*1 Lowdermilk, J., Robertson, concur. P.J. Reported N.E.2d 501. at 312

Note. — Mary Surratt, Surratt, Althama Guardian Petrol, Inc.

Joan Henderson September Rehearing denied Filed June 3-373A27. [No. February 18, 1975.] Transfer denied *2 Singer, Singer, Lysohir Lysohir, Thomas H. and Alexander Bend, appellants. of South for Crumpacker, May, Campiti, May,

Vincent P. Arthur A. Levy Searer, Bend, appellee. for & South brought by passengers

Garrard, an action J. —This injuries they when in a for sustained stolen automobile background may briefly stated The automobile crashed. morning during an as follows: On October company street employee parked a car Petrol, Inc. gas employee the Petrol The left across from station. Raymond keys ignition, and around 11:00 a.m. one English English with stole the No one saw leave automobile. auto, employee shortly after Petrol 11:00 a.m. missing reported the theft discovered the car was and police. English taking car, After drove around a while and friends, picked up two male Donald Smith Alonzo Poin- and Burger They to a and dexter. went Chef then drove to high High plaintiffs, students, The LaSalle School. school leaving English just school at time and were asked English agreed post This office and home. to. ride to the Farmer, manager Meanwhile, one William Petrol of the plant, looking station and had been out bulk service for the Burger saw the car at the car. He first fol- stolen Chef and gas stopped left. then at it when it He lowed station and them police inform and to call the directed the attendant keep would following car and stolen that he car, he sight momentarily Although lost sight. he occupied car, high then again As the school. at the found it his high school, pulled Farmer plaintiffs, left they approached then turned their lane car into point, they At this pulled around him. them when followed English to follow. English Farmer continued accelerated gas through light by driving station corner red avoided a sign disregarded English stop then and Farmer followed. automobile resulted. with a third intersection collision and an brought injured this were both Henderson and Surratt negli- asserting liability against Petrol based action igni- leaving employee keys gence of the Petrol pursuing of Farmer the vehicle.1 the actions tion and Petrol, defendant Inc. for sum- moved In due course liabiilty. mary trial judgment on each theories relating summary judgment on partial the issues entered *3 keys having left ignition been in the car subse- judgment granted summary issues. quently the other summary judgment grants this are the of These of basis appeal. IN IGNITION PROXIMATE

I. KEYS NOT LEAVING OF CAUSE INJURIES. Inc., Cab, v. Red in Kiste

In that, law, court held this as matter a similar N.E.2d of injuries sustained in a personal crash with a stolen claim negli upon alleged car, insufficient where was based was leaving parked the gence owner in car the unattended with ignition running. and the motor keys in the the however, assert that Appellants, we should reconsider our lapse years ruling the in Kiste because of of more than 20 and the that decision asserted increase automobile in since originally party defendant, Farmer was action 1. William the by agreement against parties. him dismissed was during Secondly, appellants assert theft the interval. statistics “high left in that in the instant case the car was unattended exception and, expressed such, crime falls area” within in Kiste. recognized the rule Appellants examine the latter assertion first. assert We Kiste is plaintiff that the rule established cannot that the negligent operation for the motor recover reason that the chargeable by a thief not vehicle is a foreseeable risk owner, unless the owner negligently leaves car with high keys ignition in in the crime area. in Kiste court, surveying

It true that other after jurisdictions noting pro- liability that under statutes ignition hibiting operator leaving keys from in the only existed in the District of Columbia in the First Illinois, District of observed obiter: legis- “It our observation that absence of clear ordinarily lative declaration reached point result this would not except surrounding clearly where the circumstances high probability intervening to both a crime, pursuant negligent operation like of the vehicle presume deny not affirm thief. We do cir- such highly probable are cumstances District Columbia Appellate or the First District of Court of Illinois. We some do assert with satisfaction that such circumstances reasonably jurisdiction.” not foreseeable are this holding in Kiste makes it clear However, attempting exception by not to carve an was the above- language quoted relevance of foreseeable risk is to actor. The result Kiste was owed reached duty. upon lack based words, possible foreseeability other relevance dependent upon the harms statute in *4 against. guard Upon that

enacted the court stated: urged to construe the are statute determine “We legislative intent, expressed act, the as

