Plaintiff argues that release was limited to the risks that were inherent in climbing walls. Inherent is a limiting term and does not expand the scope of the risks a release is written to include.

In addition, incorrect name on the release gave plaintiff an additional argument. The LLC registered by the Indiana Secretary of State was named differently than the named party to be protected by the release.

Luck saved the defendant in this case.

Wiemer v. Hoosier Heights Indoor Climbing Facility LLC, 2017 U.S. Dist. LEXIS 149663

State: Indiana: United States District Court for the Southern District of Indiana, Indianapolis Division

Plaintiff: Alexis Wiemer

Defendant: Hoosier Heights Indoor Climbing Facility LLC,

Plaintiff Claims: Negligent Hiring and Instruction

Defendant Defenses: Release

Holding: For the Defendant

Year: 2017

Summary

Release was written broadly enough it covered negligence claims outside the normal injuries or claims from using a climbing wall. On top of that the mistakes in the release were covered by the letterhead.

Injury occurred because belayer did not know how to use the braking device.

A lot of things could have gone wrong because the climbing wall was not paying attention, but got lucky.

Facts

The plaintiff was a beginner in climbing and using climbing walls. Before climbing he signed a release and attended a facility orientation which covered training “on how to boulder, belay, and top rope climb.” The training received by the plaintiff was taught by an employee with little experience and mostly went over the defendant’s instructional books on rock climbing.

On the day of the accident, the plaintiff went to climb with a co-worker. While climbing the co-worker failed to use the belay device properly.

Incident reports indicate that Wiemer fell approximately thirty-five feet to the ground in a sitting position due to Magnus releasing a gate lever while he was belaying for Wiemer, which caused Wiemer to accelerate to the floor very quickly. As a result of the fall, he sustained severe and permanent injuries to his back, as well as impaired bladder and bowel control. Wiemer filed this action alleging Hoosier Heights was negligent in its operations. [emphasize added]

The plaintiff sued for his injuries.

Analysis: making sense of the law based on these facts.

The plaintiff’s first argument was the name of the parties to be released was not the legal name of the facility where the accident occurred. The facility was owned by a Limited Liability Company (LLC) registered with the state of Indiana as “Hoosier Heights Indoor Climbing Facility.” On the release, the name of the party to be protected was “Hoosier Heights Indoor Rock Climbing Facility.” The release name had an extra word, “rock.”

The waiver signed by Wiemer incorrectly lists the business name as ‘Hoosier Heights Indoor Rock Climbing Facility L.L.C. Hoosier Heights acknowledges that its official name is Hoosier Heights Indoor Climbing Facility LLC and that the word “Rock” does not appear in its corporate filings with the Indiana Secretary of State, although it appears on the Waiver at issue. Wiemer contends that a genuine issue of material fact exists regarding the validity of the Waiver, because the Waiver that he signed failed to name the correct entity and this inaccuracy created ambiguity as to who Wiemer contracted with.

However, the name and logo on the top of the release identified the company correctly, Hoosier Heights Indoor Climbing Facility.

Since the release was a contract, the court was required to determine if the name issue made the contract ambiguous. Ambiguous means the language of the contract could be interpreted in more than one way. The name issue was not enough to find the contract was unambiguous so that the release was not void. The name issue was minor, and the correct name was at the top of the contract.

Under these circumstances, the misidentification of Hoosier Heights does not operate to void the Waiver. Because the Waiver is unambiguous, the Court need not examine extrinsic evidence to determine the proper parties to the Waiver. Accordingly, summary judgment is denied on this basis.

The second argument the plaintiff made was the release did not cover the claimed negligence of the defendant for negligent instruction, and negligent training. Those claims are generally not defined as an inherent risk of indoor rock climbing.

The negligent training and negligent instruction claims were not based at the defendant or the belayer. Those claims were based on the employee who instructed the belayer.

Inherent is a restrictive word. See 2015 SLRA – Inherent Risk: Should the Phrase be in your Release? and Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release, and is interpreted differently by various courts. Consequently, the use of the word inherent can be dangerous in that it limits the breadth of the release.

Under Indiana’s law a release must be “specific and explicitly refer to the waiving [of] that the party’s negligence.” However, that explicit reference is not necessary for a claim that is inherent in the activity.

Nevertheless, “an exculpatory clause’s lack of a specific reference to the negligence of a defendant will not always preclude the defendant from being released from liability–such as when a plaintiff has incurred damages that are inherent in the nature of the activity.”

The plaintiff’s argument was:

Wiemer contends that his fall was due to Mellencamp’s improper training and instruction and this was not a risk that he agreed to assume. Further, he argues that improper training and instruction are not risks that are inherent in the nature of rock climbing.

The court could work around this explicit necessity because it found within the release language that covered the negligent training and instruction.

…team building, fitness training regimens and equipment purchased or rented at Hoosier Heights[,]…injuries resulting from falls, equipment failures, entanglements, falling or dropped items, or the negligence of other climbers, participants, belayers, spotters, employees, or other users of the facility…

It is the intention of the undersigned individually to exempt and relieve Hoosier Heights and its employees, … from liability for any personal injury, property damage, or wrongful death caused by negligence.

By reviewing the exact language of the release, the court was able to find language that warned of the specific issues the plaintiff claimed.

Similar to the result in Anderson, by signing the Waiver, Wiemer released Hoosier Heights from any liability resulting from its own negligence, including improper training and instruction. Further, Wiemer’s injury from falling was a risk that was inherent in the activity of rock climbing and explicitly noted in the Waiver.

The negligent training and negligent instruction claims were not based at the defendant or the belayer. Those claims were based on the employee who instructed the belayer.

As such the court found that both claims were prevented by the release the plaintiff had signed and dismissed the case.

So Now What?

This case was won by the defendant not because of proper legal planning but by luck.

If they had not used the correct letterhead for the release, the release might have been void because it named the wrong party to be protected by the release. When writing a release, you need to include the legal name of the party to be protected as well as any marketing or doing business as names.

Indiana’s requirement that the language of the release cover the exact injury the plaintiff is claiming is not new in most states. It is also a requirement that seems to be growing by the courts to favor a contract that covers the complaint.

In the past, judges would specifically point out when a claimed injury was covered in the release. Not so much as a legal requirement but to point out to the plaintiff the release covered their complaint. That prior identification seems to be growing among the states to a requirement.

In this case the release was written broadly so that the restrictions the term inherent placed in the release were covered. But for that broad language, the climbing gym might now have survived the claim.

More important writing the release wrong protecting the wrong party would have been fatal in most states.

Finally, this is another example of a belay system that is perfect, and the user failed. There are belay systems out there that don’t require user involvement, they work as long as they are corrected properly. This accident could have been avoided if the belay system worked.

What do you think? Leave a comment.

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Crashing while mountain biking is an inherent risk under Indiana’s law.

The plaintiff also admitted that he knew the risks of mountain biking and as such were contributorily negligent which barred his claims against the park owner.

Hoosier Mountain Bike Association, Inc., et. al., v. Kaler, 73 N.E.3d 712; 2017 Ind. App. LEXIS 133

State:  Indiana, Court of Appeals of Indiana

Plaintiff: (At Trial) Richard Kaler 

Defendant: (At Trial) Hoosier Mountain Bike Association, Inc., City of Indianapolis, and Indy Parks and Recreation

Plaintiff Claims: Premises Liability 

Defendant Defenses: No liability and Contributory Negligence 

Holding: For the Defendants (at Trial) 

Year: 2017 

Summary

Crashing while mountain biking is an inherent risk under Indiana’s law. The plaintiff, an experienced mountain biker could not recover from the park because he knew and had crashed mountain biking and his knowledge of mountain biking also made him contributorily negligent. Contributory negligence under Indiana Law is a complete bar to recovery when suing a municipality.

Facts 

This decision the parties in the heading is reversed. The plaintiff is listed second in this case at the appellate court heading and the defendants are listed first. The reason is the defendants are appealing the trial court’s ruling and they the defendants are prosecuting the case to the appellate court. Few states work this way in titling their decisions. 

The City of Indianapolis, through its Indy Parks and Recreation department owns Town Run Trail Park. It has numerous mountain bike trails through the park which are managed by the Hoosier Mountain Bike Association.

The plaintiff had been mountain biking for five or six years. An Eagle Scout had created a berm in the park as part of a “merit badge” in the park. While riding the berm the plaintiff crashed and sued.

He described himself as an “experienced” and “better than average” bicyclist. Although he was familiar with the trails at Town Run, he had not been on the mountain-bike trail since the berm had been constructed several months earlier. “Oftentimes,” Kaler would “try to get an idea of the technical requirements of the trail” and would step off his bike, especially if he saw something within his view “as a danger.”

Analysis: making sense of the law based on these facts.

All states have Premises Liability statutes. These statutes set out the duties of land owners relative to people on their land. If the land owner fails to meet those duties, the landowner is liability. An injury to a person on someone’s land is called a premises liability claim.

The plaintiff mountain biker brought a premises liability claim for his injuries. To win a premises liability claim in Indiana the plaintiff must prove the landowner. 

(a) Knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable
risk of harm to such invitees, and

(b) Should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) Fails to exercise reasonable care to protect them against the danger. 

The plaintiff failed to prove this to the appellate court on two different arguments. First, the plaintiff’s experience as a mountain bike showed he knew that crashing was a possibility mountain biking, and he crashed often. 

He admitted that a fall “was just a general consequence of the sport.” Although he had ridden the trail the first time without any problems, when Kaler decided to make a second run, it was getting dark, but he was insistent that he “wanted to ride the higher grade because [he] knew it was more challenging.” At no point, did Kaler step off his bike and inspect the berm’s high grade prior to riding it in the approaching darkness. Accordingly, pursuant to Kaler’s own statements, the City could objectively and reasonably have expected an experienced bicyclist to realize the risks a beginner to intermediate trail would present and take appropriate precautions. 

Second he had ridden the wooden berm once before that day, electing to take a lower ride through the berm. The second time he went faster taking the higher edge of the berm when he crashed.

The plaintiff could not prove that actual or constructive knowledge that the City knew the trail created an unreasonable risk of harm to the plaintiff. Not because of the lack of the cities’ knowledge, but because crashing was part of the sport. Therefore, there was no unreasonable risk. The plaintiff had testified that crashing was part of the sport.

As the expectation of a bicycle crash is a risk inherent to riding trails, it cannot serve to establish the sort of unreasonable risk of harm contemplated in the first Burrell element.

Having the plaintiff admit crashing was part of the sport, the court held that while mountain biking crashing was an inherent risk of the sport. If a risk is inherent to the sport, then you could not sue for injuries from an inherent risk.

The second defense brought by the City on appeal was the plaintiff was contributorily negligent. Contributory negligence 

“[c]ontributory negligence is the failure of a person to exercise for his own safety that degree of care and caution which an ordinary, reasonable, and prudent person in a similar situation would exercise.

If you can prove the plaintiff was responsible for his own injuries, then the defendant is not liable. In some states, this could act to reduce the plaintiff’s damages. In Indiana, it was a complete bar to the plaintiff’s claims. 

Reviewing the testimony of the plaintiff, the court found that the plaintiff was not completely free of all negligence. Meaning the plaintiff was also negligent and therefore, barred from suing for his claims.

So Now What? 

Two great ideas came out of this for land owners in Indiana. The first is crashing is an inherent risk of the mountain biking. Most mountain bikers already knew this; however, having a court make the statement is great. 

Second premises liability statute in Indiana has been interpreted to allow the defendant to introduce the knowledge and skill of the plaintiff as a defense to the plaintiff’s claims and as a denial of his claims. 

What do you think? Leave a comment. 

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bicyclist, bicycle, mountain bike, mountain biking, inherent risk. Inherent
risk,


 

 


Hoosier Mountain Bike Association, Inc., et. al., v. Kaler, 73 N.E.3d 712; 2017 Ind. App. LEXIS 133

Hoosier Mountain Bike Association, Inc., et. al., v. Kaler, 73 N.E.3d 712; 2017 Ind. App. LEXIS 133

Hoosier Mountain Bike Association, Inc., City of Indianapolis, and Indy Parks and Recreation,1 Appellants-Defendants, v. Richard Kaler, Appellee-Plaintiff.

1 On February 23, 2017, Hoosier Mountain Bike Association, Inc. filed a notice of settlement with Richard Kaler and, as part of the settlement, dismissed this appeal. Accordingly, Hoosier Mountain Bike Association, Inc. is no longer a party in this cause. We will still include facts with respect to the Hoosier Mountain Bike Association, Inc. where necessary for our decision.

Court of Appeals Case No. 49A04-1604-CT-865

COURT OF APPEALS OF INDIANA

73 N.E.3d 712; 2017 Ind. App. LEXIS 133

March 23, 2017, Decided

March 23, 2017, Filed

PRIOR HISTORY: [**1] Appeal from the Marion Superior Court. The Honorable Cynthia J. Ayers, Judge. Trial Court Cause No. 49D04-1209-CT-35642

COUNSEL: ATTORNEYS FOR APPELLANTS: Donald E. Morgan, Lynne D. Hammer, Kathryn M. Box, Office of Corporation Counsel, Indianapolis, Indiana.

ATTORNEY FOR APPELLEE: John F. Townsend, III, Townsend & Townsend, LLP, Indianapolis, Indiana.

JUDGES: Riley, Judge. Crone, J. and Altice, J. concur.

OPINION BY: Riley

OPINION

[*714] Riley, Judge.

STATEMENT OF THE CASE2

2 We held oral argument in this cause on March 7, 2017, in the Indiana Court of Appeals Courtroom in Indianapolis, Indiana. We thank both counsel for their advocacy.

P1 Appellants-Defendants, the City of Indianapolis and Indy Parks and Recreation (the City),3 appeal the trial court’s denial of their motion for summary judgment with respect to Appellee-Plaintiff’s, Richard Kaler (Kaler), claims of negligence after Kaler sustained injuries in riding the City’s mountain bike trail at Town Run Trail Park.

3 For all practical purposes, Appellant is the City of Indianapolis as the City’s Indy Parks and Recreation department cannot be sued outside the Access to Public Records Act context. See City of Peru v. Lewis, 950 N.E.2d 1, 4 (Ind. Ct. App. 2011) (noting that units of local government, but not their individual departments, are suable under Indiana law), trans. denied.

P2 We reverse.

ISSUES

P3 The City presents us with four issues on appeal, which we consolidate and restate as follows:

(1) Whether a genuine issue of material fact precluded the entry of summary judgment on Kaler’s claim of premises liability; and

(2) Whether a genuine issue of material fact precluded the entry of summary judgment based on the City’s claim that Kaler was contributorily negligent.

FACTS AND PROCEDURAL HISTORY [**2]

P4 The City of Indianapolis owns and operates the Town Run Trail Park through its Indy Parks and Recreation department. The Hoosier Mountain Bike Association, Inc. (HMBA) is responsible for maintaining the trails, which have a difficulty rating from beginner through intermediate. In the spring of 2011, an Eagle Scout, as part of his merit badge project, built a new technical trail feature along Town Run’s mountain bike trail. The feature can best be described as a banked wooden turn, also known as a berm. A rider, approaching the berm, has three options for completing the turn. First, riders can avoid the berm by staying on the dirt path on its left side. Second, riders can elect to enter the berm and ride it on the low grade, or third, riders can negotiate the turn by riding the berm’s more challenging high grade. The entrance onto the wooden turn is fully tapered with the ground, while the exit is only partially tapered. A rider [*715] choosing the low grade would exit the berm with a “little jump” off the end of the feature. (City’s App. Vol. II, pp. 100-01). A rider exiting on the high grade would have to make a two-foot jump back down to the trail.

P5 By July 9, 2011, Kaler had been mountain [**3] biking for approximately four to five years. He described himself as an “experienced” and “better than average” bicyclist. (City’s App. Vol. II, pp. 90, 91). Although he was familiar with the trails at Town Run, he had not been on the mountain bike trail since the berm had been constructed several months earlier. “Oftentimes,” Kaler would “try to get an idea of the technical requirements of the trail” and would step off his bike, especially if he saw something within his view “as a danger.” (City’s App. Vol. II, p. 89). He understood that “on a mountain bike trail there’s multiple paths that you can take, one being more dangerous or less dangerous than another.” (City’s App. Vol. II, p. 89). In fact, Kaler had ridden a “fairly sophisticated” trail before which had a “four or five foot drop.” (City’s App. Vol. II, pp. 95, 96). While riding a mountain bike, Kaler was “never [] a casual rider. [He] always enjoyed the obstacles[.]” (City’s App. Vol. II, p. 100). He “expected to get in a wreck at least every other time [he] rode, and [he] would routinely fall off the bike over obstacles.” (City’s App. Vol. II, p. 95). “[I]t was just a general consequence of the sport.” (City’s App. Vol. II, [**4] p. 95).

