Mary Elizabeth Santelli, as Administrator of the Estate of James F. Santelli v. Abu M. Rahmatullah, Individually and d/b/a Super 8 Motel

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

James R. Fisher Danford R. Due

Debra H. Miller Scott E. Andres

Miller & Fisher LLC Due Doyle Fanning LLP

Indianapolis, Indiana Indianapolis, Indiana

Roger L. Pardieck ATTORNEYS FOR AMICUS CURIAE

Karen M. Davis DEFENSE TRIAL COUNSEL OF INDIANA

Susan Boatright Julia B. Gelinas

The Pardieck Law Firm Lucy R. Dollens

Seymour, Indiana Frost Brown Todd LLC

Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE

INDIANA TRIAL LAWYERS ASSOCIATION Donald B. Kite, Sr.

William E. Winingham Gonzalez Saggio & Harlan LLP

John G. Shubat Indianapolis, Indiana

Wilson Kehoe Winingham LLC

Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court Aug 28 2013, 9:10 am

_________________________________

No. 49S04-1212-CT-667

MARY ELIZABETH SANTELLI, AS

ADMINISTRATOR OF THE ESTATE OF

JAMES F. SANTELLI,

Appellant (Plaintiff below),

v.

ABU M. RAHMATULLAH, INDIVIDUALLY

AND D/B/A SUPER 8 MOTEL,

Appellee (Defendant below).

_________________________________

Appeal from the Marion Superior Court No. 4, No. 49D04-0704-CT-014720

The Honorable Cynthia J. Ayers, Judge

_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 49A04-1011-CT-704

_________________________________

August 28, 2013

Rucker, Justice.

In this negligence case we address the application of Indiana’s Comparative Fault Act to

the issue of fault allocation in a specific context: that in which a premises owner has a duty to

protect a business invitee from the foreseeable criminal act of a third party.

Facts and Procedural History

On October 16, 2005, plaintiff James Santelli was robbed and murdered inside his room

in an Indianapolis-area motel owned by defendant, Abu Rahmatullah. Santelli was a resident of

Illinois and had rented a room at the motel while he worked on a local construction project. In

criminal proceedings the murderer, Joseph Pryor, pleaded guilty to the murder and Class B

felony robbery of Santelli and was sentenced to 85 years in the Department of Correction. See

Pl’s Ex. 90; Pryor v. State, No. 49A02-0709-CR-804, slip op. at 2-3, 2008 WL 1758752, at *1

(Ind. Ct. App. April 18, 2008). On April 5, 2007, Santelli’s estate (“the Estate”) filed a

complaint against Rahmatullah in Marion Superior Court alleging Rahmatullah breached his

duty to Santelli to maintain the motel in a reasonably safe manner, causing Santelli’s death.

Rahmatullah asserted a defense naming Pryor as a liable non-party, and also alleging Santelli

was partially responsible for his own death. The case proceeded to a five-day jury trial in July

2010.

The evidence adduced at trial showed that Rahmatullah’s motel was located in a high

crime area and had been the scene of four armed robberies in less than four years prior to the

murder, two of which occurred within six months of Santelli’s death in 2005. See Tr. at 206-09.

Prostitution and drugs were prevalent at the motel to a degree that undercover police considered

renting a room there. See Tr. at 414. About a month before the murder, Rahmatullah hired

Pryor as a maintenance man and gave him a master keycard to the motel without inquiring into

his criminal history. At the time Rahmatullah hired him, Pryor was a convicted felon, was on

probation, and was the subject of an outstanding warrant for violating that probation. Pryor

walked off the job after two days of work and Rahmatullah neither confiscated nor deactivated

Pryor’s working keycard, which remained in Pryor’s possession at the time of the murder. See

Tr. at 450, 451, 485-86. Although there were no signs of forced entry to Santelli’s room, there

was also no evidence Pryor used the keycard to gain entry. Santelli had stayed at the same motel

in prior years while working on other jobs. Police and expert testimony indicated security

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procedures at the motel were lax. The motel’s only security cameras were in the lobby and the

pool area and these were not monitored. Tr. at 303-04. Rahmatullah failed to keep exterior

doors consistently closed and locks in working order. Tr. at 457, 484, 499-501, 510.

After the parties rested, the Estate tendered the following final jury instruction, which the

trial court denied:

If you find that the Defendant or his employees should have

reasonably foreseen the criminal conduct on the premises could

result in the death of a guest, then you are to find that the

Defendant is at fault for Pryor’s actions as well as for the

Defendant’s own negligence . . . .

