text:
    Brandy L. WALCZAK, Individually and on behalf of those similarly situated, Appellant, v. LABOR WORKS-FORT WAYNE, LLC, d/b/a Labor Works, Appellee.
    No. 02A04-1109-PL-509.
    Court of Appeals of Indiana.
    March 5, 2012.

      Philip J. Gibbons, Jr., Andrew G. Jones, Gibbons Jones, P.C., Indianapolis, IN, Attorneys for Appellant.
    F. Larkin Fore, Fore Miller & Schwartz, Louisville, KY, Michael T. Yates, Ryan S. Ross, More Miller Yates & Ross, Fort Wayne, IN, Attorneys for Ap-pellee.
   OPINION

FRIEDLANDER, Judge.

Brandy L. Walczak, on behalf of herself and all others similarly situated, appeals the trial court’s grant of summary judgment in favor of Labor Works-Fort Wayne, LLC (Labor Works) in her action for unpaid wages. Walczak frames the issue in this dispute as one of standing, i.e., whether she has standing to sue for improper payroll deductions and unpaid wages under Ind.Code Ann. § 22-2-5-1 et seq. (West, Westlaw through end of 2011 1st Regular Sess.) (the Wage Payment Statute) and I.C. § 22-2-6-1 et seq. (West, Westlaw through end of 2011 1st Regular Sess.) (the Wage Deduction Statute). We address the following related but different issue: Did the trial court have subject-matter jurisdiction over Walczak’s lawsuit?

We reverse and remand with instructions.

The relevant facts are that Labor Works is a company that provides temporary day-laborer services to businesses in the Fort Wayne area. Those businesses communicate to Labor Works that they will need a certain number of laborers on specified days to perform specified tasks. In order to meet the need for laborers, Labor Works selects persons who have appeared at its facility on the day in question, having already completed certain steps to become eligible to accept an assignment for work. These steps include: (1) the completion of a pre-employment form, providing information such as work history and hours of availability, (2) submit to an interview "with a Labor Works representative; and (3) sign forms pertaining to (a) Labor Works’s substance-abuse policy, (b) agreements that the applicant will reimburse Labor Works in the event the employee loses or destroys work equipment provided by Labor Works, and (c) the applicant’s agreement to pay transportation costs to and from work sites in the event that the applicant uses Labor Works transportation.

After passing Labor Works’s vetting process, applicants appear at Labor Works’s facility in the morning, where they might receive a work assignment, although none is guaranteed. The assignment is good for one day only and the applicant is paid for work at the end of the day on which it was performed.

Beginning on December 20, 2009, and continuing until March 9, 2010, Walczak sought work through Labor Works on a sporadic basis. Of relevance in this appeal, she was hired by Labor Works to work on January 27, 2010. She did not seek work on January 28, but did report to Labor Works on January 29. No work was offered to her on that day. She did not seek work again at Labor Works until February 2. Meanwhile, on February 1, 2010, Walczak filed a lawsuit on behalf of herself and others similarly situated against Labor Works alleging violations of the Wage Payment Statute and the Wage Deduction Statute.

On October 22, 2010, Labor Works filed a motion for summary judgment. Citing I.C. § 22-2-9-2 et seq. (West, Westlaw through end of 2011 1st Regular Sess.) (the Wage Claims Statute), Labor Works contended that Walczak did not have a right to file her lawsuit and that the court did not have jurisdiction over her claim. The Wage Claims Statute states, in relevant part, as follows:

Whenever any employer separates any employee from the pay-roll, the unpaid wages or compensation of such employee shall become due and payable at regular pay day for pay period in which separation occurred: Provided, however, [tjhat this provision shall not apply to railroads in the payment by them to their employees.

I.C. § 22-2-9-2(a). Moreover, I.C. § 22-2-9^4 (West, Westlaw through end of 2011 1st Regular Sess.), provides that actions brought under the Wage Claims Statute must be resolved as follows:

It shall be the duty of the commissioner of labor to enforce and to insure compliance with the provisions of this chapter, to investigate any violations of any of the provisions of this chapter, and to institute or cause to be instituted actions for penalties and forfeitures provided under this chapter. The commissioner of labor may hold hearings to satisfy himself as to the justice of any claim, and he shall cooperate with any employee in the enforcement of any claim against his employer in any case whenever, in his opinion, the claim is just and valid.

Pursuant to this provision, only the Commissioner of the Department of Labor (the DOL) may investigate and initiate such claims against the employer. Labor Works contended in its motion that Walc-zak did not have standing to file the lawsuit in the Allen Superior Court because the claim arose under I.C. § 22-2-9^4, pursuant to which she was required to file her claim with the DOL. This, in turn, was based upon the claim that Walczak was “separated from the pay-roll” within the meaning of I.C. § 22-2-9-2 at the time she filed her complaint. In summary, there are two separate statutes that govern actions to recover unpaid wages. One, the Wage Payment Statute, applies to current employees and employees who voluntarily leave employment, either temporarily or permanently. See St. Vincent Hosp. & Health, Care Ctr., Inc. v. Steele, 766 N.E.2d 699 (Ind.2002). The other, the Wage Claims Statute, governs actions involving employees who were involuntarily separated from employment at the time the claim was filed. The parties agree that this appeal turns upon the determination of which statute .applies to Walczak.

We note first Walczak’s argument that the Wage Claims Statute applies only in cases where the claimant was fired (or whose work was suspended due to a labor dispute). Because Walczak was not “fired” in the traditional sense of that term, so the argument goes, then the Wage Claims Statute does not apply. The trial court rejected this argument in granting summary judgment in favor of Labor Works. We decline to address this argument, however, because we conclude that this matter must first be submitted to the DOL for resolution.

In Reel v. Clarian Health Partners, Inc., 917 N.E.2d 714 (Ind.Ct.App.2009), trans. denied, three former employees, on behalf of themselves and other employees involuntarily separated from their former employer, filed a proposed class action against their former employer alleging the employer did not timely pay paid-time-off wages as required by the Wage Claims Statute. The employer filed a Trial Rule 12(B)(1) motion to dismiss their claim for lack of subject matter jurisdiction on grounds that the Wage Claims Statute required that their cause must first be submitted to the DOL. This court affirmed, holding that a claim arising under the Wage Claims Statute must first be submitted to the DOIi before the aggrieved part is entitled to file a lawsuit in court. The court stated, “because these proposed class members did not first pursue administrative proceedings, the trial court did not have subject matter jurisdiction over their purported wage claims.” Id. at 720.

Similarly, in Hollis v. Defender Sec. Co., 941 N.E.2d 536 (Ind.Ct.App.2011), trans. denied, a former employee brought an action against his former employer on behalf of himself and others alleging that his former employer had violated the Wage Payment Statute by failing to pay agreed wages in a timely fashion. The employer filed a motion to dismiss the claim on grounds that the employee had failed to exhaust his administrative remedies. The dispositive issue in that case was whether the claim was properly designated as arising under the Wage Claims Statute or the Wage Payment Statute. The trial court granted the motion, concluding that the claim arose under the Wage Claims Statute. The pivotal determination in that case was that “an employee’s status at the time he or she files the claim is the relevant inquiry in determining whether to proceed under the Wage Payment Statute or the Wage Claims Statute.” Hollis v. Defender Sec. Co., 941 N.E.2d at 540. Based upon this determination, we held: “Instead of submitting his claims to the DOL, as required by Wage Claims Statute, [he] improperly filed a complaint based on the Wage Payment Statute. Because [he] did not allege any Wage Claims Statute violations and submit his claims to the DOL, the trial court properly dismissed [his] claims.” Id.

Reel and Hollis indicate that the failure to file with the DOL a claim that properly belongs under the Wage Claims Statute divests the trial court of subject-matter jurisdiction. In those cases, however, the ruling under review was a dismissal for want of subject-matter jurisdiction. In this case, we review a grant of summary judgment on grounds that the claim should have been brought under the Wage Claims Statute and therefore that the trial court lacked subject-matter jurisdiction in this action. There is authority for the proposition that a case that should properly have been brought under the Wage Claims Statute, but was not, may be resolved in the manner it was here, i.e., via summary judgment. See Gavin v. Calcars AB, Inc., 938 N.E.2d 1270, 1272 (Ind.Ct.App.2010) (having determined that the appellant’s claim should have been submitted to the DOL, the court stated, “his complaint is barred as a matter of law”), trans. denied. See Ind.Code § 22-2-9-4. The trial court did not err when it entered summary judgment in favor of [the employer]. Which approach is appropriate here?

We have received some guidance on this question in Johnson v. Celebration Fireworks, Inc., 829 N.E.2d 979 (Ind. 2005). In Johnson, Celebration Fireworks, Inc., a fireworks seller, brought an action against the State Fire Marshal requesting, among other things, a permanent injunction and declaratory judgment to prevent the Fire Marshal from requiring certificates of compliance for each of the seller’s alleged “wholesale” locations. The Fire Marshal is charged by statute with the responsibility of regulating the sale of both legal and restricted fireworks, including the issuance of retail sales permits and wholesale certificates of compliance. Pursuant to Ind.Code Ann. § 22-11-14-5 (West, Westlaw through end of 2011 1st Regular Sess.), a wholesaler of restricted fireworks must pay a $1,000 annual fee to operate in Indiana. The Fire Marshal had consistently interpreted this provision to require payment of the $1,000 fee for each wholesale location a fireworks wholesaler operates within the state. By 1994, Celebration Fireworks had opened ninety-six retail locations in the state, and from 1991-94 paid the assessed $1000 fee per location. In 1995, however, Celebration tendered only one fee payment of $1000, designating that payment as pertaining to its central warehouse. Celebration claimed that its retail locations were not “wholesale” locations within the meaning of I.C. § 22-11-14-5 and therefore that it was not required to pay fees with respect to those facilities.

