dissenting.
I respectfully dissent. The central issue is best stated by the appellants in this case: does a nursing home owe third persons a duty not to make material misrepresentations in the course of making employment recommendations, when a substantial risk of physical harm to third persons by the employee is foreseeable.
Charles Richardson had previously been employed by LAB to maintain and secure their licensed nursing facility in Rockville, Indians. Beth Bratcher, residential supervisor over the psychiatric building patients at LAB, testified at a deposition as follows:
Q. But while Charlie Richard was employed here, there were residents who were saying that Charlie Richardson was soliciting sex from residents?
A. Some residents had been saying that. I have heard them rumors.
* * *
Q. When you heard those rumors, what did you do?
A. I would follow up with the residents and see what was going on. But nobody ever could come up with concrete-nobody could actually stand there and say that they have actually seen him have sex with anybody.
Q. Did you report that to the administrator?
A. I have.
Q. Was a written report generated of the investigation that was done to determine if those rumors were true?
A. I have no idea.
(Appellants' App. pp. 95-96). Bratcher herself never generated a written report concerning the allegations of sexual misconduct reported to her, and conducted no "formal" investigation into those reports. (Appellants' App. pp. 96c-96d).
The administrator at Parke County Nursing Home hired Mr. Richardson in May 1994 as a result of good references Mr. Richardson received from LAB. In fact, the employment reference form *631shows Mr. Richardson to be a person of "good" character, and shows that he would be "eligible for rehire." (Appellants' App. p. 85).
Eva Passmore, an Alzheimer's patient, was allegedly raped on November 26, 1997, while a resident at the Parke County Nursing Home. Mark Passmore, Eva's son, contends that the rape was committed by Charles Richardson, who was then head of maintenance and security at this facility.
What duty, if any, does LAB have to Passmore? Had LAB done nothing to ree-ommend Mr. Richardson to Parke County Nursing Home, perhaps, I would have been persuaded by the majority opinion. However, LAB took an affirmative and negligent step in recommending Mr. Richardson when he had a history of sexual misconduct in their facility.5 The duty arises from this affirmative action.
In Butler v. City of Peru, 733 N.E.2d 912, 917 (Ind.2000), our supreme court held that a duty may also be imposed:
upon one who by affirmative conduct ... assumes to act, even gratuitously, for another to exercise care and skill in what he has undertaken. It is apparent that the actor must specifically undertake to perform the task he is charged with having performed negligently, for without actual assumption of the undertaking there can be no correlative legal duty to perform the undertaking carefully.
Id. (quoting Northern Indiana Public Service Co. v. Hast Chicago Sanitary Dist., 590 N.E.2d 1067, 1074 (Ind.Ct.App.1992)).
In imposing a common law duty, a court should weigh three key factors: 1) the relationship between the parties, 2) the reasonable foreseeability of the type of harm to the type of plaintiff at issue, and 3) the public policy promoted by recognizing an enforceable duty. Jacques v. Allied Bldg. Servs. of Ind., Inc., 717 N.E.2d 606, 608 (Ind.Ct.App.1999). The imposition of a duty is limited to instances where a reasonably foreseeable victim is injured by a reasonably foreseeable harm. Id.
LAB has assumed an affirmative duty by recommending Mr. Richardson to Parke County Nursing Home, as it was foreseeable that someone else may be the victim of his sexual misconduct. It certainly is clear that Indiana public policy is designed to protect vulnerable nursing home residents from sexual abuse. State regulations require strict screening of prospective employees of nursing homes to prevent this very situation.
There are no reported Indiana cases that address the cireumstances under which a nursing home may be lable to third persons for the foreseeable physical harm resulting from providing false or misleading information as a referral to a prospective employer. Several other jurisdictions, however, have recently considered this issue and found that a duty existed in cireumstances similar to this case. Davis v. Bd. of County Comm'rs of Dona Ana County, 127 N.M. 785, 987 P.2d 1172 (Ct.App.1999); Grozdanich v. Leisure Hills Health Ctr., Inc., 25 F.Supp.2d 953 (D.Minn.1998), reconsideration denied; Randi W. v. Muroc Joint Unified Sch. Dist., 14 Cal.4th 1066, 60 Cal.Rptr.2d 263, 929 P.2d 582 (1997).
The two most recent cases, from New Mexico and California, expressly adopt the *632principles set forth in the Restatemrnt (SEconp) or Torts §§ 310 and 311. In Davis, 987 P.2d at 1175, a supervisor of a county detention center wrote a positive endorsement of Herrera to a psychiatric hospital that omitted any reference to a sexual harassment allegation where he had been investigated for allegedly sexually harassing female inmates. After getting the job with this hospital, Herrera sexually assaulted a patient nine months later. Id. Davis accepted the principles set forth in Section 311, as they apply to an employer's duty of care in making employment references and the circumstances under which that duty extends to foreseeable third parties. Id. at 1179.
The foreseeability of a particular kind of harm plays a very significant role in this determination of duty. Applying this factor, it is easy to see that Parke County Nursing Home would read and rely on LAB's recommendation in hiring Mr. Richardson. Moreover, LAB could foresee that had it not unqualifiedly recommended Mr. Richardson, it was likely that Parke County Nursing Home would not have employed him. And, finally, LAB could foresee that Mr. Richardson, having been hired by Parke County Nursing Home, might molest or rape a resident of the facility such as Eva Passmore, as he was accused of sexual misconduct at LAB prior to his employment with Park County Nursing Home.
In light of these factors and policy considerations, I find, consistent with the Indiana common law and the RestarenEnt (SEconp) or Torts §§ 310 and 311, that the writer of a letter of recommendation owes to third persons a duty not to misrepresent the facts in describing the qualifications and character of a former employee, if making these misrepresentations would present a substantial, foreseeable risk of physical injury to the third person.
. I recognize that Eva Passmore was allegedly raped. If Eva was indeed raped, it has not been established that Mr. Richardson was the perpetrator of such an act,. Moreover, I recognize that Mr. Richardson's alleged sexual misconduct at LAB has not been proven as fact. However, these are issues to be raised at trial. The truth or falsity of such allegations should be before a jury or trier of fact.