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 plaintiffs 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, *671but 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., 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 rebanee upon a plaintiffs 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 thé 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 *672the 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 870. 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 plaintiffs 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.