Creasy v. Rusk, 08S02-9901-CV-74.

• Decision Date: 14 June 2000
• Docket Number: No. 08S02-9901-CV-74.,08S02-9901-CV-74.
• Citation: 730 N.E.2d 659
• Parties: Carol CREASY, Appellant (Plaintiff below), v. Lloyd RUSK, Appellee (Defendant below).
• Court: Indiana Supreme Court

730 N.E.2d 659

Carol CREASY, Appellant (Plaintiff below), v. Lloyd RUSK, Appellee (Defendant below).

No. 08S02-9901-CV-74.

Supreme Court of Indiana.

June 14, 2000.

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

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

ON PETITION TO TRANSFER

SULLIVAN, Justice.

Carol Creasy, a certified nursing assistant, sued Lloyd Rusk, an Alzheimer's patient, for injuries she suffered when he kicked her while she was trying to put him to bed. We hold that adults with mental disabilities have the same general duty of care toward others as those without. But we conclude that the relationship between the parties and public policy considerations here are such that Rusk had no such duty to Creasy.

Background

In July, 1992, Lloyd Rusk's wife admitted Rusk to the Brethren Healthcare Center ("BHC") because he suffered from memory loss and confusion and Rusk's wife was unable to care for him. Rusk's primary diagnosis was Alzheimer's disease. Over the course of three years at BHC, Rusk experienced periods of anxiousness, confusion, depression, disorientation, and agitation. Rusk often resisted when staff members attempted to remove him from prohibited areas of the facility. On several occasions, Rusk was belligerent with both staff and other residents. In particular, Rusk was often combative, agitated, and aggressive and would hit staff members when they tried to care for him.

BHC had employed Creasy as a certified nursing assistant for nearly 20 months when the incident at issue occurred. Creasy's responsibilities included caring for Rusk and other patients with Alzheimer's disease. Creasy did not have specialized training on how to care for people with Alzheimer's disease, but she did attend a short BHC presentation on the pathological effects of Alzheimer's. Residents with Alzheimer's had bruised Creasy during the course of her work for BHC, and Creasy knew that Rusk had Alzheimer's disease.

On May 16, 1995, Creasy and another certified nursing assistant, Linda Davis, were working through their routine of putting Rusk and other residents to bed. Creasy knew that Rusk had been "very agitated and combative that evening." (R. at 228.) By Creasy's account:

[Davis] was helping me put Mr. Rusk to bed. She was holding his wrists to keep him from hitting us and I was trying to get his legs to put him to bed. He was hitting and kicking wildly. During this time, he kicked me several times in my left knee and hip area. My lower back popped and I yelled out with pain from my lower back and left knee.

(Id.)

Creasy filed a civil negligence suit against Rusk, seeking monetary damages for the injuries she suffered as a result of Rusk's conduct. Rusk moved for summary judgment and the trial court granted his motion. Creasy appealed. The Court of Appeals reversed, holding "that a person's mental capacity, whether that person is a child or an adult, must be factored [into] the determination of whether a legal duty exists," Creasy v. Rusk, 696 N.E.2d 442, 446 (Ind.Ct.App.1998), and that a genuine issue of material fact existed as to the level of Rusk's mental capacity, see id. at 448.

Discussion

This case requires us to decide two distinct questions of Indiana common law:

(1) Whether the general duty of care imposed upon adults with mental disabilities is the same as that for adults without mental disabilities?

(2) Whether the circumstances of Rusk's case are such that the general duty of care imposed upon adults with mental disabilities should be imposed upon him?

I

A

In many, if not most, jurisdictions, the general duty of care imposed on adults with mental disabilities is the same as that for adults without mental disabilities. See Restatement (Second) of Torts § 283B (1965).¹ Adults with mental disabilities are held to the same standard of care as that of a reasonable person under the same circumstances without regard to the alleged tortfeasor's capacity to control or understand the consequences of his or her actions. See id. We will discuss the Restatement rule in greater detail in Part I-C.

B

Judge Kirsch, writing for the Court of Appeals in this case, found that Indiana law does not follow the Restatement rule. The Court of Appeals held "that a person's mental capacity, whether that person is a child or an adult, must be factored [into] the determination of whether a legal duty exists." Creasy v. Rusk, 696 N.E.2d 442, 446 (Ind.Ct.App.1998).² We believe that the Court of Appeals accurately stated Indiana law but that the law is in need of revision.