Tr. at 707. Among other things, the trial court instructed the jury on negligence, incurred risk,

proximate cause, non-party fault, reasonable foreseeability, a landowner’s duty to invitees, and

apportionment of fault.1

On July 16, 2010 the jury returned a verdict finding total damages in the amount of

$2,070,000.00 and apportioning the fault for Santelli’s death as follows: 1% to Santelli, 2% to

Rahmatullah, and 97% to Pryor, resulting in an award to the Estate of $41,400.00. App. at 184-

85. The trial court entered judgment on July 26, 2010. On August 25, 2010 the Estate filed its

Motion to Correct Errors and for New Trial, which Rahmatullah opposed. The trial court held a

hearing on the motion on September 27, 2010, during which the court directed the parties to

1

More specifically, in part the trial court instructed the jury in the following order that: (1) this case is

governed by the Indiana law of comparative fault; (2) the type of fault at issue in this case is negligence,

which is the failure to use reasonable care; (3) a plaintiff incurs risk of injury where “he or she actually

knew of a specific danger, understood the risk involved and voluntarily exposed himself or herself to that

danger”; (4) “[a]n act or omission is a proximate cause of a death if the death is a natural and probable

consequence of the act or omission”; (5) the defendant must prove his defenses—that Santelli incurred the

risk of his death and that Pryor is at fault for Santelli’s death—by a preponderance of the evidence; (6) a

determination of negligence depends upon whether the injury could have been reasonably expected to

result from a person’s act or omission; (7) “[a] landowner’s duty to business invitees includes a duty to

exercise reasonable care and to protect them from the foreseeable dangerous behavior of others on the

premises” but a landowner is not required to insure the safety of invitees; (8) Santelli was an invitee on

Rahmatullah’s property; (9) a property owner is liable for harm to invitees caused by a condition of the

property only if the owner “knows of the condition or by the exercise and [sic] reasonable care should

discover the condition and should realize that the condition involves an unreasonable risk”; (10) fault, if

any, must be apportioned on a percentage basis between Santelli, Rahmatullah, and Pryor and the

apportionment must total 100%. Tr. at 788-90, 794.

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submit proposed findings of fact and conclusions of law no later than October 25, 2010. On

November 5, 2010, the trial court issued its findings, conclusions, and judgment granting in part

and denying in part the Estate’s motion and ordering a new trial limited to the issue of fault

allocation.

Both parties filed notices of appeal from the trial court’s order. Rahmatullah asserted the

November 5 order was untimely and should be treated as deemed denied under Indiana Trial

Rule 53.3 while the Estate appealed the trial court’s partial denial of its motion, and from any

deemed denial of the motion for untimeliness. On Rahmatullah’s motion the appeals were

consolidated and the parties and their amici briefed the merits. The Court of Appeals presumed

the Estate’s motion to correct errors was deemed denied by the trial court and then considered

the merits of the parties’ arguments. The Court determined that Indiana had previously

employed the “very duty” doctrine, held that a jury instruction on the doctrine would be proper

on retrial because the doctrine had survived the adoption of the Indiana Comparative Fault Act,

and adopted the Restatement (Third) of Torts § 14 to implement the doctrine in Indiana. See

Santelli v. Rahmatullah, 966 N.E.2d 661 (Ind. Ct. App. 2012). The Court of Appeals also opined

on the admissibility of certain evidence on retrial. We previously granted transfer, thereby

vacating the opinion of the Court of Appeals. See Appellate Rule 58(A). We now address the

status of the trial court’s November 5 order and the application of Indiana’s Comparative Fault

Act to the facts in this case.

Discussion

I.

The Trial Court’s November 5, 2010 Order

The Estate’s motion to correct error alleged the trial court erred by: (1) permitting the

jury to allocate fault to Pryor; (2) rejecting the Estate’s tendered instruction which “would have

informed the jurors that they could find [Rahmatullah] liable” for Pryor’s criminal act if a death

caused by crime was reasonably foreseeable; and (3) excluding certain evidence — namely, of a

prior criminal-police shootout at the motel and of the criminal histories of other motel

employees. See App. at 190. The Estate also contended more generally that “in light of all of

the evidence that was admitted, the jury’s verdict allocating 1 percent of the fault to James

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Santelli and only 2 percent of the fault to [Rahmatullah] was against the greater weight of the

evidence.” Id.

