Stropes Ex Rel. Taylor v. Heritage House Childrens Center of Shelbyville, Inc. , 1989 Ind. LEXIS 356 ( 1989 )

ON CIVIL PETITION TO TRANSFER

GIVAN, Justice,

dissenting.

I respectfully dissent from the majority opinion in this case in that they hold the common carrier exception to the principle of respondeat superior should be applied to such institutions as nursing homes and hospitals.

The majority recognizes that the case of Rabon v. Guardsmark, Inc. (4th Cir.1978), 571 F.2d 1277 closely parallels the factual situation in the case at bar. There, the Fourth Circuit reversed the federal district court and held that the common carrier exception to the doctrine of respondeat superior should not be applied in this factual framework.

The majority attempts to distinguish Ra-bón in pointing out that the federal court relied upon what it perceived the South Carolina law to be; that is, that South Carolina courts would find no liability on the part of the defendant under the doctrine of respondeat superior as traditionally applied. The federal court went on to hold that this was a case of diversity jurisdiction and that they were bound to apply what they perceived to be the South Carolina law.

The majority in the case at bar reasons that the Indiana law is not comparable to the South Carolina law and that the “common carrier exception” should be applied in this case. However, the majority is not able to rely on precedent to support this conclusion but effects the extension of the common carrier doctrine to cases of this sort in this case. I cannot join the majority in making such a wide-sweeping addition to the substantive law of this state.

The majority opinion establishes a major difference in the law of this state affecting every health care and custodial institution and virtually makes each of those institutions an insurer of the safety of the persons under their care and control. If such a wide-sweeping change in the substantive law is to take place, it should be done by the legislature and not by the judiciary.

Inasmuch as the Court of Appeals’ opinion in this case was not published, I feel compelled to observe that the Court of Appeals’ opinion fully discussed Rabón, supra and, after so doing, followed the same format and refused to extend the “common carrier exception” to the case at bar.

I believe the Court of Appeals properly addressed the issues in this case and did not err in affirming the trial court. I would therefore deny transfer in this case.

PIVARNIK, J., concurs.