In this consolidated appeal, Mary Elizabeth Santelli, as the administrator of the Estate of James F. Santelli (the Estate), appeals from the trial court’s findings of fact, conclusions thereon, and order on the Estate’s motion to correct error and motion for a new trial, as well as from certain rulings made during the jury trial. Abu Rahmatullah (Rahmatullah), individually and d/b/a Super 8 Motel, also appeals from the trial court’s order. The following issues are presented for our review:
2. Does Indiana’s Comparative Fault Act (the Act) abrogate the common law “very duty” doctrine? [Footnote omitted.]
….The issue we must address is how non-party fault should be allocated when the non-party committed a criminal act causing the injury.
Restatement (Second) of Torts, §449 sets forth the very duty doctrine as follows:
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.
The question here is whether the Act has abrogated the common-law very duty doctrine. The Estate tendered an instruction on the doctrine, which the trial court refused. In spite of the lack of instruction on the issue, the Estate, nonetheless, in closing argument presented the very duty doctrine to the jury. We have found that other common law doctrines have survived the enactment of the Act. See Control Techniques, Inc. v. Johnson, 762 N.E.2d 104 (Ind. 2002) (doctrine of superseding or intervening cause not abrogated by the Act, but was subsumed by the Act); Compton v. Pletch, 561 N.E.2d 803 (Ind. Ct. App. 1990) (sudden emergency doctrine not abrogated by the Act). We conclude that the very duty doctrine survives as well, and was not abrogated by the Act.
…The Estate argues that we should adopt Restatement (Third) of Torts § 14 (2000), and we do so for the reasons we discuss below.
Section 14, entitled “Tortfeasor Liable For Failure To Protect The Plaintiff From The Specific Risk Of An Intentional Tort”, provides as follows:
A person who is liable to another based on a failure to protect the other from the specific risk of an intentional tort is jointly and severally liable for the share of comparative responsibility assigned to the intentional tortfeasor in addition to the share of comparative responsibility assigned to the person.
…We agree with the trial court’s conclusion that a new trial was warranted on the issue of the allocation of fault because it was against the weight of the evidence. Our adoption of the Restatement (Third) of Torts § 14 will better enable the jury to make its determination in a manner that will carry out the goal of adequately compensating the injured party.
…In situations contemplated by Restatement (Third) of Torts § 14, we are not presented with defendants charged with separate, independent acts of negligence. Instead, we are presented here with one negligent defendant who breached a duty to prevent the foreseeable intentional conduct of another defendant. In that situation, the joint and several liability rule as a component of the very duty doctrine is appropriate and just.
Judgment reversed and remanded.
DARDEN, J., and VAIDIK, J., concur.