ATTORNEY FOR APPELLANT

Kurt Bentley Grimm

Auburn, Indiana      

ATTORNEY FOR APPELLEES

Branch R. Lew       

Fort Wayne, Indiana  

	IN THE

	SUPREME COURT OF INDIANA

BETTY JEAN SAUDERS, Personal		)

Representative of the Estate			)	

of Mark S. Sowles, Deceased,    			)

							)

				Appellant,		)	Indiana Supreme Court

							)	Cause No. 92S03-9803-CV-146

		v.					)

 							)	Indiana Court of Appeals

THE COUNTY OF STEUBEN;    		)	Cause No. 92A03-9411-CV-400

LAWNIE M. McCELLAND, as			)

Sheriff of Steuben County;				)

MARK KLINK and GREGORY W.		)

ALDRICH,						)	

							)

				Appellees.		)

	APPEAL FROM THE WHITLEY CIRCUIT COURT

	The Honorable Paul R. Cherry, Special Judge

	Cause No. 92C01-8712-CP-401

	ON PETITION TO TRANSFER

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.

	I. Contributory Negligence as a Defense

	Whether or how the affirmative defenses of contributory negligence and incurred risk

apply to an act of jail suicide is an issue of first impression in Indiana.1  The parties agree that because the County is a government entity, the action is covered by the Indiana Tort

Claims Act,  Ind. Code § 34-4-16.5-1 et. seq. (1993), and exempted from the Indiana Comparative Fault Act,  Ind. Code § 34-4-33-8 (1993).  As a general proposition, under the Tort Claims Act, as at common law, both contributory negligence and incurred risk operate

to bar a plaintiff’s recovery against government actors.  Town of Highland v. Zerkel, 659 N.E.2d 1113, 1120-21 (Ind. Ct. App. 1995).

	It is well settled that a custodian under some circumstances has a legal duty to take 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).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,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.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.

	II. Evidence of Jail Standards

	Indiana Jail Standard 210 IAC 3-1-7(f) requires the audio-video monitoring of

intoxicated pretrial detainees like Sowles.  The jail did not have this equipment.  On

November 14, 1989, the trial court entered a partial summary judgment that was not appealed

by Sauders.  Sauders, 664 N.E.2d at 770-71.  Paragraphs fifteen and sixteen of the 1989 judgment held that the County did not owe Sauders a duty to purchase monitoring

equipment, and that consequently the County was immune from liability for policy-oriented

decisions with respect to whether to allocate funds to purchase the equipment.5   Later, after an appeal dealing with other issues,6 the court granted the County’s motion in limine based on the 1989 judgment.  The order prohibited evidence on all issues resolved by the parties’

summary judgment order, including, specifically, the purchase or installation of monitoring

equipment by the County.

	Despite these pretrial rulings, Sauders contends that the trial court erred in refusing

to permit her to introduce evidence regarding Indiana Jail Standard 210 IAC 3-1-7(f) in order 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.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. 

	III. Instruction on the Relevance of Audio-Video Monitoring Equipment

	Finally, Sauders alleges that the following jury instruction was too broad.

	I instruct you that none of the Defendants owed any duty to Mark Sowles to purchase 

	or install audio-video monitoring equipment . . . .  Absence of audio-video monitoring 

	equipment . . . at the Steuben County Jail shall not be considered by you in 

	determining whether or not any of the Defendants are liable to Mark Sowles.

We agree.  Sauders objected that the instruction was not an accurate statement of the law. 

The court responded that the instruction was based on the law of the case, as established by

the 1989 judgment.  See supra note 5 and accompanying text.  However, rules that became the law of the case -- no duty to purchase the monitoring equipment, and immunity for the

decision not to purchase the equipment -- are distinct from the question of what constitutes

reasonable care under the circumstances, one of which was the known absence of the

equipment.  The jury should have been able to consider whether, without the equipment, the

County should have been more vigilant in making personal checks on Sowles.  As the court

correctly concluded, there is no duty to provide the equipment and its absence is not

evidence of negligence.  However, its absence is one of the circumstances together with all

others that are relevant to the issue of the defendant’s conduct.  The instruction that the

absence of the equipment “shall not be considered” in determining the County’s liability,

went too far in precluding the jury from considering all relevant circumstances.

	Conclusion

	Transfer is granted.  The case is remanded for a new trial consistent with this opinion.

	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 

IN THE

SUPREME COURT OF 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).	     )

APPEAL FROM THE WHITLEY CIRCUIT COURT

The Honorable Paul R. Cherry, Special Judge

Cause No. 92C01-8712-CP-401

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 34 (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).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 78 (Ind. 1998).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.