P6 On July 9, 2011, Kaler and his girlfriend took their first trip on the trail. The mountain bike trail is shaped as a “figure 8,” with an approximate length of 6 miles. (City’s App. Vol. II, p. 92). When he first approached the berm, Kaler “took the low grade” on the feature. (City’s App. Vol. II, p. 95). As he approached the end of the turn, Kaler could see “there was a drop” so he “pull[ed] up on the fork and [did] a little bunny hop[.]” (City’s App. Vol II, pp. 102, 101). On their second trip around the course, Kaler’s girlfriend decided to take a shorter loop back to the trailhead. She was not as “adventurous” as Kaler and was concerned about getting back to the trailhead before dusk. (City’s App. Vol II, p. 92). Despite the approaching darkness, Kaler “wanted to ride the higher grade because [he] knew it was more challenging.” (City’s App. Vol. II, p. 101). He reached the berm again around 9:30 p.m. Feeling “capable of riding that high line,” Kaler sped up and rode the berm “as high as [he] could possibly ride it with [his] skill set.” (City’s App. Vol. II, p. 101). As he was near the end of the berm’s high grade, he “just saw [him]self lose control [] and just knew he was dropping.” [**5] (City’s App. Vol. II, p. 101). Kaler “didn’t see the drop, [nor] was he aware of the drop” at the end of the high grade turn, instead he “thought it tapered off.” (City’s App. Vol. II, p. 104). Due to the fall, Kaler sustained lacerations to his spleen and kidney. After calling his mother and girlfriend to inform them that he had crashed, he rode his bicycle back to the trail head. That evening, Kaler and his girlfriend went out for dinner.

P7 Around 1:30 a.m. on the following morning, Kaler went to the hospital where he was diagnosed with lacerations to his spleen and kidney. On discharge, Kaler was offered physical therapy but refused it because he “didn’t feel it was necessary.” (City’s App. Vol. II, p. 99). Kaler’s recovery did not last long and he participated in a 100-mile bicycle ride later that summer.

P8 On September 7, 2012, Kaler filed his Complaint against the City, sounding in premises liability. On August 21, 2015, the City filed its motion for summary judgment. (City’s App. Vol II, p. 46). In turn, Kaler submitted his response to the City’s motion, as well as his designation of evidence. On January 6, 2016, the trial court [*716] conducted a hearing on the City’s motion for summary [**6] judgment. On February 2, 2016, the trial court issued its Order, summarily denying the motion. The trial court certified its Order for interlocutory appeal and the City sought this court’s permission to appeal. We granted the request and accepted the interlocutory appeal on May 19, 2016.

P9 Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

P10 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). “A fact is material if its resolution would affect the outcome of the case, and an issue is genuine if a trier of fact is required to resolve the parties’ differing accounts of the truth . . . , or if the undisputed facts support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009).

P11 In reviewing a trial court’s ruling on summary judgment, this court stands in the shoes of the trial court, 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. Thus, on appeal, we 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. In doing so, we consider all of [**7] the designated evidence in the light most favorable to the non-moving party. Id. at 608. The party appealing the grant of summary judgment has the burden of persuading this court that the trial court’s ruling was improper. Id. When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiff’s cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiff’s claim. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. Id.

P12 We observe that in the present case, the trial court did not enter findings of fact and conclusions of law in support of its judgment. Special findings are not required in summary judgment proceedings and are not binding on appeal. AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct. App. 2004). However, such findings offer this court valuable insight unto the trial court’s rationale for its review and facilitate appellate review. Id.

II. Premises Liability

P13 In support of its argument that the trial court erred in denying its motion for summary judgment, the City relies on Burrell v. Meads, 569 N.E.2d 637 (Ind. 1991), and Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011). In Burrell,4 [*717] Indiana’s seminal case for premises liability, [**8] our supreme court imposed a three-part test to determine a landowner’s liability for harm caused to an invitee5 by a condition of its land. Under the Burrell test, a landowner can be held responsible only if the landowner:

(a) Knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) Should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) Fails to exercise reasonable care to protect them against the danger.

Burrell, 569 N.E.2d at 639-40.

4 We acknowledge that on October 26, 2016, our supreme court redrew the premises liability landscape with its decision in Rogers v. Martin, 63 N.E.3d 316, 321 (Ind. 2016), in which the court issued a new test with respect to the situation where an invitee’s injury occurs not due to a dangerous condition of the land but due to claims involving activities on the land. In Rogers, our supreme court distinguished Burrell as follows:

When a physical injury occurs as a condition of the land, the three elements described in the Restatement (Second) of Torts Section 343 accurately describe the landowner-invitee duty. And because Burrell involved an injury due to a condition on the land, it accordingly framed the landowner-invitee duty broadly. [] [W]hile Section 343 limits the scope of the landowner-invitee duty in cases involving injuries due to conditions of the land, injuries could also befall invitees due to activities on a landowner’s premises unrelated to the premises’ condition–and that landowners owe their invites the general duty of reasonable care under those circumstances too.

Rogers, 63 N.E.3d at 322-23. Because Kaler’s injury occurred when riding a mountain bike trail feature, we find the cause more properly analyzed pursuant to Burrell [**9] as it involved a condition of the land.

5 All parties agree that Kaler is an invitee of the City.

P14 On May 18, 2011, our supreme court issued Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011), which applied the Burrell test in the realm of premises liability while participating in sports activities. In Pfenning, Cassie Pfenning was injured by a golf ball at a golf outing when she was sixteen years old. Id. at 396. At the time of the incident, Pfenning drove a beverage cart and after making several trips around the golf course “was suddenly struck in the mouth by a golf ball while driving the beverage cart on the cart path approaching the eighteenth hole’s tee pad from its green.” Id. at 397. The ball was a low drive from the sixteenth tee approximately eighty yards away. Id. The golfer’s drive traveled straight for approximately sixty to seventy yards and then severely hooked to the left. Id. The golfer noticed the roof of another cart in the direction of the shot and shouted “fore.” Id. But neither the plaintiff nor her beverage-serving companion heard anyone shout “fore.” Id. After hearing a faint yelp, the golfer ran in the direction of the errant ball and discovered the plaintiff with injuries to her mouth, jaw, and teeth. Id.

P15 Pfenning brought, among others, a premises liability claim against the Elks, the fraternal lodge that owned and [**10] operated the golf course. Id. at 405. Finding that the injury arose from a condition on the premises, the supreme court turned to Burrell in its articulation of the contours of the Elks’ duty. Id. at 406. In applying the Burrell test, the court held that the two first aspects of premises liability were not established by the designated evidence. Id. at 407. First, turning to the second element–the discovery or realization of danger–the court concluded that “for the purpose of our premises liability jurisprudence, the issue here is [] whether the Elks objectively should have expected that [Pfenning] would be oblivious to the danger or fail to protect herself from it.” Id. at 406. In applying this principle the court found “no genuine issue of fact to contravene the objectively reasonable expectation by the Elks that persons present on its golf course would realize the risk of being struck with an errant golf ball and take appropriate precautions.” Id. Addressing Burrell‘s first element–unreasonable [*718] risk of harm–the Pfenning court reasoned that “the risk of a person on a golf course being struck by a golf ball does not qualify as the ‘unreasonable risk of harm’ referred to in the first two components of the Burrell three-factor [**11] test.” Id.

P16 Likewise, here, we conclude that the designated evidence does not satisfy the Burrell requirements with respect to the duty component of premises liability. Initially, we find that it was objectively reasonable for the City under the facts of this case to expect Kaler to appreciate the risks of riding the trail and take suitable protections. The trail’s difficulty was advertised as appropriate for beginner through intermediate. Kaler’s own deposition characterized himself as an “experienced” bicyclist, who had ridden “a fairly sophisticated” trail before and who “always enjoyed the obstacles.” (City’s App. Vol. II, pp. 91, 95, 100). He conceded that to “try to get an idea of the technical requirements of the trail,” he would get off his bike, especially if he noticed something “as a danger.” (City’s App. Vol. II, p. 89). He admitted that a fall “was just a general consequence of the sport.” (City’s App. Vol. II, p. 95). Although he had ridden the trail the first time without any problems, when Kaler decided to make a second run, it was getting dark but he was insistent that he “wanted to ride the higher grade because [he] knew it was more challenging.” (City’s App. Vol. [**12] II, p. 101). At no point did Kaler step off his bike and inspect the berm’s high grade prior to riding it in the approaching darkness. Accordingly, pursuant to Kaler’s own statements, the City could objectively and reasonably have expected an experienced bicyclist to realize the risks a beginner to intermediate trail would present and take appropriate precautions.

P17 We also conclude that the designated evidence fails to establish that the City had actual or constructive knowledge of a condition on the trail that involved an unreasonable risk of harm to Kaler. Kaler’s own deposition unequivocally affirms that being involved in a bicycle crash “was just a general consequence of the sport.” (City’s App. Vol. II, p. 95). In fact, Kaler “expected to get in a wreck at least every other time [he] rode, and [he] would routinely fall off the bike over obstacles.” (City’s App. Vol. II, p. 95). As the expectation of a bicycle crash is a risk inherent to riding trails, it cannot serve to establish the sort of unreasonable risk of harm contemplated in the first Burrell element. See Pfenning, 947 N.E.2d at 407.

P18 Finding that the designated evidence conclusively established that two of the elements of the premises liability [**13] test are not satisfied, we conclude that the trial court erred by denying summary judgment to the City. We reverse the trial court’s decision and now find summary judgment for the City.

II. Contributory Negligence

P19 Next, the City maintains that Kaler is foreclosed from any recovery because of his failure to exercise the care a reasonable, prudent mountain biker should have exercised. It should be noted that Kaler brought his claim against the City, a governmental entity, and therefore, his claim falls under the common law defense of contributory negligence, as the Indiana Comparative Fault Act expressly excludes application to governmental entities. See I.C. § 34-51-2-2. Consequently, even a slight degree of negligence on Kaler’s part, if proximately contributing to his claimed damages, will operate as a total bar to his action for damages against the City, even though, as against nongovernmental defendants, any fault of Kaler would only operate to reduce the damages he might obtain.

[*719] P20 A plaintiff is contributorily negligent when the plaintiff’s conduct “falls below the standard to which he should conform for his own protection and safety.” Funston v. School Town of Munster, 849 N.E.2d 595, 598 (Ind. 2006). Lack of reasonable care that an ordinary person would [**14] exercise in like or similar circumstances is the factor upon which the presence or absence of negligence depends. Id. Expressed another way, “[c]ontributory negligence is the failure of a person to exercise for his own safety that degree of care and caution which an ordinary, reasonable, and prudent person in a similar situation would exercise.” Id. at 599. Contributory negligence is generally a question of fact and is not an appropriate matter for summary judgment “if there are conflicting factual inferences.” Id. “However, where the facts are undisputed and only a single inference can reasonably be drawn therefrom, the question of contributory negligence becomes one of law.” Id.

P21 In Funston, the plaintiff sued the school after incurring injuries caused by a fall when he leaned backwards while sitting on the top row of a set of bleachers. Id. at 599. Funston had been at the gym for about four hours, watching two basketball games while sitting on lower rows on other sets of identical bleachers. Id. For the third game, he moved to the top row of one of the bleachers. Id. It was clearly visible that there was no back railing for spectators sitting on the top row, but Funston leaned back anyway because he “thought there [**15] was something back there[.]” Id. Our supreme court concluded that Funston was contributorily negligent as a matter of law, finding that:

It certainly is understandable that [Funston] would be distracted as he engaged his attention on his son’s basketball game. But being understandable does not equate with being completely free of all negligence.

Id. at 600.

P22 In his deposition, Kaler affirmed that in trying to build a skill, it would not be unusual for him “to get off [his] bike and look at the [] obstacles.” (City’s App. Vol. II, p. 89). He also acknowledged that he knew the berm’s high grade would be challenging because he had just started riding high berms and had never ridden a berm as steep as the one at Town Run. As he approached the end of the turn during his first ride on the berm, Kaler could see “there was a drop[.]” (City’s App. Vol. II, p. 103). After a successful first run on the berm’s low grade, Kaler decided to ride the feature again. Despite the approaching darkness, he planned to ride the berm’s high grade as high as he possibly could because it would be “really cool to ride it and get that speed[.]” (City’s App. Vol. II, p. 101). Notwithstanding the coolness factor, Kaler conceded [**16] that riding obstacles posed a risk of bodily injury as crashes were a general consequence of the sport. Typically, to get an idea of the technical requirements of a trail, the biker “would get off his bike.” (City’s App. Vol. II, p. 89).

P23 Based on the designated evidence, we cannot conclude that Kaler was “completely free of all negligence.” See id. Kaler knew and understood the precautions a reasonably prudent mountain biker should take–inspect the feature prior to riding it–but chose not to follow them. There is no evidence that the jump from the high grade was obscured from view and Kaler conceded that he could have anticipated the drop from the high grade had he taken the precaution a reasonable bicyclist riding an unfamiliar trail would take. Accordingly, we find Kaler contributorily negligent.

[*720] CONCLUSION

P24 Based on the foregoing, we hold that there is no genuine issue of material fact that precludes the entry of summary judgment in the City’s favor on Kaler’s claim of premises liability; and Kaler was contributorily negligent when riding the City’s mountain bike trail at Town Run.

P25 Reversed.

P26 Crone, J. and Altice, J. concur


Wiemer v. Hoosier Heights Indoor Climbing Facility LLC, 2017 U.S. Dist. LEXIS 149663

Wiemer v. Hoosier Heights Indoor Climbing Facility LLC, 2017 U.S. Dist. LEXIS 149663

Alexis Wiemer, Plaintiff, v. Hoosier Heights Indoor Climbing Facility LLC, Defendant.

Case No. 1:16-cv-01383-TWP-MJD

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA, INDIANAPOLIS DIVISION

2017 U.S. Dist. LEXIS 149663

September 15, 2017, Decided

September 15, 2017, Filed

COUNSEL: [*1] For ALEXIS WIEMER, Plaintiff: Mary Beth Ramey, Richard D. Hailey, RAMEY – HAILEY, Indianapolis, IN.

For HOOSIER HEIGHTS INDOOR CLIMBING FACILITY LLC, Defendant: Jessica Whelan, Phil L. Isenbarger, BINGHAM GREENEBAUM DOLL LLP, Indianapolis, IN.

JUDGES: TANYA WALTON PRATT, United States District Judge.

OPINION BY: TANYA WALTON PRATT

OPINION

ENTRY ON SUMMARY JUDGMENT

This matter is before the Court on Defendant Hoosier Heights Indoor Climbing Facility LLC’s (“Hoosier Heights”) Motion for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 (Filing No. 29). Plaintiff Alexis Wiemer (“Wiemer”) brought this action against Hoosier Heights for personal injuries sustained when he fell during a rock climbing activity. For the following reasons, the Court GRANTS Hoosier Heights’ Motion for Summary Judgment.

I. BACKGROUND

The material facts are not in dispute and are viewed in a light most favorable to Wiemer as the non-moving party. See Luster v. Ill. Dep’t of Corr., 652 F.3d 726, 728 (7th Cir. 2011).

Hoosier Heights, located in Carmel, Indiana, is a limited liability company which owns and operates an indoor rock climbing facility. The facility is open to the public and is available for individuals of all skill levels in recreational climbing. In order to use the facilities, Hoosier Heights requires all patrons [*2] to sign and acknowledge having read and understood a “Waiver & Release of Liability” form (“Waiver”). (Filing No. 30-1.) The Waiver contains: general gym rules, exculpatory clauses relieving Hoosier Heights of liability, a medical authorization clause, an acknowledgement that the participant understands there are inherent risks to rock climbing with some risks listed, authorization to allow the Hoosier Heights’ staff to use any photographs taken during the patron’s visit for promotional materials, and a signature line for the participant. (Filing No. 30-1 at 1.) At the top of the Waiver is Hoosier Heights’ logo, address, and the name Hoosier Heights Indoor Climbing.

The Waiver states, in relevant part:

RELEASE AND ASSUMPTION OF RISK: In consideration of being permitted to use the facilities of Hoosier Heights Indoor Rock Climbing Facility L.L.C., and mindful of the significant risks involved with the activities incidental thereto, I, for myself, my heirs, my estate and personal representative, do hereby release and discharge Hoosier Heights Indoor Rock Climbing Facility L.L.C. (hereinafter referred to as “Hoosier Heights”) from any and all liability for injury that may result from my [*3] use of the facilities of Hoosier Heights Indoor Climbing, and I do hereby waive and relinquish any and all actions or causes of action for personal injury, property damage or wrongful death occurring to myself arising as a result of the use of the facilities of Hoosier Heights or any activities incidental thereto, wherever or however such personal injury, property damage, or wrongful death may occur, whether foreseen or unforeseen, and for whatever period said activities may continue. I agree that under no circumstances will I, my heirs, my estate or my personal representative present any claim for personal injury, property damage or wrongful death against Hoosier Heights or its employees, members, directors, officers, agents and assigns for any of said causes of actions, whether said causes of action shall arise by the negligence of any said person or otherwise.

