Carol CREASY, Appellant (Plaintiff below), v. Lloyd RUSK, Appellee (Defendant below).
No. 08S02-9901-CV-74
Supreme Court of Indiana.
June 14, 2000.
730 N.E.2d 659
In this case the State alleged two aggravating circumstances: (1) intentionally killing while committing a robbery and (2) killing a law enforcement officer in the course of duty. See
The evidence presented in the offer of proof is not especially strong in comparison to the available but unpresented evidence in cases in which this Court has granted a new penalty phase based on ineffective assistance of counsel. See, e.g., Rondon v. State, 711 N.E.2d 506, 522 (Ind.1999); Burris v. State, 558 N.E.2d 1067, 1075-76 (Ind.1990). Nonetheless, jurors in a death penalty case have widely differing views on the significance of mitigating evidence, and it is difficult if not impossible to know what evidence might sway an individual juror to vote against a recommendation of death. I believe the trial court‘s ruling significantly hampered Azania‘s ability to argue that the mitigating circumstances outweighed the aggravating ones. The excluded evidence was in no way cumulative. Indeed, because of the trial court‘s ruling, Azania was left to argue as mitigation only that his co-defendants had not been sentenced to death and that, in light of the forensic evidence, he may not have fired the fatal shot.
The United States Supreme Court has observed that “the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant‘s background, character, and crime.” Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (quoting California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) (O‘Connor, J., concurring) (emphasis omitted)). Although the jury heard a great deal about Azania‘s crime, the trial court‘s ruling prevented it from hearing anything about Azania‘s background. Although many or even most of the jurors may have found the proffered mitigating evidence insignificant in comparison to the aggravating circumstances, I cannot exclude the possibility that some would not have arrived at that conclusion. Cf. Smith v. State, 547 N.E.2d 817, 822 (Ind.1989) (“In the absence of any evidence of mitigating circumstances . . . or of evidence to rebut the existence of the charged aggravating factors, a death sentence is a foregone conclusion.“) Accordingly, the death sentence should be vacated and this case should be remanded for a new penalty phase in which a jury may receive the claimed mitigating evidence of Azania‘s background without hearing the prior homicide evidence.
Stephen C. Wheeler, Renae L. Hermann, Jennings, Taylor, Wheeler & Bouwkamp, P.C., Carmel, Indiana, Attorneys for Appellee.
ON PETITION TO TRANSFER
SULLIVAN, Justice.
Carol Creasy, a certified nursing assistant, sued Lloyd Rusk, an Alzheimer‘s patient, for injuries she suffered when he
Background
In July, 1992, Lloyd Rusk‘s wife admitted Rusk to the Brethren Healthcare Center (“BHC“) because he suffered from memory loss and confusion and Rusk‘s wife was unable to care for him. Rusk‘s primary diagnosis was Alzheimer‘s disease. Over the course of three years at BHC, Rusk experienced periods of anxiousness, confusion, depression, disorientation, and agitation. Rusk often resisted when staff members attempted to remove him from prohibited areas of the facility. On several occasions, Rusk was belligerent with both staff and other residents. In particular, Rusk was often combative, agitated, and aggressive and would hit staff members when they tried to care for him.
BHC had employed Creasy as a certified nursing assistant for nearly 20 months when the incident at issue occurred. Creasy‘s responsibilities included caring for Rusk and other patients with Alzheimer‘s disease. Creasy did not have specialized training on how to care for people with Alzheimer‘s disease, but she did attend a short BHC presentation on the pathological effects of Alzheimer‘s. Residents with Alzheimer‘s had bruised Creasy during the course of her work for BHC, and Creasy knew that Rusk had Alzheimer‘s disease.
On May 16, 1995, Creasy and another certified nursing assistant, Linda Davis, were working through their routine of putting Rusk and other residents to bed. Creasy knew that Rusk had been “very agitated and combative that evening.” (R. at 228.) By Creasy‘s account:
[Davis] was helping me put Mr. Rusk to bed. She was holding his wrists to keep him from hitting us and I was trying to get his legs to put him to bed. He was hitting and kicking wildly. During this time, he kicked me several times in my left knee and hip area. My lower back popped and I yelled out with pain from my lower back and left knee.
(Id.)
