Creasy v. Rusk

Attorneys for Appellant

Ronald S. Todd
Edgar W. Bayliff
Bayliff, Harrigan, Cord & Maugans, P.C.
Kokomo, Indiana

Attorneys for Appellee

Stephen C. Wheeler
Renae L. Hermann
Jennings, Taylor, Wheeler & Bouwkamp, P.C.
Carmel, Indiana

IN THE
INDIANA SUPREME COURT

CAROL CREASY,
Appellant (Plaintiff below).

v.

LLOYD RUSK,
Appellee (Defendant below).

)
) Supreme Court No.
) 08S02-9901-CV-74
)
)
) Court of Appeals No.
) 08A02-9709-CV-604
)
)
)
)

APPEAL FROM THE CARROLL CIRCUIT COURT
The Honorable Joseph W. Carey, Judge
Cause No. 08C01-9606-CT-3

ON PETITION TO TRANSFER

June 14, 2000

SULLIVAN, Justice.

Carol Creasy, a certified nursing assistant, sued Lloyd Rusk, an
Alzheimer=s patient, for injuries she suffered when he kicked her while she
was trying to put him to bed. We hold that adults with mental disabilities
have the same general duty of care toward others as those without. But we
conclude that the relationship between the parties and public policy
considerations here are such that Rusk had no such duty to Creasy.

Background

In July, 1992, Lloyd Rusk=s wife admitted Rusk to the Brethren
Healthcare Center (ABHC@) 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 Avery 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 Athat 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 Restatement (Second) of Torts ' 283B (1965).[1]
Adults with mental disabilities are 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 understand the consequences
of his or her actions. See id. We will discuss the Restatement rule in
greater detail in Part I-C.

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 Athat 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
Athat of a reasonable person of like age, intelligence, and experience
under like circumstances.@ Restatement (Second) of Torts ' 283A (1965)
(hereinafter, “Restatement rule”). Indiana reformulates the Restatement
rule into a three-tiered analysis:

[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) (citing Smith v.
Diamond, 421 N.E.2d 1172, 1177-79 (Ind. Ct. App. 1981)), transfer
denied.[3] 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.

Consistent with recognizing a rule that holds a child to a standard of
care proportionate to his or her capacity, see Baltimore & Ohio
Southwestern R.R. Co. v. Hickman, 40 Ind. App. 315, 318, 81 N.E. 1086, 1087
(1907), Judge Kirsch observed that Indiana has also indicated a willingness
to consider the mental capacity of an adult with mental disabilities when
determining negligence liability, Creasy, 696 N.E.2d at 445. See generally
Kroger Co. v. Haun, 177 Ind. App. 403, 413, 379 N.E.2d 1004, 1010-11 (1978)
(A[A]bsent extenuating circumstances such as age or mental incompetency, .
. . contributory negligence may be found either where plaintiff has actual
knowledge of the danger, or, in the exercise of reasonable care, should
have appreciated the danger.@); Hunsberger v. Wyman, 247 Ind. 369, 373, 216
N.E.2d 345, 348 (1966) (AIn order for an act or an omission to constitute
negligence, a person to be charged must have knowledge or notice that such
an act or omission involved danger to another. . . . Where there is no
knowledge, actual or constructive, of danger or peril on the part of a
defendant, he cannot be charged with negligence.@); Riesbeck Drug Co. v.
Wray, 111 Ind. App. 467, 475, 39 N.E.2d 776, 779 (1942) (AKnowledge and
appreciation of peril are essential elements of contributory negligence,
and evidence is admissible to show a plaintiff=s mental condition to aid
the jury in determining whether he understood and appreciated the
danger.@).[4] Judge Kirsch reasons that these cases either rely on or
adopt the authority which calls for special consideration in applying the
reasonable person standard under extenuating circumstances where a person
A>unable to apprehend apparent danger and to avoid exposure to it cannot be
said to be guilty of negligence.=@ Creasy, 696 N.E.2d at 445 (quoting
Riesbeck, 111 Ind. App. at 475, 39 N.E.2d at 779 (citing in turn 38 Am.
Jur., Negligence ' 201, at 882)). Based on this authority, the Court of
Appeals held that the rule in Indiana is Athat 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, 696 N.E.2d at 446.

