Campbell v. Eckman/Freeman & Associates , 1996 Ind. App. LEXIS 1257 ( 1996 )

CHEZEM, Judge,

dissenting.

I respectfully dissent. In the second full paragraph of page 934 of the slip opinion, the majority states that based on the limited facts presented, it does not have answers for three separate issues. Yet, in the following sentence, the majority states, “Weighing all of these considerations, we find that Eck-man-Freeman did not have a relationship with Campbell which would support a duty in negligence.” These two sentences are inconsistent and illustrate to me that the question, whether a private entity hired by an employer’s worker’s compensation carrier to provide rehabilitation services to the injured employee owes a duty of care to the injured employee, is not purely one of law.

In State v. Cornelius, we explained:

While the determination of whether these three factors [relationship, foreseeability, and public policy concerns] will lead to imposition of a duty is generally a matter for the court to decide, factual questions may be interwoven with the determination of the existence of a relationship and the foreseeability of harm, rendering the existence of a duty a mixed question of law and fact, ultimately to be resolved by the fact-finder.

637 N.E .2d 195, 198 (Ind.Ct.App.1994), trans. denied. Believing that material factual questions are interwoven with the determination of the existence of a relationship between Campbell and Eckman-Freeman, I would reverse the order granting summary judgment.