A. Timeliness of the Order

The trial court held a hearing on the Estate’s motion to correct error on September 27,

2010. The trial court entered its findings of fact, conclusions of law, and order forty days later,

on November 5, 2010. Trial Rule 53.3 addresses the time limitations for ruling on motions to

correct error and provides in pertinent part:

(A) Time limitation for ruling on motion to correct error. In the

event a court fails for forty-five (45) days to set a Motion to

Correct Error for hearing, or fails to rule on a Motion to Correct

Error within thirty (30) days after it was heard or forty-five (45)

days after it was filed, if no hearing is required, the pending

Motion to Correct Error shall be deemed denied. Any appeal shall

be initiated by filing the notice of appeal under Appellate Rule

9(A) within thirty (30) days after the Motion to Correct Error is

deemed denied.

(B) Exceptions. The time limitation for ruling on a motion to

correct error established under Section (A) of this rule shall not

apply where:

***

(2) The parties who have appeared or their counsel stipulate or

agree on record that the time limitation for ruling set forth under

Section (A) shall not apply; or

(3) The time limitation for ruling has been extended by Section

(D) of this rule.

***

(D) Extension of time for ruling. The Judge before whom a

Motion to Correct Error is pending may extend the time limitation

for ruling for a period of no more than thirty (30) days by filing an

entry in the cause advising all parties of the extension. Such entry

must be in writing, must be noted in the Chronological Case

Summary before the expiration of the initial time period for ruling

set forth under Section (A), and must be served on all parties.

Additional extension of time may be granted only upon application

to the Supreme Court as set forth in Trial Rule 53.1(D).

Ind. Trial Rule 53.3. Rahmatullah contends that because the trial court failed to rule on the

motion by October 27 — within thirty days of the hearing — it was deemed denied pursuant to

5

Rule 53.3(A). The Estate counters that the order was timely pursuant to Rule 53.3(B)(2) based

on the schedule agreed to by the court and the parties.

At the close of the hearing, the trial court directed the parties to provide proposed

findings of fact and conclusions of law. The trial court expressed the need for findings and

conclusions given the complexity of the issues in this case, and the submission schedule was

discussed as follows:

[Court]: . . . So this is September the 27th. A couple of weeks [to prepare

proposed findings and conclusions] do you think? [Rahmatullah’s

counsel], I know you have a very busy schedule.

[Rahmatullah’s counsel]: Yeah, that would be alright.

[Court]: Alright. . . . Let’s make it the 20th of October because I have another

jury starting tomorrow. I won’t have time to look at it this week. I

mean, even if I got them I wouldn’t be able to do much with it. So that

gives you plenty of time and give me some time to review your

findings of facts and conclusions once I get them. The 20th is a

Wednesday. Is that not a good date for you [Estate’s counsel]?

[Estate’s counsel]: Your Honor, could that be moved out to the following

Monday. We have a jury trial starting on the 17th of October.

[Court]: Okay. . . . The 25th of October?

[Estate’s counsel]: Yes, the 25th. That would be appreciated.

[Court]: That’s fine with me. Alright. Then the findings of facts and

conclusions are due on the 25th and then the order will be out just as

soon as I can get to it after that.

Hrg. Tr. at 26. On the record, and with the acquiescence of both parties, the trial court set a

specific date for the parties’ submissions of twenty-eight days after the hearing and stated its

ruling would follow as soon as possible thereafter. This comports with the time limitation

exception in Rule 53.3(B)(2) that “[t]he parties who have appeared or their counsel stipulate or

agree on record that the time limitation for ruling set forth under Section (A) shall not apply.”

We thus find the trial court’s November 5, 2010 order timely and now proceed to appellate

review of that order.

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B. Standard of Review for the Order

The Estate pursued its motion to correct error on the basis that “[a] modification of the

verdict or new trial in this case is warranted under Indiana Trial Rule 59(J)(1), (3), (5) and (7)

because the jury’s award of $41,400 against the Defendant was insufficient.” App. at 190. Trial

Rule 59(J) is entitled “Relief granted on motion to correct error” and “allows for the court to

correct any error it determines to be ‘prejudicial or harmful.’” Wisner v. Laney, 984 N.E.2d

1201, 1204 (Ind. 2012) (quoting Ind. Trial Rule 59(J)).2 Among other forms of relief the Rule

specifically “authorizes trial courts to grant new trials to correct an error in prior proceedings.”

