dissenting.
I believe that the trial court was correct in granting summary judgment in favor of Rusk and therefore respectfully dissent from the majority’s holding to the contrary.
As the majority indicates, we are confronted in this case with a question of first impression in Indiana. The issues decided herein take on heightened practical and social importance because, unfortunately, Alzheimer’s disease is not rare. One study shows a prevalence of Alzheimer’s disease of 3% in the 65 to 74 age group, increasing to 18.7% in the 75 to 84 range, and as high as 47% in the 85 and over range. Evans, D. et al, Prevalence of Alzheimer’s Disease in a Community Population of Older Persons, 262 Journal of the American Medical Assoc. 2551 (1989). It can be inferred that as the average age of Americans increases, so will the incidence of Alzheimer’s disease. Office of Technology Assessment, Losing a Million Minds: Confronting the Tragedy of Alzheimer’s Disease and other Dementias (Pub. No. OTA-BA324). Many of those who develop the disease will require institutionalization. See id. at 76-27 (while some retain their normal personality traits as the disease progresses, “others exhibit drastic changes that can create serious, complex management problems for caregivers and physicians, increasing the chances that the patient will be institutionalized”).
We are asked to decide whether a person institutionalized with advanced Alzheimer’s is liable in tort if he strikes out and injures a caretaker employed by the institution. I readily acknowledge that in some cases such as this, summary judgment may be inappropriate because a material question of fact exists concerning whether the defendant’s Alzheimer’s disease has advanced to a stage where the patient-defendant has no capacity to appreciate or control his violent behavior. I do not believe, however, that this is such a case.
Rusk was initially admitted to the Brethren Healthcare Center (BHC) because his Alzheimer’s condition rendered him confused and suffering from memory loss to such an extent that his wife could no longer care for him. By May 1995, when Creasy sustained her injuries, Rusk had been a resident at BHC for more than three years. During that time, the Alzheimer’s disease continued to progress. By the time of the occurrence, his condition was marked by aggressiveness, belligerence, and violent behavior directed at others. All of these behaviors are characteristic of a person in the advanced stage of Alzheimer’s.7
Sharon Ayres was a licensed practical nurse employed at BHC. At the time of the occurrence, Ayres had worked at BHC for approximately nine years. Ayres submitted an affidavit stating that Rusk was in the advanced stage of Alzheimer’s and was there*451fore unable to appreciate the consequences of his actions. The majority rejects Ayres’s statement on the ground that there is nothing in her affidavit qualifying her as an expert witness to offer such testimony. I disagree with this conclusion.
Ind. Evidence Rule 702 provides that a witness may be qualified as an expert by virtue of “knowledge, skill, experience, training, or education.” Any one characteristic alone may qualify an individual as an expert. Fleener v. State, 648 N.E.2d 652 (Ind.Ct.App.1995), vacated in part on other grounds, affd. on all other grounds, 656 N.E.2d 1140 (Ind.1995). Therefore, a person may qualify as an expert on the basis of practical experience alone. Fowler v. Napier, 663 N.E.2d 1197 (Ind.Ct.App.1996). The question of whether a person qualifies as an expert rests within the sound discretion of the trial court. Id.
Ayres’s affidavit states that she is a licensed practical nurse, signifying that she had at least the medical training necessary to obtain that license. More importantly, the affidavit states that Ayres had worked at BHC for nine years at the time Creasy was injured. In my view, the practical experience gained through working with Alzheimer’s patients on a regular basis for nine years, and specifically through working with Rusk on occasion for three years, qualified Ayres as an expert for the purpose of rendering an opinion regarding whether Rusk was in the advanced stage of Alzheimer’s and whether he was able to appreciate the consequences of his actions.