Creasy filed a civil negligence suit against Rusk, seeking monetary damages for the injuries she suffered as a result of Rusk‘s conduct. Rusk moved for summary judgment and the trial court granted his motion. Creasy appealed. The Court of Appeals reversed, holding “that a person‘s mental capacity, whether that person is a child or an adult, must be factored [into] the determination of whether a legal duty exists,” Creasy v. Rusk, 696 N.E.2d 442, 446 (Ind.Ct.App.1998), and that a genuine issue of material fact existed as to the level of Rusk‘s mental capacity, see id. at 448.
Discussion
This case requires us to decide two distinct questions of Indiana common law:
(1) Whether the general duty of care imposed upon adults with mental disabilities is the same as that for adults without mental disabilities?
(2) Whether the circumstances of Rusk‘s case are such that the general duty of care imposed upon adults with mental disabilities should be imposed upon him?
I
A
In many, if not most, jurisdictions, the general duty of care imposed on adults with mental disabilities is the same as that for adults without mental disabilities. See
B
Judge Kirsch, writing for the Court of Appeals in this case, found that Indiana law does not follow the Restatement rule. The Court of Appeals held “that a person‘s mental capacity, whether that person is a child or an adult, must be factored [into] the determination of whether a legal duty exists.” Creasy v. Rusk, 696 N.E.2d 442, 446 (Ind.Ct.App.1998).2 We believe that the Court of Appeals accurately stated Indiana law but that the law is in need of revision.
With respect to children, Indiana has incorporated the essence of the Restatement standard for determining the liability of children for their alleged tortious acts. The Restatement standard of conduct for a child is “that of a reasonable person of like age, intelligence, and experience under like circumstances.”
[C]hildren under the age of 7 years are conclusively presumed to be incapable of being contributorily negligent, from 7 to 14 a rebuttable presumption exists they may be guilty thereof, and over 14, absent special circumstances, they are chargeable with exercising the standard of care of an adult.
Bailey v. Martz, 488 N.E.2d 716, 721 (Ind.Ct.App.1986)3 (citing Smith v. Diamond, 421 N.E.2d 1172, 1177-79 (Ind.Ct.App.1981)), transfer denied. In the age seven to fourteen category, Indiana applies the Restatement standard and ascertains whether the child exercised the care under the circumstances of a child of like age, knowledge, judgment, and experience. See id.
C
As briefly noted in Part I-A, the generally accepted rule in jurisdictions other than Indiana is that mental disability does not excuse a person from liability for “conduct which does not conform to the standard of a reasonable man under like circumstances.”
Legal scholars and authorities recognize that it is “impossible to ascribe either the volition implicit in an intentional tort, the departure from the standard of a ‘reasonable’ person which defines an act of ordinary negligence, or indeed any concept of ‘fault’ at all to one who . . . is by definition
The public policy reasons most often cited for holding individuals with mental disabilities to a standard of reasonable care in negligence claims include the following.
(1) Allocates losses between two innocent parties to the one who caused or occasioned the loss. See, e.g., Gould v. American Family Mut. Ins., 198 Wis.2d 450, 543 N.W.2d 282, 286 (1996). Under this rationale, the one who experienced the loss or injury as a result of the conduct of a person with a mental disability is presumed not to have assumed risks or to have been contributorily negligent with respect to the cause of the injury. This policy is also intended to protect even negligent third parties from bearing excessive liabilities. See
(2) Provides incentive to those responsible for people with disabilities and interested in their estates to prevent harm and “restrain” those who are potentially dangerous. See, e.g., Gould, 543 N.W.2d at 287.
(3) Removes inducements for alleged tortfeasors to fake a mental disability in order to escape liability. See, e.g., id. The Restatement mentions the ease with which mental disability can be feigned as one possible basis for this policy concern. See
(4) Avoids administrative problems involved in courts and juries attempting to identify and assess the significance of an actor‘s disability. See
(5) Forces persons with disabilities to pay for the damage they do if they “are to live in the world.”
D
To assist in deciding whether Indiana should adopt the generally accepted rule, we turn to an examination of contemporary public policy in Indiana as embodied in enactments of our state legislature. See Schornick v. Butler, 205 Ind. 304, 304, 185 N.E. 111, 112 (1933) (stating that the public policy of Indiana is derived from, inter alia, statutory enactments), reh‘g denied.