Walker v. Pullen, 943 N.E.2d 349, 352 (Ind. 2011).

2

The Rule provides in pertinent part:

The court, if it determines that prejudicial or harmful error has been committed, shall take

such action as will cure the error, including without limitation the following with respect

to all or some of the parties and all or some of the errors:

(1) Grant a new trial; . . .

(3) Alter, amend, modify or correct judgment; . . .

(5) In the case of excessive or inadequate damages, enter final judgment on the evidence

for the amount of the proper damages, grant a new trial, or grant a new trial subject to

additur or remittitur; . . .

(7) In reviewing the evidence, the court shall grant a new trial if it determines that the

verdict of a non-advisory jury is against the weight of the evidence; and shall enter

judgment, subject to the provisions herein, if the court determines that the verdict of a

non-advisory jury is clearly erroneous as contrary to or not supported by the evidence, or

if the court determines that the findings and judgment upon issues tried without a jury or

with an advisory jury are against the weight of the evidence.

In its order correcting error the court shall direct final judgment to be entered or shall

correct the error without a new trial unless such relief is shown to be impracticable or

unfair to any of the parties or is otherwise improper; and if a new trial is required it shall

be limited only to those parties and issues affected by the error unless such relief is

shown to be impracticable or unfair. If corrective relief is granted, the court shall specify

the general reasons therefor. When a new trial is granted because the verdict, findings or

judgment do not accord with the evidence, the court shall make special findings of fact

upon each material issue or element of the claim or defense upon which a new trial is

granted. Such finding shall indicate whether the decision is against the weight of the

evidence or whether it is clearly erroneous as contrary to or not supported by the

evidence; if the decision is found to be against the weight of the evidence, the findings

shall relate the supporting and opposing evidence to each issue upon which a new trial is

granted; if the decision is found to be clearly erroneous as contrary to or not supported by

the evidence, the findings shall show why judgment was not entered upon the evidence.

T.R. 59(J).

7

We generally review a trial court’s ruling on a motion to correct error for an abuse of

discretion. See, e.g., Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind.

2008); Walker, 943 N.E.2d at 351. In so doing, we afford the trial court’s decision “a strong

presumption of correctness.” Walker, 943 N.E.2d at 351 (citing Weida v. Kegarise, 849 N.E.2d

1147, 1154 (Ind. 2006)). But where a trial court grants a new trial under Rule 59(J), it must

provide findings of fact “sufficient to demonstrate why the jury verdict should be cast aside,” id.

at 350, and “[t]he strong presumption of correctness only arises if the court’s decision is

supported by the special findings required by Trial Rule 59(J).” Id. at 352 (citing Weida, 849

N.E.2d at 1154). Such findings demonstrate that when acting under Rule 59(J) as a “thirteenth

juror” the trial court fulfills its duty to “sift and weigh the evidence and judge witness

credibility.” Ho v. Frye, 880 N.E.2d 1192, 1196 (Ind. 2008) (quoting Keith v. Mendus, 661

N.E.2d 26, 31 (Ind. Ct. App. 1996), trans. denied).

Where a new trial is granted because the jury’s decision is “against the weight of the

evidence,” Rule 59(J) requires that the trial court’s findings of fact “relate the supporting and

opposing evidence to each issue upon which a new trial is granted.” Keith, 661 N.E.2d at 32

(quoting T.R. 59(J)). Alternatively, “where the trial court grants a new trial on the basis that the

decision of the jury is ‘clearly erroneous as contrary to or not supported by the evidence’ then the

findings need only ‘show why judgment was not entered upon the evidence.’” Id. (quoting T.R.

59(J); Wedmore v. Jordan Motors, Inc., 589 N.E.2d 1180, 1183 (Ind. Ct. App. 1992), trans.

denied). See also Weida, 849 N.E.2d at 1151-52, 1153 (explaining the difference in the trial

court’s obligations under each scenario, the reasons the court must relate supporting and

opposing evidence when acting as a “thirteenth juror,” and recognizing this as a sober

responsibility because “compliance with the arduous and time-consuming requirements of the

Rule . . . provides assurance to the parties and the courts that the judge’s evaluation of the

evidence is better than the evaluation of the jury”) (quoting Nissen Trampoline Co. v. Terre

Haute First Nat’l Bank, 358 N.E.2d 974, 978 (Ind. 1976).