It is the intention of the undersigned individual to exempt and relieve Hoosier Heights and its employees, members, directors, officers, agents and assigns from liability for any personal injury, property damage or wrongful death caused by negligence.

(Filing No. 30-1.) The Waiver also contained a provision enumerating the risks [*4] inherent in the sport of rock climbing:

ACKNOWLEDGMENT: I, the undersigned, acknowledge that I understand that there are significant elements of risk associated with the sport of rock climbing, including those activities that take place indoors. In addition, I realize those risks also pertain to related activities such as bouldering, incidental weight training, team building, fitness training regimens and equipment purchased or rented at Hoosier Heights. I realize that those risks may include, but are not limited to, injuries resulting from falls, equipment failures, entanglements, falling or dropped items, or the negligence of other climbers, participants, belayers, spotters, employees, or other users of the facilities. I acknowledge and understand that the above list is not inclusive of all possible risks associated with rock climbing or the use of the Hoosier Heights facilities and that other unknown and unanticipated risks may result in injury, illness, paralysis, or death.

Id. In addition to executing the Waiver, Hoosier Heights requires that all patrons attend and acknowledge undergoing orientation and training.

Wiemer visited Hoosier Heights in October 2014. On that date, he attended [*5] a facility orientation, which is an employee-guided training on how to boulder, belay, and top rope climb.1 (Filing No. 30-7.) If a customer intends to use the “top rope” climbing area of the facility, they must first complete the “top rope” orientation and initial and sign the facility orientation form in the appropriate locations. Following his orientation and training, Wiemer signed a Waiver form.

1 Top rope climbing is a style of climbing in which a rope runs from a belayer at the foot of the climbing wall which is connected to an anchor system at the top of the wall and back down to the climber. Both climber and the belayer are attached to the rope through a harness and carabiner. The belayer is responsible for pulling the slack in the rope, which results in the climber moving up the wall. The belayer must keep the rope tight so that, in the event the climber releases from the wall, the climber remains suspended in the air and does not fall.

Kayli Mellencamp (“Mellencamp”), a part-time Hoosier Heights employee with very little rock climbing experience, provided Wiemer’s orientation and training. (Filing No. 30-6.) Mellencamp’s employee training consisted solely of reviewing company provided instructional books on rock climbing and witnessing other employee orientations. (Filing No. 67-2 at 10-11 and 13-14.) Mellencamp had no other professional rock climbing experience.

On January 14, 2015, Wiemer, along with several co-workers, including Robert Magnus (“Magnus”), traveled to Hoosier Heights for recreational rock climbing. Magnus had also previously visited Hoosier Heights, and Wiemer’s and Magnus’ Waivers were already on file and under the terms of their agreements remained in effect (Filing No. 30-6; Filing No. 30-7). Wiemer [*6] was top rope climbing while Magnus belayed below (Filing No. 30-4). Unfortunately, Wiemer fell while he was climbing. Incident reports indicate that Wiemer fell approximately thirty-five feet to the ground in a sitting position due to Magnus releasing a gate lever while he was belaying for Wiemer, which caused Wiemer to accelerate to the floor very quickly. (Filing No. 30-4 at 1-4.) As a result of the fall, he sustained severe and permanent injuries to his back, as well as impaired bladder and bowel control. Wiemer filed this action alleging Hoosier Heights was negligent in its operations.

II. LEGAL STANDARD

The purpose of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews “the record in the light most favorable to the nonmoving party and draw[s] all reasonable [*7] inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). However, “[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted). “In much the same way that a court is not required to scour the record in search of evidence to defeat the motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citation and internal quotations omitted). “[N]either the mere existence of some alleged factual dispute between the parties . . . nor the existence of some metaphysical doubt as to the material facts . . . is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted). “It is equally well settled, however, that where no factual disputes are present or where the undisputed facts demonstrate that one party is entitled to judgment as a matter of law, summary judgment in favor of that party is entirely appropriate. Collins v. American Optometric Ass’n, 693 F.2d 636, 639 (7th Cir. 1982).

III. DISCUSSION

Hoosier Heights contends that Wiemer’s signing of the Waiver, which contained an explicit reference waiving liability [*8] for Hoosier Heights’ own negligence, absolves it of any liability and Wiemer expressly acknowledged that falling was a risk inherent in indoor rock climbing. Wiemer responds with two arguments in the alternative. First, he argues that the Waiver misidentifies the released party as “Hoosier Heights Indoor Rock Climbing Facility” because the Defendant’s name, as alleged in the Complaint and as evidenced by the Indiana Secretary of State Certificate of Assumed Business Name, is “Hoosier Heights Indoor Climbing Facility.” (Filing No. 67-4.) Second, Wiemer argues that Hoosier Heights negligence in the hiring and training of Mellencamp, was not an included “inherent risk” and this significantly contributed to his fall and injury.

A. Hoosier Heights’ Business Name

The waiver signed by Wiemer incorrectly lists the business name as ‘Hoosier Heights Indoor Rock Climbing Facility L.L.C.’ (Filing No. 30-1 at 1). Hoosier Heights acknowledges that its official name is Hoosier Heights Indoor Climbing Facility LLC and that the word “Rock” does not appear in its corporate filings with the Indiana Secretary of State although it appears on the Waiver at issue. Wiemer contends that a genuine issue of material [*9] fact exists regarding the validity of the Waiver, because the Waiver that he signed failed to name the correct entity and this inaccuracy creates ambiguity as to who Wiemer contracted with.

The Court is not persuaded by Wiemer’s argument. “Release documents shall be interpreted in the same manner as any other contract document, with the intention of the parties regarding the purpose of the document governing.” Huffman v. Monroe County Community School Corp., 588 N.E.2d 1264, 1267 (Ind. 1992). “The meaning of a contract is to be determined from an examination of all of its provisions, not from a consideration of individual words, phrases, or even paragraphs read alone.” Huffman, 588 N.E.2d at 1267. In addition, when a contract is unambiguous, Indiana courts look to the four corners of the document to determine the intentions of the parties. Evan v. Poe & Associates, Inc., 873 N.E.2d 92, 98 (Ind. Ct. App. 2007). This analysis of contract interpretation is a question of law. Evans v. Med. & Prof’l Collection Servs., Inc., 741 N.E.2d 795, 797 (Ind. Ct. App. 2001).

In Evans, the Indiana Court of Appeals held that a contract was unambiguous that misidentified a business name in the agreement but included the relevant address as that of the business. Evans, 741 N.E.2d at 798. The Evans court found that the plaintiff could not recover payment from the owner, “Evans Ford,” in his personal capacity, even though that was the name indicated in the contract and the actual business [*10] was organized as a corporation under the name of “Evans Lincoln Mercury Ford, Inc.” Id. at 796-98. The court did not resort to extrinsic evidence because the contract unambiguously identified the parties despite the misidentification. See id. at 798.

In this case, the Waiver is unambiguous as to identifying the parties to the agreement. Although the language of the Release and Assumption of Risk paragraph identifies “Hoosier Heights Indoor Rock Climbing Facility,” the document’s letterhead at the top displays “Hoosier Heights Indoor Climbing,” and includes the relevant business address of Hoosier Heights where Wiemer visited. Under these circumstances, the misidentification of Hoosier Heights does not operate to void the Waiver. Because the Waiver is unambiguous, the Court need not examine extrinsic evidence to determine the proper parties to the Waiver. Accordingly, summary judgment is denied on this basis.

B. Negligent Training

Hoosier Heights contends that summary judgment is appropriate because the Waiver’s explicit references to the “inherent risks” of rock climbing creates a binding exculpatory clause which releases Hoosier Heights from liability. Wiemer argues that a genuine issue of material fact exists [*11] regarding whether improper instruction and inadequate training, is an “inherent risk” of indoor rock climbing.

Under Indiana law, waivers containing exculpatory clauses absolving parties of liability for their own negligence must be specific and explicitly refer to waiving that party’s negligence. Anderson v. Four Seasons Equestrian Center, 852 N.E.2d 576, 584 (Ind. Ct. App. 2006). Nevertheless, “an exculpatory clause’s lack of a specific reference to the negligence of a defendant will not always preclude the defendant from being released from liability–such as when a plaintiff has incurred damages that are inherent in the nature of the activity.” Id. (citing Marsh v. Dixon, 707 N.E.2d 998, 1000 (Ind. Ct. App. 1999)).

Wiemer contends that his fall was due to Mellencamp’s improper training and instruction and this was not a risk that he agreed to assume (Filing No. 67 at 10). Further, he argues that improper training and instruction are not risks that are inherent in the nature of rock climbing. Id. Hoosier Heights responds that falls, as indicated by the Waiver, are a specific risk inherent in the nature of rock climbing and that Wiemer specifically waived any claims to injuries from falls by signing the Waiver (Filing No. 68 at 14). Hoosier Heights also contends that Wiemer waived any claims for improper training and instruction [*12] by its’ employees as the Waiver contains an explicit release of Hoosier Heights’ employees for any negligence. Id. at 12.

Hoosier Heights acknowledges that negligence is generally a fact-intensive question; however, it responds that it is entitled to summary judgment because Wiemer waived any claims for liability on the basis of negligence. Id. at 11. Hoosier Heights points the Court to Anderson v. Four Seasons Equestrian Center. In Anderson, the Indiana Court of Appeals held that the defendant, an equine center, was entitled to summary judgment even though the waiver at issue did not contain a specific and explicit release of the equine center due to its own negligence because the plaintiff’s injury of falling while mounting her horse was a risk inherent in the nature of the activity of horse riding. Anderson, 852 N.E.2d at 581. The plaintiff argued that her injury was due to the equine center’s negligence in caring for, conditioning, and training her horse. The court found that the plaintiff’s injury and resulting damages, including her characterization of the cause of those damages (i.e. conditioning and training of her horse), were risks that were inherent in the nature of horse riding and were exactly those for [*13] which she granted the equine center a release of liability by signing the waiver. Id. at 585.

In the present case, Wiemer signed a specific and explicit Waiver, which released Hoosier Heights from liability due to its own negligence. The Waiver explained that “rock climbing activity” at Hoosier Heights included, among other things,

…team building, fitness training regimens and equipment purchased or rented at Hoosier Heights[,]…injuries resulting from falls, equipment failures, entanglements, falling or dropped items, or the negligence of other climbers, participants, belayers, spotters, employees, or other users of the facility…. I understand that the above list is not inclusive of all possible risks associated with rock climbing.

(Filing No. 30-6 at 1). In addition, a very similarly worded reference to liability from their own negligence is contained in the second paragraph of the ‘Release and Assumption of Risk’ section which states, “It is the intention of the undersigned individually to exempt and relieve Hoosier Heights and its employees, … from liability for any personal injury, property damage, or wrongful death caused by negligence.” (Filing No. 30-1 at 1.) The direct mentions [*14] of Hoosier Heights’ own negligence adheres to the holding set in Powell that an exculpatory clause needs to be specific and explicit in referencing an absolving party’s liability from negligence.

Similar to the result in Anderson, by signing the Waiver, Wiemer released Hoosier Heights from any liability resulting from its own negligence, including improper training and instruction. Further, Wiemer’s injury from falling was a risk that was inherent in the activity of rock climbing and explicitly noted in the Waiver. Accordingly, summary judgment is appropriate.

IV. CONCLUSION

For the reasons stated above, the Court determines that, based on the undisputed material facts, Hoosier Heights is entitled to summary judgment as a matter of law. Hoosier Heights’ Motion for Summary Judgment (Filing No. 29) is GRANTED, and Wiemer’s Complaint is DISMISSED. Final Judgment will issue under a separate order.

SO ORDERED.

Date: 9/15/2017

/s/ Tanya Walton Pratt

TANYA WALTON PRATT, JUDGE

United States District Court

Southern District of Indiana


An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.

YMCA summer camp sued in Indiana for sexual assault on a minor by a predator hiding in the woods. The brochure marketing the program specifically outlined how bathroom procedures were to be done. The procedure was not followed in this case, which led to a successful lawsuit.

A.M.D., a Minor, vs. Young Men’s Christian Association of Greater Indianapolis, 2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527

State: Indiana, Court of Appeals of Indiana

Plaintiff: A.M.D., a Minor, by his Parents and Guardians, John Doe and Jane Doe, and John Doe and Jane Doe, individually

Defendant: Young Men’s Christian Association of Greater Indianapolis

Plaintiff Claims: 1) The YMCA negligently supervised A.M.D.; 2) the YMCA failed to prevent foreseeable intentional conduct by a third-party; 3) the YMCA did not have to be the sole cause of A.M.D.’s injuries; and 4) the YMCA is not released from its responsibility to A.M.D. and his parents by virtue of the exculpatory clause contained in the camper application form signed by Jane Doe.

Defendant Defenses: Release and Superseding or Intervening Cause

Holding: for the Plaintiff

Year: 2013

First, this is a case based on a sexual assault of a minor at a day or summer camp offered by the defendant. The case is awful, ugly, and sad.

Second, the issue of whether or not the release was valid for the minor’s injuries was never part of the case. The issue is how the defendant’s rules created a small issue for the situation that of course blew up when the problem the rules attempted to prevent occurred.

The minor was enrolled in a day camp offered by the defendant. The camp was for kids in kindergarten through sixth grade. On the day of the incident, 20 minors and three counselors went to a park to go rafting. The group arrived at the park around 2:00 PM.

The park was not known for any incidents, and no one was spotted that day that gave any concern to the counselors.

When the rafting began, one counselor was stationed at the start and two counselors at the end. Shortly after the rafting started the plaintiff minor told one of the counselors he had to go to the bathroom. The public restrooms were a 10-15-minute walk away. The counselor instructed the minor to go pee on a bush that was within her view. The counselor new about the defendant’s bathroom policy.

Raab [counselor] instructed A.M.D. [minor] to urinate in the bushes, she knew that the YMCA’s bathroom policy required at least one counselor and one buddy to go with a camper to the restroom. No campers were to go to the bathroom by themselves.

When the counselor turned her attention to the creek to check on the other children the minor disappeared.

Unknown to A.M.D. and the YMCA counselors, there was a sexual predator hiding in the woods near where A.M.D. was going to the bathroom. It was later determined that Stephen Taylor was the person hiding in the woods, and who attacked A.M.D. Taylor was so well hidden that A.M.D. did not see Taylor approach him from the front until after he had finished going to the bathroom.

Once Taylor emerged from the woods, he approached A.M.D., told him he was a doctor, and offered to give A.M.D. a piggy-back ride, which A.M.D. accepted. Taylor successfully lured A.M.D. farther into the woods where they were both alone and out of sight from any of the YMCA camp counselors. While hidden in the woods, Taylor sexually assaulted A.M.D.

Once the counselor knew the minor was missing she started screaming his name and looking for him.

The family of the minor filed suit against the defendant YMCA alleging negligence. The YMCA filed a motion for summary judgment claiming:

1) The YMCA was not the proximate cause of A.M.D.’s injuries because Taylor’s criminal actions were not reasonably foreseeable; and 2) the exculpatory clause contained in the camper application signed by Jane Doe released the YMCA from any and all claims.

The plaintiff’s opposed the motion for summary judgment claiming four theories:

…1) The YMCA negligently supervised A.M.D.; 2) the YMCA failed to prevent foreseeable intentional conduct by a third-party; 3) the YMCA did not have to be the sole cause of A.M.D.’s injuries; and 4) the YMCA is not released from its responsibility to A.M.D. and his parents by virtue of the exculpatory clause contained in the camper application form signed by Jane Doe.

The trial court granted the defendant’s motion for summary judgment, and the plaintiff’s appealed.

Analysis: making sense of the law based upon these facts.

The appellate court started by establishing the elements the plaintiff’s must prove to win their case. Indiana uses a three-part test to establish negligence.

A plaintiff seeking damages for negligence must establish (1) a duty owed to the plaintiff by the defendant, (2) a breach of the duty, and (3) an injury proximately caused by the breach of duty. Absent a duty, there can be no breach, and therefore, no recovery for the plaintiff in negligence.

Whether or not there was a duty owed is also a 3-part test in Indiana.

…(1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns, but that analysis is not necessary where the duty is well settled.