Since the 1970s, Indiana law has strongly reflected policies to deinstitutionalize people with disabilities and integrate them
These legislative developments reflect policies consistent with those supporting the Restatement rule generally accepted outside Indiana in that they reflect a determination that people with disabilities should be treated in the same way as nondisabled persons.
We pause for a moment to consider in greater detail the issue raised in footnote 6, that is, that the Restatement rule may very well have been grounded in a policy determination that persons with mental disabilities should be institutionalized or otherwise confined rather than “live in the world.” It is clear from our recitation of state and federal legislative and regulatory developments that contemporary public policy has rejected institutionalization and confinement for a “strong professional consensus in favor of . . . community treatment . . . and integration into the least restrictive . . . environment.”8 Indeed, scholarly commentary has noted that “new statutes and case law . . . have transformed the areas of commitment, guardianship, confidentiality, consent to treatment, and institutional conditions.”9 We observe that it is a matter of some irony that public policies favoring the opposite ends—institutionalization and confinement on the one hand and community treatment and integration into the least restrictive environment on the other—should nevertheless yield the same common law rule: that the general duty of care imposed on adults with mental disabilities is the same as that for adults without mental disabilities.
In balancing the considerations presented in the foregoing analysis, we reject the Court of Appeals‘s approach and adopt the Restatement rule. We hold that a person with mental disabilities is generally held to the same standard of care as that of a reasonable person under the same circumstances without regard to the alleged tortfeasor‘s capacity to control or
II
We turn now to the question of whether the circumstances of Rusk‘s case are such that the general duty of care imposed upon adults with mental disabilities should be found to run from him to Creasy.
A
In asking this question, we recognize that exceptions to the general rule will arise where the factual circumstances negate the factors supporting imposition of a duty—particularly with respect to the nature of the parties’ relationship and public policy considerations. For example, courts in jurisdictions that apply the reasonable person standard to individuals with mental disabilities have uniformly held that Alzheimer‘s patients who have no capacity to control their conduct do not owe a duty to their caregivers to refrain from violent conduct because the factual circumstances negate the policy rationales behind the presumption of liability. See Colman v. Notre Dame Convalescent Home, Inc., 968 F.Supp. 809 (D.Conn.1997) (holding that while an adult with mental disabilities is ordinarily responsible for injuries resulting from negligence, no duty arises between an institutionalized patient and his or her caregiver); Gould v. American Family Mut. Ins. Co., 198 Wis.2d 450, 543 N.W.2d 282 (1996) (carving out an exception to the presumption of liability for institutionalized people with mental disabilities who are unable to control or appreciate the consequences of their conduct when they injure paid caregivers and noting that these circumstances negate the rationale behind the presumption—application of the presumption would place an unreasonable burden on people with mental disabilities who are institutionalized); Herrle v. Estate of Marshall, 45 Cal.App.4th 1761, 53 Cal.Rptr.2d 713 (Ct.App.1996) (concluding that public policy precluded imposition of liability because the healthcare provider, not the patient, is in the best position to protect against risk of injury to the service provider where the risk is rooted in the reason for the treatment), review denied; Mujica v. Turner, 582 So.2d 24 (Fla.Dist.Ct.App.1991) (holding nursing home patient with Alzheimer‘s was not liable for injury to a physical therapist), review denied; Anicet v. Gant, 580 So.2d 273 (Fla.Dist.Ct.App.1991) (concluding that a person who has no capacity to control his or her conduct does not owe a duty to refrain from violent conduct toward a person who is specifically employed to treat or control the patient), review denied.
B
We find that the relationship between Rusk and Creasy and public policy concerns dictate that Rusk owed no duty of care to Creasy. See Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991) (balancing three factors to determine whether an individual owes a duty to another: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy concerns).
B-1
Unlike the typical victim supporting the Restatement rationale, Creasy was not a member of the public at large, unable to anticipate or safeguard against the harm she encountered. Creasy knew of Rusk‘s violent history. She could have changed her course of action or requested additional assistance when she recognized Rusk‘s state of mind on the evening when she received the alleged injury. Rusk‘s inability to comprehend the circumstances of his relationship with Creasy and others was the very reason Creasy was employed to support Rusk. The nursing home and Creasy, through the nursing home, were “employed to encounter, and knowingly did encounter, just the dangers which injured” Creasy. Id. at 276. In fact, caregivers and their employers under these circumstances are better positioned to prevent caregiver injury and to protect
An analogous situation arises in Indiana law under the fireman‘s rule. The “fireman‘s rule provides that firemen [or other public safety officials] responding in emergencies are owed only the duty of abstaining from positive wrongful acts.” Heck v. Robey, 659 N.E.2d 498, 501 (Ind.1995); see also Sam v. Wesley, 647 N.E.2d 382, 384 (Ind.Ct.App.1995). Public safety officials and caregivers such as Creasy are similarly situated in that they are “specifically hired to encounter and combat particular dangers,” and by accepting such employment assume the risks associated with their respective occupations.10 Anicet, 580 So.2d at 276.
