Herrle, Anicet, along with Muji
ca, persuasive are not in Indiana because principles contravene announced our
supreme Robey, court Heck v. (Ind.1995). Creasy contends that
Gould court relied on primary the doctrine of
assumption of the risk expansion and an My
the fireman’s rule. depen view is not upon
dent portions of Gould that refer to fact,
those doctrines. I do not consider
primary assumption of the risk or the fire
man’s rule to the extent principles those
consider the plaintiff conduct of the which
bars reliance an otherwise existing tort.
Rather, Gant, as did the court in Anicet 277,1 So.2d “conclude that no
refrain from violent conduct arises on the
part of a capacity who has no
control it to specifically employed one who is just (Emphasis do that.” original.) that,
In summary, I would hold as a matter public policy, person sound institutional-
ized because of Alzheimer’s who does not
have the to control or
or her injuries conduct cannot be liable for