The trial court found the defendant owed a duty to the minor, and this issue was not argued during the appeal. The issue then was causation.

We have held that causation is an essential element of a negligence claim. The injurious act must be both the proximate cause and the cause, in fact, of an injury. Generally, causation, and proximate cause, in particular, is a question of fact for the jury’s determination.

Causation can be broken by a superseding and intervening causation. This means a third party or third action caused the real injury or interrupted the chain of events for the original cause so that the defendant is not longer liable.

The doctrine of superseding or intervening causation has long been part of Indiana’s common law. It provides that when a negligent act or omission is followed by a subsequent negligent act or omission so remote in time that it breaks the chain of causation, the original wrongdoer is relieved of liability. A subsequent act is “superseding” when the harm resulting from the original negligent act “could not have reasonably been foreseen by the original negligent actor.” Whether the resulting harm is “foreseeable” such that liability may be imposed on the original wrongdoer is a question of fact for a jury.

Meaning that the action of the predator in attacking the minor was a superseding and intervening cause of action.

However, if the superseding or intervening cause of action was foreseeable by the defendant, then it does not relieve the defendant of liability. The Restatement (Second) of Torts §449, known as the very duty doctrine, provides an example.

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. At the heart of these concepts is the necessity for an analysis of foreseeability.

The brochure the defendant created, stated the rules for the camper’s bathroom procedure. This was obviously not followed by the counselor.

No camper is ever alone, and no camper is ever alone with a staff member. All campers will take trips to the bathroom with entire camp and/or camp groups and camp staff. Campers will only use bathrooms inspected for safety by camp staff.

There was additional information requiring the day campers to go to the bathroom in pairs. The defendant also had a code of conduct covering restroom supervision.

[Why is a restroom procedure in a code of conduct?]

3. Restroom supervision: Staff will make sure the restroom is not occupied by suspicious or unknown individuals before allowing children to use the facilities. Staff will stand in the doorway while children are using the restroom. This policy allows privacy for the children and protection for the staff (not being alone with a child). If staff are assisting younger children, doors to the facility must remain open. No child, regardless of age, should ever enter a restroom alone on a field trip. Always send children in pairs, and whenever possible, with staff.

Finally, the court found that counselors were instructed to never leave a child unsupervised.

In particular, a day camp counselor, the position Raab held with the YMCA at the time of the molestation, has the general function of directly supervising approximately twelve campers and taking responsibility for each child’s safety.

The counselor at her deposition testified she knew the procedures.

The court found this information, provided by the defendants own documents and training, showed the defendant knew this type of incident was foreseeable.

We disagree that only one conclusion can be drawn or inferred from the undisputed facts. “[A]n actor need not foresee the exact manner in which harm occurs, but must, in a general way, foresee the injurious consequences of his act.”

The court found three factors were important in the analysis of the issue.

First, courts on review have examined whether the intervening actor is independent from the original actor. Id. Next, we examine whether the instrumentality of harm was under the complete control of the intervening actor. Id. Third, we examine whether the intervening actor as opposed to the original actor is in a better position to prevent the harm.

Consequently, the appellate court held that whether or not the criminal act by the third party was foreseeable was for a jury to decide.

Whether the criminal assault on A.M.D. by a stranger, Taylor, was foreseeable by the YMCA such that the chain of causation was broken, should be decided by a trier of fact and not as a matter of law.

The case was sent back to trial for a jury trial to determine if the actions of the third party were foreseeable.

So Now What?

First, it sucks to have a case like this; however, it has a lot of useful information.

Fifteen to twenty children, some as young as kindergartener’s and three adults for an activity around water, the first issue I suspect most of you thought of was, there are not enough counselors.

Second, with all the written documentation that the defendant created, I don’t believe foreseeability will be difficult to find by the jury. In fact, anyone can argue that the paper was created in response to this possibility, and then obviously the issue was foreseeable.

At the same time, how do you get across to the members of your staff the issues at play here without creating your own noose? Some documentation is required. Create it under the write heading, in the right document if needed. More importantly, train your staff. Don’t just throw paper at them.

Documentation is proof of just being lazy over the winter in this type of situation. Probably because the documentation was found in at least three different places, it was “make work” for three different people. Writing rules down over the winter is easy and lasts for years (decades in too many situations). However, training your staff lasts a lifetime.

Look at who you need to understand what you are writing down. In most cases young men and women who seem not to read much but who can absorb a lot of information. If you expect 20 year olds to read a book for a job, you are your own worst enemy. You are only creating documentation that will be used to prove you or your staff was negligent.

Training allows the information to be absorbed in the way necessary and provides the understanding of the rules. Training says this is how you do it, now show me you know how to do it, and then tell me why you do it this way. Training is a pain for you, and your senior staff, but if you want to solve problems and really help the people, your employees, trains them. Let them know why you have to do things this way and then teach them to do things this way.

Think about it. What is going to be more effective. Giving everyone a book to read at night or creating a scenario from this incident and having your staff act it out and go through the issues.

Don’t create documentation because you have nothing else to do over the winter, or you are trying not to train your staff.

Never create documentation just to punish employees. Those will always come back to haunt you. You can’t sue an employee as a defense anyway, except in extremely rare cases, so why create a situation that will come back to haunt you in other ways.

This is a sad case all around.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

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Under Indiana’s law, you cannot sue based on a product liability claim for what is actually a service. Meaning Wind tunnels and Climbing Walls provides a service in Indiana, they are not products sold to the public.

Product liability claims are difficult to defend against because they have fewer or more limited defenses. Product Liability claims also award more damages than simple negligence claims. Consequently, if you provide a service and thus are not subject to a product liability claim your risk, and exposures are much lower.

That issue saved the defendant in this case because the release used by the defendant was written poorly and did not protect the defendant from the claims.

Marsh v. Dixon, 707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15, 479

State: Indiana, Court of Appeals of Indiana, Fifth District

Plaintiff: Jason C. Marsh and Rhonda Marsh

Defendant: Kirk Dixon, Dyna Soar Aerobatics, Inc.,

Plaintiff Claims: negligence (or gross negligence) and product liability

Defendant Defenses: Release and the Indiana Product Liability statute

Holding: for the plaintiff on the release and the defendant on the product liability claim.

Year: 1999

The plaintiff paid to ride in the defendant’s wind tunnel. The wind tunnel was owned by Dyna Soar Aerobatics, Inc., which was owned by Kirk Dixon. Kirk Dixon was the sole owner and officer of Dyna Soar, Inc.

Before riding the plaintiff was told when turned on he would soar 3-4 feet upward in the air. The plaintiff also signed a release before riding the wind tunnel. When the wind tunnel was turned on he shot 15’ in the air and broke his ankle when he landed.

The plaintiff sued for negligence and product liability claims. The trial court granted the defendant’s motion for summary judgment based on the release, and the plaintiff appealed.

Analysis: making sense of the law based on these facts.

The first issue the court tackled was a procedural issue. The plaintiff sued for gross negligence and not simple negligence. The defendant argued that because they did not plead negligence and appealed a negligence claim and plead gross negligence but did not appeal a gross negligence claim they should be stopped from arguing a negligence claim of any type.

However, the court found through various arguments that those issues were moot and not at issue.

The next argument was the plaintiff’s claim the release was not sufficient under Indiana’s law to prevent a negligence claim. The court agreed.

Indiana generally supports releases, but requires the language of the release be sufficient to deny the claims being made.

It is well settled in Indiana that exculpatory agreements are not against public policy. Generally, parties are permitted to agree that a party owes no obligation of care for the benefit of another, and thus, shall not be liable for consequences that would otherwise be considered negligent. Id. In Powell, however, this court held that an exculpatory clause will not act to absolve the drafting party from liability unless it “specifically and explicitly refers to the negligence of the party seeking release from liability.”

The language in the release must clearly and unequivocally state what the release is preventing and who is being protected for those claims.  Meaning the release is void if it does not clearly and unequivocally states the release is to protect the defendant from the defendant’s negligence.

This rule is based on the principle that an agreement to release a party from its own negligence “clearly and unequivocally manifest a commitment by [the plaintiff], knowingly and willing [sic] made, to pay for damages occasioned by [the defendant’s] negligence.” We note, however, that an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity, or, as Powell stated, the exculpatory clause is void only to the extent it purports to release a defendant from liability caused by its own negligence. The requirement of specificity is only necessary when the risk of harm is a latent danger, i.e. the defendant’s own negligence.

The release stated the plaintiff “fully discharged and released” the defendant from all “liability, claims, demands, actions, and causes of action.” Nowhere did it state the release, released D S from its own negligence. Nor would the court interpret the language of the release to cover that. The specific language was needed for the release to work.

We conclude that the release is not sufficient to release Dyna-Soar because the release did not specifically and explicitly refer the Dyna-Soar’s “own negligence.” While this exculpatory clause may act to bar some types of liability, it cannot act to bar liability arising from Dyna Soar’s own negligence. Therefore, the trial court erred when it entered summary judgment in favor of Dyna Soar based on the release.

The next issue was the product liability claim. The Indiana Products Liability Act defines a manufacturer as the seller of a product, “a person engaged in the business of selling or leasing a product for resale, use, or consumption.”

Ind. Code § 33-1-1.5-2(5). 2 A product is defined as follows:

Product” means any item or good that is personalty at the time it is conveyed by the seller to another party. It does not apply to a transaction that, by its nature, involves wholly or predominantly the sale of a service rather than a product.

Personality is another name for something owned that is not attached to the land.

The plaintiff argued that the defendant created a machine, which was a product and sold what the machine did. However, the court found that what the plaintiff bought was a service.

A service is not subject to the Indian Product Liability Act.

The case was sent back to the trial court to go forward on the negligence claim of the plaintiff.

So Now What?

Simply put this lawsuit is based on a poorly written release. I repeat myself, but have someone who understands you and your business or program write a release based upon the law where the release will be applied.

Let me put it another way. Unless you wrote a check or paid money for your release, you would probably end up in court. Attorneys provide free releases not as a service, but knowing there are flaws in the document that will allow them to make a lot more money defending against the lawsuit.

If you got your release from a competitor, how do you know, the competitor gave you a good release? If you got your release from the Internet, how do you know it is for your activity, in your state and covers your law?

And if you think, it is not worth your money; figure that you will lose thirty (30) days of work the first year you are sued, 15-30 days each year until trial and probably 45-days the year of the trial. A good release can keep you at work and out of depositions and courtrooms.

The defendant got lucky on the product’s liability claim. Most states have a broader definition of a product. Put in the release that you are providing a service not selling a product if you have any doubts.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

clip_image002What do you think? Leave a comment.

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Marsh v. Dixon, 707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15,479

Marsh v. Dixon, 707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15,479

Jason C. Marsh and Rhonda Marsh, Appellant-Plaintiffs, vs. Kirk Dixon, Dyna Soar Aerobatics, Inc., Appellee-Defendants.

No. 49A05-9803-CV-146

COURT OF APPEALS OF INDIANA, FIFTH DISTRICT

707 N.E.2d 998; 1999 Ind. App. LEXIS 372; CCH Prod. Liab. Rep. P15,479

March 12, 1999, Filed

PRIOR HISTORY: [**1] APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Richard H. Huston, Judge. Cause No. 49D10-9610-CT-1378.

DISPOSITION: Affirmed in part and reversed in part.

COUNSEL: For APPELLANT: JAMES F. LUDLOW, Indianapolis, Indiana.

For APPELLEE: MICHAEL A. ASPY, Landau, Omahana & Kopka, Carmel, Indiana.

JUDGES: ROBB, Judge. BAKER, J., and GARRARD, J., concur.

OPINION BY: ROBB

OPINION

[*999] OPINION

ROBB, Judge

Case Summary

Appellants-Plaintiffs, Jason C. Marsh and Rhonda Marsh (collectively referred to as “Marsh”), appeal the trial court’s order granting summary judgment in favor of Appellees, Kirk Dixon and Dyna Soar Aerobatics, Inc. (collectively referred to as “Dyna Soar”) on Marsh’s gross negligence and products liability claim. We affirm in part and reverse in part.

Issues

Marsh raises two issues for our review which we restate as:

I. Whether the trial court erred by entering summary judgment in favor of Dyna Soar when it determined that the release signed by Marsh was valid; and

II. Whether the trial court erred by entering summary judgment in favor of Dyna Soar when it determined that the facts of this case do not support a products liability claim.

Facts and Procedural [**2] History

The facts most favorable to the judgment show that on October 9, 1994, Marsh decided to ride in a wind tunnel (“Dyna Soar Machine”) constructed by Kirk Dixon (“Dixon”) for Dyna Soar Aerobatics, Inc. Dixon is the sole officer of this company. The Dyna Soar Ride simulates the experience of free-fall by projecting columns of air through a cable trampoline upon which patrons of the ride levitate. Marsh signed a release which discharged Dyna Soar, its director, and its employees from liability in the event of an accident. While on the Dyna Soar ride, Marsh fell off of a column of air and fractured his ankle. Marsh sued Dyna Soar, bringing both a negligence claim and a products liability claim. The trial court entered summary judgment in favor of Dyna Soar finding that “the facts do not support a products liability claim or a misrepresentation claim.” (R. 159). This appeal ensued.

Discussion and Decision

Before we reach Marsh’s first issue, we note that Dyna Soar argues in their brief that Marsh waives the issue regarding the validity of the release for two reasons. First, Dyna Soar argues that Marsh failed to make a negligence claim in his original complaint. In [**3] his original complaint, Marsh filed a claim under a gross negligence theory. Second, Marsh failed to raise the same issue in his Motion to Correct Errors.

First, we find that Dyna Soar has waived their argument regarding the fact that Marsh made a gross negligence claim rather than a negligence claim. In their brief, they cite no cases and outline no argument developing this position. [HN1] Ind. Appellate Rule 8.3 requires Dyna Soar to support each contention with an argument, including citations to the authorities, statutes, and record for support. App.R. 8.3(A)(7); Burnett v. Cincinnati Ins. Co., 690 N.E.2d 747, 749 (Ind. Ct. App. 1998). Failure of a party to [*1000] present a cogent argument in his or her brief is considered a waiver of that issue. Id.

Second, we conclude that a party does not waive their right to appeal a claim by omitting the same from its Motion to Correct Errors. Marsh raised two issues in its Motion to Correct Errors. He argued that he presented sufficient evidence to create a genuine issue of material fact as to whether Dyna Soar was grossly negligent, and he argued that he had a viable products liability claim. He did not raise the issue of whether the release [**4] was valid. Indiana Trial Rule 59(A) provides that only two issues must be addressed in a Motion to Correct Errors before they may be appealed to this court: newly discovered material evidence and claims that a jury verdict is excessive or inadequate. T.R. 59(A)(1) and (2). The trial rule states that any other issues that are “appropriately preserved during trial may be initially addressed in the appellate brief.” Id. Trial Rule 59(D) states that a Motion to Correct Errors “need only address those errors found in Trial Rule 59(A)(1) and (2). Id. Based on the plain language of Trial Rule 59, therefore, we conclude that [HN2] a party does not waive its right to appeal a trial court’s decision if it fails to raise an issue in its Motion to Correct Errors which was properly preserved at trial. Dyna Soar’s claims to the contrary are based on cases referring to Trial Rule 59 before it was amended. Accordingly, we conclude that the following issue is properly before this court.

I.

Marsh argues that the trial court erred when it entered summary judgment on his negligence claim. In particular, he argues that the release he signed exculpating Dyna Soar was not sufficient to release [**5] Dyna Soar for its own negligence. We agree.

[HN3] It is well settled in Indiana that exculpatory agreements are not against public policy. Powell v. American Health Fitness Center, 694 N.E.2d 757, 760 (Ind. Ct. App. 1998). Generally, parties are permitted to agree that a party owes no obligation of care for the benefit of another, and thus, shall not be liable for consequences that would otherwise be considered negligent. Id. In Powell, however, this court held that an exculpatory clause will not act to absolve the drafting party from liability unless it “specifically and explicitly refers to the negligence of the party seeking release from liability.” 694 N.E.2d at 761. In Powell, the clause at issue stated that Powell released the defendant “from ‘any damages’ and placed the responsibility on Powell for ‘any injuries, damages or losses.” Id. The Powell court concluded:

As a matter of law, the exculpatory clause did not release [the defendant] from liability resulting from injuries she sustained while on its premises that were caused by its alleged negligence. Therefore, the exculpatory clause is void to the extent it purported to release [the defendant] from [**6] liability caused by its own negligence.