whether resulting prevent all harms was to theft of automobiles and negligence define as therefrom the intent was to or whether negligence recognized already per acts which were se upon However, this issue . a decision common law. . the not . (our emphasis) required.” App. 587, stating: proceeded by The court whether upon the can the issue as to “The case be decided removing the ignition engine, locking ‘stopping the by key’ proximate injury the occasioned cause of the was the upon

negligent operation this adjudicated.” thief. It by the vehicle decisively most (our emphasis) that been latter issue cases have 593-594. Ind. negligence, “Although define act as the statute par- proof satisfy requirement that it does not ticular act injury.” proximate cause was properly opinion Kiste that as decided It is our ignition negligent leaving keys in law, matter proximate not considered the automobile could negligent resulting injuries later from cause stolen Ac operation automobile a thief. granted judg summary cordingly, properly trial court issue. this ment to defendant holding issue, plaintiffs’ three our the first on Because of rejec- relating separately errors trial asserted court’s study pertaining statistics theft crime auto tion of car request the area where admission defendant’s high originally left crime area were harmless was most, error, at and will therefore be treated further herein. TO DISCOVERED TRESPASSERS DUTY OF CARE

II. ON CHATTELS. principal plaintiffs contention of

The second granting summary judgment erred in trial court presented attempting liability question Farmer’s actions apprehend English. the automobile to recover and/or *5 considering issue, In the court’s action on the now well- this summary relating established law of Indiana to motions for judgment in tort cases must borne in mind. deciding fact whether there is an issue of material case, against in all must doubts be resolved party asking judgment. summary question for there If credibility mind, witnesses, weight of state of testi of mony, judgment summary Thus, denied. should be deter mining question whether a exists, of material the trial fact premise ruling upon court must its the basis evidence of the opponent most favorable to the motion and the reason able (1969), inferences to be drawn therefrom. Barnett Doe v. App. 688; Verplank 145 Ind. 251 N.E.2d v. Commercial (1969), 52; Bank 251 N.E.2d Wozniczka v.

McKean 215; N.E.2d accord: Realty Equipment, Central Inc. v. Hillman’s Inc. 246 N.E.2d 383. context, plaintiffs’

Within this we examine the claim the defenses asserted thereto. contentions, by stipulation

Plaintiffs’ basic submitted aas pre-trial conference, result are the defendant was guilty negligence, alternative, or in the guilty of was misconduct, attempting wanton or willful run the stolen road, flashing gun occupants vehicle off its at chas- high ing speed at rates vehicle at time after original theft when the knew, defendant or in the exercise known, of reasonable care have should driver passengers had plaintiffs the automobile taken on as who part of were not a the theft.2 court, job

The trial which did an admirable in its order setting undisputed forth the specific relevant facts and its admittedly regarding While there is applica- of fact superior respondeat actions, tion of purposes Farmer’s of this arguendo appeal an the defendant has assumed acting that Farmer was agent scope authority. Thus, within the of his posi- is defendant’s assuming agency, law, plaintiff tion that even as a matter of entitled recover. alternative judgment upon the granted summary findings, plaintiffs no owed to the (a) the defendant bases at because specifically true was of reasonable and this (b) trespassers, injuries, plaintiffs time were chasing at- following, activity Farmer either justified, tempting excused apprehend the thief privileged. recognized as long been

While the element of has tort,3 ex- necessary some an unintentional in an action present helpful case. import is of its amination *6 concerns The first properly has dimensions. term two appears party duty to who whether the defendant owed a the recovery. Demp- plaintiff, if did there can be no as for he sey 533, 909; App. Pros- Test 184 N.E. W. (3rd 1964). ser, 331 Law Ed. Torts, p. of Torts, use which in the Restatement avoids framed of As negligent “duty”, must conduct to of the term actor’s recognizable plaintiff “individu- create risk of harm the persons example, ally, persons as, for all or a class of — given danger [plaintiff] within a of which area —of (Second), Torts, c. comment §281, member.” Restatement (1965).