C. Analysis of the Order

The trial court’s order granting a new trial spanned nine pages and included twelve

specific points of litigation history, five general findings of fact which within them included

8

twenty specific factual findings based on particular evidence presented at trial, and nine detailed

conclusions of law. Among these were:

5. Joseph Pryor confessed to robbing and killing Mr. Santelli and was sentenced

to 85 years in prison for these crimes.

13. The evidence presented at trial was sufficient to establish the foreseeability of

a criminal assault on a guest in his motel room. That evidence included, but was

not limited to, the following: . . . [listing four specific facts].

14. There was significant evidence of Defendant’s failure to protect motel guests,

including Mr. Santelli, from the foreseeable risk of violent criminal activity,

including but not limited to the following: . . . [listing eleven specific facts].

15. The evidence was sufficient to support the jury’s conclusion that the

negligent acts and omissions of Defendant, Rahmatullah, were a substantial factor

in the death of James Santelli, which evidence included, but was not limited to the

following: . . . [listing five specific facts].

17. The exact mode of entry into the motel room by Mr. Pryor was not

conclusively proven by the evidence. Several theories were introduced as to how

entry was achieved. The only evidence at trial that supported an allocation of

fault to James Santelli was the allegation that Mr. Santelli may have voluntarily

opened the door to his room when the murderer entered. Since there were no

eyewitnesses, no evidence was presented as to the exact exchange between Mr.

Santelli and Mr. Pryor at the moment Pryor entered the motel room. Evidence

was presented that the murderer was in possession of a working pass key to the

room that had been provided to him by the Defendant, Rahmatullah, which gave

him the ability to enter the room even if it had been locked.

22. Defendant Rahmatullah breached his duty of care to Santelli when

defendant’s motel hired Pryor, gave him a master key card, allowed him to leave

employment with the key card after approximately two days, allowed him to

return, failed to take measures to prevent further use of the key card, failed to

conduct a criminal background check, failed to monitor the visible security

cameras, failed to staff the hotel with trained security personnel, allowed outside

doors to frequently remain unlocked or propped open and unmonitored at night

despite stated policies that they be kept locked, and failed to maintain the lock

system in order to save money resulting in inoperable locks; all despite

defendant’s knowledge that the motel was in a high crime area and had been the

site of substantial prior criminal activity.

23. Defendant Rahmatullah’s breach of care was a substantial factor in Mr.

Santelli’s death, as he afforded the murderer, Pryor, an opportunity to access

Santell[i]’s room, where he killed Santelli.

9

25. The jury’s allocation of 97% fault to the non-party, Pryor, apparently

indicated the jurors’ confusion while weighing Pryor’s conduct, as compared to

Rahmatullah’s conduct, in addition to allocating fault between the parties and at

the same interpreting and applying the jury instruction given to them on

proximate/responsible cause.

App. at 260-67.

The trial court gave the following reasons for granting the motion to correct error: (1)

“[t]he jury’s allocation of fault was against the weight of the evidence”; and (2) “the jury’s

verdict was clearly erroneous[,] contrary to[,] and not supported by the evidence.” App. at 265.

At the end of its order, the court reiterated:

[T]he Court grants the Motion to Correct Error on the issue of the

allocation of fault percentages and finds that the allocation of 97%

fault to the criminal, and only 2% fault to the negligent Defendant,

is contrary to the weight of the evidence, for all of the reasons set

forth above. . . . The verdict’s fault allocation between the

Plaintiff, Defendant and non-party, Pryor, was against the weight

of the evidence.

Id. at 267. Although the trial court at one point uses the language “clearly erroneous[,] contrary

to[,] and not supported by the evidence” it is clear from its multiple pronouncements about

weighing the evidence that the court was acting as a thirteenth juror and determined the jury’s

decision to be against the weight of the evidence. The court was thus bound under Trial Rule

59(J) to “relate the supporting and opposing evidence to each issue upon which a new trial is

granted.” Here, the court provided extensive findings and conclusions relating in detail the

supporting and opposing evidence bearing on the issue of fault allocation. The order

demonstrates that the trial court “sift[ed] and weigh[ed] the evidence and judge[d] witness

credibility” thus satisfying the provisions of Rule 59(J). Keith, 661 N.E.2d at 31. Its decision to

grant a new trial is therefore entitled to a strong presumption of correctness on appeal. See

Walker, 943 N.E.2d at 351. We find the trial court was well within its discretion in determining

that “a contrary result should have been reached in the minds of reasonable men.” Weida, 849

10

N.E.2d at 1152 n.4 (quoting Huff v. Travelers Indem. Co., 363 N.E.2d 985, 994 (Ind. 1977)).