Without seeking available administrative review of the Fire Marshal’s interpretation of I.C. § 22-11-14-5, Celebration filed a lawsuit seeking, among other things, (1) a refund for fees it had paid in previous years for all but its central warehouse, (2) permanent injunctive relief; and (3) a declaratory judgment concerning the proper interpretation of I.C. § 22-11-14-5. The trial court issued a temporary restraining order enjoining the Fire Marshal from seizing any fireworks on the basis of Celebration’s failure to obtain Certificates of Compliance for each of its locations where restricted fireworks were sold. The State appealed and this court reversed. See Boatwright v. Celebration Fireworks, Inc., 677 N.E.2d 1094 (Ind.Ct.App.1997). We remanded the case for a resolution of its remaining issues.

On remand, following a bench trial, the trial court entered judgment in favor of Celebration for $302,000. The Fire Marshal and the State appealed the judgment, contending that the trial court had no subject-matter jurisdiction over the matter because Celebration had failed to exhaust its administrative remedies; This court affirmed the judgment on grounds that exhaustion' of remedies was not required because compliance would be futile, “and there is doubt as to the availability of an administrative remedy.” Johnson v. Celebration Fireworks, Inc., 829 N.E.2d at 982. The Supreme Court granted transfer, addressing primarily the question of whether the exhaustion of remedies was required under those circumstances. The court noted its decision in Indiana Dep’t of Envtl. Mgmt. v. Twin Eagle LLC, 798 N.E.2d 839 (Ind.2003) that exhaustion is not required “‘[t]o the extent the issue turns on statutory construction, [and] whether an agency possesses jurisdiction over a matter [as that] is a question of law for the courts.’” Johnson v. Celebration Fireworks, Inc., 829 N.E.2d at 983 (quoting Indiana Dept. of Envtl. Mgmt. v. Twin Eagle LLC, 798 N.E.2d at 841-42). The Supreme Court determined that this court was incorrect in holding that the Fire -Marshal’s authority under I.C. § 22-11-14-5 was a question of statutory construction and thus a pure question of law, which relieved Celebration from the obligation to exhaust its administrative remedies. The Supreme Court determined instead that the question of whether Celebration’s ninety-six retail locations were “wholesale” locations within the meaning of I.C. § 22-11-14-5 was a question of fact properly resolved through the administrative process. See Johnson v. Celebration Fireworks, Inc., 829 N.E.2d 979. We conclude that the same result obtains here.

The determination of whether, when she filed her complaint in the instant action, Walczak was separated from the payroll by Labor Works within the meaning of the Wage Claims Statute is a question of fact, not a matter of statutory interpretation. See id. We also note in support of our decision this court’s recent decision in Outboard Boating Club of Evansville, Inc. v. Indiana State Dep’t of Health, 952 N.E.2d 340 (Ind.Ct.App.2011). In it, the appellant, a camping facility, argued that it was not subject to the Indiana State Department of Health’s (ISDH) jurisdiction over campgrounds and thus that it need not resort to administrative procedures before presenting the question to the court in a lawsuit. We held that there was no abstract question of law concerning the ISDH’s general authority to regulate campgrounds. Rather, we observed, the argument against exhaustion was that “the particular facilities at issue are not subject to the ISDH’s regulatory jurisdiction over campgrounds. This question of jurisdiction over a particular site is precisely the type of fact sensitive issue the Twin Eagle court concluded should be resolved in the first instance by the administrative agency.” Id. at 345. Similarly, in this case the argument is that the wage claims of Walc-zak in particular, and perhaps day-laborers as a group, are not subject to the DOL’s oversight. We believe that, as in Outboard Boating Club of Evansville, Inc. v. Indiana State Dep’t of Health, 952 N.E.2d 340, this is precisely the type of fact-sensitive inquiry that should be resolved in the first instance by the administrative agency.

In so holding, we are mindful of the value of requiring the completion of administrative proceedings before resorting to judicial review, viz., (1) avoiding premature litigation; (2) the compilation of an adequate record for judicial review; and (3) utilization of agency expertise in a given field, see, e.g., Indiana Dep’t of Envtl. Mgmt. v. Twin Eagle LLC, 798 N.E.2d at 845 (“Twin Eagle may be correct that the particular waters at issue are not subject to regulation, but the proper forum to address this fact sensitive issue is through the administrative process. We therefore defer to the administrative process to determine whether potentially dispositive factual circumstances exist here”), and (4) affording agencies the opportunity and autonomy to correct their own errors.

We conclude that the question of whether Walczak was involuntarily separated from the payroll within the meaning of the Wage Claims Statute is a question of fact that should have been submitted to the DOL. Therefore, the trial court lacked subject-matter jurisdiction over Walczak’s claims until the DOL had made a determination on that question. See Hollis v. Defender Sec. Co., 941 N.E.2d 536 and Reel v. Clarian Health Partners, Inc., 917 N.E.2d 714. Accordingly, we reverse the grant of summary judgment in favor of Labor Works and remand this cause to the trial court with instructions to dismiss Walczak’s complaint. See Hollis v. Defender Sec. Co., 941 N.E.2d 536 and Reel v. Clarian Health Partners, Inc., 917 N.E.2d 714.

Judgment reversed and remanded with instructions.

RILEY, J., and MATHIAS, J., concur.

      . We note in this regard that the parties focused much energy below and in their appellate briefs on the relevance of Walczak's status at Labor Works on the day the instant complaint was filed, i.e., February 1, 2010. If we understand the gist of the arguments, it would appear that Labor Works more or less concedes that if Walczak had filed her complaint on a day that she worked at, and therefore drew a paycheck from, Labor Works, the claim could properly have been filed under the Wage Payment Statute (e.g., Walczak’s “status on this date is the dispositive issue before this Court”). Appellee’s Brief at 21. We find much merit to Walczak’s contention that tethering the viability of a claim under the Wage Payment Statute to something as ephemeral as whether a day-laborer worked on a particular day would lead to "absurd result[s].” Appellant’s Brief at 10. It seems to us that, in view of the purpose of the Wage Claims Statute, day-laborers such as Walczak, whose employment is transitory by definition, can be deemed to be in the category of “separated from the payroll” on any given day, regardless of whether they happened to work that day. See Lemon v. Wishard. Health Servs., 902 N.E.2d 297, 301 (Ind.Ct.App.2009) (”[t]he purpose of Indiana Code section 22-2-9-4 ... is to create a barrier to claims to be filed in court. The statute makes it clear that a claim must work its way through the proper channels — the DOL and, if need be, the Attorney General — before it may be brought into court”), trans. denied.


source: Caselaw Access Project

author: MAY, Judge.

license: Public Domain

text:
    Andre GONZALEZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 45A03-1108-CR-369.
    Court of Appeals of Indiana.
    March 16, 2012.
    Ordered Published April 16, 2012.

      Benjamen W. Murphy, Law Office of Ben Murphy, Merrillville, IN, Attorney for Appellant.
    Gregory F. 2 oeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MAY, Judge.

Andre Gonza'ez appeals the denial of his petition to remove his sex offender designation pursuant to Ind.Code § 11-8-8-22. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

On June 2, 1097, Gonzalez pled guilty to Class D felony child solicitation based on his touching of a nine-year-old girl. On June 26, the trial court sentenced Gonzalez to three years, ^vith eighteen months incarcerated and eighteen months on probation. On September 15, 1999, Gonzalez was discharged from probation and began registering as a sex offender, which he would be required to do for ten years pursuant to the Sex Offender Registry Act (SORA). See Ind.Code j 5-2-12-5 (1996) (sex offender required to register with local law enforcement for ten years after the date the offender is placed on probation).

Effective July 1, 2006, the legislature modified the statutes regulating SORA in a way that required Gonzalez to register as a sex offender for the rest of his life based on the dc tails of his crime.- In 2010, after ten years of registration, Gonzalez wrote the trial court requesting it remove his registration requirement. On January 27, 2011, Gonzalez, by counsel, filed a “Verified Petition to Remove Sex Offender Designation Pursuant to Ind.Code 11-8-8-22.” (App. at 34.) The trial court denied the petition on July 22.

DISCUSSION AND DECISION

Article 1, Section 24 of the Indiana Constitution prohibits ex post facto laws, which impose punishment for an act that was not punishable at the time it was committed or which assign additional punishment to an act already punished. Flanders v. State, 955 N.E.2d 732, 748 (Ind.Ct. App.2011), reh’g denied, trans. denied. “The underlying purpose of the Ex Post Facto Clause is to give effect to the fundamental principle that persons have a right to a fair warning of that conduct which will give rise to criminal penalties.” Jensen v. State, 905 N.E.2d 384, 389 (Ind.2009).

On July 1, 2006, our legislature amended the Indiana statutes which regulated SORA to require certain sex offenders to register for life, rather than just ten years. One such category included:

A sex or violent offender who is convicted of at least one (1) offense under section 5(a) of this chapter that the sex or violent offender committed:
(1) when the person was at least eighteen (18) years of age; and
(2) against a victim who was less than twelve (12) years of age at the time of the crime;
is required to register for life.