Thus, negligence application in a of the element case plaintiff”, of “the foreseeable is directed toward issue imposes upon one a “the relation between individuals legal obligation Prosser, of for the benefit the other.” Law W. 1964). Torts, p. (3rd Ed. 331 of Professor Prosser states:

As words, question ‘duty’ is a “In other whether de- of obligation any par- under fendant for the benefit negligence always cases, duty plaintiff; and in ticular the legal same, to conform standard of reasonable apparent light Prosser, of the risk.” W. Law conduct Torts, (3rd (our 1964). emphasis) p. 331 Ed. instance, Hoberg (1892), 269, See, Faris 134 Ind. N.E. “negligence” This is true for postulated, when a case is duty the second dimension care to be standard of —the applied automatically presupposed. —is

Certainly the most familiar tort law area of unintentional dealing aspect with the in- standard care is that volving occupiers land. owed owners and determining agonized Here the courts years have over plaintiff trespasser, invitee, whether is a a licensee, respective duty and what the defendant owe be said to plaintiff’s those in thus-determined status. Cleveland, 383, etc. R. App. Co. v. Means 785, 789, N.E. reh. den. 108 N.E. wisely the court observed: investigation “Our of this us to conclude leads apparent that much exceptional confusion jurisdictions cases in different has arisen effort to from an put injured party particular case in one or other of said premises relations to the owner general applying applicable then relation, rule to such particular relationship when in fact such was not neces- sarily important; . . .” Here, duty,4 on the issue of if the standard of plaintiffs negligence, the members using of the class public and, streets over which the chase par- occurred *7 occupants ticular, being clearly chased, as the vehicle are duty within the those to boundaries of whom a is owed the chaser.

Thus, duty of defendant’s here is one of the requires If the standard of owed. standard than more negligence liability, plaintiffs’ create to merely contentions asserting negligence must fail. correctly urges plaintiffs’

Defendant status, that vis-a-vis trespasser.5 the defendant one contend, Plaintiffs i.e., excluding any for the moment consideration of whether de- negligence satisfy fendant’s acts either requirement constitute or proximate cause. plaintiffs trespass That did not to intend is immaterial. Hawke Maus N.E.2d 713. however, duty applicable trespasser on land does apply trespasser vehicle, on motor any duty event the trespasser once discovered should judgment. enable their claim summary to withstand examining land, trespassers one owe to on secondary significance authorities attach to whether trespasser been) not the (or has been discovered should have type injury. of conduct which results in his Thus, (Second) (1965) Restatement Torts, 336§ states: possessor “A of land who knows or to know has reason presence trespassing of another who on the land subject is to the activities liability physical harm thereafter caused trespasser by carry possessor’s failure to his upon the land with reasonable care for the tres-

passer’s safety.” (our emphasis) Prosser observes: important “The exception most adujit to the tres- as

passer is accepted generally requirement now occupier must safety exercise reasonable care for his once presence his is known. lineally This is descended from rule, older possessor that of land was inflict not free to unreasonable intentional injury his unwelcome visitor.” courts, “In a few states the express so far as their lan- guage goes . . any . have refused liability to find trespasser, presence known, even after his unless there is ‘wilful or wanton’ conduct. Some of these have courts fact retreated position from this expedient . . . misdefining ‘wilful wanton’ to any include failure ordinary to use care after it is discovered that the tres- passer or wanton’ great majority is there. The have discarded ‘wilful entirely limitation, outright and have said presence trespasser that once the is discovered, there is a injuring use him, care to avoid inas any being. case other human The defendant is then required govern conduct, his active . . . with the caution trespasser’s safety.” of a reasonable man for the W. Pros- ser, emphasis) Torts, pp. (Third Law 1964). (our Ed. *8 488 trespasser duty is to to adage only a

While the often wantonly injuring has been him willfully avoid sup- courts, analysis Indiana decisions by our stated of ports position Restatement.6 taken properly Supreme

