ATTORNEY FOR APPELLANT

Kurt Bentley Grimm
Auburn, Indiana
ATTORNEY FOR APPELLEES

Branch R. Lew
Fort Wayne, Indiana

BOEHM, Justice

    This case deals with the standard of liability of jailers for the suicide of a person in their custody. Plaintiff Betty Jean Sauders, personal representative of the estate of Mark S.

Sowles, deceased, sued Steuben County, its Sheriff, and two officers in charge of the jail for wrongful death based on Sowles' suicide while a pretrial detainee in the Steuben County Jail. A jury held for the defendants and the Court of Appeals affirmed. Sauders v. County of Steuben, 664 N.E.2d 768 (Ind. Ct. App. 1996). Because this action is covered by the Indiana Tort Claims Act, the Comparative Fault statute does not apply. In a nutshell, we hold that the decedent's act of suicide cannot be the basis for a finding of contributory negligence or incurred risk that would bar a plaintiff's claim for wrongful death of an inmate. To permit the suicide (or attempted suicide) to constitute a bar to recovery would eliminate altogether a claim for breach of a custodian's duty to take reasonable steps to protect an inmate from harm, self-inflicted or otherwise. Because the instructions in this case permitted such a result, we grant transfer and remand for a new trial consistent with this opinion.
    We stated the facts in an earlier appeal in this case:
    On April 28, 1986, an automobile driven by Sowles collided with the rear of a police     patrol vehicle driven by an Angola city police officer. An Indiana state trooper     investigated the accident and arrested Sowles. Tests showed his blood alcohol level     to be .15 per cent. Because Ind. Code Ann. § 35-33-1-6 (West 1986) required     Sowles to be incarcerated for at least four hours, he was transported to the Steuben     County jail at approximately midnight, where he was processed by Aldrich, an     employee of the Sheriff's Department, and placed alone in a two-person cell at 12:35     a.m. At 1:17 a.m., Sowles was found unconscious with a noose of blanket strips     knotted around his neck. Despite resuscitation attempts and subsequent medical     treatment, Sowles never regained consciousness. He remained in a permanent     vegetative state until he died on July 13, 1988. Sauders filed suit alleging that the jail     defendants had been negligent in their care and custody of the decedent. . . .
Sauders v. County of Steuben, 582 N.E.2d 796, 798 (Ind. 1991) (reported with Tittle v. Mahan).

    Sauders raises three issues: (1) whether the trial court erred in instructing the jury on the defenses of contributory negligence and incurred risk; (2) whether the trial court erred in refusing to permit Sauders to refer to requirements of the Indiana Jail Standards; and (3) whether the trial court erred in instructing the jury that it could not consider the absence of audio-video monitoring equipment in the jail cell in determining defendants' liability.

steps to protect persons in custody from harm. As the Court of Appeals noted, "[w]hen a party is in the custodial care of another . . . the custodian has the duty to exercise reasonable care to preserve the life, health, and safety of the person in custody. The appropriate precautions will vary according to the facts and circumstances presented in each case." Sauders, 664 N.E.2d at 771 (citing Cole v. Indiana Dep't of Correction, 616 N.E.2d 44, 45- 46 (Ind. Ct. App. 1993)). However, the custodian does not have a duty to prevent a particular act (e.g. suicide). Rather, the duty is to take reasonable steps under the circumstances for the life, health, and safety of the detainee. Cole, 616 N.E.2d at 45-46. There is no inconsistency in these propositions. Although the dissent finds the net result to be a duty "to prevent self harm," it is not that. It is merely a duty to take reasonable steps. The custodian is not an insurer against harm. But neither are we willing to adopt the result of the trial court's instructions, which is that the custodian is immunized from liability for breach of duty to take reasonable steps, even if that breach causes the inmate's self harm.
    The Restatement (Second) of Torts formulates this duty as one to protect "against unreasonable risk" of harm, including specifically self inflicted harm. Restatement (Second) of Torts § 314A, cmt. d (1965).See footnote 2 The degree of notice that suicide is a risk is of course a critical factor in assessing the reasonableness of the steps taken. If the suicidal