Ind.Code § 11 — 8—8—19(c) (2006) (footnote added). Suddenly, Gonzalez, who was over eighteen years old at the time of his crime and who committed his crime on a victim under twelve years old, qualified for required lifetime registration.

Gonzalez argues this new lifetime registration requirement violates the prohibition against ex post facto laws because his crime, when he committed it, required only-ten years of registration as a sex offender. We agree.

In Jensen, our Indiana Supreme Court used a seven-factor test to determine whether the statutory changes to the registry requirements violate ex post facto prohibitions:

In assessing a statute’s effects we are guided by seven factors that are weighed against each other: “[1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment-retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned.” Wallace [v. State ], 905 N.E.2d [371] at 379 [ (2009) ] (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144,168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)) (alterations in original). No one factor is determinative. “[0]ur task is not simply to count the factors on each side, but to weigh them.” Id. (quoting State v. Noble, 171 Ariz. 171, 829 P.2d 1217, 1224 (1992)).

Jensen, 905 N.E.2d at 391. This is the “intent-effects” test. Id.

In 2000, when Jensen pled guilty to Class C felony vicarious sexual gratification, Ind.Code § 5-2-12-5 (1996) required him to register as a sex offender for ten years following his release from prison, parole, or probation, whichever came latest. When amended SORA statutes went into effect on July 1, 2006, vicarious sexual gratification had been added to the list of offenses that caused an offender to be classified, as a matter of law, as a sexually violent predator (SVP). See Ind.Code § 35-38-l-7.5(b) (2006) (including vicarious sexual gratification as a crime making offender an SVP as a matter of law). In addition, the amendments to Ind.Code § 11 — 8—8—19(b) required Jensen, as a SVP, to register as a sexually violent predator for life.

Jensen appealed, arguing the lifetime registration requirement violated the prohibition against ex post facto laws. The Jensen Court ultimately concluded the amendment to Ind.Code § 11 — 8—8—19(b), as applied to Jensen, was not an ex post facto law:

The court found that there were significant obligations imposed by the registration act. Many of these were already in effect at the time that Jensen committed his offense, but SVPs do have some additional burdens, including informing law enforcement if they will be away from their residence for more than seventy-two hours and registering for life. Therefore, the first factor leaned in favor of finding the act punitive. The court compared the act to the historical punishment of shaming, and therefore found that the second factor also leaned in favor of finding the act punitive. The court found that the act primarily applies to offenses that require a finding of scienter, so the court found that the third factor also leaned in favor of finding the act punitive. The court found that the act promoted the traditional aims of punishment, but this was also true of the versions in effect prior to 2006; therefore, the court concluded that the fourth factor leaned in favor of finding the act non-punitive. Likewise, the act applies only to behavior that is already a crime, but that was true before 2006. Therefore, the court concluded that the fifth factor leaned in favor of finding the act non-punitive. The court found that the act clearly promoted a rational alternative purpose: public safety. Therefore, the court concluded that the sixth factor also leaned in favor of finding the act non-punitive. Id. As to the seventh factor, the court stated:
The “broad and sweeping” disclosure requirements were in place and applied to Jensen at the time of his guilty plea in January 2000. Nothing in that regard was changed by the 2006 amendments. And with regard to lifetime registration, we note that sexually violent predators may, after ten years, “petition the court to consider whether the person should no longer be considered a sexually violent predator.” Ind.Code § 35-38-1-7.5(g) (2006).
Thus, the court also concluded that the seventh factor leaned in favor of finding the act non-punitive and noted that this factor is afforded “considerable weight” when applying the seven-factor test. Because four of the seven factors (including the weighty seventh factor) leaned in favor of finding the act non-punitive, the court concluded that it was not an ex post facto law.

Flanders, 955 N.E.2d at 749-50 (summarizing analysis in Jensen) (case citations omitted).

In Flanders, a SVP by virtue of his crime and multiple sex offenses, challenged his registration requirement on ex post facto grounds because he was unable to petition for removal of the lifetime registration requirement, unlike other SVPs. We concluded the analysis of the first six factors of the intent-effects test was the same under the facts presented in both Jensen and Flanders. However, the seventh factor, “whether [the statute’s effect] appears excessive in relation to the alternative purpose assigned,” Jensen, 905 N.E.2d at 391, tipped the scales. We held the amended SORA statutes as applied to Flanders were ex post facto laws because Flanders, unlike Jensen, was unable to petition for a change of status pursuant to Ind.Code § 35-38-l-7.5(g) because Flanders was a repeat sex offender and explicitly excluded from petitioning for a change of status. See Ind.Code § 35-38-l-7.5(g) (excluding repeat offenders from petitioning).

Just as in Flanders, our analysis of the first six factors of the intent-effects test in the instant case is identical to that in Jensen. Thus, we need only consider the seventh factor.

The requirement that Gonzalez register as a sex offender for life is based on his age at the time of the crime and the age of his victim. See Ind.Code § 11 — 8—8—19(c) (assigning lifetime registration requirement to person over eighteen years old who committed offense on victim under twelve). Unlike Jensen, no additional statute allows Gonzalez to petition the court to reassess his lifetime registration requirement. Additionally, unlike both Flanders and Jensen, whose lifetime registration requirements arose by virtue of their status as SVPs pursuant to Ind.Code § 35-38-1-7.5(b), which statute provides an annual review mechanism, Gonzalez is not an SVP; rather, his lifetime registration arose under Ind.Code § 11 — 8—8—19(c), which does not classify him as an SVP or provide a mechanism by which he could petition the court for removal of that requirement. Therefore, the seventh factor of the intent-effects test indicates Ind. Code § 11 — 8—8—19(c) is an unconstitutional ex post facto law as applied to Gonzalez because the imposition of the requirement without recourse tips the test toward the change in law being punitive.

We therefore must reverse the denial of Gonzalez’s petition to remove the lifetime SORA registration requirement and remand for removal of the lifetime registration requirement.

Reversed and remanded.

CRONE, J., and BROWN, J., concur.

      . Ind.Code § 3 5-42-4-6.

      . Ind.Code § ll-8-8-5(a) (2006) includes the crime to which Gonzalez pled guilty, Class D felony child solicitation.

      . Ind.Code § 35 — 38—1—7.5(g) states:
      This subsection does not apply to a person who has two (2) or more unrelated convictions for an offense described in IC 11 — 8—8— 4.5 for which the person is required to register under IC 11-8-8. A person who is a sexually violent predator may petition the court to consider whether the person should no longer be considered a sexually violent predator. The person may file a petition under this subsection not earlier than ten (10) years after:
      (1) the sentencing court or juvenile court makes its determination under subsection (e); or
      (2) the person is released from incarceration or secure detention.
      A person may file a petition under this subsection not more than one (1) time per year. A court may dismiss a petition filed under this subsection or conduct a hearing to determine if the person should no longer be considered a sexually violent predator. If the court conducts a hearing, the court shall appoint two (2) psychologists or psychiatrists who have expertise in criminal behavioral disorders to evaluate the person and testify at the hearing. After conducting the hearing and considering the testimony of the two (2) psychologists or psychiatrists, the court shall determine whether the person should no longer be considered a sexually violent predator under subsection (a). If a court finds that the person should no longer be considered a sexually violent predator, the court shall send notice to the department of correction that the person is no longer considered a sexually violent predator.

      . In Flanders, we were able to remedy the ex post facto violation by striking as unconstitutional the first sentence of Ind.Code § 35-38-1 — 7.5(g). Flanders, 955 N.E.2d at 753. In order to remedy the ex post facto violation here, we would need to write new language into one of the SORA related statutes, which we are not permitted to do. See Citizens Action Coalition of Indiana, Inc. v. Public Service Commission, 425 N.E.2d 178, 183 (Ind.Ct.App.1981) (court may not frustrate expressed intent of Legislature by adding new language to a statute), reh'g denied.


author: RILEY, Judge.

text:
    Brent MYERS, Appellant-Defendant, v. Jarod COATS, Appellee-Plaintiff.
    No. 49A04-1104-PL-208.
    Court of Appeals of Indiana.
    March 29, 2012.

      Gregory F. Zoeller, Attorney General of Indiana Kathy Bradley, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.
    Kenneth J. Falk, ACLU of Indiana, Indianapolis, IN, Attorney for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant/Cross-Appellee, Brent Myers (Myers), appeals the trial court’s denial of his cross-motion for summary judgment in favor of Appellee-Plain-tiff/Cross-Appellant, Jarod Coats (Coats). Coats cross-appeals the trial court’s denial of his motion for partial summary judgment against Myers.

We affirm in part and reverse in part.

ISSUE

Myers raises three (3) issues on appeal; Coats raises one issue on cross-appeal. Evaluating the issues, we find one issue dispositive and restate as follows: Whether the trial court erred by concluding that genuine issues of material fact existed regarding Myers’ personal deprivation of Coats’ constitutional rights.

FACTS AND PROCEDURAL HISTORY

In 1998, Coats was charged with two Counts of battery, one Count of intimidation, and one Count of criminal confinement. No charge involved a child and Coats has never been convicted of a sex offense. In 1999, Coats pled guilty but mentally ill to all Counts and served his sentence at the Department of Correction (DOC). Upon his release in 2000, Coats was informed by representatives of the DOC that he was required to register as a sex offender and that failure to do so was a criminal offense.

