Gyuriak v. Millice

I respectfully dissent. In affirming the trial court’s grant of Millice’s Motion for Summary Judgment, the majority relies on a case decided by another panel of this court, Mark v. Moser, 746 N.E.2d 410 *397(Ind.Ct.App.2001). I believe the decision in Mark was incorrect because incurred risk in Indiana can no longer be used as a complete bar to recovery, but is rather only part of the determination of comparative fault.

I.Indiana Comparative Fault Act

Indiana adopted the Comparative Fault Act (the “Act”), in 1985, replacing common law contributory negligence. Ind.Code §§ 34-51-2-1 to 19. Pursuant…