tendencies of the inmate are known, the standard of care required of the custodian is elevated. Fowler v. Norways Sanitorium, 112 Ind. App. 347, 42 N.E.2d 415 (1942); Breese v. State, 449 N.E.2d 1098 (Ind. Ct. App. 1983). The condition of the inmate, the circumstances of the jail, and the extent of routine precautions are all relevant to an assessment of the need for additional steps. In short, the focus is on the defendant's conduct under the circumstances. The plaintiff's actions are relevant only insofar as they are a part of the circumstances of which the custodian is or should be aware, or they bear on whether any breach of defendant's duty is causally related to the injury.
    Under the facts of this case, the jury might well have decided that the defendants breached no duty. There was testimony that Sauders was generally cooperative, able to walk and converse, and did not seem unusually depressed. The jury could have concluded that the jailers had no notice or reason to know of any suicidal tendency by Sauders. Sauders was booked at 12:35 a.m. and found hanging at 1:17 a.m -- a gap of forty-two minutes. According to one of the jailers, Sauders was checked at about 12:50 a.m. -- twenty-seven minutes before the discovery. Whether a twenty-seven or forty-two minute lapse between checks of recently incarcerated and intoxicated inmates is or is not sufficient evidence of negligent conduct is for the jury to decide, irrespective of whether or not a suicide was attempted. A defense verdict on these facts was certainly possible.
    However, under the instructions on contributory negligence and incurred risk,See footnote 3 the

jury could have based its result on one or both of these defenses based solely on the fact that the decedent killed himself. The instructions defined the two defenses in such a manner that the act of suicide could be construed as meeting those definitions. The jury was also instructed that if it found that the act of suicide met the requirements of either defense, then Sauders could not recover. If the act of suicide (or attempted suicide) is a defense to a claim for failure to take reasonable steps to protect an inmate from harm, the cause of action evaporates in any instance of suicide or attempted suicide. This would completely obviate the custodian's legal duty to protect its detainees from that form of harm. We agree with the view of the Seventh Circuit in Myers v. County of Lake, Ind., 30 F.3d 847, 853 (7th Cir. 1994) that "a duty to prevent someone from acting in a particular way logically cannot be defeated by the very action sought to be avoided." Although we have no example to offer, we do not exclude the possibility that contributory negligence or incurred risk might constitute a defense if based on some act other than the suicide or attempted suicide. However, because the instructions in this case permitted the suicide itself to constitute the defense, a new trial is required.
    The few courts in other states that have decided this issue have reached various conclusions. Cole v. Multnomah County, 592 P.2d 221 (Or. Ct. App. 1979) rejected contributory negligence as a defense to an attempted jail suicide in reasoning very similar

to ours, concluding that "the acts which plaintiff's mental illness allegedly caused him to commit were the very acts which defendants had a duty to prevent, and these same acts cannot, as a matter of law, constitute contributory negligence." Id. at 223. Sauders does not allege Sowles' mental illness or other lack of capacity but this factor is unrelated to the analysis. Indeed, the Oregon court went on to note that even if the plaintiff was not mentally ill, contributory negligence would not save the defendants. Awareness of the inmate's mental illness, like notice of suicidal tendencies, may be relevant to the issue of the appropriate standard of care required of the defendants, but it does not bear on the "fault" of the plaintiff-decedent. Similarly, DeMontiney v. Desert Manor Convalescent Ctr. Inc., 695 P.2d 255 (Ariz. 1985) concerned a suicide in a private hospital. Based on the record in that case, the court held that upon notice of the likelihood of self-inflicted injury, the custodian had a duty to use reasonable care to prevent the harm. Occurrence of the harm itself did not release the hospital from liability as an intervening cause.
    Two courts in common law comparative negligence jurisdictions, Heflin v. Stewart County, Tennessee, 1995 WL 614201 (Tenn. Ct. App. Oct. 20, 1995), and Hickey v. Zezulka, 487 N.W.2d 106 (Mich. 1992), have held that a jury instruction on comparative fault in jail suicide cases is sometimes appropriate, leaving it to the fact finder to apportion fault.See footnote 4 We are free to adopt comparative fault doctrines as a matter of the common law of