Indiana law requires persons convicted of a sex or violent offense to report to and register with local law enforcement. Ind. Code § 11-8-8-14. Crimes constituting a sexual or violent offense include, for example, rape, child molesting, criminal confinement involving minors, murder, or voluntary manslaughter. See I.C. §§ 11 — 8—8— 4.5; -5. Sex offenders must fulfill a number of obligations, including providing personal information, registering annually, and keeping law enforcement officials apprised of any changes in work or residence. See I.C. 11-8-8-8; -11; -14. Sex offender registry information appears on an internet website (Registry). See I.C. § 36-2-13-5.5

Coats registered as a sex offender with the Grant County Sheriff’s Department under protest since he believed he was not required to register, yet was informed that there was no procedure to contest the registration. Coats’ Registry listing erroneously stated that Coats had been convicted of criminal confinement of a person under the age of eighteen. Coats tried a number of times over the years to contact the DOC, and in fact left messages with the DOC to correct the Registry listing. However, Coats was unsuccessful. Following his initial registration, Coats registered annually, including multiple times in 2008 because of changes in address or employment.

The DOC has been responsible for oversight and maintenance of the Registry since July 1, 2006. Myers is the Director of Registration and Victim Services at the DOC. As Director of Registration and Victim Services, Meyers oversees maintenance of the Registry and is responsible for formulating various practices and procedures regarding its administration.

In August 2008, Coats, by counsel, contested his sex offender registration. On September 19, 2008, a DOC staff attorney responded that a preliminary investigation did not produce a reason to remove Coats from the Registry. Coats’ attorney made additional attempts to remove Coats from the Registry but was unsuccessful.

On April 14, 2009, Coats filed a verified petition for mandate and injunctive and declaratory relief against the DOC in federal court. In May 2009, Coats was removed from the Registry and the federal court case was later dismissed.

On June 9, 2009, Coats filed a complaint for declaratory relief and damages in state court against Myers under 42 U.S.C. § 1983 (§ 1983), alleging that Myers had failed to provide Coats with a procedure to challenge his erroneous listing on the Registry and seeking damages. In 2008, Coats worked for a construction company with its job site at a university. After investigation, university officials requested that Coats be removed from the job site. Coats was removed from the job site in November 2008 and laid off. Additionally, Coats stated that he suffered from distress and embarrassment for having to register as a sex offender.

On June 2, 2010, Coats filed a motion for partial summary judgment. On August 17, 2010, Myers filed a cross-motion for summary judgment. On February 7, 2011, the trial court issued its Order denying the parties’ respective motions for summary judgment. The trial court concluded that Coats had a liberty interest in not being mistakenly labeled as a sex offender and that the process to challenge such erroneous listing was inadequate. The trial court also found that Coats had not produced sufficient evidence to show that Myers had deprived Coats of his liberty interest, but also found that there was a genuine issue of material fact as to whether Myers personally deprived Coats of a constitutional right.

On March 7, 2011, Myers sought interlocutory appeal. On March 29, 2011, the trial court certified its February 7, 2011 Order for interlocutory appeal. We accepted his appeal.

Myers now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

This case comes before this court as an interlocutory appeal from the denial of the parties’ respective cross-motions for summary judgment. Specifically, Myers appeals the denial of his cross-motion for summary judgment and Coats cross-appeals the denial of his partial motion for summary judgment as to Myers’ liability.

Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). This court reviews the trial court’s ruling on summary judgment, standing in the shoes of the trial court and applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind. Ct.App.2008), trans. denied. On appeal, this court must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607-08. All designated evidence is viewed in the light most favorable to the non-moving party when doing so. Id. at 608.

Here, the trial court entered findings of fact and conclusions of law in support of its judgment. However, the trial court’s findings on summary judgment are not binding on appeal. Campbell v. Spade, 617 N.E.2d 580, 582 (Ind.Ct.App.1993). Although an aid to appellate review, the trial court’s findings and conclusions “merely afford the appellant an opportunity to address the merits of the trial court’s rationale.” Id. This court bases its conclusion “upon the Ind. Trial Rule 56(C) materials submitted to the trial court.” Id. at 583. Where, as here, the court is faced with cross-motions for summary judgment, it must “consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law.” Great Lakes Transfer, LLC v. Porter Cnty. Highway Dept., 952 N.E.2d 235, 24C (Ind.Ct.App.2011).

II. Analysis

A. U.S.C. § 1988

Coats' § 1983 claim alleges that Myers violated his Fourteenth Amendment Due Process rights under the United States Constitution by failing to afford him a process to challenge his erroneous registration as a sex offender. Section 1983 creates no substantive right of its own, but acts only as a vehicle to afford litigants a civil remedy for deprivation of their federal rights. Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), reh’g denied, 510 U.S. 1215, 114 S.Ct. 1340, 127 L.Ed.2d 688 (1994). To prevail on a § 1983 claim, “the plaintiff must show that (1) the defendant deprived the plaintiff of a right secured by the Constitution and laws of the United States, and (2) the defendant acted under the color of state law.” J.H. Ex rel Higgin v. Johnson, 346 F.3d 788, 791 (7th Cir.2003). For § 1983 claims premised upon a procedural due process violation, we consider two factors: “first, there must be a deprivation of a constitutionally protected liberty or property interest; and second, a determination of what procedural safeguards are then required.” Ross v. Indiana State Bd. of Nursing, 790 N.E.2d 110, 120 (Ind.Ct.App. 2003).

B. Deprivation of a Liberty Interest

[6,7] The trial court’s Order found that Coats “had a liberty interest in not being mistaken!y labeled as a sex offender and he was therefore entitled to procedural due process to challenge his erroneous registry listing.” (Appellant’s App. p. 241). In support of its Order, the trial court cited the United States Supreme Court’s “stigma plus” test in Paul v. Davis, 424 U.S. 693, 701, 708, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), to determine that Coats had a liberty interest in not being mistakenly labeled as a sex offender. The stigma-plus test requires that a plaintiff show “(1) the utterance of a statement about him or her that is sufficiently derogatory to injury his or her reputation, that his capable of being proved false, and that he or she claims is false, and (2) a material state-imposed burden or state-imposed alteration of the plaintiffs status or rights.” Sadallah v. City of Utica, 383 F.3d 34, 38 (2nd Cir.2004).

Various federal district and circuit courts have recognized the stigma and change in legal status associated with classification as a sex offender. See Chambers v. Colo. Dept. of Corrections, 205 F.3d 1237, 1242 (10th Cir.2000). Our supreme court has also recognized that sex offender registration laws impose “significant affirmative obligations and a severe stigma on every person to whom [they apply].” Wallace v. State, 905 N.E.2d 371, 379 (Ind. 2009), reh’g denied. In Wallace, the supreme court noted “that through aggressive notification of their crimes, [sex offender registration legislation] exposes registrants to profound humiliation and community-wide ostracism.” Id. at 380.

Here, it is undisputed that Coats was mistakenly told to register as a sex offender and complied with all affirmative obligations imposed under the sex offender registration laws. Mistakenly labeling Coats as a sex offender constituted a derogatory false statement about him, with such statement disseminated publicly through the Registry. Further, Coats’ status under state law was altered by his compliance with the substantial disabilities imposed through sex offender registration and notification requirements. See Wallace, 905 N.E.2d at 379-80. Coats therefore had a liberty interest in not erroneously being labeled a sex offender. Accordingly, the trial court did not err in granting Coats’ motion for partial summary judgment and denying Myers’ cross-motion for summary judgment as to this issue.

C. Sufficiency of Process

Coats argues that no process was afforded to him to challenge his erroneous classification as a sex offender. Myers contends that even if a deprivation occurred adequate state law remedies existed and thus Coats was afforded sufficient process.

At a minimum, due process requires notice and an opportunity to be heard, with the hearing held at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Ordinarily, due process “requires some kind of hearing before the State deprives a person of liberty or property.” Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). Myers concedes that “there was no administrative process for Coats to challenge his listing on the [Registry,” but asserts that Coats was afforded sufficient process through state judicial action to correct his mistaken listing. (Appellant’s Br. p. 15).

“[W] here the State is truly unable to anticipate and prevent a random deprivation of a liberty interest, post[-]deprivation remedies might satisfy due process.” Zinermon, 494 U.S. at 127, 110 S.Ct. 975. Post-deprivation remedies include state tort law remedies. Id. at 128, 110 S.Ct. 975. Myers argues that since erroneously labeling an individual as a sex offender is contrary to Indiana law, such conduct was “unpredictable such that Coats was not entitled to any process prior to being registered.” (Appellant’s Br. p. 15). Thus, Myers contends that post-deprivation judicial remedies represent sufficient process.

The undisputed facts here establish that the DOC determines whether an incarcerated individual belongs on the Registry and also handles complaints about mistaken sex offender registrations. The DOC conducted its own internal review to assess the validity of such complaints and Myers’ discovery responses illustrate these review procedures:

Once a concern was received (either through a phone call to the [DOC], email or other form of communication), [DOC] staff and/or [DOC] legal counsel would review case information and court documentation to determine if registration was required. If registration was required, a determination was made for the length of the registration. If registration was not required, the individual’s record was removed from the registry.

(Appellant’s App. p. 121). Thus, the DOC determined whether Coats must register and also addressed whether such a decision was erroneous. Given the DOC’s control over determination of whether an incarcerated person registers and whether such a determination is in error, we find this to be analogous to an established state procedure, rather than a random and unauthorized act of a state official. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982).

Accordingly, we next consider what process would be required here using the three-step analysis set forth by the United States Supreme Court in Mathews:

First, the private interest that will be affected by the official action; second the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and, administrative burdens that the additional or substitute procedural requirement would entail.