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 Aconduct which does not conform to the standard
of a reasonable man under like circumstances.@[5] Restatement (Second) of
Torts ' 283B; accord Restatement (Third) of Torts ' 9(c) (Discussion Draft
Apr. 5, 1999) (AUnless the actor is a child, the actor=s mental or
emotional disability is not considered in determining whether conduct is
negligent.@). People with mental disabilities are commonly held liable for
their intentional and negligent torts. No allowance is made for lack of
intelligence, ignorance, excitability, or proneness to accident. See
Restatement (Second) of Torts ' 283B cmt. c.

Legal scholars and authorities recognize that it is Aimpossible 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 unable to control his [or her] own actions through any exercise
of reason.@ Anicet v. Gant, 580 So.2d 273, 275 (Fla. Dist. Ct. App. 1991)
(citations omitted). Rather, the Restatement rule holding people with
mental disabilities liable for their torts was founded upon public policy
considerations.

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., 543 N.W.2d 282, 286 (Wis. 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 Restatement
(Third) of Torts ' 9 cmt. e (Discussion Draft Apr. 5, 1999).

(2) Provides incentive to those responsible for people with
disabilities and interested in their estates to prevent harm and
Arestrain@ 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
Restatement (Second) of Torts ' 283B cmt. b(2).

(4) Avoids administrative problems involved in courts and juries
attempting to identify and assess the significance of an actor=s
disability. See id. at cmts. b(1) & b(2). As a practical matter, it
is arguably too difficult to account for or draw any Asatisfactory
line between mental deficiency and those variations of temperament,
intellect, and emotional balance.@ Id. at cmt. b(1).

(5) Forces persons with disabilities to pay for the damage they
do if they Aare to live in the world.@ Id. at cmt. b(3). The
Restatement adds that it is better that the assets, if any, of the one
with the mental deficiency be used Ato compensate innocent victims
than that [the assets] remain in their hands.@ Id. A discussion
draft for the Restatement (Third) of Torts rephrases this policy
rationale and concludes: A[I]f a person is suffering from a mental
disorder so serious as to make it likely that the person will engage
in substandard conduct that threatens the safety of others, there can
be doubts as to whether this person should be allowed to engage in the
normal range of society=s activities; given these doubts, there is
nothing especially harsh in at least holding the person responsible
for the harms the person may cause by substandard conduct.@
Restatement (Third) of Torts ' 9 cmt. e (Discussion Draft April 5,
1999).[6]

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 into the
least restrictive environment.[7] National policy changes have led the way
for some of Indiana=s enactments in that several federal acts either
guarantee the civil rights of people with disabilities or condition state
aid upon state compliance with desegregation and integrationist practices.
See, e.g., Individuals with Disabilities Education Act, 20 U.S.C. ' 1400
et. seq. (1994) (requiring that children with disabilities receive a free
appropriate public education in the least restrictive environment in states
that accept allocated funds) (originally enacted in 1975 as the Education
for All Handicapped Children Act, P.L. 94-142 (amending the state education
grant program under the 1970 Education for the Handicapped Act, P.L. 91-
230; requiring states to provide a free appropriate public education to all
children with disabilities in order to receive state grant funds));
Americans with Disabilities Act, 42 U.S.C. ' 12132 (1994), and implementing
regulation 28 C.F.R. ' 35.130(d) (1999) (providing that a public entity
shall administer services, programs, and activities in the most integrated
setting appropriate to the needs of qualified individuals with
disabilities); Olmstead v. Zimring, 119 S. Ct. 2176, 2185 (1999)
(interpreting the Americans with Disabilities Act to find that Aunjustified
isolation . . . is properly regarded as discrimination based on
disability@); Fair Housing Act, 42 U.S.C. ' 3604 (1994) (prohibiting
discrimination based on Ahandicap@ in the sale or rental of a dwelling)
(originally enacted in 1968 as P.L 90-284 to prohibit housing
discrimination based on race, color, religion, or national origin; amended
in 1988 by P.L. 100-430 to include protections for people with
Ahandicaps@).

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 non-disabled 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 Alive 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 Astrong professional consensus
in favor of . . . community treatment . . . and integration into the least
restrictive . . . environment.@[8] Indeed, scholarly commentary has noted
that Anew 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 C institutionalization and
confinement on the one hand and community treatment and integration into
the least restrictive environment on the other C 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 understand the consequences of his or her actions.