this state, even in areas where the legislature did not apply the Comparative Fault Act. However, custodial suicide is not an area that lends itself to comparative fault analysis. As already noted, the conduct of importance in this tort is the custodian's and not the decedent's. Further, it is hard to conceive of assigning a percentage of fault to an act of suicide. The suicide can be viewed as entirely responsible for the harm, or not relevant at all to an assessment of a custodian's breach of duty. A comparative balance of "fault" in a suicide case would seem to risk random "all or nothing" results based on a given jury's predilections.
    Finally, City of Belen v. Harrell, 603 P.2d 711 (N.M. 1979) and Dezort v. Village of Hinsdale, 342 N.E.2d 468 (Ill. App. Ct. 1976) are two cases that reached a contrary result. In City of Belen, the court held, without analysis, that contributory negligence in a jail suicide case was for the jury to decide. Similarly, the Dezort court concluded that because contributory negligence was a defense under the Illinois Wrongful Death Act, it applied in a jail suicide case. Neither case deals with the reasoning set forth in this opinion, Myers, and Cole, and we do not find them persuasive.
    In sum, we conclude that the act of suicide cannot constitute contributory negligence or incurred risk in a custodial suicide case. Because the jury was instructed on contributory negligence and incurred risk in such a manner as to permit the suicide itself to bar the claims,

a new trial is required. Although we remand on the first question presented, we take up Sauders' remaining contentions because they may arise in the retrial.

to rehabilitate her expert witness. At trial, Sauders' expert testified that in the absence of audio-video monitoring equipment, jailers should check detainees like Sowles every fifteen minutes. On cross-examination, when asked whether the Indiana Jail Standards required checks of intoxicated prisoners every fifteen minutes, the expert responded, "No." Sauders objected and requested that she be allowed relief from the motion in limine in order to show that the Indiana Jail Standards required audio-video monitoring, and for that reason did not prescribe more frequent visits. After lengthy discussion, the court concluded that Sauders could establish the context of her expert's conclusion that fifteen minute checks were desirable under the circumstances, by pointing out that one such circumstance was the absence of audio-video monitoring equipment.See footnote 7 Sauders agreed that the court's solution was "fair" but then did not raise the subject with her expert on redirect.
    Sauders seems correct that it was appropriate to relax the motion in limine to allow her to introduce into evidence the Indiana Jail Standards' requirement of audio-video monitoring equipment. The County opened the door to references to the Standards' provision on monitoring equipment by relying on the absence of a fifteen minute requirement to challenge the credibility of the conclusion of Sauders' expert witness. But Sauders both accepted the trial court's solution as fair, and then chose not to revisit the subject with the expert. Thus she effectively waived the issue for purposes of this appeal.

    DICKSON, SULLIVAN and SELBY, JJ., concur.
    SHEPARD, C.J., dissents with separate opinion.

ATTORNEY FOR APPELLANT            ATTORNEYS FOR APPELLEES

Kurt Bentley Grimm                Branch R. Lew
Grimm & Grimm, P.C.                Brian L. England
Auburn, Indiana                Hunt, Suedhoff, Borror &                             Eilbacher
                            Fort Wayne, Indiana

BETTY JEAN SAUDERS, Personal         )
Representative of the Estate of    ) Indiana Supreme Court
Mark S. Sowles, Deceased,        ) Cause No. 92S03-9803-CV-146 Appellant (Plaintiff Below),         )
                            ) Indiana Court of Appeals
        v.                    ) Cause No. 92A03-9411-CV-400
                            )
THE COUNTY OF STEUBEN;              )
LAWNIE M. McCLELLAND, as            )
Sheriff of Steuben County; )
MARK KLINK and GREGORY W. ALDRICH )
Appellees (Defendants Below).     )

SHEPARD, Chief Justice, dissenting.