Mathews, 424 U.S. at 335, 96 S.Ct. 893.

First, there can be no dispute that Coats has a substantial interest in not being labeled a sex offender. We have previously noted precedent describing the stigma and substantial burden imposed by sex offender registration statutes. See Wallace, 905 N.E.2d at 379. Second, the risk of an erroneous deprivation in light of the informal procedure employed by the DOC is significant. Myers testified that the DOC handles the initial registration for incarcerated persons. This necessarily includes the determination whether Coats had committed an offense requiring registration and if so, whether Coats was required to register for ten years or the rest of his life. Local law enforcement officials, in Coats’ situation, are only responsible for entering Coats’ personal information following his release from incarceration. Further, it is undisputed that Coats was informed that there was no way for him to challenge his mistaken classification. Myers testified that although the DOC received complaints from persons erroneously required to register as sex offenders, no written procedures were in place to systematically rectify erroneous listings. Myers also testified that no systematic files of complaining individuals were kept, despite receiving complaints as often as once a week. Myers could not answer how many times such adjustments to the Registry had occurred and further admitted that “[o]cca-sionally, the [DOC] even asked the requester to send us information if they have something that they believe supports their position.” (Appellant’s App. p. 101).

Third, a simple administrative hearing would have provided Coats with the opportunity to challenge the obvious error involved here and would not have been a significant fiscal and administrative burden. Despite Coats’ protests and the receipt of documentation establishing that Coats had not been convicted of a crime requiring sex offender registration, a federal lawsuit was required to prompt Coats’ removal from the Registry. Compared to the time, expense, and speculative nature of litigation, a limited, informal administrative procedure encompassing the presentation and verification of evidence of the type of error involved in this case would not have posed an undue burden. We therefore conclude that providing an opportunity for a hearing to contest Coats’ erroneous sex offender registration would have sufficed to provide Coats with sufficient process. Accordingly, the trial court did not err in concluding that Coats was not afforded due process.

D. Personal Deprivation by Myers

Section 1983 liability depends upon proof of a defendant’s personal or supervisory liability. Brown v. Montoya, 662 F.3d 1152, 1163 (10th Cir.2011). Personal liability requires proof of the defendant’s “personal involvement” in a constitutional violation. Id. A supervisor may be liable for creation of a policy that causes a plaintiff to be subjected to a constitutional deprivation. Id. at 1163— 164. In such a case, proof of supervisory liability requires that: “(1) the defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional deprivation.” Id. at 1164.

Myers analogizes his role to that of the defendant in Brown. Brown filed a § 1983 action against his probation officer and the New Mexico Secretary of Corrections based on his wrongful sex offender registration following Brown’s release from incarceration. Id. at 1159-60. Brown had earlier prevailed in an action to remove himself from New Mexico’s sex offender registry. Id. at 1159. In determining that Brown failed to assert how the Secretary of Corrections was personally involved, the circuit court noted that Brown had not alleged that the Secretary told “Brown to register or directed anyone else to make [Brown] register.” Id. at 1165. Finding that Brown did not assert the Secretary’s supervisory liability, the circuit court noted that Brown had failed to allege the first element of responsibility for promulgating a policy by not attaching the same to his complaint. Id. at 1166.

By evaluating Myers’ personal involvement with Coats’ plight and using the Brown test for supervisory liability, we find that Coats has not carried his burden to demonstrate that there is a genuine issue of material fact establishing that Myers personally deprived Coats of a liberty interest and failed to afford him sufficient process. There is no evidence of how Myers acted in response to Coats’ complaint and it is undisputed that Myers did not know Coats or his situation prior to this litigation. The designated evidence shows that Myers does not review inmate correspondence relating to grievances; that task is delegated to the DOC’s legal department or Myers’ subordinates. Thus, Coats has not shown facts creating a genuine issue that Myers was personally involved in Coats’ matter.

Next, despite Myers’ admission that he “formulates, establishes, interprets ... all policies and procedures related” thereto, it is undisputed that Myers was without the unilateral and final authority to promulgate policy. (Appellant’s App. p. 117). Although Coats argues that Myers “was the prime mover” and “because of his failure to create an appeal procedure — a power that was his — [Coats] was injured,” it is undisputed that only the DOC Commissioner has the final authority to promulgate any policies. (Appellee’s Br. p. 30). Moreover, Myers explained how policies were in practice formulated.

[MYERS]: I work with other folks in the [DOC], whether that would be a direct supervisor or specifically legal counsel. We draft up documents that we believe are consistent with [the] Indiana Code. And then we ask myself and the other individuals in the division, we ask those two different entities, supervisors and legal counsel, whether or not these are appropriate and comply with our obligations.
[COATS’ COUNSEL]: And you’ve done that before in the sex offender registration area?
[MYERS]: Yes.
[COATS’ COUNSEL]: And you initiate that and take it to your supervisor and to legal counsel?
[MYERS]: In most situations. In other situations, they may bring it if they’re aware of an issue that we need to address, they make[,] bring that issue to us.

(Appellant’s App. p. 96). Thus, whatever policy Myers’ contributed to or produced was subject to input from supervisors and the DOC lega] counsel. This undercuts Coats’ argument that Myers was a driving force behind the failure to provide a policy. Thus, Coats has not shown that Myers’ “promulgated, created, implemented or possessed responsibility for the continued operation of a policy” that “caused the complained of constitutional harm.” Brown, 662 F.3d at 1165. Accordingly, we find that summary judgment for Myers should have been granted on this issue.

CONCLUSION

Based on the foregoing, we conclude that the trial court erred by concluding that genuine issues of material fact existed regarding Myers’ personal deprivation of Coats’ constitutional rights. We enter summary judgment in favor of Myers.

Affirmed in part and reversed in part.

KIRSCH, J. and ROBB, C.J., concur.

      . We held an oral argument in this case on February 21, 2012, at Wabash College in Crawfordsville, Indiana. We thank Wabash College for its hospitality in hosting the argument and counsel for their excellent advocacy.

      . Myers also argued that Coats’ claim alleges a deprivation of process rather than deprivation of a liberty interest. We agree with Coats that this argument misses the point. As noted above, Myers admits that Coats’ suffered a deprivation of liberty interest by his erroneous classification as a sex offender. Once the deprivation is found to exist, the next inquiry is simply what process is due. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).

      . We note that if an individual is actually convicted of a sex offense, the criminal procedure inherent in the conviction of a sex offense constitutes sufficient process. Conn. Dept. of Pub. Safety v. Doe, 538 U.S. 1, 7, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003). Here, it is undisputed that Coats was never convicted of a sex offense requiring registration under Indiana law.

      .In May 2011, the DOC added an administrative appeal to allow for challenges to errors on the Registry. See Schepers v. Commissioner, Ind. Dept. of Correction, No. 1:09-cv-01324, 2011 WL 4402538 at *3, *6-8 (S.D.Ind. Sept. 22,2011).

      . Having found this issue dispositive, we need not address the parties' arguments concerning whether Coats’ claim is barred by the statute of limitations or whether Myers is entitled to qualified immunity.


author: FRIEDLANDER, Judge.

text:
    Mary E. SANTELLI, as Administrator of the Estate of James F. Santelli, Appellant-Plaintiff, v. Abu M. RAHMATULLAH, individually, and d/b/a Super 8 Motel, Appellee-Defendant.
    No. 49A04-1011-CT-704.
    Court of Appeals of Indiana.
    March 29, 2012.

      James R. Fisher, Debra H. Miller, Miller & Fisher, LLC, Indianapolis, IN, Roger L. Pardieck, Karen M. Davis, Susan E. Boatright, The Pardieck Law Firm, Seymour, IN, Attorneys for Appellant.
    Danford R. Due, Scott E. Andres, Due Doyle Fanning, LLP, Indianapolis, IN, Attorneys for Appellee.
    William E. Winingham, John G. Shubat, Wilson Kehoe & Winingham LLC, Indianapolis, IN, Attorneys for Amicus, Indiana Trial Lawyers Association.
    Julia B. Gelinas, Lucy R. Dollens, Frost Brown Todd LLC, Indianapolis, IN, Donald B. Kite, Sr., Gonzalez, Saggio & Harlan LLP, Indianapolis, IN, Attorneys for Ami-cus, Defense Trial Counsel of Indiana.
   OPINION

FRIEDLANDER, Judge.

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:

1. Can we address on appeal the merits of a motion to correct error that was deemed denied, but then belatedly granted?
2. Does Indiana’s Comparative Fault Act (the Act) abrogate the common law “very duty” doctrine?
3. Did the trial court err by allowing the jury to allocate fault to Santelli?

4. Did the trial court err by excluding evidence of a prior shootout with police at Rahmatullah’s hotel?

We reverse and remand.

On October 16 or 17, 2005, Santelli was murdered in the course of a robbery at a motel owned by Rahmatullah. Santelli was a paying guest of the motel, living there while working on a construction project. Joseph Pryor, who had previously been employed at the motel as a general maintenance man, obtained a master key-card to the motel during his brief employment there and kept the keycard after he walked off the job. Rahmatullah’s manager at the motel did not perform a criminal background check on Pryor before hiring him. Pryor had an outstanding warrant for his arrest issued on September 21, 2005, for a probation violation. Somehow, Pryor gained entry to Santelli’s room and murdered him. Pryor confessed to robbing and killing Santelli and was sentenced to 85 years in prison for those crimes.