It is also significant to me that the degree of Rusk’s disability was never placed at issue by Creasy. Rusk sought summary judgment on the basis that Alzheimer’s disease rendered him incapable of appreciating the consequences of his actions. Ayres’s supporting affidavit both asserted and tended to prove that Rusk was in the advanced stage of Alzheimer’s and was unable to appreciate the consequences of his action. In response to Rusk’s motion, Creasy designated six genuine issues of material fact that precluded summary judgment, including:
(1) Whether the defendant committed a wrong in kicking, twisting, and pulling Ms. Creasy’s left leg and back;
(2) Whether the defendant is relieved of responsibility for his actions because of a mental deficiency that he might have;
(3) The defendant’s percentage of fault for causing the injuries sustained by the plaintiff;
(4) Whether plaintiff incurred the risk of defendant’s wrongful conduct, and, if so, her percentage of fault for incurring the risk;
(5) Whether plaintiff committed any contributory negligence and, if so, her percentage of fault for her contributory negligence; and
(6) The total amount of damages the plaintiff would be entitled to recover if fault • were disregarded.
Record at 188 (Creasy’s Designation of Genuine Issues of Material Fact That Preclude Entry of Summary Judgment on Defendant’s Motion). In my view, the designation of issues reflects that Creasy did not challenge the assertion regarding the advanced nature of Rusk’s condition, and does not do so now upon appeal. Rather, Creasy’s arguments both in opposing the summary judgment motion and in appealing the* ruling thereon assumed -as true the assertion that Rusk’s condition rendered him incapable of understanding the consequences of his actions.
At the trial court level, the parties focused their arguments upon this question and the trial court rendered summary judgment upon this basis. Again upon appeal, the parties have concentrated their argument upon the question of whether a person with advanced Alzheimer’s can be liable in tort to his paid caretakers. All the while, the parties have treated the question of whether Rusk’s Alzheimer’s rendered him incapable of appreciating the consequences of his actions as if it were not an issue-they háve assumed that it did. I believe the majority errs by characterizing as a question of fact a matter that the parties have regarded as settled. Therefore, my analysis proceeds upon the assumption that Rusk’s- Alzheimer’s rendered him *452incapable of appreciating the consequences of his actions.
What is left for us to decide, in my view, is a pure question of law: Is a person in the advanced stage of Alzheimer’s liable in tort for his actions that injure his paid caretakers in a special care facility? As the majority indicates, several jurisdictions have recently addressed precisely the same issue. In each of those recent cases, the court concluded that the patient was not liable because, among other things, the patient did not owe the caregiver a duty to refrain from the injury-inflicting conduct. See Colman v. Notre Dame Convalescent Home, Inc., 968 F.Supp. 809 (D.Conn.1997) (predicting Connecticut law); Herrle v. Estate of Marshall, 45 Cal.App.4th 1761, 53 Cal.Rptr.2d 713 (1996); Mujica v. Turner, 582 So.2d 24 (Fla.Dist.Ct.App.1991), review denied; Anicet v. Gant, 580 So.2d 273 (Fla.Dist.Ct.App.1991), review denied; Gould v. American Family Mut. Ins. Co., 198 Wis.2d 450, 543 N.W.2d 282 (1996); but see McGuire v. Almy, 297 Mass. 323, 8 N.E.2d 760 (1937) (imposing liability on insane person for intentional torts); Van Vooren v. Cook, 273 App.Div. 88, 75 N.Y.S.2d 362, 365 (1947) (imposing civil liability on one “suffering from a defective reasoning” for assault and battery). I agree with the basic reasoning in those cases, except for certain aspects of those opinions that will be explained more fully below, and would hold that Rusk was entitled to summary judgment for lack of duty.
As Creasy points out in her appellate brief, it is widely accepted in most American jurisdictions that mentally disabled adults are held to an objective reasonable person standard and are thereby deemed responsible for the torts they commit regardless of their capacity to comprehend their actions. See Gould v. American Family Mut. Ins. Co., 198 Wis.2d 450, 543 N.W.2d 282. Based upon In re Meyer’s Guardianship, 218 Wis. 381, 385, 261 N.W. 211, 213 (1935), the Gould court referred to this as “the Meyer rule”. The Gould court acknowledged the general rule of liability, that the defendant in that case had been negligent, and that said negligence was a cause of the plaintiffs injuries. The court concluded, however, that public policy considerations in such cases may sometimes preclude liability. The public policy concerns identified in Gould include: (1) providing recourse to innocent third parties harmed by the disabled person’s acts; (2) providing incentive for those responsible for a mentally disabled person to shield others from harm that may be caused by the disability; and (3) obviating the possibility of faking a mental disability to escape civil liability. In my view, the same concerns counsel against imposing liability in the instant case.