The trial court’s order granting a new trial is affirmed.3

Although the trial court agreed with the Estate’s contention that the jury’s allocation of

fault was against the weight of the evidence, it summarily denied the remainder of the Estate’s

motion, including the trial court’s alleged errors of (1) permitting the jury to allocate fault to

Pryor; (2) rejecting the Estate’s tendered instruction which “would have informed the jurors that

they could find [Rahmatullah] liable” for Pryor’s criminal act if a death caused by crime was

reasonably foreseeable; and (3) excluding evidence of a prior criminal shootout at the motel. See

App. at 190, 259. The Estate maintains this was error. Again we apply an abuse of discretion

standard on review, which requires that we reverse the trial court’s judgment only if it was

“clearly against the logic and effect of the facts and circumstances before it” or if the trial court

“err[ed] on a matter of law.” See Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013).

We affirm the trial court’s order insofar as it found no error in its decision to exclude

evidence of the shootout. Appellate courts are reluctant to disturb the trial court’s exercise of

discretion, particularly where the question of admissibility of evidence is a close one. See TRW

Vehicle Safety Systems, Inc. v. Moore, 936 N.E.2d 201, 218 (Ind. 2010) (recognizing the

“considerable latitude” given to trial judges in making evidentiary determinations, particularly in

the context of “lengthy, complicated, and vigorously contested trial and pre-trial proceedings”).

We now address the Estate’s remaining contentions and how our Comparative Fault Act applies

to them.4

II.

Allocation of Fault for Intentional Acts and the Comparative Fault Act

The Estate’s two remaining contentions are distilled from a more general argument that

the law should not allow apportionment of responsibility to an intentional tortfeasor or criminal

3

Rahmatullah argues only that the trial court’s order was deemed denied. In the extensive briefing, he

never contests the content of the order.

4

The Estate does not appeal the trial court’s denial of admission of evidence of employee criminal

histories.

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actor when the negligent defendant’s “very duty” was to exercise reasonable care to protect the

plaintiff from the specific risk of an intentional tort or criminal act. See Br. of Appellant at 8-9;

Restatement (Third) of Torts: Apportionment of Liability § 14 cmt. b (2000). The Estate,

amicus, and at least one commentator have characterized this concept the “very duty doctrine” or

the “very duty rule.” See Br. of Appellant at 8; Br. of Amicus Curiae the Indiana Trial Lawyers

Association at 2; Ellen M. Bublick, Upside Down? Terrorists, Proprietors, and Civil

Responsibility for Crime Prevention in the Post-9/11 Tort-Reform World, 41 Loy. L.A.L. Rev.

1483, 1487 (2008). And the Estate frames the issue on appeal as whether “the Indiana

Comparative Fault Act abrogate[s] the common law ‘very duty’ doctrine.” Br. of Appellant at 1.

Our research reveals no reference to the Estate’s assertion as a “doctrine” or a “rule” outside a

very narrow band of scholarship, so we will discuss it more generally as an argument against

allocating fault to intentional actors where another, negligent actor owed a duty to the victim

such as Rahmatullah owed Santelli.

The view highlighted here is that “comparisons ‘between an actor charged with

negligence and an actor charged with intentional misconduct’” can be “‘impossible in theory.’”

Bublick, Upside Down, supra at 1530 (quoting Geoffrey C. Hazard, Jr., Foreword to Restatement

(Third) of Torts: Apportionment of Liability at xi-xiii (Proposed Final Draft (Revised) 1999)).