B-2
Public Policy Concerns. The first rationale behind the Restatement rule justifies imposing a duty on a defendant with a mental disability where it seems unfair to force a plaintiff who did not contribute to the cause of his or her injury to bear the cost of that injury. This policy concern overlaps with the relationship analysis set forth supra. The nature of Creasy and Rusk‘s relationship was such that Creasy cannot be “presumed not to have assumed risks . . . with respect to the cause of the injury.” See Rationale (1), supra, Part I-C. Therefore, imposing a duty on Rusk in this circumstance is not justified by the first Restatement policy rationale.
The second Restatement policy rationale creates an inducement for those responsible for a person with a mental disability to prevent harm to others. By placing Rusk in a nursing home, we presume Rusk‘s wife made a difficult decision based on her desire to prevent Rusk from being violent and harming himself, herself, or others. Without endorsing the incentives for confinement arguably fostered by the Restatement rationale, we agree with the conclusion set forth by the Wisconsin Supreme Court in Gould that a family member who places a relative in a long-term care facility, institution, nursing home, or similarly restrictive environment is unlikely to need further inducement to restrain the one for whom they are responsible. See Gould, 543 N.W.2d at 287. Mrs. Rusk entrusted her husband‘s care, including prevention of the harm he might bring to others, to the nursing home staff and the nursing home. And as a business enterprise, the nursing home received compensation for its services.
With respect to the third policy rationale, “it is virtually impossible to imagine circumstances under which a person would feign the symptoms of mental disability and subject themselves to commitment to an institution in order to avoid some future civil liability.” Id.; see also Rationale (3), supra, Part I-C. To the extent that such circumstances exist, there is no evidence whatsoever that they are present under the facts in this case.
Finally, there are no administrative difficulties in this case with respect to determining the degree and existence of Rusk‘s mental disability.11 Under the relationship
We agree with Judge Friedlander, see Creasy, 696 N.E.2d at 460-61 (dissenting), that there was no material question of fact as to the existence, let alone the advanced stage, of Rusk‘s Alzheimer‘s disease and his inability to appreciate or control his violent behavior. Rusk was admitted to the nursing home because he was confused and suffering from memory loss such that his wife could not care for him. By May 1995, when Creasy was injured by Rusk, Rusk had been a resident of the nursing home for three years and his condition had deteriorated. He regularly displayed behaviors characteristic of a person with advanced Alzheimer‘s disease such as aggression, belligerence, and violence. As evidence of Rusk‘s state of mind, Rusk presented an affidavit from Sharon Ayres stating that Rusk was in the advanced stage of Alzheimer‘s and was therefore unable to appreciate the consequences of his actions. The Court of Appeals rejected Ayres‘s statement on the ground that nothing in the affidavit qualified Ayres as an expert witness. We disagree.
Ayres was a licensed practical nurse employed by the nursing home at the time Creasy was injured. She had worked for the nursing home for approximately nine years. Indiana Evidence Rule 702 provides that a witness may be qualified as an expert by virtue of “knowledge, skill, experience, training, or education.” Only one characteristic is necessary to qualify an individual as an expert. See Fleener v. State, 648 N.E.2d 652, 657 (Ind.Ct.App.1995), vacated in part on other grounds, aff‘d on all remaining grounds, 656 N.E.2d 1140 (Ind.1995). Therefore, an affiant may qualify as an expert on the basis of practical experience alone. See Fowler v. Napier, 663 N.E.2d 1197, 1200 (Ind.Ct.App.1996). It is within the trial court‘s sound discretion to decide whether a person qualifies as an expert witness and we will reverse only upon a showing that the trial court abused its discretion. Id.