With respect to children, Indiana has incorporated the essence of the Restatement standard for determining the liability of children for their alleged tortious acts. The Restatement standard of conduct for a child is "that of a reasonable person of like age, intelligence, and experience under like circumstances." Restatement (Second) of Torts § 283A (1965) (hereinafter, "Restatement rule"). Indiana reformulates the Restatement rule into a three-tiered analysis:

[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)), transfer denied.³ In the age seven to fourteen category, Indiana applies the Restatement standard and ascertains whether the child exercised the care under the circumstances of a child of like age, knowledge, judgment, and experience. See id. Consistent with recognizing a rule that holds a child to a standard of care proportionate to his or her capacity, see Baltimore & Ohio Southwestern R.R. Co. v. Hickman, 40 Ind.App. 315, 318, 81 N.E. 1086, 1087 (1907), Judge Kirsch observed that Indiana has also indicated a willingness to consider the mental capacity of an adult with mental disabilities when determining negligence liability, Creasy, 696 N.E.2d at 445. See generally Kroger Co. v. Haun, 177 Ind.App. 403, 413, 379 N.E.2d 1004, 1010-11 (1978) ("[A]bsent extenuating circumstances such as age or mental incompetency, . . . contributory negligence may be found either where plaintiff has actual knowledge of the danger, or, in the exercise of reasonable care, should have appreciated the danger."); Hunsberger v. Wyman, 247 Ind. 369, 373, 216 N.E.2d 345, 348 (1966) ("In order for an act or an omission to constitute negligence, a person to be charged must have knowledge or notice that such an act or omission involved danger to another. . . . Where there is no knowledge, actual or constructive, of danger or peril on the part of a defendant, he cannot be charged with negligence."); Riesbeck Drug Co. v. Wray, 111 Ind.App. 467, 475, 39 N.E.2d 776, 779 (1942) ("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.").⁴ Judge Kirsch reasons that these cases either rely on or adopt the authority which calls for special consideration in applying the reasonable person standard under extenuating circumstances where a person "`unable to apprehend apparent danger and to avoid exposure to it cannot be said to be guilty of negligence.'" Creasy, 696 N.E.2d at 445 (quoting Riesbeck, 111 Ind. App. at 475, 39 N.E.2d at 779 (citing in turn 38 Am.Jur., Negligence § 201, at 882)). Based on this authority, the Court of Appeals held that the rule in Indiana is "that a person's mental capacity, whether that person is a child or an adult, must be factored [into] the determination of whether a legal duty exists." Creasy, 696 N.E.2d at 446.

C

As briefly noted in Part I-A, the generally accepted rule in jurisdictions other than Indiana is that mental disability does not excuse a person from liability for "conduct which does not conform to the standard of a reasonable man under like circumstances."⁵ Restatement (Second) of Torts § 283B; accord Restatement (Third) of Torts § 9(c) (Discussion Draft Apr. 5, 1999) ("Unless the actor is a child, the actor's mental or emotional disability is not considered in determining whether conduct is negligent."). People with mental disabilities are commonly held liable for their intentional and negligent torts. No allowance is made for lack of intelligence, ignorance, excitability, or proneness to accident. See Restatement (Second) of Torts § 283B cmt. c.

Legal scholars and authorities recognize that it is "impossible to ascribe either the volition implicit in an intentional tort, the departure from the standard of a `reasonable' person which defines an act of ordinary negligence, or indeed any concept of `fault' at all to one who . . . is by definition unable to control his [or her] own actions through any exercise of reason." Anicet v. Gant, 580 So.2d 273, 275 (Fla.Dist.Ct.App. 1991) (citations omitted). Rather, the Restatement rule holding people with mental disabilities liable for their torts was founded upon public policy considerations.

The public policy reasons most often cited for holding individuals with mental disabilities to a standard of reasonable care in negligence claims include the following.

(1) Allocates losses between two innocent parties to the one who caused or occasioned the loss. See, e.g., Gould v. American Family Mut. Ins., 198 Wis.2d 450, 543 N.W.2d 282, 286 (1996). Under this rationale, the one who experienced the loss or injury as a result of the conduct of a person with a mental disability is presumed not to have assumed risks or to have been contributorily negligent with respect to the cause of the

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