694 N.E.2d at 761-62 (emphasis added). This rule is based on the principle that an agreement to release a party from its own negligence “clearly and unequivocally manifest a commitment by [the plaintiff], knowingly and willing [sic] made, to pay for damages occasioned by [the defendant’s] negligence.” Indiana State Highway Commission v. Thomas, 169 Ind. App. 13, 346 N.E.2d 252, 260 (Ind. Ct. App. 1976) (emphasis in original). We note, however, that [HN4] an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity, or, as Powell stated, the exculpatory clause is void only to the extent it purports to release a defendant from liability caused by its own negligence. See Powell, 694 N.E.2d at 761-62. The requirement of specificity is only necessary when the risk of harm is a latent danger, i.e. the defendant’s own negligence. See 694 N.E.2d at 761.

In this case, we are presented with a similar exculpatory clause as in Powell. The release states in pertinent part:

I hereby fully and forever discharge and release [**7] . . . Dyna-Soar Aerobatics, Inc. and all of the partners, directors, officers, employees, and agents for the aforementioned companies from any and all liability, claims, demands, actions, and causes of action whatsoever arising out of any damages, [*1001] both in law and in equity, in any way resulting from personal injuries, conscious suffering, death or property damage sustained while flying Dyna-Soar.

(R. 275). Obviously, the release fails to specifically and explicitly refer to Dyna Soar’s own negligence. The injury sustained by Marsh was not allegedly derived from a risk which was inherent in the nature of the ride. Dixon instructed Marsh that he would only levitate three to four feet from the ground. When the ride started, however, Marsh was allegedly shot fifteen feet in the air and subsequently dropped to the ground. Such a risk is not inherent in the nature of a wind tunnel ride. Thus, if, indeed, the accident occurred as Marsh describes, the injury must have resulted from the negligence of Dyna-Soar. We conclude that the release is not sufficient to release Dyna-Soar because the release did not specifically and explicitly refer the Dyna-Soar’s “own negligence.” While this [**8] exculpatory clause may act to bar some types of liability, it cannot act to bar liability arising from Dyna Soar’s own negligence. Therefore, the trial court erred when it entered summary judgment in favor of Dyna Soar based on the release.

Dyna Soar argues that the Powell decision should not be applied retroactively. In support of this argument, Dyna Soar cites Sink & Edwards, Inc. v. Huber, Hunt & Nichols, Inc., 458 N.E.2d 291 (Ind. Ct. App. 1984). In Sink, the court held that ” [HN5] pronouncements of common law made in rendering judicial opinions of civil cases have retroactive effect unless such pronouncements impair contracts made or vested rights acquired in reliance on an earlier decision.” Id. at 295 (emphasis added). Dyna Soar argues that Powell changed the common law, and therefore, it should not apply to exculpatory agreements made prior to said decision. We disagree. Before the Powell decision, Indiana courts had never decided whether an exculpatory clause required specific language. In fact, in Powell, this court was careful to distinguish other cases which have upheld exculpatory clauses similar to the clause used by Dyna Soar:

Although [**9] we have upheld exculpatory clauses which have used similar language, those cases can be distinguished. In Shumate [v. Lycan, 675 N.E.2d 749 (Ind.Ct.App.1997), trans. denied] and Terry v. Indiana State University, 666 N.E.2d 87 (Ind.Ct.App.1996), the nonspecificity of the language in the exculpatory clauses was not put at issue nor addressed. In Marshall [v. Blue Springs Corp., 641 N.E.2d 92 (Ind.Ct.App.1994)], the focus of the appeal was that there was a genuine issue of material fact as to whether the releases were signed “willingly” or under economic or other compulsion. The nonspecificity of the language used to effect release for the defendant’s own negligence was not presented as an issue nor addressed. In LaFrenz [v. Lake Cty. Fair Bd., 172 Ind. App. 389, 360 N.E.2d 605 (1977)], we noted “the form and language of the agreement explicitly refers to the appellees’ [party released] negligence.” Therefore, had the issue been raised, the language contained the specific and explicit reference to negligence we now hold to be necessary.

Powell, 694 N.E.2d at 762 (citations omitted). From the language of the Powell decision itself, we [**10] conclude that Powell did not change Indiana common law. Thus, Dyna Soar can not show that they relied on earlier Indiana decisions when drafting its exculpatory agreement.

II.

Marsh also argues that the trial court erred when it entered summary judgment on his products liability claim. In particular, he argues that the Dyna Soar machine is a product for purposes of the Indiana Products Liability Act. 1 We disagree.

1 The Indiana Products Liability was codified at Ind. Code § 33-1-1.5-1 et seq. Since the inception of this litigation, however, the Act has been recodified at Ind. Code § 34-20-1-1 et seq. Hereinafter, we shall refer to the Indiana Products Liability Act using its former citation.

[HN6] In order to be subject to liability under the Indiana Products Liability Act, Dyna Soar must be defined as the seller of a product. The Act defines a seller as “a person engaged in the business of selling or leasing a product for resale, use, or consumption.” [*1002] Ind. Code § 33-1-1.5-2(5). 2 A product [**11] is defined as follows:

” [HN7] Product” means any item or good that is personalty at the time it is conveyed by the seller to another party. It does not apply to a transaction that, by its nature, involves wholly or predominantly the sale of a service rather than a product.

Ind. Code § 33-1-1.5-2(6). 3 Marsh claims that Dixon created a machine, a product, and provided a service. He argues that his claim should not be barred just because a service was provided in this case. In support of his argument, he points this court to Ferguson v. Modern Farm Systems, Inc., 555 N.E.2d 1379 (Ind. Ct. App. 1990). In Ferguson, a worker fell off of a ladder that was attached to a grain bin. The plaintiffs sued the manufacturers of the grain bin and its component parts under a products liability theory. In determining that the Indiana Products Liability Act applied to the plaintiffs’ claims, the Ferguson court stated: “the legislature did not contemplate a distinction between movable and nonmovable property, but rather sought to exclude transactions which relate primarily to the act of providing a service, such as that provided by an accountant, attorney, or physician.” 555 N.E.2d at 1384-85. [**12] Marsh claims that no such service was provided in his case. We do not find Ferguson dispositive. The crucial issue in Ferguson concerned whether the real estate improvement statute of limitations or the products liability statute of limitations applied to the plaintiffs’ products liability claim. Thus, the Ferguson court discussed whether property affixed to real estate constitutes a product. Such is not the issue in the present case.

2 See now Ind. Code § 34-6-2-136

3 See now Ind. Code § 34-6-2-114

We find Hill v. Rieth-Riley Const. Co., Inc., 670 N.E.2d 940 (Ind. Ct. App. 1996) more applicable to the set of facts presented here. In Hill, the defendants removed and reset guardrails to facilitate the resurfacing of U.S. 31. The plaintiff struck one of these guardrails and brought suit against the defendants under the Indiana Products Liability Act. This court held that the contract between the Indiana Department of Transportation and the plaintiffs was predominantly a contract for [**13] services. The Hill court stated: “even if it were true that 31 new concrete plugs were installed and some rusted rails replaced, the [plaintiffs] have presented no evidence that this contract was not “for the most part” about the service of resurfacing the roadway.” 670 N.E.2d at 943. In this case, the transaction between Marsh and Dyna Soar wholly involved a service. By purchasing a ticket from Dyna Soar, Marsh received the limited right to ride the Dyna Soar machine. He did not receive an interest in any property. In fact, Dyna Soar retained all rights to operate and control the machine in question. We conclude that the trial court did not err by entering summary judgment against Marsh on his products liability claim.

Affirmed in part and reversed in part.

BAKER, J., and GARRARD, J., concur.


A.M.D., a Minor, vs. Young Men’s Christian Association of Greater Indianapolis, 2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527

A.M.D., a Minor, vs. Young Men’s Christian Association of Greater Indianapolis, 2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527

A.M.D., a Minor, by his Parents and Guardians, John Doe and Jane Doe, and John Doe and Jane Doe, individually, Appellants, vs. Young Men’s Christian Association of Greater Indianapolis, Appellee.

No. 49A04-1211-CT-551

COURT OF APPEALS OF INDIANA

2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527

July 19, 2013, Decided

July 19, 2013, Filed

NOTICE: PURSUANT TO INDIANA APPELLATE RULE 65(D), THIS MEMORANDUM DECISION SHALL NOT BE REGARDED AS PRECEDENT OR CITED BEFORE ANY COURT EXCEPT FOR THE PURPOSE OF ESTABLISHING THE DEFENSE OF RES JUDICATA, COLLATERAL ESTOPPEL, OR THE LAW OF THE CASE.

PUBLISHED IN TABLE FORMAT IN THE NORTH EASTERN REPORTER.

SUBSEQUENT HISTORY: Transfer denied by A.M.D. v. YMCA of Greater Indianapolis, 997 N.E.2d 356, 2013 Ind. LEXIS 883 (Ind., Nov. 7, 2013)

PRIOR HISTORY: [*1]

APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Heather Welch, Judge. Cause No. 49D12-0805-CT-20350.

Taylor v. State, 891 N.E.2d 155, 2008 Ind. App. LEXIS 1678 (Ind. Ct. App., 2008)

CORE TERMS: summary judgment, camper, causation, counselor, bathroom, staff, proximate cause, restroom, superseding, intervening, exculpatory clause, foreseeability, foreseeable, bush, rafting, looked, matter of law, superseding cause, reasonably foreseeable, duty to supervise, chain of causation, omission, sexual assaults, suspicious, violent, negligent act, question of fact, supervision, supervising, designated

COUNSEL: ATTORNEY FOR APPELLANTS:DANIEL S. CHAMBERLAIN, Doehrman Chamberlain, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: MARK D. GERTH, JEFFREY D. HAWKINS, MICHAEL WROBLEWSKI, Kightlinger & Gray, LLP, Indianapolis, Indiana.

JUDGES: FRIEDLANDER, Judge. ROBB, C.J., and KIRSCH, J., concur.

OPINION BY: FRIEDLANDER

OPINION

MEMORANDUM DECISION – NOT FOR PUBLICATION

FRIEDLANDER, Judge

A.M.D., a minor, by his parents and guardians, John Doe and Jane Doe, and John Doe and Jane Doe individually, appeal from the trial court’s order granting summary judgment in favor of Young Men’s Christian Association of Greater Indianapolis and YMCA of Greater Indianapolis (collectively, the YMCA) in an action brought by the Does alleging negligence against the YMCA. The following issue is presented in this appeal: Did the trial court err by granting summary judgment in favor of the YMCA under the doctrine of superseding causation?

We reverse.

The facts designated to the trial court for purposes of ruling on the motion for summary judgment follow. When A.M.D. was eight years old, he participated in a summer day camp through the YMCA’s Day Camp [*2] Program at Lions Park in Zionsville, Indiana. The camp was offered to children in grades kindergarten through sixth grade. On June 27, 2006, YMCA camp counselors accompanied A.M.D. and the other camp participants to Creekside Park, which is a park immediately adjacent to Lions Park. On that particular day there were fifteen to twenty children, ranging in age from six years old to twelve years old, and three camp counselors at the park.

The purpose of the trip to Creekside Park was to give the children the opportunity to enjoy rafting and playing in and around the water. The camp began that day at 7:00 a.m. and the group walked over to Creekside Park at approximately 2:00 p.m. Until the time of the incident giving rise to this appeal, there was nothing out of the ordinary at the park and there were no activities or individuals that gave anyone at the YMCA cause for concern. In particular, there was no one at the park who was lingering around, looked out of place, or generally looked suspicious.

During the rafting excursion, the counselors were situated such that one counselor, Megan Donaldson, was positioned where the rafting began, and two counselors, Melissa Raab and Jay Binkert, were [*3] positioned where the rafting ended. Shortly after the rafting began, A.M.D. told Raab that he needed to go to the bathroom. Since the public restroom was a ten-to-fifteen minute walk away, Raab allowed A.M.D. to urinate by some bushes that were within Raab’s direct and unobstructed view. Raab instructed A.M.D. to remain by the bush and to return when he was finished. At the time Raab instructed A.M.D. to urinate in the bushes, she knew that the YMCA’s bathroom policy required at least one counselor and one buddy to go with a camper to the restroom. No campers were to go to the bathroom by themselves.

A.M.D. went to the bathroom by the bushes as instructed and was within Raab’s line of sight. Raab momentarily turned her attention towards the creek to check on the other children, and turned her attention away from A.M.D. for less than a minute. When Raab looked back to check on A.M.D., he was gone. Unknown to A.M.D. and the YMCA counselors, there was a sexual predator hiding in the woods near where A.M.D. was going to the bathroom. It was later determined that Stephen Taylor was the person hiding in the woods, and who attacked A.M.D. Taylor was so well hidden that A.M.D. did not see Taylor [*4] approach him from the front until after he had finished going to the bathroom.

Once Taylor emerged from the woods, he approached A.M.D., told him he was a doctor, and offered to give A.M.D. a piggy-back ride, which A.M.D. accepted. Taylor successfully lured A.M.D. farther into the woods where they were both alone and out of sight from any of the YMCA camp counselors. While hidden in the woods, Taylor sexually assaulted A.M.D. Once Raab noticed that A.M.D. was not by the bushes, she immediately began looking for A.M.D. and screaming his name. Ultimately, A.M.D. was found, but the perpetrator had run away. Approximately six months later, Taylor was arrested on an unrelated charge and was subsequently identified as the person who had sexually assaulted A.M.D. Taylor was convicted of a class A felony and was sentenced to fifty years in the Department of Correction. See Taylor v. State, 891 N.E.2d 155 (Ind. Ct. App. 2008), trans. denied, cert. denied, 555 U.S. 1142, 129 S. Ct. 1008, 173 L. Ed. 2d 301 (2009), reh’g denied, 556 U.S. 1148, 129 S. Ct. 1665, 173 L. Ed. 2d 1032; Taylor v. State, No. 06A04-1009-PC-557, 951 N.E.2d 312 (July 29, 2011), trans. denied.

Prior to June 27, 2006, the YMCA was not aware of any criminal incidents or crimes that [*5] were committed at the Lions or Creekside Parks. Prior to June of 2006, there were no other incidents of violent or sexual assaults reported at Creekside Park. There have been no incidents of violent or sexual assaults reported at Lions Park for at least the past twenty-five years.

On May 7, 2008, the Does individually, and on behalf of A.M.D., filed a negligence action against the YMCA. The YMCA filed a motion for summary judgment in the action presenting the following two claims: 1) The YMCA was not the proximate cause of A.M.D.’s injuries because Taylor’s criminal actions were not reasonably foreseeable; and 2) the exculpatory clause contained in the camper application signed by Jane Doe released the YMCA from any and all claims. The Does filed their opposition to the YMCA’s motion for summary judgment claiming that the following four theories precluded the entry of summary judgment in the YMCA’s favor: 1) The YMCA negligently supervised A.M.D.; 2) the YMCA failed to prevent foreseeable intentional conduct by a third-party; 3) the YMCA did not have to be the sole cause of A.M.D.’s injuries; and 4) the YMCA is not released from its responsibility to A.M.D. and his parents by virtue [*6] of the exculpatory clause contained in the camper application form signed by Jane Doe.

On September 17, 2012, the trial court held a hearing on the YMCA’s motion for summary judgment. In part, the trial court’s order on summary judgment reads as follows:

The Court hereby finds that the Defendant, YMCA, is entitled to summary judgment as a matter of law and the Court hereby GRANTS the Defendant, YMCA’s, Motion for Summary Judgment. The Court hereby DENIES the Plaintiffs’ Partial Motion for Summary Judgment regarding the exculpatory clause. The Court further notes that the Defendant never disputed that they had a duty to supervise A.M.D. Thus, the Court does not find this issue was before the Court and the Court declines to address the Plaintiffs[sic] Motion for Partial Summary Judgment on this issue as it is moot due to the Court’s ruling on the issue of proximate cause. There is no just reason for delay, and [the YMCA] is entitled to judgment in their favor and against A.M.D., a Minor, by His Parents and Guardians, JOHN DOE AND JANE DOE, and JOHN DOE AND JANE DOE, Individually on the Plaintiffs’ Complaint as a matter of law. This Judgment is a full, complete, and final Judgment on the [*7] Plaintiffs’ Complaint as to [the YMCA] in this case. The Clerk of this Court shall enter the Judgment in the Judgment Docket.

Appellant’s Appendix at 21. A.M.D. and the Does appeal. Additional facts will be supplied where necessary.