Ayres‘s affidavit states that she is a licensed practical nurse, which presumes that she received the medical training necessary to obtain that license. The affidavit also verifies that Ayres had worked for the nursing home for nine years at the time Creasy was injured—the entire time Rusk had lived there. Ayres‘s certification, associated training, practical experience gained through working for the nursing home for nine years, and three years of working with Rusk qualified her as an expert for purposes of assessing Rusk‘s mental state and rendering an opinion. We find that there is no genuine issue of material fact as to Rusk‘s mental capacity. Rusk was in the advanced stages of Alzheimer‘s and was unable to control or appreciate the consequences of his actions.
In addition to the public policy concerns behind the Restatement rule, we find that it would be contrary to public policy to hold Rusk to a duty to Creasy when it would place “too great a burden on him because his disorientation and potential for violence is the very reason he was institutionalized and needed the aid of employed caretakers.” Gould, 543 N.W.2d at 286.
Rusk was entitled to summary judgment because public policy and the nature of the relationship between Rusk, Creasy, and the nursing home preclude holding that Rusk owed a duty of care to Creasy under these factual circumstances.
Conclusion
Having previously granted transfer, thereby vacating the opinion of the Court of Appeals pursuant to
SHEPARD, C.J., and BOEHM and RUCKER, JJ., concur.
DICKSON, J., concurring and dissenting.
DICKSON, Justice, concurring and dissenting
I concur with Part I but dissent to Part II of the majority opinion. Citing sound legal and policy grounds, the majority holds in Part I that a person with a mental disability is generally held to an ordinary standard of legal responsibility without regard to the person‘s capacity to control or understand the consequences of his or her actions. But it concludes the opposite in Part II, finding as a matter of law that, because of this defendant‘s impaired mental condition, he had no general duty of reasonable care and is not responsible for the injuries he inflicted. Thus, notwithstanding its recognition that an impaired person remains legally accountable for injuries caused to innocent victims, the majority holds as a matter of law that the rule announced in Part I should not apply in this case primarily because of the relationship of the assailant to the victim, the extent to which the victim may have assumed the risk of injury, and the assailant‘s inability to control or appreciate the consequences of his actions. I disagree. The majority supports its determination by analogy to the fireman‘s rule: “‘The rule basically provides that professionals, whose occupations by nature expose them to particular risks, may not hold another negligent for creating the situation to which they respond in their professional capacity.‘” Heck v. Robey, 659 N.E.2d 498, 503 (Ind.1995) (quoting Koehn v. Devereaux, 495 N.E.2d 211, 215 (Ind.Ct.App.1986)). Drawing upon this analogy, the majority states that caregivers such as the plaintiff are similarly situated to the public safety officials to whom the fireman‘s rule applies. 730 N.E.2d at 668. The majority suggests that the plaintiff assumed the risks created by caring for people with Alzheimer‘s disease when she chose to work in the nursing home.
We have, however, previously rejected such reasoning, refusing to use a person‘s occupation as a basis for finding a lack of duty. In Heck, this Court rejected a similar determination by the Court of Appeals that the plaintiff, a paramedic, had “impliedly assumed the risk of injury in the primary sense, based upon his choice of occupation.” 659 N.E.2d at 505. We declined to extend the rationale of the fireman‘s rule to a paramedic—a paid public employee whose job was to rescue people. We said:
We reject this primary assumption-of-risk terminology to the extent that it suggests that a lack of duty may stem from a plaintiff‘s incurred risk. Under the [Comparative Fault] Act, a plaintiff may relieve a defendant of what would otherwise be his or her duty to the plaintiff only by an express consent.