On April 5, 2007, the Estate filed a complaint against Rahmatullah arguing that he had breached his duty of care to Santelli by hiring Pryor, giving Pryor a master keycard to the motel without running a criminal history check, and failing to provide proper security in the motel. Rahmatullah asserted a non-party defense, naming Pryor as a non-party defendant.

At the conclusion of the jury trial, the jury calculated the Estate’s damages to be $2,070,000.00. The jury allocated fault among the parties as follows: 1) One percent to Santelli; 2) two percent to Rahma-tullah; and 8) ninety-seven percent to Pryor. Based upon the allocation of fault percentages, the jury entered a verdict in favor of the Estate in the amount of $41,400.00, or 2 percent of the $2,070,000.00 damages sustained by the beneficiary of the Estate.

The Estate filed a motion to correct error and request for a new trial arguing that the trial court erred by instructing the jury to allocate fault among Santelli, Rahmatullah, and Pryor, without also instructing the jury on the very duty doctrine. The hearing on the Estate’s motion was held on September 27, 2010. At the conclusion of the hearing, the trial court asked the parties to submit proposed findings of fact and conclusions thereon and scheduled an October 25, 2010 deadline for filing them. That filing deadline was within thirty days of the hearing date, but left only two days for the trial court to issue its ruling on the motion within the time provided for by rule. See Ind. Trial Rule 53.3. At the conclusion of the hearing the following exchange took place:

THE COURT: If you would ... really to be honest with you, I think that a simple order like Mr. Due prepared probably is going -to require findings of facts and conclusion because, regardless of the outcome, it’s going to be appealed. And if I don’t send findings of facts and conclusions, then the Court of Appeals will say that in the opinion that there aren’t any and it’s much more ... it’s much easier for them to deal with it if there are findings of facts and conclusions.
MR. FISHER: May we submit some post-hearing, Your Honor?
THE COURT: I’ll give you plenty of time to do it.
MR. DUE: In response to that, Your Honor, because of the way these issues have been raised and in your rulings throughout, I think that there’s plenty of information in the record.
THE COURT: For me to comb through the record you mean?
MR. DUE: Well, no, no. No, no, no. I don’t think that the Court of Appeals would require ...
THE COURT: Oh.
MR. DUE: ... findings or conclusions in a case like this.
THE COURT: ... So this is September the 27th. A couple of weeks do you think? Mr. Due, I know you have a very busy schedule.
MR. DUE: Yeah, that would be alright.
THE COURT: Alright. How about ... let’s make it the 20th. Yeah. Let’s make it the 20th of October because I have another jury starting tomorrow. I won’t have time to look at it this week. I mean, even if I got them I wouldn’t be able to do much with it. So that gives you plenty of time and give[s] me some time to review your findings of facts and conclusions once I get them. The 20th is a Wednesday. Is that not a good date for you Mr. Pardieck?
MR. PARDIECK: Your Honor, could that be moved out to the following Monday. We have a jury trial starting on the 17th of October.
THE COURT: Okay. The 25th?
MR. PARDIECK: The 25th?
THE COURT: The 25th of October?
MR. PARDIECK: Yes, the 25th. That would be appreciated.
THE COURT: That’s fine with me. Alright. Then the findings of facts and conclusions are due on the 25th and then the order will be out just as soon as I can get to it after that.

Motion to Correct Error Hearing Transcript at 24-26. The parties submitted proposed findings of fact and conclusions thereon, and the trial court issued its order on November 5, 2010. In its order, the trial court granted the Estate’s motion in part, setting aside the jury verdict with respect to the allocation of fault. Specifically, the trial court found that the jury’s allocation of non-party fault at 97%, in spite of Rahmatullah’s negligent conduct, effectively eliminated Rahmatullah’s duty to protect customers, and thus, was against the weight of the evidence. The motion to correct error was denied in all other respects.

The Estate filed its notice of appeal from the trial court’s order on November 19, 2010, and Rahmatullah filed his notice of appeal on December 6, 2010. The Estate asserted in its notice of appeal that it was appealing from the jury verdict and from the trial court’s deemed denial of the Estate’s motion to correct error, and from the belated findings and ruling issued by the trial court on the motion to correct error on November 5, 2010. Rahmatullah asserted in his notice of appeal that he was appealing the trial court’s belated order granting the Estate’s motion to correct error in part, as it was untimely. Rahma-tullah later filed a motion to consolidate both appeals, which was granted by this court.

The Indiana Trial Lawyers’ Association and Defense Trial Counsel of Indiana were granted leave to file amicus briefs. We now consider this consolidated appeal and the motions filed in this matter.

1.

Rahmatullah argues that the Estate’s motion to correct error was deemed denied when the trial court failed to rule upon the motion within thirty days after the hearing on the motion. Rahmatullah contends that because the motion was deemed denied, the trial court’s subsequent order ruling on the motion to correct error is void. By timely appealing that belated order and enforcing the deemed denial, the argument follows, the belated order granting the motion is voidable. Rahmatullah seeks to enforce the deemed denial.

T.R. 53.3 provides in pertinent part as follows:

(A) Time limitation for ruling on motion to correct error. In the event a court fails for forty-five (45) days to set a Motion to Correct Error for hearing, or fails to rule on a Motion to Correct Error within thirty (30) days after it was heard or forty-five (45) days after it was filed, if no hearing is required, the pending Motion to Correct Error shall be deemed denied. Any appeal shall be initiated by filing the notice of appeal under Appellate Rule 9(A) within thirty (30) days after the Motion to Correct Error is deemed denied.
(B) Exceptions. The time limitation for ruling on a motion to correct error established under Section (A) of this rule shall not apply where:
(2) The parties who have appeared or their counsel stipulate or agree on record that the time limitation for ruling set forth under Section (A) shall not apply; or
(3) The time limitation for ruling has been extended by Section (D) of this rule.
}¡s ⅜
(D) Extension of time for ruling. The Judge before whom a Motion to Correct Error is pending may extend the time limitation for ruling for a period of no more than thirty (30) days by filing an entry in the cause advising all parties of the extension. Such entry must be in writing, must be noted in the Chronological Case Summary before the expiration of the initial time period for ruling set forth under Section (A), and must be served on all parties. Additional extension of time may be granted only upon application to the Supreme Court as set forth in Trial Rule 53.1(D).

T.R. 53.3(A) explicitly states that if the trial court fails to rule within thirty days of the hearing on the motion to correct error, the motion is deemed denied. Case law interpreting T.R. 53.3(A), however, changed the way courts on review treat a belated grant of a motion to correct error that by operation of the rule was deemed denied. A trio of cases that are relevant here begin with the Supreme Court’s opinion in Cavinder Elevators, Inc. v. Hall, 726 N.E.2d 285 (Ind.2000), then its opinion in Garrison v. Metcalf, 849 N.E.2d 1114 (Ind. 2006), and conclude with its opinion in HomEq Servicing Corp. v. Baker, 883 N.E.2d 95 (Ind.2008). These cases establish the framework for the determination of whether we may review the merits of the motion to correct error once it is belatedly granted.

We have previously stated that “when presented with the question of the validity of a belated grant of a motion to correct error ... [o]ur inquiry involves ... two steps.” Wurster Const. Co., Inc. v. Essex Ins. Co., 918 N.E.2d 666, 672 (Ind.Ct.App. 2009). First, we determine whether the belated grant is void. Cavinder Elevators, Inc. v. Hall, 726 N.E.2d 285. If the belated grant is void, then we address whether the issues raised by the movant in the motion to correct error can again be raised on cross-appeal. HomEq Servicing Corp. v. Baker, 883 N.E.2d 95. Prior to 2000, we held that once a motion to correct error was deemed denied the trial court’s power to rule on the motion was extinguished and its later ruling was a nullity. Moran v. Cook, 644 N.E.2d 179 (Ind.Ct.App.1994).

In Cavinder Elevators, Inc. v. Hall, 726 N.E.2d 285, the plaintiff filed a motion to correct error, a hearing was held, and the motion to correct error was deemed denied. The plaintiff filed a notice of appeal challenging the deemed denial of the motion to correct error. The trial court belatedly granted the motion to correct error. The defendant filed a notice of appeal challenging the trial court’s belated grant, and the plaintiff cross-appealed on the merits of the motion.

The Supreme Court held that if the proponent of the motion appeals and the trial court then belatedly grants the motion to correct error, the opponent of the motion can (1) agree to the belated ruling, or (2) appeal the belated grant. The proponent of the motion to correct error in Cavinder could assert the merits of the motion to correct error as a cross-appeal issue because he had timely appealed the deemed denial.

Footnote 4 of the opinion stated that “if the trial court belatedly grants a motion to correct error before the party filing the motion to correct error initiates an appeal but during the time period within which such party is entitled to appeal from the deemed denial, the party may assert as cross-error the issues presented in its ‘deemed denied’ motion to correct error.” Cavinder Elevators, Inc. v. Hall, 726 N.E.2d at 289 n. 4.

In the next case, Garrison v. Metcalf, the defendant filed a motion to correct error and a hearing was held. The motion was deemed denied, but no appeal was initiated prior to the trial court’s belated grant of the motion within the thirty-day period for appealing the deemed denial. The plaintiff filed a notice of appeal attempting to enforce the deemed denial, but arguing in the alternative that the belated grant was wrongly granted on the merits. The Supreme Court held that the defendant could not argue the merits of the motion to correct error because the defendant did not raise the issue on cross-appeal when filing its brief in the appeal initiated by the plaintiff.

