What happened to the Indiana Comparative Fault Act

By: Carol Dillon
BleekeDillonCrandall Attorneys

On March 29, 2012, the Indiana Court of Appeals decided Estate of Santelli v. Abu Rahmatullah and Super 8 Motel, 2012 Ind. App. LEXIS 130, and held that a negligent defendant cannot escape responsibility for compensation the plaintiff by having a jury assign the majority of fault to a non-party criminal tortfeasor. In Santelli, the decedent was shot while he was a guest at the Super 8 Motel by an employee of the motel who had a master key card to every hotel room. The hotel failed to do a background check on the employee, which would have uncovered a prior criminal history, including outstanding warrants for the employee’s arrest. The Estate sued the hotel and its owner, claiming that the hotel was negligent in hiring the employee and in giving him a master key card. The hotel named the shooter as a non-party defendant under the Indiana Comparative Fault Act. At trial, the jury assessed 97% fault to the shooter, 1% to the decedent, and 2% to the hotel owner. The raw damages were $2,070,000 and therefore the hotel only had to pay 2% of that amount, or $41,400. Both parties appealed various issues in the case, but the most significant was the Estate’s appeal of the allocation of fault to the shooter and that the result was against the weight of the evidence and not what the Indiana Comparative Fault Act intended because it essentially relieved the negligent hotel owner from any responsibility for compensating the Estate for its damages.

After a careful review of the comments to the Restatement (2nd) of Torts and the Restatement (3rd) of Torts, Section 14 (2000), the Indiana Court of Appeals adopted the Restatement (3rd) of Torts, which does not allow a culpable defendant to escape compensating a plaintiff by allocating fault to a non-party. Therefore, a criminal tortfeasor who has been named as a non-party in a civil case can be assigned fault under the Indiana Comparative Fault Act, but a defendant who is also found negligent is then responsible for their allocation of fault plus the allocation of fault assigned to the non-party criminal defendant. This is based on the “very duty doctrine” which states that if the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby. This is an unfortunate result for defendants, including business owners, apartment complexes, private security companies, etc. Given the weight of this decision and the number of parties that submitted amicus briefs to the Court of Appeals, we anticipate that the underlying defendants in this case will seek transfer to the Indiana Supreme Court. For now, defendants have to weigh their options about whether to even name a criminal actor as a third party or whether they will be assigned less of a percentage of fault if that criminal third party is not named. Additional problems will arise because the Santelli case is specific to a case where there is only one culpable defendant and does not address how the percentage of fault assigned to the criminal actor would be split among multiple defendants who are found negligent.

The defendants in the underlying action have filed a Petition for Rehearing with the Indiana Court of Appeals. We will follow this case as it hopefully proceeds to rehearing and to the Indiana Supreme Court if necessary.

Welcome Aboard, Nate!

By: Jeb Crandall
BleekeDillonCrandall Attorneys

Our firm is happy to announce the addition of Nate Leach. Nate focuses his practice on long-term care/nursing home defense, medical malpractice defense, adoption, and professional liability defense. Not only is Nate now a colleague, he has been a friend of mine since our high school days of competing on the golf course for rival schools. Depending on which of us you ask, we always got the better of the other. Nate and I continued our friendship as we both attended Southern Illinois University, where we even lived next door to each other for a few years. Nate will make a great addition to our firm by both expanding our current practice areas, and strengthening our depth in our current practice areas.