dissenting.
The central declaration of today’s decision is that persons who attempt to do themselves harm while incarcerated never have any responsibility for their own actions.
The Court acknowledges that this declaration is both a matter of first impression for us and a matter of judicial choice. I think it is the wrong choice, one that will ineluctably shift liability away from those who suffer harm from their own intentional acts and impose it on those who are only negligent.
In speaking about the responsibility of custodians, the Court’s opinion first states that “the custodian does not have a duty to prevent a particular act (e.g. suicide).” Sanders v. County of Steuben, 693 N.E.2d 16, 18 (Ind.1998). It then says that there is a duty “to take reasonable steps under the circumstances for the life, health, and safety of the detainee” and cites the Restatement (Second) of Torts for the proposition that the duty includes protecting against unreasonable risk of harm, “including specifically self-harm.” Id.
The foregoing statements in the Court’s opinion have seemed inconsistent to me, but I take the bottom line to be that custodians have a specific duty to prevent self-harm and that their charges have no duty at all to care for themselves.
Tradition was that “the very commission of self-injury [was] regarded as the result of some abnormal condition of mind, but the extent of the abnormality and the competence of the actor remains a fact question in the determination of the degree of ‘fault’ of the actor.” Heflin v. Stewart County, Tennessee, 1996 WL 614201, at *7 (Tenn.Ct.App.1995). The New Jersey Supreme Court followed Professor Keeton’s advice in taking a similar approach to the acts of mentally disturbed plaintiffs: “The modern trend appears to favor the use of a capacity-based standard for the contributory negligence of mentally disturbed patients.” Cowan v. Doering, 111 N.J. 451, 545 A.2d 159, 163 (1988) (citing W. Page Keeton et. al., Prosser and Keeton on the Law of Torts § 32, at 178 & n. 39 (5th ed. 1984)).1 Justice Boehm’s approach conclusively assumes that all persons in detention are incapable of making legally relevant choices that lead to their harm.
The Tennessee and New Jersey courts were writing about responsibility for self-harm as it arises under comparative fault regimes. Our present case arises under traditional common law rules, but the Court’s opinion makes clear that the same result would obtain if we were applying Indiana’s comparative fault statute. Sauders v. County of Steuben, 693 N.E.2d 16, 20 (Ind.1998).2
*23There are thus a host of non-governmental custodians to whom today’s rule will make a dramatic difference: hospitals, nursing homes, juvenile homes, psychiatric centers. These custodians presumably have at least the same duty of care as county jailors. If as the Court says, “the conduct of importance in this tort is the custodian’s and not the decedent’s”, id., these organizations will find themselves much closer to being insurers than they are now.
. The New Jersey court states: This standard recognizes that a mentally disturbed plaintiff is not capable of adhering to a reasonable person’s standard of self-care, but at the same time holds the plaintiff responsible for the consequences of conduct that is unreasonable in light of the plaintiff's capacity. In effect, this rule permits the application of a flexible reduced standard of care; it does not eliminate contributory negligence. Cowan v. Doering, 111 N.J. 451, 545 A.2d 159, 163 (1988).
. Our opinion reflects concern for the harshness of outcome under the common law when even a little contributory negligence defeats a plaintiff's claim. Sauders v. County of Steuben, 693 N.E.2d 16, 19 (Ind.1998). Writing for a majority of the Michigan Supreme Court in directing that a contributory negligence instruction be given in a jail suicide case, Justice Dorothy Riley said, “I disagree [ ] that the other extreme should be adopted — that the [custodian] then assumes all responsibility and liability for injuries the plaintiff intentionally commits upon himself.” Hickey V. Zezulka, 439 Mich. 408, 487 N.W.2d 106, 123 (1992).