Id. at 505. See also id. at 502 n. 3 (“[T]he fireman‘s rule can no longer be based upon an assumption-of-risk rationale.“). This Court ultimately refused to apply “[a]ny rule that purports to effect an absolute defense based upon incurred risk” because it is contrary to our comparative fault system. Id. at 505 (declining to address the continuing viability of the fireman‘s rule,
In support of its determination, the majority cites other states that have refused to impose a duty based upon similar facts, but these states have adopted their rules based upon assumption of risk and analogies to the fireman‘s rule. See Gould v. American Family Mut. Ins. Co., 198 Wis.2d 450, 543 N.W.2d 282, 287 (1996) (“By analogy, this court . . . relied on public policy considerations to exonerate negligent firestarters or homeowners from liability for injuries suffered by the firefighters . . .“); Herrle v. Estate of Marshall, 45 Cal.App.4th 1761, 53 Cal.Rptr.2d 713, 720 (Cal.Ct.App.1996) (“The very justifications for the application of primary assumption of risk in case of public firefighters . . . compel its application herein.“); Anicet v. Gant, 580 So.2d 273, 276 (Fla.Dist.Ct.App.1991) (“[T]he familiar ‘fireman‘s rule’ presents an apt analogy. . . . [I]ts very core is that a person specifically hired to encounter and combat particular dangers is owed no independent tort duty by those who have created those dangers. . . .“). See also Colman v. Notre Dame Convalescent Home, Inc., 968 F.Supp. 809, 813-14 (D.Conn.1997) (adopting the reasoning of Gould and Herrle); Mujica v. Turner, 582 So.2d 24, 25 (Fla.Dist.Ct.App.1991) (rejecting the plaintiff‘s claim based upon Anicet).
Considering Heck, it is difficult to reconcile the opinion in this case with precedent—the majority, in essence, extends the fireman‘s rule by analogy to an employee of a private company whose job was not merely to rescue, but to provide daily care. See Heck, 659 N.E.2d at 505 (citing Comparative Fault Act and refusing to apply the fireman‘s rule). Although Heck acknowledged that a court may determine that no duty exists based upon the factors set forth in Webb v. Jarvis, 575 N.E.2d 992 (Ind.1991), see Heck, 659 N.E.2d at 505 n. 11, we did not intend that the analysis of incurred risk that we rejected in considering the fireman‘s rule would simply be re-incorporated into the Webb analysis.
Also in Heck, this Court expressed Indiana‘s public policy regarding the protection of plaintiffs who are injured in the course of their professional care for others when we held that a plaintiff‘s assumption of risk may not be inferred from his profession and may only serve as a bar to recovery when he has given express consent. 659 N.E.2d at 503-05. Accordingly, under Indiana‘s public policy, neither the plaintiff‘s choice of occupation nor the defendant‘s use of her services supports a finding that the defendant had no duty, as a matter of law.
I cannot agree with the majority‘s determination that the plaintiff‘s superior knowledge of the risks of her employment supports its finding that the defendant owed the plaintiff no duty of care. I disagree with the majority‘s reliance upon a plaintiff‘s superior knowledge of the risk as a basis for evaluating the question of duty. If extended to other cases, this rationale could subvert existing principles of responsibility fostered by tort law. Under such an approach, for example, high school teachers might be deprived of recourse for injuries inflicted by mentally or emotionally disabled high school students, or perhaps even students without such disabilities, because of the teachers’ superior knowledge of the risks presented by such students. Similarly, health care personnel who care for patients—even those without mental disabilities—could be barred from remedy for injuries caused by such patients because the caregiver could be found to have superior knowledge of the risks of providing direct care in a hospital, and thus there could be no duty of care owed by the patient. It is not only unfair but also extremely unwise social policy to deprive, as a matter of law, such professionals of the tort remedy to which other victims of negligence are entitled.
In Douglass v. Irvin, 549 N.E.2d 368, 371 (Ind.1990), although a premises liability case, this Court expressly repudiated
If a duty of care exists, the determination of whether a breach of duty occurred is a factual question requiring an evaluation of the landowner‘s conduct with respect to the requisite standard of care. It is in this factual assessment that the issue of the landowner‘s and the invitee‘s comparative knowledge becomes relevant.
Id. at 370. This principle is equally applicable in the present case.
The majority correctly determined the issue of duty in Part I of its opinion, holding that a patient owes a duty of reasonable care under the circumstances and that a patient with a mental disease has the same duty of reasonable care. But in Part II it then reverses itself and fails to apply this rule to the defendant, exempting him from this principle of responsibility. Such individualized determinations of relative fault are not properly matters of law for determination by courts, but rather issues of fact for determination by juries. The plaintiff‘s incurred risk, if any, should be considered by a jury when it allocates fault under the Comparative Fault Act.
Accordingly, I concur in the majority‘s holding in Part I that a person with a mental disability owes a duty of reasonable care. But I dissent to the majority‘s conclusion in Part II that discriminates against caregivers and deprives them of fair recourse for injuries inflicted by a person with advanced Alzheimer‘s disease.