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 dutyC 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., 543 N.W.2d 282 (Wis. 1996) (carving
out an exception to the presumption of liability for institutionalized
mentally disabled people 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 and
that application of the presumption would place an unreasonable burden on
people with mental disabilities who are institutionalized); Herrle v.
Estate of Marshall, 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 at 995 (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 Aemployed 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 against risks faced
as a result of job responsibilities. In Indiana, the workers= compensation
system, not the tort system, exists to cover such employment-related
losses. To the extent that the workers= compensation system is inadequate
as Creasy asserts, the inadequacy reflects defects in the workers=
compensation system and is not a ground for alternative recovery under tort
law.

An analogous situation arises in Indiana law under the fireman=s rule.
The Afireman=s rule provides that fireman [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 Aspecifically 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
Apresumed 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, Ait 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 analysis set forth above and the
present policy analysis, it is unnecessary to determine the degree of
Rusk=s mental disability. We need only conclude that Rusk had a mental
disability which served as the reason for his presence in the nursing home
and the foundation of his relationship with Creasy.

We agree with Judge Friedlander, see Creasy, 696 N.E.2d at 450-51
(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 Aknowledge, 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 injuredC 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 Atoo 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.

C

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 Ind. Appellate Rule 11(B)(3), we now
affirm the trial court, finding that Rusk did not owe a duty to Creasy, and
grant Rusk=s motion for summary judgment.

SHEPARD, C.J., and BOEHM, and RUCKER, JJ., concur.
DICKSON, J., concurring and dissenting.

In The
INDIANA SUPREME COURT

)
CAROL CREASY, )
Defendant-Appellant, )
)
v. ) 08S02-9901-CV-074
)
LLOYD RUSK, )
Plaintiff-Appellee. )

________________________________________________

APPEAL FROM THE CARROLL CIRCUIT COURT

The Honorable Joseph W. Carey, Judge
Cause No. 08C01-9606-CT-3
________________________________________________

On Petition To Transfer

June 14, 2000

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. Slip op. at 17-18. 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, but refusing to extend it to bar an action by a paramedic).

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., 543 N.W.2d
282, 287 (Wis. 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, 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 majority 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 the consideration
of "equal or superior knowledge" in determining the issue of duty and
limited its evaluation to the issue of breach of duty. As we noted in
Douglass:
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. Ind. Code §§ 34-51-2-7 & 34-51-2-8.
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.

-----------------------
[1] See also Restatement (Third) of Torts ' 9(c) (Discussion Draft
Apr. 5, 1999); Johnson v. Lambotte, 363 P.2d 165 (Colo. 1961) (holding that
a person with mental disabilities will be charged with his or her own
negligence unless he or she is incapable of exercising reasonable care);
Anicet v. Gant, 580 So.2d 273 (Fla. Dist. Ct. App. 1991) (affirming that,
as a rule, an adult with mental disabilities is liable in the same
generalized way as an adult without mental disabilities for both
intentional and negligent acts), review denied; Williams v. Kearbey, 775
P.2d 670 (Kan. Ct. App. 1989) (holding that an insane person who shoots
another is civilly liable for damages to those injured and that a finding
of insanity does not preclude a finding that a defendant had the requisite
intent to commit the tort); Swift v. Fitchburg Mut. Ins. Co., 700 N.E.2d
288 (Mass. App. Ct. 1998) (affirming that, as a general rule, people with
mental disabilities are liable for their torts and are held to a standard
of a reasonable person in the circumstances), review denied; Stuyvesant
Assocs. v. Doe, 534 A.2d 448 (N.J. Super. Ct. Law Div. 1987) (holding that
insanity or mental deficiency on the part of an adult does not relieve him
or her from liability for gross negligence); Kuhn v. Zabotsky, 224 N.E.2d
137 (Ohio 1967) (stating that the rule is well established that a person
with mental illness may be held liable for his or her negligence); Gould v.
American Family Mut. Ins., 543 N.W.2d 282 (Wis. 1996) (holding that people
with mental disabilities can be found liable for negligence and must be
held to same standard of care as those without disabilities).

[2] The Court of Appeals also held that a genuine issue of material
fact existed as to the level of Rusk=s mental capacity. See Creasy, 696
N.E.2d at 448.