A.M.D. and the Does contend that the trial court erred by granting the YMCA’s motion for summary judgment and by denying their motion for partial summary judgment on the issue of the impact of the exculpatory clause in the camper application signed by Jane Doe. The trial court included in its summary judgment order specific findings of fact and conclusions of law. A trial court’s specific findings and conclusions are not required, and, while they offer insight into the trial court’s rationale for the judgment entered, and facilitate our review, we are not limited to reviewing the trial court’s reasons for granting or denying summary judgment. Trustcorp Mortg. Co. v. Metro Mortg. Co., Inc., 867 N.E.2d 203 (Ind. Ct. App. 2007). A trial court’s order granting summary judgment may be affirmed upon any theory supported by the designated materials. Id. Additionally, the fact that the parties filed cross-motions for summary judgment does not alter our standard of [*8] review. Id. In that situation, we consider each motion separately in order to determine whether the moving party is entitled to judgment as a matter of law. Id.

A plaintiff seeking damages for negligence must establish (1) a duty owed to the plaintiff by the defendant, (2) a breach of the duty, and (3) an injury proximately caused by the breach of duty. Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011). “Absent a duty, there can be no breach, and therefore, no recovery for the plaintiff in negligence.” Vaughn v. Daniels Co. (West Virginia), Inc., 841 N.E.2d 1133, 1143 (Ind. 2006). Where the action involves negligent supervision of a child, we have made the following observation:

[T]here is a well-recognized duty in tort law that persons entrusted with children have a duty to supervise their charges. The duty is to exercise ordinary care on behalf of the child in custody. The duty exists whether or not the supervising party has agreed to watch over the child for some form of compensation. However, the caretaker is not an insurer of the safety of the child and has no duty to foresee and guard against every possible hazard.

Davis v. LeCuyer, 849 N.E.2d 750, 757 (Ind. Ct. App. 2006). Our Supreme [*9] Court announced the three-part test for determining whether to impose a duty at common law in Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991), viz. (1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns, but that analysis is not necessary where the duty is well settled. Northern Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462 (Ind. 2003). Furthermore, the trial court found and the parties do not contest the finding that the YMCA owed a duty to supervise A.M.D.

In this case, the question presented on appeal concerns the issue of causation. We have held that causation is an essential element of a negligence claim. Bush v. N. Ind. Pub. Serv. Co., 685 N.E.2d 174, 178 (Ind. Ct. App. 1997). “The injurious act must be both the proximate cause and the cause in fact of an injury. Generally, causation, and proximate cause in particular, is a question of fact for the jury’s determination.” Correll v. Ind. Dep’t of Transp., 783 N.E.2d 706, 707 (Ind. Ct. App. 2002). In the present case, the trial court entered summary judgment in favor of the YMCA after engaging in an analysis of causation, which we reproduce in pertinent [*10] part as follows:

Summary Judgment Standard

. . . .

11. This Court notes the issue presented by YMCA’s Motion for Summary Judgment only addresses the element of causation. The Court does find under well-settled Indiana Law that the YMCA had a duty to supervise A.M.D. However, the issue for this Court is whether there is a material dispute of fact on the element of proximate cause.

12. In order to prevail in a negligence action, the plaintiff must demonstrate all the requisite elements of a cause of action: “(1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty by the defendant, and (3) an injury to the plaintiff as a proximate result of the breach.” Ford Motor Co. v Rushford, 868 N.E.2d 806, 810 (Ind. 2007). The question of whether the defendant owes the plaintiff a legal duty is generally one of law for the court. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind. 1992).

. . . .

17. Causation is an essential element of a negligence claim. Bush v. Northern Indiana Pub. Serv. Co., 685 N.E.2d 174, 178 (Ind. Ct. App. 1997), trans. denied (1999). “Proximate cause has two components: causation-in-fact and scope of liability. City of Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222, 1243-44 (Ind. 2003). [*11] To establish factual causation, the plaintiff must show that but for the defendant’s allegedly tortious act or omission, the injury at issue would not have occurred. Id. The scope of liability doctrine asks whether the injury was a “natural and probable consequence” of the defendant’s conduct, which in the light of the circumstances, should have been foreseen or anticipated. Id. at 1244. Liability is not imposed on the defendant if the ultimate injury was not “reasonably foreseeable” as a consequence of the act or omission. Id. Therefore, the fundamental test of proximate cause is “reasonable foreseeability”. Lutheran Hospital of Indiana, Inc v. Blaser, 634 N.E.2d 864, 871 (Ind. Ct. App. 1994).

18. Generally, causation, and proximate cause in particular, is a question of fact for the jury’s determination. Adams Twp. Of Hamilton County v. Sturdevant, 570 N.E.2d 87, 90 (Ind. Ct. App. 1991). However, “Where only a single conclusion can be drawn from the set of facts, proximate cause is a question of law for the court to decide.[“] Merchants National Bank v. Simrell’s, 741 N.E.2d 383, 389 (Ind. Ct. App. 2000).

19. In this case, the facts are undisputed and only a single conclusion can be [*12] drawn or inferred from the facts. Therefore, the Court finds that the issue of proximate cause is a question of law not fact.

Appellant’s Appendix at 13-16. The trial court then analyzed cases addressing the issue whether intentional criminal acts of third parties break the chain of causation under the doctrines of superseding and intervening causation.1

1 The Supreme Court described the doctrine as follows:

The doctrine of superseding or intervening causation has long been part of Indiana common law. It provides that when a negligent act or omission is followed by a subsequent negligent act or omission so remote in time that it breaks the chain of causation, the original wrongdoer is relieved of liability. A subsequent act is “superseding” when the harm resulting from the original negligent act “could not have reasonably been foreseen by the original negligent actor.” Whether the resulting harm is “foreseeable” such that liability may be imposed on the original wrongdoer is a question of fact for a jury.

Control Techniques, Inc. v. Johnson, 762 N.E.2d 104 (Ind. 2002) (internal citations omitted)(emphasis supplied).

Our Supreme Court in Control Techniques examined whether Indiana’s Comparative [*13] Fault Act2 had subsumed or abrogated the doctrines of superseding and intervening causation, and the impact of the viability of those doctrines, such that error could be predicated upon the refusal to instruct the jury thereon. In concluding that no instruction on the doctrine of superseding causation was warranted, the Supreme Court stated as follows:

For the reasons expressed below, we agree with the Court of Appeals that no separate instruction is required. In capsule form, we conclude that the doctrines of causation and foreseeability impose the same limitations on liability as the “superseding cause” doctrine. Causation limits a negligent actor’s liability to foreseeable consequences. A superseding cause is, by definition, one that is not reasonably foreseeable. As a result, the doctrine in today’s world adds nothing to the requirement of foreseeability that is not already inherent in the requirement of causation.

Control Techniques, Inc. v. Johnson, 762 N.E.2d at 108. The court went on to hold that the adoption of the Comparative Fault Act did not affect the doctrine of superseding cause. Id.

2 Ind. Code Ann. § 34-51-2-1 et seq. (West, Westlaw current through June 29 2013, excluding [*14] P.L. 205-2013).

The YMCA argues that the trial court correctly found that Taylor’s criminal conduct was a superseding or intervening cause of the harm to A.M.D. and cites Restatement (Second) of Torts § 448 in support. The Restatement provides as follows:

The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.

The YMCA claims that it was not foreseeable that a sexual predator would be lying in wait in the woods in an attempt to sexually molest one of their campers, and in particular, A.M.D.

Restatement (Second) of Torts §449, known as the very duty doctrine, provides 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, [*15] negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby. At the heart of these concepts is the necessity for an analysis of foreseeability.

The YMCA’s bathroom procedure for the camp, as set forth in the camp brochures provides as follows:

No camper is ever alone and no camper is ever alone with a staff member. All campers will take trips to the bathroom with entire camp and/or camp groups and camp staff. Campers will only use bathrooms inspected for safety by camp staff.

Appellant’s Appendix at 179. Additionally, day campers were to go to the bathroom in pairs, with one counselor present. The YMCA’s Code of Conduct for Day Camp Counselors provided as follows with respect to restroom supervision:

3. Restroom supervision: Staff will make sure the restroom is not occupied by suspicious or unknown individuals before allowing children to use the facilities. Staff will stand in the doorway while children are using the restroom. This policy allows privacy for the children and protection for the staff (not being alone with a child). If staff are assisting younger children, doors to the facility must remain open. No child, regardless [*16] of age, should ever enter a restroom alone on a field trip. Always send children in pairs, and whenever possible, with staff.

Id. at 213.

Further, the counselors were instructed that they shall never leave a child unsupervised. In particular, a day camp counselor, the position Raab held with the YMCA at the time of the molestation, has the general function of directly supervising approximately twelve campers and taking responsibility for each child’s safety. Several of the major responsibilities of the Camp Site Director involved the protection of the campers, such as personally supervising the campers at all times, being directly responsible for the daily safety and schedule of the campers, and maintaining a clean, neat, and safe campsite.

Raab’s deposition testimony indicated her understanding that an eight-year-old child should not be allowed to go to the restroom by himself or wander off because the YMCA did not want the child to get lost, suffer any harm, or be attacked. She further attested to the fact that under the YMCA’s rules campers are allowed to use only those bathrooms inspected by staff to make sure there was no one suspicious lurking around or lingering. Another YMCA employee [*17] attested as follows:

Q: What are the bathroom procedures for the YMCA?

A: For one staff person to accompany two children to the restroom.

Q: And why do you have that procedure or policy?

A: To protect children and to protect the staff.

Q: Protect children from what?

A: Potential child-on-child abusers or any interaction of any kind that’s inappropriate, fighting.

Q: Well, you would also have that policy and procedure for the one staff and two children to prevent sexual molestation from third parties, correct?

A: Correct.

Q: And that’s exactly what happened here; Mr. Taylor came upon the scene, found this child and assaulted him?

A: I can’t . . . .

Id. at 181.

Other designated evidence before the trial court suggested that until the time of the incident giving rise to this appeal, there was nothing out of the ordinary at the park and there were no activities or individuals that gave anyone at the YMCA cause for concern on the day in question. In particular, there was no one at the park who was lingering around, looked out of place, or generally looked suspicious. Furthermore, prior to June 27, 2006, the YMCA was not aware of any criminal incidents or crimes that were committed at the Lions or Creekside [*18] Parks. Additionally, prior to June of 2006, there were no other incidents of violent or sexual assaults reported at Creekside Park. There have been no incidents of violent or sexual assaults reported at Lions Park for at least the past twenty-five years.

We disagree that only one conclusion can be drawn or inferred from the undisputed facts. “[A]n actor need not foresee the exact manner in which harm occurs, but must, in a general way, foresee the injurious consequences of his act.” Rauck v. Hawn, 564 N.E.2d 334, 339 (Ind. Ct. App. 1990). Furthermore, a determination of whether Taylor’s act was a superseding or intervening cause of A.M.D.’s harm such that the original chain of causation has been broken depends on a determination of whether it was reasonably foreseeable under the circumstances that an actor would intervene in such a way as to cause the resulting injury. Scott v. Retz, 916 N.E.2d 252 (Ind. Ct. App. 2009).

In order to make that determination, three factors are pertinent to the analysis. First, courts on review have examined whether the intervening actor is independent from the original actor. Id. Next, we examine whether the instrumentality of harm was under the complete [*19] control of the intervening actor. Id. Third, we examine whether the intervening actor as opposed to the original actor is in a better position to prevent the harm. Id. At a minimum, the facts pertinent to the third factor are in dispute. Whether the criminal assault on A.M.D. by a stranger, Taylor, was foreseeable by the YMCA such that the chain of causation was broken, should be decided by a trier of fact and not as a matter of law.3

3 The trial court did not resolve the issue of whether the exculpatory clause in the camper application signed by Jane Doe released YMCA from liability because the issue was moot. We do not address the arguments pertaining to the release of liability because there is no ruling on this issue subject to our review.

Judgment reversed.

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


One winner for equine liability statutes. Indiana statute stops litigation based on horse kick.

However, the plaintiff in this case owned horses and participated as a volunteer in the activities. Equine liability statutes protect horses better than the horse owners.

Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501

Plaintiff: Teresa Perry

Defendant: Whitley County 4-H Clubs Inc.

Plaintiff Claims: injuries were caused by the 4-H Club‘s negligence in “allowing horse activities to be conducted on premises unsuitable for such activities.” the 4-H Club was negligent in deciding to hold the Round Robin Competition in the Show Barn instead of the Horse Barn…

Defendant Defenses: Equine Activity Statute

Holding:

The plaintiff was a volunteer with the defendant 4-H Club serving on its Equine Advisory Board. She also owned seven horses. During an event, the plaintiff walked over to a child to instruct the child to move her horse because she was at risk of being injured. The plaintiff in the process was kicked by a horse.

The plaintiff sued. The trial court dismissed the case based on the Indiana Equine Activity Statute. This appeal followed.

Summary of the case

The court fist looked at its duties when interpreting a statute for the first time.

When courts set out to construe a statute, the goal is to determine and give effect to the intent of the legislature. The first place courts look for evidence is the language of the statute itself, and courts strive to give the words their plain and ordinary meaning. We examine the statute as a whole and try to avoid excessive reliance on a strict literal meaning or the selective reading of individual words. We presume the legislature intended the language used in the statute to be applied logically, consistent with the statute’s underlying policy and goals, and not in a manner that would bring about an unjust or absurd result.

The court then looked at the requirements of the statute and whether or not the defendant had met the requirements. First, the protection afforded by the statute does not apply unless at least one warning sign is posted on the premises.

…the Equine Activity Statute provides that an equine activity sponsor, as a condition precedent to immunity under the statute, must post and maintain a warning sign in at least one location “on the grounds or in the building that is the site of an equine activity.” Ind. Code § 34-31-5-3(a)I. The sign “must be placed in a clearly visible location in proximity to the equine activity,” and the warning must be printed in black letters at least one inch in height. Ind. Code § 34-31-5-3(b), (c).

The court found the signs were posted at all entrances to the horse barn and were clearly visible. However, there were no signs on the show barn where the incident occurred. However, the plaintiff admitted that she had seen the signs posted on the horse barn.

The next issue was whether or not the incident and injury the plaintiff suffered were an inherent risk of equine activities. (Really? I grew up with horses; being kicked happens…….a lot.) In this case, the plaintiff tried to argue the language in the statute did not cover the actual incident that caused her injury. Meaning the accident was not caused by an inherent risk but by negligence of the defendants.

Subject to section 2 of this chapter, an equine activity sponsor or equine professional is not liable for:

(1) an injury to a participant; or

(2) the death of a participant;

resulting from an inherent risk of equine activities.

Ind. Code § 34-31-5-1(a). 2  The definition of “inherent risks of equine activities” is:

the dangers or conditions that are an integral part of equine activities, including the following:

(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.

(2) The unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals.

(3) Hazards such as surface and subsurface conditions.

(4) Collisions with other equines or objects.

(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant’s ability.

Ind. Code § 34-6-2-69. The Equine Activity Statute further provides:

Section 1 of this chapter does not prevent or limit the liability of an equine activity sponsor . . .:

(1) who:

(A) provided equipment or tack that was faulty and that caused the injury; and

(B) knew or should have known that the equipment or tack was faulty;

(2) who provided the equine and failed to make reasonable and prudent efforts based on the participant’s representations of the participant’s ability to:

(A) determine the ability of the participant to engage safely in the equine activity; and

(B) determine the ability of the participant to safely manage the particular equine;

(3) who:

(A) was in lawful possession and control of the land or facilities on which the participant sustained injuries; and

(B) knew or should have known of the dangerous latent condition that caused the injuries;

if warning signs concerning the latent dangerous condition were not conspicuously posted on the land or in the facilities;

(4) who committed an act or omission that:

(A) constitutes reckless disregard for the safety of the participant; and

(B) caused the injury; or

(5) who intentionally injured the participant.

The court’s analysis quasi reversed the plaintiff’s argument. If the injury was caused by an inherent risk of equine activities, then it would not matter if the defendant was negligent.

The statutory definition of “inherent risks of equine activities” includes, without limitation, “[t]he unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals,” and “[t]he propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.”

The plaintiff’s injuries were due to an inherent risk of horses.

As explained above, the statute does not require that an equine activity sponsor’s alleged negligence in no way contribute to the injury complained of. Rather, the Equine Activity Statute only requires that, in order for immunity to apply, the injury must have resulted from broad categories of risk deemed integral to equine activities, regardless of whether the sponsor was negligent.

Consequently, the court held the complaint was properly dismissed, and the defendant was not liable.

So Now What?

This is a great case; the statute worked. I now have to change my quote. Equine liability statutes are 100% effective. Since being passed no horse has been sued, but owners of horses are still being sued. And the statute protected one of them.

If you are subject to a statute that requires signs, post them everywhere. Post them in every location where people enter the premises. Post them on every building and every building entrance. Post them inside the building were spectators, and participants will see the signs. The signs are cheap compared to the cost of litigation.

Understand the statute and make sure you fulfill every aspect of the statute and cover all the requirements.

