696 N.E.2d 442 (Ind.App. 1998), 08A02-9709-CV-604, Creasy v. Rusk

Docket Nº08A02-9709-CV-604.
Citation696 N.E.2d 442
Party NameCarol CREASY, Appellant-Plaintiff, v. Lloyd RUSK, Appellee-Defendant.
Case DateJune 29, 1998
CourtCourt of Appeals of Indiana

Page 442

696 N.E.2d 442 (Ind.App. 1998)

Carol CREASY, Appellant-Plaintiff,


Lloyd RUSK, Appellee-Defendant.

No. 08A02-9709-CV-604.

Court of Appeals of Indiana.

June 29, 1998

Rehearing Denied Aug. 13, 1998.

Page 443

Edgar W. Bayliff, Ronald S. Todd, Bayliff, Harrigan, Cord & Maugans, P.C., Kokomo, for Appellant-Plaintiff.

Stephen C. Wheeler, Renae L. Hermann, Jennings Taylor Wheeler & Bouwkamp, P.C., Carmel, for Appellee-Defendant.


KIRSCH, Judge.

Carol Creasy appeals the grant of summary judgment in favor of Lloyd Rusk in Creasy's action for personal injuries she suffered while caring for Rusk in a health care facility. The issues we must decide are:

I. Whether a person who is institutionalized with a mental disability owes a duty of care to his caregiver to refrain from conduct that results in injury to the caregiver.

II. Whether genuine issues of material fact exist precluding summary judgment on the question of whether any duty was breached.

III. Whether genuine issues of material fact exist precluding summary judgment on the question of fault allocation.

We reverse.


Lloyd Rusk was admitted to the Brethren Healthcare Center (BHC) in July 1992 with a primary diagnosis of Alzheimer's Disease. He was admitted to the facility because he suffered from memory loss and confusion, and his wife was unable to care for him. While at BHC, Rusk was anxious, confused, disoriented, and agitated. On several occasions, he resisted when staff members attempted to remove him from areas of the facility where he did not belong. On other occasions, Rusk was belligerent and combative with both staff and patients. In particular, Rusk was often combative, agitated, and aggressive and would hit at staff members while they cared for him.

Page 444

Creasy was a certified nursing assistant employed at BHC. Creasy's duties required her to care for patients with Alzheimer's, including Rusk. She attended a short BHC presentation concerning the pathological effects of Alzheimer's, but had not otherwise received special training on how to care for those with the disease. Creasy had been bruised on several occasions by patients with Alzheimer's, and she knew that Rusk suffered from Alzheimer's.

On May 16, 1995, Creasy and Linda Davis, another certified nursing assistant employed at BHC, attempted to put Rusk to bed. Creasy was aware that Rusk had been "very agitated and combative that evening." Record at 228. According to Creasy:

"[Davis] was holding [Rusk's] wrists to keep him from hitting [them] and [Creasy] was trying to get his legs to put him in bed. He was hitting and kicking wildly. During this time, he kicked [Creasy] several times in [her] knee and hip area. [Her] lower back popped and [she] yelled out with pain from [her] lower back and left knee."

Record at 228.

Creasy filed a civil suit against Rusk, seeking monetary damages for injuries she suffered as a result of the incident. The trial court granted Rusk's motion for summary judgment concluding that Rusk did not owe a duty to Creasy, that Creasy incurred the risk of her injuries, that Creasy's comparative fault exceeded all other fault proximately contributing to her injuries, and that Creasy had failed to bring forth evidence that Rusk had breached any duty owed to her. Creasy appeals.


The purpose of summary judgment is to end litigation about which there can be no factual dispute and which may be determined as a matter of law. Sizemore v. Arnold, 647 N.E.2d 697, 698 (Ind.Ct.App.1995). When reviewing a decision on a summary judgment motion, this court applies the same standard as does the trial court. Wickey v. Sparks, 642 N.E.2d 262, 265 (Ind.Ct.App.1994), trans. denied (1995). Thus, we are not bound by the findings and conclusions entered by the trial court when ruling on a motion for summary judgment as we base our decision upon the Trial Rule 56(C) materials properly presented to the trial court. Campbell v. Spade, 617 N.E.2d 580, 582-83 (Ind.Ct.App.1993). Summary judgment shall be granted if the designated evidentiary matter demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C); Barga v. Indiana Farmers Mut. Ins. Group, Inc., 687 N.E.2d 575, 576 (Ind.Ct.App.1997), trans. denied (1998). In determining whether summary judgment is appropriate, all facts and reasonable inferences must be construed against the moving party. Wickey, 642 N.E.2d at 265.