[3] As the Court of Appeals noted in Creasy, the United States
District Court for the Northern District of Indiana has criticized Bailey
on the ground that it incorrectly cited Smith and in doing so
mischaracterized the presumption regarding children between the ages of
seven and fourteen. See Maynard v. Indiana Harbor Belt R.R. Co., 997 F.
Supp. 1128, 1134-35 (N.D. Ind. 1998). Nevertheless, the Maynard court
concluded that, in that case, a thirteen-year-old boy=s ability to
recognize danger and to exercise care for his own safety were questions of
fact given the conflicting evidence presented by the parties in summary
judgment proceedings. See id. at 1136-37.

[4] In 1983, Indiana statutorily adopted a comparative fault scheme,
subsuming the relevance of contributory negligence embodied in some of
these cases. See Ind. Code ' 34-51-2 (1998) (originally enacted as P.L.
317-1983, 1983 Ind. Acts 1930-33). However, courts have continued to apply
principles of contributory negligence in the determination and balancing of
comparative fault. See, e.g., Walters v. Dean, 497 N.E.2d 247, 254 (Ind.
Ct. App. 1986); Kroger, 379 N.E.2d at 1010.

[5] Scholars trace this rule to Weaver v. Ward, 80 Eng. Rep. 284 (K.B.
1616), an English trespass case decided in an era when strict liability
controlled trespass law. See Gould, 543 N.W.2d at 284 (citing W. Page
Keeton et al., Prosser and Keeton on the Law of Torts ' 135, at 1072
(1984)).

[6] This final reason in particular suggests that a broader policy
consideration supporting the generally accepted rule was an assumption that
persons with mental disabilities should be institutionalized or confined,
rather than Alive in the world.@ This consideration will be discussed in
the next section of this opinion.

[7] See, e.g., Ind. Code ' 22-9-1-2 (1998) (declaring that the public
policy of Indiana is to provide equal opportunity in education, employment,
and access to public conveniences and accommodations, and to eliminate
segregation or separation based on, among other things, disability;
defining “disability@ as the physical or mental condition of a person which
constitutes a substantial disability, id. § 22-9-1-3(r)) (originally
prohibiting Ahandicap@ as a ground for discrimination in P.L. 256-1975,
1975 Ind. Acts 1374); Ind. Code ' 20-1-6-4 (accepting, as a state, all
provisions and benefits of federal laws which provide for aid to children
with disabilities; directing the State Board of Education to comply with
all federal laws relating to special education activities) (originally
enacted as P.L. 276-1947, 1947 Ind. Acts 1102, 1105-06, amended by P.L. 2-
1988, 1988 Ind. Acts 7, 168-69); Ind. Code ' 12-10-4-2 (directing the
Division of Disability, Aging, and Rehabilitative Services to create
respite care pilot programs with one purpose being to prevent or reduce the
incidence of inappropriate institutional care of individuals with
Alzheimer=s disease and enable the individuals to remain in their own
homes) (originally enacted as P.L. 2-1992, 1992 Ind. Acts 177, 244-45);
Ind. Code ' 12-11-1-1 (directing the Bureau of Developmental Disabilities
Services to administer programs for community based residential
alternatives to placement in institutions and health facilities; requiring
that the programs simulate a homelike atmosphere with patterns and
conditions of everyday life that are as close to normal as possible)
(originally enacted as P.L. 2-1992, 1992 Ind. Acts at 279-80); Ind. Code
' 12-11-1-3 (requiring, to the extent possible, that individuals with
developmental disabilities be placed in the least restrictive programs)
(originally enacted as P.L. 2-1992, 1992 Ind. Acts at 280-81); Ind. Code '
12-11-1-8 (prohibiting the Bureau from excluding individuals from placement
in a residential facility because they have autism) (originally enacted as
P.L. 2-1992, 1992 Ind. Acts at 281); Ind. Code ' 12-11-2-5 (limiting the
size of intermediate care facilities for people with mental retardation,
such as group homes, to no more than eight individuals unless the placement
is medically indicated and appropriate for the individual) (originally
enacted as P.L. 2-1992, 1992 Ind. Acts at 282-84); Ind. Code ' 12-11-10-1
(establishing a family support program to develop a family support policy
state plan which assists families to care for persons with disabilities in
their own homes and allows a person with a disability to live separately
from his or her family if he or she so chooses) (originally enacted as P.L.
137-1993, 1993 Ind. Acts 3678, 3679); Ind. Code ' 12-12-1-5 (directing the
Rehabilitation Services Bureau to increase employment opportunities for
people with disabilities, including supported employment in integrated
settings for people with the most severe physical and/or mental
disabilities) (originally enacted as P.L. 104-1996, 1996 Ind. Acts 1752,
1752-53); Ind. Code ' 12-11-12 (authorizing a family subsidy account and
directing the Bureau to use the money to support families to care for
people with developmental disabilities in their own homes or to bring an
individual home from an institution) (originally enacted as P.L. 112-1996,
1996 Ind. Acts 1792, 1792); Ind. Admin. Code tit. 511, r. 7-12-2 (1996)
(requiring special education planning districts to ensure, to the maximum
extent appropriate, that students with disabilities are educated with
nondisabled students; also that students participate with students without
disabilities to the maximum extent possible even where the primary
placement is in a separate facility or institution).
[8] Sarah Light, Rejecting the Logic of Confinement: Care
Relationships and the Mentally Disabled Under Tort Law, 109 Yale L.J. 381,
390 & nn. 47-48 (1999) (citing M. Gregg Bloche & Francine Cournos, Mental
Health Policy for the 1990s: Tinkering in the Interstices, 15 J. Health
Pol. Pol=y & L. 387, 402 (1990); Brief Amici Curiae for the American
Association on Mental Retardation, et al.. Supporting Respondents at 9,
Olmstead v. L.C., 119 S. Ct. 2176 (1999) (No. 98-536); Brief Amici Curiae
for ADAPT, National Council on Independent Living, and TASH Supporting
Respondents, Olmstead (No. 98-536); Brief Amici Curiae for the American
Psychiatric Association and the National Alliance for the Mentally Ill
Supporting Respondents at 21-22, Olmstead (No. 98-536)).