In HomEq Servicing Corp. v. Baker, the defendant filed a motion to correct error and a hearing was held on that motion. The motion was deemed denied. The trial court belatedly granted the motion within the thirty-day period for an appeal of the deemed denial. The plaintiff filed a notice of appeal seeking to enforce the deemed denial. The defendant cross-appealed on the merits of the motion to correct error. The Supreme Court allowed the consideration of the cross-appeal on the merits of the motion to correct error, applying the footnote 4 exception from Cavinder.

Here, we have the timely initiation of two appeals, one by each party, to enforce the deemed denial, and for consideration of the merits of the deemed denied motion to correct error and/or validation of the order belatedly granting the motion to correct error in part. With respect to Rahmatullah’s attempt to seek to enforce the deemed denial, a good argument could be made that the parties acquiesced to an extension of time in which the trial court could rule on the motion after receiving proposed findings of fact and conclusions from the parties. We believe that is precisely what happened here. At the end of the discussion between the parties and the trial court regarding the selection of the deadline for the submission of the proposed findings of fact and conclusions of law, the trial court told the parties that an order would follow as soon thereafter as possible. Neither party objected to the trial court’s proposal, orally or in writing, and reasonable people could interpret the parties’ silence at the hearing as a tacit agreement on the record that the time limitations of T.R. 53.3 would not apply.

Even though we believe that the trial court’s order could be validated and enforced as discussed above, we will address the merits of the belatedly granted motion to correct error, presuming that it was deemed denied by operation of the rule, because the order was timely appealed. The footnote 4 exception of Cavinder dictates that result here. The trial court belatedly granted the Estate’s motion to correct error before the Estate timely initiated an appeal, but during the time period within which the Estate was entitled to appeal'from the deemed denial.

2.

The Estate argues that Rahma-tullah, as owner of the motel, owed a duty to Santelli to exercise reasonable care to protect him, a business invitee, from criminal assault. In order to prove negligence, a plaintiff must establish (1) the existence of a duty owed by the defendant to the plaintiff, (2) the defendant’s failure to conform his conduct to the requisite standard of care required by the relationship, and (3) injury to the plaintiff proximately resulting from that failure. Rubin v. Johnson, 550 N.E.2d 324 (Ind.Ct.App.1990). Whether a duty exists is a question of law. Id. Further, a duty may derive from common-law principles of negligence or from the violation of a statute. Id.

“Landowners have a duty to take reasonable precautions to protect their invitees from foreseeable criminal attacks.” Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1052 (Ind.2003). The Supreme Court and this court have applied the rule set forth in Restatement (Second) of Torts (1965) § 344, which provides as follows:

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) Discover that such acts are being done or are likely to be done, or
(b) Give a warning adequate to enable the visitors to avoid the harm, or otherwise protect them against it.

Comment f to this section further provides:

Duty to police premises. Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.

See e.g., Muex v. Hindel Bowling Lanes, Inc., 596 N.E.2d 263 (Ind.1992); Bearman v. Univ. of Notre Dame, 453 N.E.2d 1196 (Ind.Ct.App.1983).

In Delta Tau Delta, Beta Alpha Chapter v. Johnson, 712 N.E.2d 968, 973 (Ind.1999), our Supreme Court examined several tests in reaching its determination that the “totality of the circumstances” test should be used to decide whether a criminal assault on the premises was foreseeable. See also, Vernon v. The Kroger Co., 712 N.E.2d 976 (Ind.1999) (using totality of the circumstances test to determine if owner of store owed duty to customer to take reasonable care to protect against a third-party criminal attack in the store parking lot); L.W. v. Western Golf Assoc., 712 N.E.2d 983 (Ind.1999) (using totality of circumstances test to determine if owner of student housing owed duty to protect student against criminal acts of third party). In later cases, our Supreme Court has continued to follow this test and reiterated that “when the landowner is in a position to take reasonable precautions to protect his guest from a foreseeable criminal act, courts should not hesitate to hold that a duty exists.” Paragon Family Rest. v. Bartolini, 799 N.E.2d at 1053; The Kroger Co. v. Plonski, 930 N.E.2d 1 (Ind.2010) (store owner owed duty to protect customer from criminal acts of all third parties, not just other patrons or guests, but issue of fact whether criminal activity was foreseeable).

The Estate argues that the trial court erred by denying its motion for partial summary judgment, tendered instruction on the very duty doctrine, arid motion to correct error, each of which advanced the argument that the Act did not abrogate the common-law very duty doctrine. Rah-matullah, on the other hand, argues to the contrary, and thus, that the trial court did not err when instructing the jury. Amicus briefs have been filed in support of both sides. 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-

Indiana courts previously have applied the very duty doctrine as the law in Indiana. For example, in Rubin v. Johnson, 550 N.E.2d 324 (Ind.Ct.App.1990), a panel of this court cited an opinion from the Florida Court of Appeals, K-Mart Enters. v. Keller, 439 So.2d 283 (Fla.App.1983), to support the decision reached by use of the doctrine. In Rubin, the owners of a pawn shop, the named defendants in the case, sought to avoid liability for the death of Johnson, an individual shot to death by a patron to whom they had sold a firearm. Although the customer had previously exhibited unusual behavior and purchased unusual items at the pawn shop, and had stated an unusual and inappropriate use of the firearm, the owners of the pawn shop sold the firearm to him nonetheless. The owners argued that the patron’s firing of the gun was an intervening criminal act and the proximate cause of Johnson’s death, thus relieving them of liability. We applied the doctrine and found that the criminal use of the firearm sold to one of unsound mind was the “very risk” sought to be avoided by the statutory duty not to sell a handgun to a person believed to be mentally incompetent. Rubin v. Johnson, 550 N.E.2d at 338. This court held that the criminal use of the firearm was foreseeable, and thus could not bar recovery from the seller under the intervening act doctrine.

In Sauders v. The Cnty. of Steuben, 693 N.E.2d 16 (Ind.1998), the estate of a jail inmate brought a wrongful death action under the Indiana Tort Claims Act against the county and its employees. The inmate committed suicide at the jail after his arrest. In general, under the Indiana Tort Claims Act, both contributory negligence and incurred risk bar a plaintiffs claim for recovery against government actors. Our Supreme Court, acknowledging a duty set forth in Restatement (Second) of Torts § 314A, emt. d (1965) (duty to protect against unreasonable risk of harm, including self-inflicted harm), held that the act of suicide could not constitute contributory negligence or incurred risk in a custodial suicide case, and that the trial court’s instructions to the jury on those doctrines was reversible error. Application of the doctrines in that case would eliminate the duty to protect an inmate from harm. “A duty to prevent someone from acting in a particular way logically cannot be defeated by the very action sought to be avoided.” Sauders v. The Cnty. of Steuben, 693 N.E.2d at 19 (quoting Myers v. Cnty. of Lake, Ind., 30 F.3d 847, 853 (7th Cir. 1994)).

[7,8] “It is well settled that the legislature does not intend by a statute to make any change in the common law beyond what it declares either in express terms or by unmistakable implication.” Indianapolis Power & Light Co. v. Brad Snodgrass, Inc., 578 N.E.2d 669, 673 (Ind.1991) (citing N. Ind. Pub. Serv. Co. v. Citizens Action Coal, 548 N.E.2d 153 (Ind.1989)). Because comparative fault statutes are in derogation of existing common law, the Act must be strictly construed. Id.

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 Act “governs any action based on fault that is brought to recover damages for injury or death to a person or harm to property” with certain exceptions not applicable here. I.C. § 34-51-2-1.

Under the Act, proportional liability is determined by the fact-finder allocating a percentage of “fault” to the claimant, the defendant(s), and any “nonparty.” In assessing percentage of fault, the jury shall consider the fault of all persons who caused or contributed to cause the alleged injury, death, or damage to property.... If the claimant’s fault is fifty percent or less, the fact-finder determines a verdict by multiplying the percentage of fault of each defendant by the total amount of the claimant’s damages. “Fault” is specifically defined for the purposes of the Act to include: any act or omission that is negligent, willful, wanton, reckless, or intentional toward the person or property of others.

Kocher v. Getz, 824 N.E.2d 671, 673 (Ind. 2005) (internal citations omitted).

Further, the Act allows a defendant to assert a nonparty defense. I.C. § 34-51-2-14 (West Westlaw current through 2011 1st Reg. Sess.). The Act also provides a scheme for allocating liability among persons whose negligence contributed to an injury. Bulldog Battery Corp. v. Pica Invs., Inc., 736 N.E.2d 333 (Ind.Ct.App.2000). While the primary objective of the Act is to eliminate the harshness of the application of contributory negligence, which precluded recovery for a plaintiff who was only slightly negligent, the Act provides for the allocation of fault among the plaintiff, defendant, and any other properly named non-party defendant. Id. A nonparty is defined by statute as “a person who caused or contributed to cause the alleged injury, death, or damage to property but who has not been joined in the action as a defendant.” Ind.Code Ann. § 34-6-2-88 (West, Westlaw current through 2011 1st Reg. Sess.).

Clearly, the Act allows for recovery from criminal defendants and our Supreme Court has approved the allocation of fault to criminal defendants. I.C. § 34-51-2-10 (West, Westlaw current through 2011 1st Reg. Sess.); Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048. This does not, however, support the inference that the very duty doctrine has been abrogated by the Act, and we conclude that in fact, it has not been abrogated by the Act. In the new trial on the issue of the allocation of fault, the trial court should instruct the jury on the very duty doctrine.