In our Court held demurrer complaint alleging negligence will- both and sustained regarding plaintiffs had of decedent who fullness death siding gone very archway covering defendant’s into a narrow alleged knew of track mill. It was not that the at a railroad Considering presence. duty the court stated: decedent’s duty effort “It does him the all reasonable owe of inability injuring presence his avoid him when his and own injury it, it owe are known to does such avoid but presence his when not known? negative “It seem that a answer is all would Pennsylvania susceptible inquiry is of.” v. The Parker 673, 679-680, 504, Company 1893), 134 Ind. 34 N.E. (1925), N.E. R. v. Southern Co. Wahl In track, walking along plaintiff, trespasser defendant’s when the train came struck had fallen was stunned Although plaintiff, it him. the court reversed a verdict for assertedly improper overruling a de also examined the negligence paragraph plaintiff’s complaint. murrer holding overruled, properly stated demurrer lying complaint alleged knowledge plaintiff that the actual might upon proof track he recover.7 on the of such facts century unnecessary to examine of our 19th We consider some involving liability trespassers. cases of these railroad Without some cases, ground apply holding, at least did as an alternative negligence predicated upon failing liability the rule that could not perceived away trespasser stop train from a for a the tracks e.g. crossing See, Cleveland, (1899), etc. R. area. Dull v. Co. appears It cited therein. 52 N.E. 1013 and earlier cases also contributory plaintiff’s presence on the track as the court treated recovery. necessarily negligence bar as a of law matter which would knowledge case, others, plaintiff’s refers well as some 7. This However, peril the doctrine of last clear chance. extent clearly negligence, recognized since “last clear chance” is not a merely avoiding action, con- a means the bar of for an basis depends contributory right negligence. action still de- City City Michigan negligence first instance. fendant’s Reberger 636; Flynn 149, 114 N.E. Werner *9 comprehensive problem The most discussion our of in Cleveland, cases is to found in be etc. R. Co. v. Means 383, 785, App. 412, App. 59 Ind. 104 N.E. reh. den. 59 Ind. 375, 108 N.E. where the court a in of affirmed verdict favor plaintiff over the death her minor while of son who was killed playing on the railroad track in were an area where children play. previously out, accustomed to set As observed court that much of the confusion is efforts which has arisen due to put injured party particular to relationship. one proceeded positions

The analyze court then to various by courts, including taken concepts clear of last nuisance, stating: chance and attractive many “In of these cases which the attractive nuisance doctrine and the doctrine of been last clear chance have applied, involved, where children have a ex- been careful scrutiny amination and of facts which rest they duty will disclose that not, such to observe care neces- sarily, dependent on a contractual relation between parties, tion of benefit depend any nor necessarily does it on considera- or received, by received either other, any promise, from the or inducement or invita- tion, express or by implied, extended the one other, analysis, it but will duty, be found such last in its emergency arises out pre- of the and necessities particular sented marily upon, the facts of the pri- case and rests origin and has in an its inherent sense of justice present humanity every en- civilized and lightened people places high regard a so life permit possessor, it will not their limb helpless when peril, deprived and injured situation of or of the one in the other an negligence affirmative act of of property the use of person another in his when such has knotvledge, ilous situation helpless actual or per- constructive of the former, charging of the person without such damages resulting from with such negligence, even though possessor of such life or limb have been guilty negligent act that remote cause such such negligent peril.” injury, brought such act him into place, App. 383, or 59 Ind. situation 398-399. original duty 331. 270 N.E.2d If the was to refrain conduct, the or reckless court willful would not from be concerned for contributory negligence is not defense. then Hoesel v. Cain reh. den. 222 53 N.E.2d Ind. N.E.2d 769.