[9] James W. Ellis, Tort Responsibility of Mentally Disabled Persons,
1981 Am. B. Found. Res. J. 1079, 1079-80 (1981). One legal scholar has
noted: AThe legislative goal of >integrating= people with disabilities into
society will never be fully accomplished unless tort law reflects a view
that those people have a right to live in the world. Courts should require
not only that people with disabilities take precautions for their own
protection, but that society acknowledge their existence and make
accommodations for them.@ Adam A. Milani, Living in the World: A New Look
at the Disabled in the Law of Torts, 48 Cath. U. L. Rev. 323, 417 (1999).
Other state courts have cited integration policies as the foundation for
their tort law decisions. See, e.g., Vaughn v. Northwest Airlines, Inc.,
558 N.W.2d 736, 744 (Minn. 1997) (finding that integration policy found in
legislation making public accommodations accessible to people with
disabilities could be incorporated in the common law as the result of
Aaccumulated experience@ and as common law rules are Acarefully crafted
both to reflect our traditions as a state and to address emerging societal
needs@).

[10] In Heck v. Robey, we concluded that the concept of incurred risk
as embodied in the fireman=s rule exception to the rescue doctrine was
subsumed by Indiana=s comparative fault scheme. See 659 N.E.2d at 505.
However, we recognized that not every such case will go to trial: AA
defendant will prevail at summary judgment if the plaintiff expressly
assumed the risks of the activity and agreed to hold the defendant harmless
. . . or if the defendant otherwise had no duty to the plaintiff.@ Id.
(emphasis added).

[11] Many legal scholars have questioned the significance of the
Aadministrative difficulties and judicial efficiency@ policy rationale
behind the Restatement rule. They argue that our legal system regularly
entrusts judges and juries as fact-finders to make difficult determinations
about mental competence for a range of legal issues (e.g., guardianship,
contract and testamentary capacity, criminal proceedings, contributory
negligence allocations in tort claims, and commitment hearings) because
fact-finders are uniquely positioned to weigh evidence, judge credibility,
assess witness testimony, and apply the law thereto. See, e.g., Ellis,
supra, note 9, at 1089; Wm. B. Hornblower, Insanity and the Law of
Negligence, 5 Colum. L. Rev. 278, 283 (1905); Light, supra note 8, at 388
(ASuch determinations [regarding mental competence] have proceeded without
undue strain on the courts.@).