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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. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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