Considering adult differences between asserted trespassers said: infant premises, when discovery duty on its “. . . [A]s pres- knowledge, constructive, or such no has actual railway company presence probable ence of the duty to company no it owes both, viz., is the same either to such owes as presence, keep for his lookout knowledge of there each the such after presence, . . .” portion opinion the relevant court concluded following with the reason behind as the the rule: rail- that a from have “It does not follow what we said who company safety road insurer of children trespassers, or premises, come on either licensees its duty of places that it at any and at all them the all times owes *10 obligation attach simply that which should care. Its is society every of to member and under the law ‘attaches personal right exercise in man- when he undertakes ner member, a to may safety another affect welfare or the which obligation . reasonable care this] the . . [and burden, times, ob- to be a its may, at seem enforced wrong, applied to com is never a whether railroad servance Edgington Burlington, etc., R. panies individuals.’ or to Co., supra cases 410], Iowa 446. Reasonable care such [116 any duty impose presence where child does the not merely possible care where on or such its tracks imposes the company on the an unreasonable limitation on property. perti A and use of its correct usual affecting phase this of the will be nent statement Chicago, etc., Krayenbuhl R. Co. v. the case of found in 889, 902, 904, 880, 881, 883, 65 Neb. 91 N.W. true, it is said: ‘It is L.R.A. Terry [1837], 306, which safe. unrestricted where said Loomis *500, *496, Dec. 17 Wend. 31 Am. [N.Y.] by go forward’; life must ‘the business of the means absolutely be forward cannot it carried rendered Ordinarily, can be best the it carried forward property private owner; there use of to such extent consistent law favors use fullest fore the with the main which, purpose standpoint, from social forward, namely, good. public carried business such to determine the extent which Hence, in order use such enjoyed, bearing purpose on such main be its must be account, and a balance struck ad into between taken its disadvantages. If, whole, vantages on the use such promotes main purpose, rather than should defeats permitted; hand, not proposed on restrictions the other if the imposed. operate, they . . . would so should Hence, kind, all cases of this determination of negligence, regard question of character must be had they premises, purpose location and are of the used, therefrom, precau- probability injury prevent necessary injury, tions such the relations ” precautions premises.’ such 59 bear the beneficial use of the 407-408. quotation recently approval by This last cited with Ry. Sagala Chicago, etc., Co. v. 650, 221 N.E.2d 371. appears recognize

It therefore our decided cases exception to ap- willful wanton standard misconduct

plicable trespassers land, An it is this: occupier owner or owes reasonable trespasser through injure to a discovered not to him addition, active conduct. In realizes, where the owner also realize, trespasser peril, should that the position is in a applicable. the Last Clear Chance Doctrine is considering application foregoing dis- trespasser chattel, covered on a in this case an automobile being operated upon public streets, a further distinction reasoning from the behind the willful-wanton must standard be noted. trespasser

In the case of to land where willful- applies, purpose wanton standard a coordinate to social favoring private property felt, the free use of exists. It was *11 require rightly so, to owner an to exercise protect care to his unwanted callers in vast or remote areas impose extremely costly private would burden on owner- society gain ship from which would no benefit. Such under- thoughts lying applicable not trespasser are a discovered riding in an contrary, automobile. On the under such cir- recognized appropriately cumstances the social concern is the public that addressed safe use of the streets and highways. fact, the

As one of of reasonable pre- plaintiffs, admitted, not character of if “discovered” file, depositions disputed on sented least as fact at a judgment proper defend- summary not on the was basis trespassers. plaintiffs they because were ant owed no proximate ruling basis Nor can be sustained might jury actions defendant’s cause. well decide While say injuries, we cannot proximate cause were not as matter of this is so law. require liability,

To does defendant’s effect law only act causative act. Where defendant’s conduct cir- cause in motion chain of which sets leading injury, which in natural cumstances sequence continuous and unbroken leads to result, Hayes Freight Lines, proximate cause found. (1948), 580; New York Inc. v. Wilson 77 N.E.2d Central R. Co. Cavinder

N.E.2d 502. Cassidy

Thus, in Newcomb v. plaintiff injuries N.E.2d sued when car cars, riding, during she was a race between two plaintiff's was no contact between car and crashed. There granted judgment summary trial court the other racer. The race, reversed for the other driver this court holding activity connection causal between his jury. the crash was TO CITIZEN

III. OF THIRD PERSONS BY DUTY CARE ATTEMPTING ARREST. grant remaining assigned summary reason privileged conduct

judgment is that because defendant’s attempting apprehend felon. Farmer was the time at private recognized in Indiana that a has It is citizen well right felony one has committed in his to arrest who

493 reasonably may presence, even arrest one he long committed felony, so believes to have felony (1963), Knotts was in fact committed. v. State 501, 571; (1874), Doering 243 Ind. 187 N.E.2d v. State 56; (1903), App. 428, Golibart v. Sullivan 30 Ind. 66 N.E.

