ILNews

Lawyers worry about impact of court decision on premises liability

Back to TopCommentsE-mailPrintBookmark and Share

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.”•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

ADVERTISEMENT