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Lawyers worry about impact of court decision on premises liability

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The fatal shooting of a guest in a Speedway motel by a former employee and the resulting civil litigation leaves the Indiana Supreme Court to decide whether arguments of common law or a 1980s statute governs the premises owner’s degree of liability. Trial and defense lawyers are paying keen attention.

In Mary E. Santelli, as Administrator of the Estate of James F. Santelli v. Abu M. Rahmatullah, individually, and d/b/a Super 8 Motel, 49S04-1212-CT-667, justices were faced with competing arguments Feb. 14 on the supremacy of the Comparative Fault Act or the very duty doctrine. Santelli drew amicus briefs from the Defense Trial Counsel of Indiana and the Indiana Trial Lawyers Association.

In October 2005, James Santelli was a guest at a Super 8 motel owned by Abu Rahmatullah. Santelli was murdered by Joseph Pryor, a former hotel maintenance worker with a criminal past who retained a master keycard after his employment. Pryor confessed to robbing and killing Santelli and was sentenced to 85 years in prison.

Santelli’s estate sued Rahmatullah and the hotel, arguing, among other things, that the hotel was negligent for not checking Pryor’s background and for failing to take adequate safeguards against crime. A Marion Superior jury calculated damages for the estate at $2.07 million. Under Indiana’s Comparative Fault Act, Indiana Code 34-51-2-1, the jury assigned 97 percent of fault to Pryor, 1 percent to Santelli and 2 percent to Rahmatullah, who thus owed the estate $41,400 under the verdict.

The Court of Appeals reversed and remanded for a new trial, ordering the jury instructed on the very duty doctrine, which holds that a premises owner owes a level of reasonable care to protect patrons against foreseeable crime. The appellate panel said the Comparative Fault Act didn’t abrogate the very duty doctrine, holding instead that “the joint and

several liability rule as a component of the very duty doctrine is appropriate and just.”

“That decision was a matter of public policy,” James R. Fisher of Miller & Fisher LLC argued on behalf of the estate in support of affirming the Court of Appeals’ remand for a new trial. Fisher said courts have long established that under the very duty doctrine, proprietors owe a reasonable level of care to protect patrons. The question before the court, he told the justices, was “whether the public policy has now changed.”

Danford Due of Due Doyle Fanning LLP argued on behalf of Rahmatullah that the public policy was made clear when the Legislature amended the Comparative Fault Act in 1995 to include intentional conduct of nonparties, including those who commit crimes.

“The jury in this case got it right; the Legislature got it right,” Due said. “The evidence was overwhelmingly favorable” that the hotel exercised reasonable care, he said, noting there was no evidence the keycard was used in the crime or that the hotel, as Fisher argued, “was an open nest of criminals.”

Justice Loretta Rush challenged Due on those assertions, noting that the trial court on a motion to correct error found that the evidence didn’t support the jury’s allocation of fault. “The trial court did take a look at it after the verdict came in and disagreed with what you are saying,” she said.

Due said there was no evidence of forced entry, and that the hotel employed various locking systems and other safeguards. “There was a lot of evidence that there was adequate security,” he said.
 

kite Kite

Donald B. Kite Sr. chairs the amicus committee for DTCI and said how the justices decide Santelli will have broad ramifications. “If the Court of Appeals decision stands, those who had minimal responsibility will be held responsible for more than their share of damages.”

That could extend to any number of premises open to the public. “You can certainly see insurers excluding coverage or raising premiums, and that certainly has an effect on everyone,” Kite said.

Under the Comparative Fault Act, he said, “We’re just asking jurors and juries to do what we’ve been asking them to do all along.”


winingham Winingham

William Winingham wrote an amicus brief for ITLA and agreed the decision will have important consequences, but for different reasons. He said there’s a public policy interest in requiring proprietors to meet a level of care to promote public safety.

“If a hotel, for instance in this case, has a duty to use reasonable care to make sure people don’t get attacked on their property, it does not seem fair to us to blame the criminal,” Winingham said, “and shove fault onto that criminal to reduce your liability.”

“The Supreme Court is really in the best position to establish public policy,” he said. “What you want is a uniform public policy,” rather than differing results based on “whims of individual juries.”

Fisher encountered some tough questions on the foundation of the common law basis of his argument. “I don’t think anybody ever mentions the very duty doctrine; that seems to be a shorthand,” Justice Robert Rucker said. “Once you call it a doctrine, then it becomes a common law status and sort of elevates it.

“I guess my problem is, I don’t see it as a common law doctrine. I don’t see this court having adopted it; it was a principal of law that was cited, and that’s it,” Rucker said.

Fisher replied that Rubin v. Johnson, 550 N.E.2d 324 (Ind. Ct. App. 1990), set forth the very duty doctrine under Restatement (Second) of Torts (1965) §449 as Indiana law. That section holds, “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.”

“If you’re right,” Chief Justice Brent Dickson asked Fisher, “then why did the Legislature expressly supersede that with the Comparative Fault Act?”

“I don’t believe they did,” Fisher replied. “I don’t believe that they intended, for example, that you may now defend an assault case by saying, ‘the victim brought it on himself.’”

Due argued that the very duty doctrine has never been enshrined in Indiana law. Quizzed by Dickson, Rucker and Justice Steven David on whether instructions given to jurors met the statutory requirement that they “shall” determine percentage of fault among various parties, he said he believed the instruction offered was that jurors “may” do so.

But Due said jurors knew that they could assign fault as they determined, and opposing counsel argued to jurors that the hotel should bear full liability. He pointed to Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1052 (Ind. 2003), in which the Supreme Court held that allocation of fault could be applied to criminal defendants. “That’s the law in Indiana; that’s the law of this court, that’s the law of comparative fault,” Due said.

Jurors, he said, “could have allocated 100 percent of the fault to my client in this particular case had the evidence warranted it. The evidence simply did not warrant it.”•

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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