Furthermore, arrestor, rea- as to the he to use is entitled prevent sonable force to the crime or arrest the felon. upon

What we are called examine here extent to is the negligent may which a citizen’s or ex- reckless conduct be injury, arrestee, cused when it results not to persons. third underlying supporting

It principle has been said privilege prevention private by attendant of felonies doing, citizens is that in so citizen furthers an interest of community importance, prevention social crime and speedy apprehension Yingst (1966), criminals. v. Pratt 139 Ind. 220 N.E.2d 276. hand, policy protection

On other social also favors general citizenry reasonably from resort to activities endanger calculated to See, life and limb.8 Plummer v. State (1893), 308, 968; 135 Ind. N.E. (1869), Kunkle v. State 32 Ind. 220. competition

In the principles, grada- these between certain acceptable tions of action have been established based surrounding circumstances the actor’s conduct.

Thus, where crime felony violence, involved is a deadly prevent actor use force to the commission of the

felony prevent escape the felon’s from the (1922), scene. Burns v. State 192 Ind. 136 N.E. 857; Kennedy State 6 N.E. (both involving robberies). Bailey Foundation, infra, v. L. Edison W. Charitable discussed Judge observed, “Thus, protection property by Hoffman of life and capturing and fleeing who, stopping wantonly vehicle, offender his wilfully public endangers safety weighed against possi- must be bility endangering property by commencing continuing life and pursuit.” justified, even hand,

On such force is not the other officer, Plummer State police for misdemeanor. arrest 34 N.E. 968.9 prevent might justified Similarly, force justified later may not consummation of the offense *13 property. apprehend culprit the Golibart the or recover v. (approving N.E. 188 Ind. Sullivan rejected the an on the court instruction the use of force guilty capture argument one that it a to was citizen’s trespass). of criminal a upheld court

In the Kunkle v. State where battery kill intent conviction of assault and with latter was the defendant his when shot brother-in-law engaged was taking pile defendant said a which wood from jury in an his. The trial court had instructed reasonably attempt recapture property resort to means a encouraged endanger should not life and limb calculated error, justified. Holding not or the instruction was harmful Supreme said: Court might gone instruc- may “Indeed, the have further. degree not force tion does relate to property, personal possession used in the of the defense recapture posses- it taken from the but in its has been after justify owner, not sion case the of the which law does as will amount the owner in a resort to such force remedy.” legal peace, leaves him to his breach (our emphasis) 220, 234. under permitted force and the circumstances The extent of rights have, thus, equated been be used Pratt, supra. Yingst defense. of self general applied been These same considerations have determining persons one owed to third when prevent attempts to effect arrest crime. manslaughter, a conviction 9. The court reversed where the de- with shot a town marshal who had first struck defendant fendant had his openly carrying danger- “billy” and then shot at him. Defendant’s purpose killing weapon (a man with avowed fellow mis- ous justification Therefore, demeanor) for the was marshal’s actions. entitled to self defense. defendant was Yingst Pratt, supra, the court reversed a verdict accidentally a tavern customer was shot while owner strug- struggling During armed with a would-be robber. gle gun, several were fired from the shots robber’s with gun being neither nor tavern robber under control. As the owner’s combatants rolled the floor to on table, protect the customer’s cus- himself and his wife the gun jumped tomer down hand and there- robber’s after shot.

The court the crime stressed involved was one might violence and held that other- resistance which damage privileged. wise cause actionable was to be held However, conduct, a caveat was attached to reckless had shotgun stating: gun, owner used the court machine “. employed . propor- . force must not [T]he be out of apparent urgency tion of the occasion.”

App. 695, 700. Thus, negligence, mere citizen’s or failure to use reason- *14 care, was right able excused as a matter of law due to the prevent emergency to arrest and the crime and the nature the situation. chargeable greater legal “He should with no protection he, care for

to use of others than emergency, protect has fit seen use to to himself.” 139 Ind. law, accord distinctions In with these traditional in our felony is hold where we one of violence emergency sudden which attends its commission past, is applied regarding injuries persons standard to to third attempting citizen to whom the to make the arrest a owes duty, the citizen must is use reasonable and care. say privilege, is not to there no