As this case points out, however, the statute still left a lot to lose a lawsuit over. Statutes are rarely written to provide 100% protection. Consequently, unless you want to litigate every word in the statute, use additional defenses.

1.      Use a release. As pointed out in this case, if interpreted differently or if a sign had blown away, the best defense to this lawsuit would have been a release.

2.    Educate the youth you are working with and the adults working with them. In this case, the adult was there because of her knowledge of the risks of the activity.

One point that stands out in this decision is the knowledge and experience of the plaintiff.  It is hard for someone who owns seven horses to argue that getting kicked by a horse is not an inherent risk of horses.

Would this decision be different if the plaintiff had no knowledge or experience with horses?

What do you think? Leave a comment.

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Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501

Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501

Teresa Perry, Appellant-Plaintiff, vs. Whitley County 4-H Clubs Inc., Appellee-Defendant.

No. 92A03-1002-CT-101

Court Of Appeals Of Indiana

931 N.E.2d 933; 2010 Ind. App. LEXIS 1501

August 16, 2010, Decided

August 16, 2010, Filed

PRIOR HISTORY: [**1]

APPEAL FROM THE WHITLEY CIRCUIT COURT. The Honorable James R. Heuer, Judge. Cause No. 92C01-0809-CT-652.

COUNSEL: ATTORNEY FOR APPELLANT: SARAH E. RESER, Glaser & Ebbs, Fort Wayne, Indiana.

ATTORNEY FOR APPELLEE: CARRIE KOONTZ GAINES, Kopka, Pinkus Dolin & Eads, L.L.C., Mishawaka, Indiana.

JUDGES: ROBB, Judge. FRIEDLANDER, J., and KIRSCH, J., concur.

OPINION BY: ROBB

OPINION

[*934] OPINION – FOR PUBLICATION

ROBB, Judge

Case Summary and Issue

Teresa Perry appeals the trial court’s entry of summary judgment in favor of Whitley County 4-H Clubs, Inc. (the “4-H Club”) on Perry’s negligence complaint for personal injuries suffered during a horse competition sponsored by the 4-H Club. For our review, Perry raises two issues, which we consolidate and restate as whether the trial court properly granted summary judgment based on the Indiana Equine Activity Statute. Concluding there is no genuine issue of material fact and the Equine Activity Statute bars Perry’s claim for injuries resulting from inherent risks of equine activities, we affirm.

Facts and Procedural History

The undisputed facts and those most favorable to Perry as the non-movant are as follows. At all relevant times, Perry, an adult, was a member of the 4-H Clubs Equine Advisory [**2] Board, which provides guidance and instruction to children participating in the 4-H Club’s horse events, and was herself a regular participant in those [*935] events. Perry was also the owner of seven horses. In July 2007, the 4-H Club held horse practices and competitions at the Whitley County Fairgrounds as part of the Whitley County Fair. These events were generally held in the 4-H Club’s Horse Barn, but one event, the Large Animal Round Robin Competition, was held in the 4-H Club’s Show Barn, located next to the Horse Barn. The Horse Barn is over 100 feet wide but the Show Barn is approximately thirty-six feet wide along its shorter side. Horses were generally familiar with the Horse Barn but unfamiliar with the Show Barn, where they were “not allowed any other time” besides the Round Robin Competition. Appellant’s Appendix at 88. At all entrances to the Horse Barn, the 4-H Club had posted “Equine Activity warning signs” that were “clearly visible.” Id. at 18-19 (affidavit of Bill Leeuw, 4-H Club’s President of the Board).

On July 25, 2007, the Round Robin Competition was held. The Equine Advisory Board and volunteers selected the horses to be shown, and Perry herself selected one of those [**3] horses “at the last minute.” Id. at 93. Perry was present at the Round Robin Competition as an Equine Advisory Board member responsible for the safety of children handling the horses. As part of the event, seven horses were led from the Horse Barn into the Show Barn and lined up approximately two and one-half feet apart along the shorter side of the Show Barn. The horses were then turned over to children who did not normally handle horses but had experience handling animals such as pigs and cows and had received brief instruction on how to handle a horse. After one of the children finished leading a horse through a series of maneuvers, the child left the horse facing away from the center of the Show Barn, in the opposite direction from the neighboring horses and with its rear next to the head of a neighboring horse. The horse facing backwards began sniffing the rear of the neighboring horse, which pinned its ears against its head as a sign it was agitated. Perry realized this situation posed a danger to the child handling the horse facing backwards. Perry therefore approached the child and told the child to turn the horse around. As the child was doing so, the neighboring horse kicked [**4] Perry in the knee. Perry was thrown back and suffered personal injuries.

In September 2008, Perry filed a complaint against the 4-H Club alleging her injuries were caused by the 4-H Club’s negligence in “allowing horse activities to be conducted on premises unsuitable for such activities.” Id. at 6. As specifically argued by Perry at the summary judgment hearing, she alleged the 4-H Club was negligent in deciding to hold the Round Robin Competition in the Show Barn instead of the Horse Barn, as the smaller Show Barn “requires horses to be placed close together, increasing the chances that a child near the horse will be injured by one. It’s also an environment the horses aren’t familiar with, which makes it more likely that a horse will get spooked and kick someone.” Transcript at 4. Among the 4-H Club’s affirmative defenses, it alleged in its answer that Perry’s claim was barred by the Indiana Equine Activity Statute.

The 4-H Club filed a motion for summary judgment based in part on the Equine Activity Statute. Following a hearing, the trial court on January 27, 2010, issued its order granting summary judgment to the 4-H Club. The trial court found and concluded in relevant part:

14. [**5] The [4-H Club] was a sponsor of an equine activity when the accident occurred.

15. [Perry] was a participant in the equine activity in her capacity as a safe [*936] keeper when she approached the horses and was kicked.

16. The Equine Activities Act . . . is applicable to this case.

17. Being kicked by a horse is an inherent risk of equine activity.

18. There is no evidence in the designation of material facts that [the 4-H Club] committed an act or omission which constituted a reckless disregard for the safety of [Perry] or that any other conditions set in [Indiana Code section] 34-31-5-2 existed at the time of the accident.

Appellant’s App. at 5. Perry now appeals.

Discussion and Decision

I. Standard of Review

[HN1] We review a summary judgment order de novo. Tri-Etch, Inc. v. Cincinnati Ins. Co., 909 N.E.2d 997, 1001 (Ind. 2009). In so doing, we stand in the same position as the trial court and must determine whether the designated evidence shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind. 2009). In making this determination, we construe [**6] the evidence in a light most favorable to the non-moving party and resolve all doubts as to the existence of a genuine factual issue against the moving party. N. Ind. Pub. Serv. Co. v. Bloom, 847 N.E.2d 175, 180 (Ind. 2006). Our review of a summary judgment motion is limited to those materials designated by the parties to the trial court. Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). The movant has the initial burden of proving the absence of a genuine factual dispute as to an outcome-determinative issue and only then must the non-movant come forward with evidence demonstrating genuine factual issues that should be resolved at trial. Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994).

Because this case turns on the proper application of the Equine Activity Statute, we also recite our well-established standard of review for interpretation of statutes:

[HN2] When courts set out to construe a statute, the goal is to determine and give effect to the intent of the legislature. The first place courts look for evidence is the language of the statute itself, and courts strive to give the words their plain and ordinary meaning. [**7] We examine the statute as a whole and try to avoid excessive reliance on a strict literal meaning or the selective reading of individual words. We presume the legislature intended the language used in the statute to be applied logically, consistent with the statute’s underlying policy and goals, and not in a manner that would bring about an unjust or absurd result.

Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1283 (Ind. 2009) (citations omitted).

II. Equine Activity Statute

A. Warning Signs

Perry argues the trial court erred in granting summary judgment because there is a genuine issue of fact as to whether the 4-H Club complied with the warning sign requirements of the Equine Activity Statute. We address this sub-issue first because it bears on the threshold applicability of the Equine Activity Statute as a bar to Perry’s claim. See Ind. Code § 34-31-5-3(a) (providing [HN3] “[t]his chapter does not apply unless” equine activity sponsor has posted at least one complaint warning sign). In response to Perry’s argument, the 4-H Club initially [*937] contends Perry waived the argument by not raising it to the trial court prior to the summary judgment hearing. We disagree. In general, arguments [**8] by an appellant are waived if not presented to the trial court on summary judgment, see Cook v. Ford Motor Co., 913 N.E.2d 311, 322 n.5 (Ind. Ct. App. 2009), trans. denied, and summary judgment may not be reversed on the grounds of a genuine factual issue “unless the material fact and the evidence relevant thereto shall have been specifically designated to the trial court,” T.R. 56(H). However, Perry did argue at the summary judgment hearing that the evidence designated by the 4-H Club was insufficient to establish its compliance with the warning sign requirements of the Equine Activity Statute. Moreover, this issue was already before the trial court based upon the 4-H Club’s motion for summary judgment and designation of material facts.

Proceeding to Perry’s claim, [HN4] the Equine Activity Statute provides that an equine activity sponsor, as a condition precedent to immunity under the statute, must post and maintain a warning sign in at least one location “on the grounds or in the building that is the site of an equine activity.” Ind. Code § 34-31-5-3(a)I. The sign “must be placed in a clearly visible location in proximity to the equine activity,” and the warning must be printed in black [**9] letters at least one inch in height. Ind. Code § 34-31-5-3(b), (c). The warning must state: “Under Indiana law, an equine professional is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities.” Ind. Code § 34-31-5-5.

The undisputed evidence is that the 4-H Club, on the day of the incident, maintained “Equine Activity warning signs” on all entrances to the Horse Barn, and the signs were “clearly visible.” Appellant’s App. at 18-19. The 4-H Club’s equine activities were regularly held inside the Horse Barn, except for the Round Robin Competition held in the Show Barn located next to the Horse Barn. Perry acknowledged in her deposition she had seen “those signs” on the Horse Barn, id. at 114, and did not designate any evidence the signs were absent on the day of the incident or lacked the specific warning required by Indiana Code section 34-31-5-5. Perry argues, in effect, that because the only photographs the 4-H Club properly designated to the trial court do not directly show the signs contained the specific warning required, 1 the 4-H Club did not meet its burden of making a prima facie case of compliance [**10] with the statute. We decline Perry’s invitation to, in effect, interpret the Equine Activity Statute to require an equine activity sponsor to submit such photographic or documentary evidence in order to support its claim of immunity. Rather, we conclude the affidavit the 4-H Club properly designated established its prima facie case that it maintained proper warning signs, such that the burden shifted to Perry to come forward with evidence the signs were deficient. Because she did not do so, there is no genuine issue of fact as to the warning signs, and the trial court [*938] properly concluded the Equine Activity Statute applies to this case.

1 The parties dispute, and it is unclear from the record, whether a photograph identified as Defendant’s Exhibit A at Perry’s deposition, and allegedly included along with the deposition in the 4-H Club’s designation of evidence, was actually part of the designated material submitted to the trial court. That photograph, unlike those included as the 4-H Club’s Exhibit C in support of summary judgment and to which the 4-H Club referred at the summary judgment hearing, shows a warning sign containing the text specified in Indiana Code section 34-31-5-5.

B. [**11] Inherent Risk of Equine Activities

Perry also argues the trial court erred in granting summary judgment because there is a genuine issue of fact as to whether her injuries resulted from an inherent risk of equine activities. The Equine Activity Statute provides:

[HN5] Subject to section 2 of this chapter, an equine activity sponsor or equine professional is not liable for:

(1) an injury to a participant; or

(2) the death of a participant;

resulting from an inherent risk of equine activities.

Ind. Code § 34-31-5-1(a). 2 [HN6] The definition of “inherent risks of equine activities” is:

the dangers or conditions that are an integral part of equine activities, including the following:

(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.

(2) The unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals.

(3) Hazards such as surface and subsurface conditions.

(4) Collisions with other equines or objects.

(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the [**12] animal or not acting within the participant’s ability.

Ind. Code § 34-6-2-69. The Equine Activity Statute further provides:

[HN7] Section 1 of this chapter does not prevent or limit the liability of an equine activity sponsor . . .:

(1) who:

(A) provided equipment or tack that was faulty and that caused the injury; and

(B) knew or should have known that the equipment or tack was faulty;

(2) who provided the equine and failed to make reasonable and prudent efforts based on the participant’s representations of the participant’s ability to:

(A) determine the ability of the participant to engage safely in the equine activity; and

(B) determine the ability of the participant to safely manage the particular equine;

(3) who:

(A) was in lawful possession and control of the land or facilities on which the participant sustained injuries; and

(B) knew or should have known of the dangerous latent condition that caused the injuries;

if warning signs concerning the latent dangerous condition were not conspicuously posted on the land or in the facilities;

(4) who committed an act or omission that:

(A) constitutes reckless disregard for the safety of the participant; and

(B) caused the injury; or

[*939] (5) who intentionally [**13] injured the participant.

Ind. Code § 34-31-5-2(b). As Indiana’s Equine Activity Statute has not previously been interpreted in any reported case, 3 we will cite for their persuasive value the decisions of other jurisdictions that have interpreted similar statutes.

2 “Equine activity,” pursuant to its statutory definition, includes among other things “[e]quine shows, fairs, competitions, performances, or parades that involve equines.” Ind. Code § 34-6-2-41(a). “Equine activity sponsor” means “a person who sponsors, organizes, or provides facilities for an equine activity.” Ind. Code § 34-6-2-42. Perry does not dispute that the 4-H Club qualifies as an equine activity sponsor.

3 In Anderson v. Four Seasons Equestrian Center, Inc., 852 N.E.2d 576 (Ind. Ct. App. 2006), trans. denied, the only reported case citing the Equine Activity Statute, this court affirmed summary judgment for the defendant on the alternative grounds of waiver and release of liability. Id. at 585. We concluded the waiver applied because the plaintiff’s fall from a horse that moved while the plaintiff was attempting to mount it resulted from a risk “inherent in the nature of the activity of horse riding.” Id. at 584. However, [**14] we did not explicitly base that conclusion upon the text of the Equine Activity Statute.

Perry’s argument is that a reasonable trier of fact could find the cause of her injury was not an inherent risk of equine activities, but negligence of the 4-H Club in staging the Round Robin Competition. Perry makes no argument that any of the exceptions to immunity spelled out in Indiana Code section 34-31-5-2(b) (“Section 2(b)”) — faulty equipment or tack, provision of the equine and failure to make reasonable and prudent efforts to match the participant to the particular equine and equine activity, a latent premises defect, reckless disregard, or intentional injury — apply in this case. Therefore, we must examine whether and to what extent, consistent with the Equine Activity Statute, an equine activity sponsor may be liable for simple negligence allegedly causing injury to a participant.

Initially we note that negligence of an equine activity sponsor neither is one of the exceptions to immunity listed in Section 2(b), nor is it included in the non-exclusive list of inherent risks of equine activity under Indiana Code section 34-6-2-69. Thus, Indiana’s Equine Activity Statute, like equine activity [**15] statutes in some states but unlike some others, is silent on the place of sponsor negligence in the overall scheme of equine liability. Compare Lawson v. Dutch Heritage Farms, Inc., 502 F.Supp.2d 698, 700 (N.D. Ohio 2007) (noting Ohio’s Equine Activity Liability Act, like some other states?, is “silent as to simple negligence as an inherent risk”) (quotation omitted); with Beattie v. Mickalich, 486 Mich. 1060, 1060 784 N.W.2d 38, 2010 Mich. LEXIS 1452, 2010 WL 2756979, at *1 (Mich., July 13, 2010) (per curiam) (Michigan’s Equine Activity Liability Act abolishes strict liability for equines but expressly provides liability is not limited “‘if the . . . person . . . [c]ommits a negligent act or omission that constitutes a proximate cause of the injury?” (quoting Mich. Comp. Laws § 691.1665)). Because it is as important to recognize what a statute does not say as what it does say, City of Evansville v. Zirkelbach, 662 N.E.2d 651, 654 (Ind. Ct. App. 1996), trans. denied, and [HN8] statutes granting immunity, being in derogation of the common law, are strictly construed, see Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 281 (Ind. 1994), we conclude the Equine Activity Statute was not intended by the general assembly [**16] to abrogate the cause of action for common-law negligence of an equine activity sponsor. However, pursuant to the clear text of the statute, a negligence action is precluded if the injury resulted from an inherent risk of equine activities and the facts do not fit one of the exceptions to immunity provided by Section 2(b). Stated differently, if none of the Section 2(b) exceptions apply, then an equine activity sponsor is not liable for failing to use reasonable care to mitigate an already inherent risk of equine activities that ultimately resulted in a participant’s injury.