    The central declaration of today's decision is that persons who attempt to do themselves harm while incarcerated never have any responsibility for their own actions.

    The Court acknowledges that this declaration is both a matter of first impression for us and a matter of judicial choice. I think it is the wrong choice, one that will ineluctably shift liability away from those who suffer harm from their own intentional acts and impose it on those who are only negligent.

    In speaking about the responsibility of custodians, the Court's opinion first states that "the custodian does not have a duty to prevent a particular act (e.g. suicide)." Sauders v. County of Steuben, No. 92A03-9411-CV-400, slip. op. at 4 (Ind. 1998). It then says that there is a duty "to take reasonable steps under the circumstances for the life, health, and safety of the detainee" and cites the Restatement (Second) of Torts for the proposition that the duty includes protecting against unreasonable risk of harm, "including specifically self-harm." Id.

    The foregoing statements in the Court's opinion have seemed inconsistent to me, but I take the bottom line to be that custodians have a specific duty to prevent self-harm and that their charges have no duty at all to care for themselves.

    Tradition was that "the very commission of self-injury [was] regarded as the result of some abnormal condition of mind, but the extent of the abnormality and the competence of the actor remains a fact question in the determination of the degree of 'fault' of the actor." Heflin v. Stewart County, Tennessee, 1995 WL 614201,

at * 7 (Tenn. Ct. App. 1995). The New Jersey Supreme Court followed Professor Keeton's advice in taking a similar approach to the acts of mentally disturbed plaintiffs: "The modern trend appears to favor the use of a capacity-based standard for the contributory negligence of mentally disturbed patients." Cowan v. Doering, 545 A.2d 159, 163 (N.J. 1988)(citing W. Page Keeton et. al., Prosser and Keeton on the Law of Torts § 32, at 178 & n.39 (5th ed. 1984).See footnote 1 Justice Boehm's approach conclusively assumes that all persons in detention are incapable of making legally relevant choices that lead to their harm.

    The Tennessee and New Jersey courts were writing about responsibility for self-harm as it arises under comparative fault regimes. Our present case arises under traditional common law rules, but the Court's opinion makes clear that the same result would obtain if we were applying Indiana's comparative fault statute. Sauders v. County of Steuben, No. 92A03-9411-CV-400, slip. op. at 8 (Ind. 1998).See footnote 2

    There are thus a host of non-governmental custodians to whom today's rule will make a dramatic difference: hospitals, nursing homes, juvenile homes, psychiatric centers. These custodians presumably have at least the same duty of care as county jailors. If as the Court says, "the conduct of importance in this tort is the custodian's and not the decedent's", id., these organizations will find themselves much closer to being insurers than they are now.

which failure is a proximate cause of the injuries for which he seeks to recover"; and, "[w]hen a person knows of a danger, understands the risk involved, and voluntarily exposes himself to such danger, that person is said to have 'incurred the risk' of injury." Each plainly permitted the jury to find the act of suicide itself to be sufficient to invoke the defense.

should only be given for negligent acts, noting that "a jail suicide presents a situation where a defendant has a duty to give aid to and protect another person in the defendant's custody, even from his own intentional acts." Hickey, 487 N.W.2d at 121.

    16. The defendants . . . are immune from any liability for the policy-oriented decisions regarding the     allocation of funds from the budget to purchase or install audio/video monitoring equipment . . . .

extreme should be adopted--that the [custodian] then assumes all responsibility and liability for injuries the plaintiff intentionally commits upon himself." Hickey v. Zezulka, 487 N.W.2d 106, 123 (Mich. 1992).

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