This is for under negligence principles law, familiar what satisfied the stand- reasonably depend upon a prudent what ard will careful and It is or like circumstances.10 person under the same would do ordinarily one fact. say agreement (Second), in with Torts is Restatement The regarding third innocent harm to position. Section this arrest, incor making attempting make an persons states:* by which the rule of Section 75 porates reference [making purpose privileged for “An act which liability third subjects . . the actor to an . arrest] only unintentionally any done him person if the actor realizes or should for harm creates realize that his act causing such harm.” risk unreasonable v. W. Bailey L. the decision in this conflict with Nor does Foundation Edison Charitable

284 N.E.2d summary judgment behalf Bailey on the court affirmed causing alleged negligence in the death police officers being pursued after passengers in a vehicle which crashed nearly officers, time, duty at the officers. The had light through vehicle ran a red hit the other been flashing per The on their miles hour. officers turned at 75-80 turning “yelper” light gave chase, on their also. later red grounds. upon First, two reached its decision legal duty pursue vehicle, had police officers way negligent policemen that the “were no court ruled Therefore, independent giving since there was no chase.” they gave summary negligence way chase, asserted proper. judgment was Kennedy State, supra, Yingst Pratt, supra,

While intimating a citizen’s at dicta arrest each contain being committed, felony cases im- no Indiana have time a legal duty private suggested citizen posed to arrest completion.12 open felony its Indeed to do after so would Jury See, e.g., Instructions, 5.01, *15 Pattern Indiana 5.03 and § 10. cases therein. cited language Compare negligence, action dis- Restatement’s supra. cussed Kennedy phrase “right and cases use the Both the Burns and only clearly they right justifica- duty”, are concerned with the as a defeating claim of defense. the felon’s self tion pre- society are liability vistas of nor which neither we pared for. private

Accordingly, high speed chase evidence of citizen, an at such as coupled least other conduct when with an attempted waving, raise pistol blockade and are sufficient the trier of fact. issue reasonable care for by the Secondly, Bailey pursuit it was found that police, law, proximate as a matter of could to be the not be said response operator cause of the crash. When of a vehicle light flashing pursuit by regular and police red car with stop, yelper operating, than siren or elects flee rather proximate his volitional pursuit act rather than is resulting Upon of reason- crash. this the minds cause of disagree of the common under- not because able men would standing import pursuit. of such The driver bound pursuer. apparent authority to know regarding said, law, The cannot a matter same ordinary pursuit an citizen an vehicle. depending pursued authority, know his bound to might involved, upon the con- facts reasonable mind well flight pursuit clude that from such not unreasonable chain of causation was not broken. juncture many At this plaintiff’s it should be noted seriously disputed deposition are assertions and the evidence summary judgment' the court on the sub- before contains considering However, stantial conflicts. when the standard of only the evidence and reasonable inferences drawn opponent therefrom most favorable motion summary judgment applied, Farmer, there is evidence that private citizen, as a several hours after the theft of auto- mobile, automobile; discovered the that he then observed car; trespassers enter thereafter innocent tried he car, occupants gun, menaced its with a to blockade speeds per car miles hour chased the at 50-60 until believed, car If such evidence were crashed. would be *16 498 negligently under acted

determination of fact whether Farmer negligence circumstances, so, and if whether that proximate injuries. plaintiffs’ of cause summary granting this

For reason the trial court erred judgment asserting Farm- plaintiffs’ liability due claims apprehend attempting actions in the car and er’s to recover relating English, summary portion judgment and that hereby plaintiffs’ and 4 is 2, contentions numbered reversed. Staton, J.,

Hoffman, concur. C.J. and Reported N.E.2d at 312 Note. — Rehearing Petition

On rehearing as- Appellee petition Petrol’s Garrard, J.— of placing conduct” serts use the term “active of Cleveland, (1914), 59 any R. Means reliance etc. Co. v. considering duty 785, care 383, of App. Ind. 104 N.E. holding trespassers odds to discovered is at with owed Wayne (1971), Bank v. Doctor in Fort National N.E.2d 876. Doctor some discussion case is warranted. We believe of “active in Doctor did not involve We first note the facts injury. decedent, conduct” causative of Plaintiff’s daughter-in-law defendant, injuries received fatal at family gathering flight steps fell when she down a while carrying negligence platter complaint as- of food. The improper lighting stairway, improper defendant’s serted stairway, maintenance of and a failure warn decedent dangerous. that the stairs were however, opinion, prior