Creasy cannot fairly be regarded as an “innocent” member of the public, as that term is used in this context. Creasy had express knowledge of the dangers inherent in dealing with Alzheimer’s patients in general and with Rusk in particular. In fact, Creasy was aware before she attended Rusk and was injured that he had been “very agitated and combative that evening”, Record at 228, and that he was hitting and kicking wildly immediately before the incident. Holding Rusk accountable in negligence under those circumstances “places too great a burden on him because his disorientation and potential for violence is the very reason he was institutionalized and needed the aid of employed caretakers.” Gould, 543 N.W.2d at 287.
The second rationale upon which the Meyer rule is premised is that it provides incentive for those responsible for a mentally disabled person to restrain him. In the instant case, Rusk’s family placed him in a long-term care facility which was equipped, staffed, and intended to care for, among others, Alzheimer’s patients, including those exhibiting violent behavior. In so doing, they did everything they could do to restrain Rusk and I cannot conceive of further, humane restraint that they could have sought. In this circumstance, incentive to do more obviously is not a valid consideration.
The final reason for the Meyer rule is to prevent persons from simulating insanity in order to defend against civil liability for their torts. As the Gould court stated about the mentally disabled civil defendant in that case, “[t]o suggest that [the defendant] would ‘simulate or pretend’ the symptoms of Alzheimer’s disease over a period of years in order to *453avoid future tort liability is incredible.” Gould, 543 N.W.2d at 287.
I do not disagree with the majority’s conclusion that public policy concerns require a consideration of the degree of the patient’s impairment when deciding the question of duty. The majority’s opinion, however, creates a sliding scale (“[t]he greater the patient’s degree of impairment, the more the public policy concerns weigh against imposing a duty on him for the reasons set forth in Gould”, Op. at 448) that arguably renders summary judgment practically. unavailable because it assigns the determination of the degree of mental impairment exclusively to the factfinder. While I agree with the general rule that mentally disabled persons are ordinarily responsible for their torts, it should not apply where “circumstances totally negate the rationale behind the rule.” Gould, 543 N.W.2d at 287. In my view, an institutionalized Alzheimer’s patient injuring a compensated, trained caretaker is one set of circumstances that negates liability and is appropriate for summary disposition.
Finally, I reject Creasy’s argument that Gould, along with Herrle, Anicet, and Mujica, are not persuasive in Indiana because they contravene principles announced by our supreme court in Heck v. Robey, 659 N.E.2d 498 (Ind.1995). Creasy contends that the Gould court relied on the doctrine of primary assumption of the risk and an expansion of the fireman’s rule. My view is not dependent upon the portions of Gould that refer to those doctrines. In fact, I do not consider primary assumption of the risk or the fireman’s rule to the extent those principles consider the conduct of the plaintiff which bars reliance upon an otherwise existing tort. Rather, as did the court in Anicet v. Gant, 580 So.2d at 277,1 “conclude that no duty to refrain from violent conduct arises on the part of a person who has no capacity to control it to one who is specifically employed to do just that.” (Emphasis in original.)
In summary, I would hold that, as a matter of sound public policy, a person institutionalized because of Alzheimer’s who does not have the capacity to control or appreciate his or her conduct cannot be liable for injuries caused to persons who are employed by that institution to care for Alzheimer’s patients.
. Alzheimer's is a progressive illness that has been divided into stages according to the progression of the characteristic clinical and behavioral changes that are displayed. Generally, there are four recognized stages of Alzheimer's— early, middle, advanced, and terminal' — -which are marked by worsening levels of disorientation, memory failure, intellectual deterioration, and personality change. Neurological impairment becomes apparent in the advanced and terminal stages of the illness. In the advanced stage, symptoms include: (1) dependence on others for the requirements of daily life (such as food, shelter, and protection); (2) verbal responses have little correlation to what is asked; and (3) inability to communicate needs other than by resort to caustic behavior such as yelling, noisiness, and striking out; such behavior is also likely to occur without any relationship to needs. Lee R. Russ, Bruce F. Freeman, & J. Stanley McQuade, Attorneys Medical Advisor § 76.12(1994).