Indeed, there has been much academic discussion on this very topic, with many commentators

advocating against comparing these types of “fault” because they are so different from one

another. See generally, e.g., Ellen M. Bublick, The End Game of Tort Reform: Comparative

Apportionment and Intentional Torts, 78 Notre Dame L. Rev. 355 (2003); William Westerbeke,

The Application of Comparative Responsibility to Intentional Tortfeasors and Immune Parties,

10 Kan. J.L. & Pub. Pol’y 189 (2000); J. Tayler Fox, Can Apples Be Compared to Oranges? A

Policy-Based Approach for Deciding Whether Intentional Torts Should Be Included in

Comparative Fault Analysis, 43 Val. U.L. Rev. 261 (2008). For this reason, some courts and

legislatures refuse to permit apportionment of fault among negligent and intentional tortfeasors,

reasoning that it is unfair to allow “[n]egligent tortfeasors . . . to reduce their fault by the

intentional fault of another that they had a duty to prevent.” Kan. State Bank & Trust Co. v.

Specialized Transp. Servs., Inc., 819 P.2d 587, 606 (Kan. 1991). See also, e.g., Merrill

Crossings Assocs. v. McDonald, 705 So. 2d 560, 562 (Fla. 1997) (agreeing that language in

Florida’s comparative fault statute “gives effect to a public policy that negligent tortfeasors such

12

as in the instant case should not be permitted to reduce their liability by shifting it to another

tortfeasor whose intentional criminal conduct was a foreseeable result of their negligence”)

(citations omitted); Ali v. Fisher, 145 S.W.3d 557, 564 (Tenn. 2004) (recognizing that a rare

departure from the allocation of fault required under the comparative fault system is justified so

that “negligent tortfeasors cannot seek to have their fault compared to that of intentional

tortfeasors where the intentional conduct is the foreseeable risk created by the negligent

tortfeasor”) (internal quotation omitted). And Indiana has recognized that similar reasoning

underlies the doctrine of negligence per se. See Rubin v. Johnson, 550 N.E.2d 324, 332-33 (Ind.

Ct. App. 1990), trans. denied (rejecting defendant gun merchant’s argument that criminal act of

gun buyer was intervening cause of plaintiff’s death eliminating merchant’s liability, noting that

criminal use of the gun sold by merchant to murderer was “the very risk sought to be avoided . . .

[by the statute restricting gun sales and] . . . cannot stand as a bar to recovery”). 5 But as even the

proponents of this reasoning have recognized, “an emerging minority of states” permit

comparison of negligent acts and intentional acts. Fox, supra, at 274-75. Indiana is one of those

states. Id. at 275 n.78.

Indiana’s Comparative Fault Act was first enacted in 1985 as Indiana Code sections 34-4-

33-1 to -12 and is currently codified at Indiana Code sections 34-51-2-1 through -19. See

Control Techniques, Inc. v. Johnson, 762 N.E.2d 104, 107 (Ind. 2002). Today the Act provides

in pertinent part:

The jury shall determine the percentage of fault of the claimant, of

the defendants, and of any person who is a nonparty. . . . In

assessing percentage of fault, the jury shall consider the fault of all

persons who caused or contributed to cause the alleged injury,

death, or damage to property, tangible or intangible, regardless of

whether the person was or could have been named as a party. . . .

5

The Estate relies heavily on Rubin and another case, Sauders v. Cnty. of Steuben, 693 N.E.2d 16 (Ind.

1998) in support of its assertion that Indiana has previously “adopted” the “very duty doctrine.” We

disagree. Rubin merely invoked the reasoning the Estate attempts to invoke here in a different context —

that of negligence per se. Also, in Rubin the question arose on summary judgment and involved only

whether the criminal act barred a negligent tortfeasor’s liability. Sauders involved a claim under the

Indiana Tort Claims Act and there we expressly observed “the Comparative Fault statute does not apply.”

Sauders, 693 N.E.2d at 17.

13

Ind. Code § 34-51-2-8(b)(1). The definition of “fault” under this section of the Act was amended

in 1995 to include:

[A]ny act or omission that is negligent, willful, wanton, reckless,

or intentional toward the person or property of others. The term

also includes unreasonable assumption of risk not constituting an

enforceable express consent, incurred risk, and unreasonable

failure to avoid an injury or to mitigate damages.

I.C. § 34-6-2-45(b) (emphasis added).6 Thus, the Act now mandates that when determining how

to assign percentages of fault, a jury must consider the intentional acts of non-parties like Pryor

in addition to the negligent acts of defendants like Rahmatullah. We thus find that the trial court

did not err in permitting the jury to allocate fault to Pryor and in refusing the Estate’s tendered

instruction that would have permitted the jury to hold Rahmatullah liable for Pryor’s intentional

act.