The discusses some of the cases dealing guests with owed to or mere social Spencer It that Barman licensees. first concluded Ind., by implication 49 N.E. had been overruled “gross negligence” spoke purported it extent terms negligence. degrees recognize “active use the terms then considered Again, negligence” it characterized passive in Means. negli- degrees against violating prohibition

terms as neg- thereby creating gence, and undefinable “undefined disapproved ligence doctrine”, a result. such recognized proceeded of care The court to state that separate three in Indiana involved identified as what concepts: wrongful Woodruff,

(a) positive A Admx. act test announced in 1113; Bowen 34 N.E. *17 upon relying (b) The wilful wanton misconduct test language Lingenfelter Baltimore, in Co. v. etc. R. 49, 1021; (1900), 55 N.E. 154 Ind. entrapment-affirmative instrument (c) The control of test Pier v. based Schultz 182 N.E.2d 255. go further since court concluded not need to it did any theories. these fit

plaintiff’s did not case not, that Indiana does in Doctor the court concur with We Negligence degrees negligence. recognize not, and should man. reasonable standard, care of a imports one Baking Birdsong Co. See, also, ITT Continental v. N.E.2d degrees negligence, analysis precludes

Accepting an proposition some that while are still confronted with we jury, conduct of fact for other creates conduct non-action) (which may insufficient as include is deemed liability. instance, impose In the latter while matter of law helpful speak analytically in terms more would be care, our courts have often instead that stated reasonable regarding duty such conduct. imposes no law context, the in this authorities reviewed Doctor Viewed decision. The decisional “rules” with our three are consistent Supreme are suggested in Doctor derived from cases Court complaint. demurrers to decided Woodruff,

In Bowen, Admx. plaintiffs decedent was fireman fighting who had fallen his death while a fire building. During gave way defendant’s the fire the roof while complaint decedent was on it. The asserted lack premises. holding safe allegation In insufficient the court said: “. . . licensor owes ... except [T]he that of no abstaining any positive wrongful from . act . . . . .

the licensee takes all as to the safe risks condtiion of premises upon (em- enters.” he added) phasis language Thus, the court’s was used to contrast a lack of premises to maintain posi- in a safe condition with tive, affirmative or proximately active causing conduct harm. Lingenfelter plaintiff pit fell into a on defendant’s

property when, nighttime, go at plaintiff pathway left a Again around one of defendant’s railroad cars. the court observed premises defendant was take he them, found but in dictum subject observed that this was the rule that wilfully wantonly the licensor must not injury. cause the That this was not intended as restriction language Woodruff, gathered Admx. from the same following court’s year decision the Cannon *18 Cleveland, etc. R. Co. 682, Again 62 N.E. 8. sustaining affirmed plaintiff’s a demurrer complaint injured where she was walking along while defend- ant’s railroad track. Lingenfelter The court cited con- as trolling, but stated the owed to licensees as: wilfully “. wantonly . . not or injure them use but to injury

reasonable care to avoid danger them after their is discovered.” injured In Pier v. Schultz a child was prem- defendant’s playmate ises when threw a match into steel barrel and Again exploded. its complaint contents asserted the con- premises, fencing dition of the lack of and failure to demurrer, propriety The warn. court affirmed the footnoting stating Woodruff, Admx. and was: alleged any positive “. . . not committed [the owners] positive any act exercised control the instrumen- over

tality.” It conduct, variously active, is this affirma- characterized positive, fact tive constitute for the trier tres- the failure to use care toward a reasonable discovered passer. addition, opinion imputes Petrol asserts that our knowledge employee,

Petrol of its Farmer. Whether chargeable knowledge Petrol is with such is within the issues superior, arguendo respondeat all which were conceded summary judgment proceeding. purposes for Petrol question. Accordingly, opinion not treat does our rehearing petition Appellant’s appellee’s is denied. is, rehearing also, petition denied. C.J., grant rehearing

Staton, concurs; Hoffman, J. would attending privilege attempted issue of on the arrest. Reported at 316 N.E.2d 453. Note. — Company.

James B. Combs v. National Veneer & Lumber 2-1073A215. Filed June [No. 1974.]