Both our Supreme Court and this court have previously relied on the Restatement (Second) of Torts in resolving premises liability questions. See Burrell v. Meads, 569 N.E.2d 637 (Ind.1991) (incorporating Restatement (Second) of Torts § 332 in adopting the “invitation test” for use in determining who qualifies as an invitee in premises liability actions); see also Frye v. Rumbletown Free Methodist Church, 657 N.E.2d 745 (Ind.Ct.App.1995) (adopting Restatement (Second) of Torts § 330 in determining that Indiana recognizes the privilege to enter another’s land implied by custom). 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.

The Commentary and Illustrations following the language of Section 14 are worth reproducing here, in pertinent part.

Comment:
a. Scope. The rule in this Section applies only when a person is negligent because of the failure to take reasonable precautions to protect against the specific risk created by an intentional tortfea-sor. Negligence (or strict liability) is determined in accordance with governing rules about tortious conduct, but this Section only applies if the risk that makes the tortfeasor negligent or strictly liable is the failure to take precautions against an intentional tort. When a person’s unrelated tortious conduct and an intentional tortfeasor’s acts concur to cause harm to another, the rules of joint and several liability provided in the applicable Track (A-E) govern. For reasons explained in Comment b, this Section is limited to instances in which the person is liable because of the risk of an intentional tort and does not extend to duties to protect against another’s negligence. This Section does not determine when a party who fails to protect against the risk of an intentional tort is liable for failing to do so. Rather, the rule in this Section applies only when the governing law provides for such liability.
Illustration:
1. A is a guest at a hotel operated by B. B neglects to provide adequate door locks on A’s room, as a result of which C, an intruder, gains access to A’s room, assaults A, and steals A’s property. B is liable for the shares of comparative responsibility assigned both to B and to C, because the risk that made B’s conduct negligent was specifically the risk that someone would assault A and steal A’s property. C is jointly and severally liable for all of A’s damages. See § 12 (intentional tortfeasors). B’s right to contribution from C is governed by § 23, Comment e. C’s right to contribution from B is governed by § 23 and Comment l.
The rule stated in this Section includes .tortious acts of commission as well as omission. Thus, if in Illustration 1, B had provided adequate door locks, but negligently repaired the lock on A’s room, thereby enabling C to gain access to A’s room, B would also be liable for C’s share of comparative responsibility.
b. Rationale. The modification of joint and several liability and the application of comparative responsibility to intentional tortfeasors create a difficult problem. When a person is injured by an intentional tort and another person negligently failed to protect against the risk of an intentional tort, the great culpability of the intentional tortfeasor may lead a factfinder to assign the bulk of responsibility for the harm to the intentional tortfeasor, who often will be insolvent. This would leave the person who negligently failed to protect the plaintiff with little liability and the injured plaintiff with little or no compensation for the harm. Yet when the risk of an intentional tort is the specific risk that required the negligent tortfeasor to protect the injured person, that result significantly diminishes the purpose for requiring a person to take precautions against this risk.
A number of courts therefore have concluded that persons who negligently fail to protect against the specific risk of an intentional tort should bear the risk that the intentional tortfeasor is insolvent. The rule stated in this Section similarly makes such persons liable for the intentional tortfeasor’s share of comparative responsibility. The negligent person may assert a contribution claim against the intentional tortfeasor, as provided in § 23, Comment e.
The method that most courts have employed to impose the risk of insolvency of an intentional tortfeasor on a person who negligently fails to protect the plaintiff is to refuse to permit assignment of a share of comparative responsibility to the intentional tortfeasor in a suit against Ihe negligent party. While this method accomplishes the same goal, it is a less desirable means than the rule provided in this Section, which makes the negligent party liable for both that party’s share as well as the intentional tortfeasor’s share of comparative responsibility. Including intentional tort-feasors in the assignment of comparative responsibility provides a system for resolving all claims in a single proceeding, including any contribution or indemnity claims that may exist among negligent, strictly liable, and intentional tortfea-sors. See § 1, Comment c. Including intentional tortfeasors also permits appropriate crediting of the judgment in the case of partial settlements. See § 16. In addition, coupling a rule permitting assignment of comparative responsibility to intentional tortfeasors with the rule provided in this Section avoids the unfairness of holding a party whose negligence is wholly unrelated to the intentional tortfeasor liable for the share of comparative responsibility assigned to the intentional tortfeasor. See Illustration 2.

Restatement (Third) of Torts (2000) § 14.

In the present case, Santelli’s injury, i.e., his death, arose from both the intentional criminal act of Pryor, and the negligent actions of Rahmatullah. Of the states that have adopted comparative fault by statute, a majority of those states did not allow fault to be allocated to an intentional wrongdoer, either by statute or judicial interpretation. Fox, Can Apples be Compared to Oranges ? A Policy Based Approach For Deciding Whether Intentional Torts Should Be Included In Comparative Fault Analysis, 43 VaL.U.L.Rev. 261, 274, and n77 (2008). Some states, including Indiana, allow for the allocation of fault to an intentional tortfeasor. Id. at 274-75 and nn78, 79. A few states allow for the allocation of fault to a non-party defendant. Brown and Morgan, Consideration of Intentional Torts in Fault Allocation: Disarming the Duty to Protect Against Intentional Conduct, 2 Wyoming L.Rev. 483, 498 and nn80, 82 (2002). Of the states that allow for allocation of fault to a non-party, six states allow for the allocation of fault to a criminal defendant in a duty-to-protect context and hold the negligent party who breached his duty to protect severally liable. Id.

Public policy considerations support our decision today to adopt the Restatement (Third) of Torts ■§ 14. “It is a well-established principle that damages are awarded to fairly and adequately compensate an injured party” for his or her loss. Bader v. Johnson, 732 N.E.2d 1212, 1220 (Ind.2000). If the allocation of fault to a criminal defendant reduces the liability of the negligent defendant whose action or inaction allowed the harm to occur, as it did here, the injured party will not be adequately compensated. In addition, the criminal defendant who has been identified and convicted for his intentional act likely will be both judgment proof and without insurance coverage from which the injured person could be compensated. Further, the negligent business owner can insure against liability arising from inadequate security. Combining the allocation of fault of the criminal defendant with the negligent defendant imposes liability where there is insurability. Holding the negligent proprietor liable as provided under § 14 also serves as a deterrent to breaching one’s very duty.

“When a trial court considers and grants a motion to correct error, even if done belatedly, we perceive that such a decision will typically be correct on the merits and will result in expeditious further proceedings, without an intervening appeal.” Cavinder Elevators, Inc. v. Hall, 726 N.E.2d at 288. Such was the case here. 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.

We recognize that our Supreme Court has held that “the Act abrogates the old rule of joint and several liability in suits to which the Act applies.” Ind. Dept. of Ins. v. Everhart, 960 N.E.2d 129, 138 (Ind.2012) (citing Huber v. Henley, 656 F.Supp. 508 (S.D.Ind.1987)); but see, Control Techniques, Inc. v. Johnson, 762 N.E.2d 104 (Ind.2002) (Dickson, J., dissenting). The joint and several liability component of § 14, however, is different. Multiple defendants are joint tortfeasors if their independent negligent conduct proximately caused an indivisible harm. Palmer v. Comprehensive Neurologic Servs., P.C. 864 N.E.2d 1093 (Ind.Ct.App.2007). At common law, a plaintiff could sue any of the joint tortfeasors to recover the total amount for the entire harm. Ind. Dept. of Ins. v. Everhart, 960 N.E.2d 129. 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.

3.

The Estate argues that the trial court erred by allowing the jury to allocate fault to Santelli. The Estate contends that the evidence of how Pryor gained access to Santelli’s room was insufficient to support the 1% allocation of fault to him. The Estate asserts that the jury must have resorted to speculation in coming to that determination. We decline to reach this issue, however, as the Estate has succeeded in obtaining a new trial on the issue of the allocation of fault.

4.

[17] The Estate has raised the issue of the admissibility of the evidence of a police shootout that had occurred at Rahmatul-lah’s motel six months prior to Santelli’s murder and claims that the trial court abused its discretion by excluding the evidence. We address the issue because of the likelihood that it will arise during the new trial on the allocation of fault. Should the Estate seek to admit such evidence of prior criminal activity at Rahmatullah’s motel in the new trial, such evidence would be relevant to the issue of the foreseeability of criminal conduct occurring on those premises. See Schlotman v. Taza Cafe, 868 N.E.2d 518 (Ind.Ct.App.2007) (look to prior similar incidents to determine if criminal act was foreseeable).

Judgment reversed and remanded.

DARDEN, J., and VAIDIK, J., concur.

      . Ind.Code Ann. § 34-51-2-1 et seq. (West, Westlaw current through 2011 1st Reg. Sess.).

      . Oral argument was held on February 9, 2012 in the Indiana Court of Appeals courtroom in Indianapolis, Indiana. We commend counsel for the quality of their written and oral advocacy.

      . In a separate order, we deny Rahmatullah's motion to strike the Estate’s cross-cross-appeal reply brief.

      . These tests include (1) the specific harm test, whereby the owner owes no duty unless he knew or should have known that the specific harm was occurring or was about to occur; (2) the prior similar incidents test, whereby the owner may owe a duty of reasonable care if there is evidence of prior similar incidents of crime on or near the owner’s property such 1 hat the crime in question was foreseeable; (3) the balancing test, whereby the degree of foreseeability of harm is balanced against the burden of the duty imposed; and (4). the totality of the circumstances test, whereby the court considers all of the circumstances surrounding an event, including the nature, condition, and location of the land, as well as prior similar incidents to determine whether a criminal act was foreseeable.