In addition to contending generally that fault should not be allocated to intentional actors,

the Estate presents a slightly different alternative argument. Specifically, the Estate and amicus

curiae the Indiana Trial Lawyers Association assert that Indiana law permits the joint and several

liability of intentional and negligent tortfeasors in the circumstances presented here and that

Indiana should therefore adopt the following rule:

A person who is liable to another based on a failure to protect the

other from the specific risk of an intentional tort is jointly and

severally liable for the share of comparative responsibility assigned

to the intentional tortfeasor in addition to the share of comparative

responsibility assigned to the person.

Br. of Appellant at 25 (quoting Restatement (Third) of Torts: Apportionment of Liability § 14

(2000)).

In support of its argument the Estate asserts “[t]he Comparative Fault Act neither

expressly, nor by implication, requires the elimination of joint and several liability in all

6

Prior to the amendment, the definition of fault included “any act or omission that is negligent, willful,

wanton, or reckless toward the person or property of the actor or others, but does not include an

intentional act.” I.C. § 34-4-33-2(a) (1988) (emphasis added).

14

circumstances.” Appellant’s Br. in Resp. to Trans. at 11 (citing Control Techniques, 762 N.E.2d

at 110-112 (Dickson, J., dissenting)). But this Court has recently declared “the [Comparative

Fault] Act abrogates the old rule of joint and several liability in suits to which the Act applies.”

Ind. Dept. of Ins. v. Everhart, 960 N.E.2d 129, 138 (Ind. 2012). We determined that the

elimination of joint and several liability was a reasonable trade-off for the benefits plaintiffs

receive under the Act, namely: the removal of the contributory negligence bar to recovery. See

id. Further, under the Comparative Fault Act, “there is no right of contribution among

tortfeasors.” I.C. § 34-51-2-12. It would be incongruous to permit Rahmatullah to be held

jointly liable for damages caused by Pryor but not to permit Rahmatullah to seek contribution

from Pryor. Our view on this issue is consistent with that of other states whose legislatures, like

the Indiana Legislature, have included intentional acts in the comparative fault analysis. See,

e.g., Pederson v. Barnes, 139 P.3d 552, 559-60 (Alaska 2006) (observing Alaska’s comparative

fault act includes intentional torts and requires entry of judgment on the basis of “several”

liability only); Rausch v. Pocatello Lumber Co., 14 P.3d 1074, 1081-82 (Idaho Ct. App. 2000)

(recognizing Idaho legislature’s express limitations on joint and several liability in a comparative

fault statute that requires comparison of all “responsibility”, including intentional torts); Hansen

v. Scott, 645 N.W.2d 223, 229 (N.D. 2002) (observing that under North Dakota’s comparative

fault act “a negligent tortfeasor’s conduct is compared with an intentional tortfeasor’s conduct,

and absent ‘in concert’ action, liability is several, not joint”). The Indiana legislature has the

authority to expressly permit joint and several liability in circumstances such as these, but as of

yet it has not done so. Cf. Everhart, 960 N.E.2d at 138 (recognizing “the historical rule of joint

and several liability would appear to still apply to medical malpractice suits,” “[b]ecause the Act

expressly exempted medical malpractice claims from its ambit”).

This is not to say that in Indiana it would be improper for a jury to allocate a greater

percentage of fault to a negligent landowner than to an intentional tortfeasor. Indeed, we have

previously upheld such an allocation in circumstances similar to those in the case before us,

recognizing that the jury could have determined that “the opportunity for the [crime] would not

even have existed had the [landowner] not failed to restrict [the intentional actor] from entering

[the premises] or had it taken appropriate action to prevent or stop the attack . . . .” Paragon

Family Rest. v. Bartolini, 799 N.E.2d 1048, 1056 (Ind. 2003). In allocating fault among multiple

actors, a jury may consider “‘the relative degree of causation attributable among the responsible

15

actors.’ Our statutory scheme thus allows a diverse array of factors to be considered in the

allocation of comparative fault.” Green v. Ford Motor Co., 942 N.E.2d 791, 794-95 (Ind. 2011)

(quoting Paragon, 799 N.E.2d at 1056). The outcome of this consideration may at times be a

conclusion that “the causative role” of the landowner exceeded “the relative degree of

intentionality” of the intentional tortfeasor. Paragon, 799 N.E.2d at 1056.

Conclusion

We affirm the judgment of the trial court.

Dickson, C.J., David, Massa and Rush, JJ., concur.

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