  1. DUTY

    The issue we must decide has not been directly addressed in Indiana: Does a person institutionalized with a mental disability owe a duty to his caregiver to refrain from conduct that results in injury to the caregiver? The parties argue for and against the wisdom of adopting a general rule, used in several other jurisdictions, that mentally disabled individuals be held liable for their tortious activities without regard to the individuals' mental capacity to control their actions or understand the consequences thereof. Such a general rule is embodied in the Restatement (Second) of Torts which provides: "Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances." RESTATEMENT (SECOND) OF TORTS § 283B (1964). While the Restatement uses the reasonable man standard for adults, regardless of their mental capacity, the standard of conduct for a child is "that of a reasonable person of like age, intelligence, and experience under like circumstances." Id. § 283A. Such a standard takes a child's mental capacity into account. Id. § 283B cmt. a.

    With regard to children, Indiana has incorporated the Restatement standard into a three-tiered analysis. The three tiers are:

    Page 445

    "[C]hildren under the age of 7 years are conclusively presumed to be incapable of being contributorily negligent, from 7 to 14 a rebuttable presumption exists they may be guilty thereof, and over 14, absent special circumstances, they are chargeable with exercising the standard of care of an adult."

    Bailey v. Martz, 488 N.E.2d 716, 721 (Ind.Ct.App.1986) (citing Smith v. Diamond, 421 N.E.2d 1172, 1177-79 (Ind.Ct.App.1981)), trans. denied. 1 In the middle age category, the standard of care is in accord with the Restatement: whether the child exercised the care under the circumstances of a child of like age, knowledge, judgment and experience. Id. This court long ago recognized "the wisdom of the rule which holds a child to the exercise of care proportionate to its capacity." Baltimore & Ohio Southwestern R.R. Co. v. Hickman, 40 Ind.App. 315, 318, 81 N.E. 1086, 1087 (1907).

    Unlike the Restatement, which treats children differently than adults in terms of the standard of care required of each, Indiana has indicated a willingness to factor in an adult's mental capacity when determining whether to hold such a person responsible for negligence. In Riesbeck Drug Co. v. Wray, 111 Ind.App. 467, 39 N.E.2d 776 (1942), this court was presented with an appeal from an action against a pharmacy in connection with the death of the plaintiff's husband. The deceased, who was ill, unemployed, and suffering from depression, sent his eight-year-old son to the local pharmacy to obtain carbolic acid. The pharmacy distributed the acid to the child who brought it home to his father. The father then took his own life by ingesting the acid. This court stated that evidence of the deceased's mental condition at the time he sent his son to obtain the acid was material on the question of contributory negligence and declared:

    "Although in the case of adults it has been deemed impracticable and unwise to determine contributory negligence on the basis of whether the party was mentally acute or inclined to be dull or slow-witted, although not mentally deficient, a person who is so absolutely devoid of intelligence as to be unable to apprehend apparent danger and to avoid exposure to it cannot be said to be guilty of negligence. Knowledge and appreciation of peril are essential elements of contributory negligence, and evidence is admissible to show a plaintiff's mental condition to aid the jury in determining whether he understood and appreciated the danger. 38 Am.Jur., Negligence, Sec. 201 p. 882."

    Id. at 475, 39 N.E.2d at 779.

    This court subsequently limited the application of the foregoing principles in Kroger Co. v. Haun, 177 Ind.App. 403, 379 N.E.2d 1004 (1978). One of the questions decided in Kroger was whether the doctrine of contributory negligence required the plaintiff's actual knowledge of the peril or whether constructive knowledge would suffice. This court first noted that the Wray court's reliance on the American Jurisprudence authority "reveals that the cited section deals with the existence of extenuating circumstances--age, illiteracy, mental incompetency--which call for special consideration in applying the standard 'reasonable man' test." Id. at 411, 379 N.E.2d at 1009-10. The Kroger court acknowledged the import of the existence of such extenuating circumstances when it ultimately held that: "We believe the actual state of the law to be, absent extenuating circumstances such as age or mental incompetency, that contributory negligence may be found either where plaintiff has actual knowledge of the danger, or, in the exercise of reasonable care, should have appreciated or anticipated the danger." Id. at 413, 379 N.E.2d at 1010-11. 2

    Page 446

    Based upon this precedent, we hold that a person's mental capacity, whether that person is a child or an adult, must be factored in to the determination of whether a legal duty exists. The...

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