[*940] Turning to Perry’s claim, she was injured when unexpectedly kicked by a horse that became agitated during the 4-H Club’s Round Robin Competition. The horse became agitated because another horse was standing too close nearby and began sniffing its rear, and to remove the danger to the child handling the other horse, Perry intervened. The statutory definition of “inherent risks of equine activities” includes, without limitation, “[t]he unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals,” and “[t]he propensity of an equine to behave in ways [**17] that may result in injury, harm, or death to persons on or around the equine.” Ind. Code § 34-6-2-69. Such risks directly caused Perry’s injury, in that the horse kicked as part of an unpredictable reaction to the other horse nearby and, Perry alleges, the close quarters and unfamiliar environment of the Show Barn. See Kangas v. Perry, 2000 WI App 234, 239 Wis.2d 392, 620 N.W.2d 429, 433 (Wis. Ct. App. 2000) (based on Wisconsin’s similar definition of inherent risks, concluding “horses? propensity to move without warning is an inherent risk of equine activity contemplated by the statute”), review denied. We therefore conclude Perry’s injury resulted from inherent risks of equine activities within the meaning of the Equine Activity Statute.

Perry argues the likelihood of a horse becoming agitated and kicking, and a child becoming endangered and needing to be rescued by a supervisor such as Perry, were unreasonably increased by the 4-H Club’s decision to hold the Round Robin Competition in the Show Barn, a cramped space unfamiliar to the horses. Even if that is true, however, the 4-H Club’s conduct would have contributed to Perry’s injury only by heightening the already inherent risk that a horse might [**18] behave unpredictably and in an injury-causing manner. Thus, Perry’s argument that her injury resulted not from an inherent risk of equine activities, but from the 4-H Club’s negligence in its manner of staging the Round Robin Competition, amounts to hair splitting irrelevant to the Equine Activity Statute. As explained above, the statute does not require that an equine activity sponsor’s alleged negligence in no way contribute to the injury complained of. Rather, the Equine Activity Statute only requires that, in order for immunity to apply, the injury must have resulted from broad categories of risk deemed integral to equine activities, regardless of whether the sponsor was negligent. See Ind. Code §§ 34-6-2-69; 34-31-5-1.

Perry also relies on cases from other jurisdictions that, while involving similar statutes, are distinguishable on their facts. In Steeg v. Baskin Family Camps, Inc., 124 S.W.3d 633 (Tex. App. 2003), review dismissed, the court held summary judgment for the defendant improper where there was evidence the proximate causes of the rider’s fall included the saddle slipping and the defendant’s negligent failure to secure the saddle. Id. at 639-40. In Fielder v. Academy Riding Stables, 49 P.3d 349 (Colo. Ct. App. 2002), [**19] cert. denied, the court held the defendant was not entitled to immunity where the defendant’s wranglers negligently failed to remove a screaming child from a horse, an “obvious danger” the wranglers had notice of well before the horse bolted. Id. at 351-52. Here, by contrast, there is no evidence the 4-H Club ignored an obvious, imminent danger or that Perry’s injury directly resulted from anything other than unpredictable horse behavior.

In sum, the facts viewed most favorably to Perry as the party opposing summary judgment show her injury resulted from inherent risks of equine activities and the 4-H Club was negligent, if at all, only for [*941] failing to mitigate those inherent risks. Therefore, the trial court properly concluded the Equine Activity Statute bars Perry’s claim and properly granted summary judgment to the 4-H Club.

Conclusion

There are no genuine issues of material fact that the 4-H Club complied with the warning sign requirements of the Equine Activity Statute and that Perry’s injury resulted from inherent risks of equine activities. Therefore, Perry’s claim is barred by the Equine Activity Statute and the trial court properly granted summary judgment to the 4-H Club.

Affirmed.

FRIEDLANDER, [**20] J., and KIRSCH, J., concur.


Indiana decision upholds release signed by mother for claims of an injured daughter for the inherent risks of softball. However, language of the decision may apply to well written releases to stop all claims for negligence.

Decision appears to add Indiana to the list of states were a parent can sign away a minor’s right to sue for injuries.

Wabash County Young Men’s Christian Association, Inc. v. Thompson, 2012 Ind. App. LEXIS 428

Date of the Decision: August 31, 2012

Plaintiff: Wabash County Young Men’s Christian Association, Inc. f/k/a Wabash Community Service, Appellant-Defendant

Defendant: Taylor M. Thompson, a minor, by next friends, Brian Thompson and Charlene Thompson

Plaintiff (Defendant on Appeal) Claims: negligent and violated its duty to protect Taylor by its failure to inspect, warn, and implement preventive measures designed to eliminate or reduce dangers posed by the condition of the second base “such that it was fixed as a rigid obstacle for participants to encounter while sliding into the base and, thereby, posing a clear safety hazard

Defendant Defenses: Release

Holding: Release signed by the mother of the injured plaintiff (defendant on appeal) barred claims for the inherent risks of playing softball

Again, the plaintiff on appeal was the defendant in the trial court. The defendant at the trial court level filed a motion to dismiss. The motion was denied, and the defendant appealed that decision. Because of that timeline, the defendant became the plaintiff on appeal. Because of the confusion, I’ll just refer to the parties by their names: YMCA and Thompson.

The mother of Thompson, 17 years old at the time of her injury, signed a release to allow her daughter to play softball. The release was quite bad. It did not contain solid language, the word release, or explain any risks except the inherent risks of softball. The trial court rejected the YMCA’s argument and denied its motion for summary judgment based on the release.

The YMCA appealed the decision to the Indiana Appellate Court which reversed the decision.

Of note and of interest, Indian defines negligence in three steps, not the normal four steps as defined by the appellate court in this case.

In order to prevail on a claim of negligence, a plaintiff is required to prove:

(1) a duty owed by the defendant to the plaintiff;

(2) a breach of that duty by the defendant; and

(3) an injury to the plaintiff proximately caused by the breach.”

Basically, Indiana combines the majority third and fourth step into Indiana’s third step to define the requirements to prove negligence.

Summary of the case

Thompson first argued that an Indiana statute required any release for a minor to be approved by the court before it became effective. Many states require court approval of the settlement of the claims of minors.

The court quickly dismissed this argument because the statute in question was part of the probate law of Indiana and only dealt with post injury claims. Thompson did not raise any other arguments against the release so the court declared the release valid.

The court then went through the requirements for a valid release under Indiana’s law.

It is well established in Indiana that exculpatory agreements are not against public policy. “Generally, parties are permitted to agree that a party owes no obligation of care for the benefit of another, and thus, shall not be liable for consequences that would otherwise be considered negligent.” However, this court has held that an exculpatory clause will not act to absolve a party from liability unless it “‘specifically and explicitly refer[s] to the negligence of the party seeking release from liability.'” An exculpatory clause may be found sufficiently specific and explicit on the issue of negligence even in the absence of the word itself. Furthermore, an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity.

Of greater note was this statement from the court. “The requirement of specificity is only necessary when the risk of harm is a latent danger, i.e. the defendant’s own negligence.”

This may lead you to believe, and I believe properly that a properly written release would top a minor’s claim for negligence under Indiana Law.

The court concluded the release signed by the mother did not release the YMCA for all negligent acts because it was written so poorly. However, it will release the YMCA for what was stated in the release, the inherent risks of softball.

The court then reviewed whether sliding into a base was an inherent risk of softball.

Sliding into second base, notwithstanding its rigidity, is an activity inherent in the nature of playing baseball or softball and we conclude that Taylor’s injury was derived from a risk inherent in the nature of the activity.

So Now What?

It appears that Indiana will allow a parent to sign away a minor’s right to sue. A well-written release, including the magic word negligence, which identifies the risks other than the inherent risks, would stop a claim for negligence.

A well-written release would have eliminated half of this decision, maybe even the appeal. If the proper language, the magic word negligence and a broader definition of the risks were in the release, this case would have been decided faster and with less worthy.

What do you think? Leave a comment.

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Wabash County Young Men’s Christian Association, Inc. v. Thompson, 2012 Ind. App. LEXIS 428

Wabash County Young Men’s Christian Association, Inc. v. Thompson, 2012 Ind. App. LEXIS 428

Wabash County Young Men’s Christian Association, Inc. f/k/a Wabash Community Service, Appellant-Defendant, vs. Taylor M. Thompson, a minor, by next friends, Brian Thompson and Charlene Thompson, Appellees-Plaintiffs.

No. 85A05-1203-CT-138

COURT OF APPEALS OF INDIANA

2012 Ind. App. LEXIS 428

August 31, 2012, Decided

August 31, 2012, Filed

PRIOR HISTORY: [*1]

APPEAL FROM THE WABASH CIRCUIT COURT. The Honorable Robert R. McCallen, III, Judge. Cause No. 85C01-1110-CT-839.

COUNSEL: FOR APPELLANT: RANDALL W. GRAFF, ORFEJ P. NAJDESKI, LESLIE B. POLLIE, Kopka, Pinkus, Dolin & Eads, LLC, Indianapolis, Indiana.

FOR APPELLEES: JOSEF MUSSER, Spitzer Herriman Stephenson, Holderead Musser & Conner, LLP, Marion, Indiana.

JUDGES: BROWN, Judge. FRIEDLANDER, J., and PYLE, J., concur.

OPINION BY: BROWN

OPINION

OPINION – FOR PUBLICATION

BROWN, Judge

Wabash County Young Men’s Christian Association, Inc., (“YMCA”) appeals the trial court’s order denying its motion for summary judgment. The YMCA raises one issue which we revise and restate as whether the trial court erred in denying the YMCA’s motion for summary judgment. We reverse.

The relevant facts follow. On October 13, 2011, Taylor Thompson, by next friends Brian Thompson and Charlene Thompson, filed a complaint against the YMCA alleging that she was at the premises known as the Field of Dreams which was owned by the YMCA on May 28, 2009, and was injured when she slid into second base while participating in the Wabash Metro Summer Baseball/Softball League.1 The complaint alleged that the YMCA was negligent and violated its duty to protect Taylor [*2] by its failure to inspect, warn, and implement preventive measures designed to eliminate or reduce dangers posed by the condition of the second base “such that it was fixed as a rigid obstacle for participants to encounter while sliding into the base and, thereby, posing a clear safety hazard.” Appellant’s Appendix at 7. The complaint alleged that Taylor suffered serious and permanent physical injury.

1 The complaint indicated that Taylor was seventeen years old at the time of the filing of the complaint.

On November 22, 2011, the YMCA filed a Motion to Dismiss And/Or Change of Venue Pursuant to Trial Rule 12(B)(6). The YMCA alleged that Charlene, Taylor’s mother, executed a contractual document for Taylor’s participation in the Wabash Metro Summer Baseball/Softball League, and the YMCA attached the document to the motion. The form contains the following statement:

I (parent or guardian) Charlene Thompson hereby give permission for Taylor Thompson to participate in Metro League Baseball/Softball. I further understand that injuries can occur and will not hold the field, sponsor, coaching staff or league responsible for injury or medical expenses incurred while participating in practice [*3] or playing in a game. I also affirm that my child is physically fit to participate in athletic activities.

Id. at 12. The YMCA alleged that Taylor contractually agreed that there was an inherent risk to her participation in the softball game that could result in injury and that she contractually agreed that she would hold the YMCA, as alleged owner of the field, harmless for any injuries or medical expenses resulting from such injuries.

On December 22, 2011, Taylor filed a response to the YMCA’s motion to dismiss and argued that “in the case of minors, a person claiming tort damages on behalf of the minor against another person has power to execute a release on the minor’s behalf, however, the release must be approved by the Court before being effective.” Appellant’s Appendix at 14. Taylor also alleged that the document YMCA relies upon did not contemplate an injury from the negligent maintenance of the property, rather, it contemplates the foreseeable injuries which can inherently occur while playing baseball or softball. Taylor argued that the YMCA was not a party to the understanding evidenced by the document.

On December 30, 2011, the court held a hearing on the YMCA’s motion. On [*4] January 18, 2012, the court denied the YMCA’s motion to dismiss. On February 16, 2012, the YMCA filed a motion to certify the interlocutory order, which the court granted on February 21, 2012. On April 16, 2012, this court accepted jurisdiction pursuant to Ind. Appellate Rule 14(B).

The issue is whether the trial court erred by denying summary judgment to the YMCA. Initially, we note that the YMCA’s motion to dismiss was filed pursuant to Ind. Trial Rule 12(B)(6) and attached the form completed by Taylor’s mother. Therefore, we will review the YMCA’s motion to dismiss as a motion for summary judgment. [HN1] See Ind. Trial Rule 12(B) (“If, on a motion, asserting the defense number (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.”); New Albany-Floyd Cnty. Educ. Ass’n v. Ammerman, 724 N.E.2d 251, 255 n.7 (Ind. Ct. App. 2000) (“Although the trial court specifically granted Holman’s motion to dismiss and did not rule on his motion for summary judgment, we must nevertheless treat [*5] the former as a motion for summary judgment on review.”); Galbraith v. Planning Dep’t of City of Anderson, 627 N.E.2d 850, 852 (Ind. Ct. App. 1994) (treating the trial court’s dismissal of plaintiff’s complaint as a summary judgment for the defendant when plaintiff submitted an affidavit and the trial court acknowledged that it considered matters outside the pleadings).

[HN2] Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. [HN3] Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. [HN4] We must carefully review a decision on summary judgment to ensure that a party was not improperly denied its day in court. Id. at 974. [HN5] “[A] motion for summary judgment that is unopposed should be granted only if the designated materials, regardless of whether they stand unopposed by materials designated by the nonmovant, warrant it.” [*6] Starks v. Village Green Apartments, 854 N.E.2d 411, 415 (Ind. Ct. App. 2006), abrogated on other grounds by Klotz v. Hoyt, 900 N.E.2d 1 (Ind. 2009).

[HN6] In reviewing a grant of summary judgment we face the same issues as the trial court and follow the same process. Klinker v. First Merchants Bank, N.A., 964 N.E.2d 190, 193 (Ind. 2012). [HN7] Under Trial Rule 56(C), the moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Id. If it is successful, the burden shifts to the nonmoving party to designate evidence establishing the existence of a genuine issue of material fact. Id.

[HN8] “In order to prevail on a claim of negligence, a plaintiff is required to prove: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an injury to the plaintiff proximately caused by the breach.” Peters v. Forster, 804 N.E.2d 736, 738 (Ind. 2004). [HN9] In negligence cases, summary judgment is “rarely appropriate.” Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004). “This is because negligence cases are particularly fact sensitive and are governed by a standard of the [*7] objective reasonable person–one best applied by a jury after hearing all of the evidence.” Id. Nevertheless, a defendant is entitled to judgment as a matter of law when the undisputed material facts negate at least one element of the plaintiff’s claim. Id. at 385.

We initially address Taylor’s argument that while Indiana law requires that a parent claiming tort damages on behalf of a minor against another person has power to execute a release on the minor’s behalf, the release must be approved by the court to be valid. Taylor cites Ind. Code § 29-3-9-7(b) which provides:

[HN10] Whenever a minor has a disputed claim against another person, whether arising in contract, tort, or otherwise, and a guardian for the minor and the minor’s property has not been appointed, the parents of the minor may compromise the claim. However, before the compromise is valid, it must be approved by the court upon filing of a petition requesting the court’s approval. If the court approves the compromise, it may direct that the settlement be paid in accordance with IC 29-3-3-1. If IC 29-3-3-1 is not applicable, the court shall require that a guardian be appointed and that the settlement be delivered to the guardian [*8] upon the terms that the court directs.

Taylor argues that “[n]o Indiana statute, rule, or decision authorizes a parent of a minor to sign a pre-tort waiver.” Appellee’s Brief at 5. Taylor also argues that “the Indiana statute requiring court approval of minor’s claim settlement arises out of a public policy of favoring protection of minors with respect to contractual obligations” and “[t]he statute guards minors against improvident compromises made by their parents.” Id.

The YMCA argues that Taylor’s reliance on Ind. Code § 29-3-9-7(b) “is misplaced and has no bearing on the subject matter at issue in this case, which involves a vastly different legal scenario having nothing to do with probating a disputed claim a minor has against another person.” Appellant’s Brief at 8. The YMCA also argues that if Taylor’s argument is accepted, it would render all releases signed by parents to allow their children to participate in school and sporting events ineffective and meaningless. The YMCA contends that “[i]t would be impossible for parents to obtain court approval for every release or hold harmless agreement for every club, hobby, camp, and sporting activity for each of their children.” Id. at 9.

We [*9] observe that the referenced statute governs a post-injury claim and falls under Title 29, which governs probate law, and not the issue in this case. Further, Taylor does not point to any other authority indicating that the release form was invalid. Under the circumstances, we conclude that the release form is valid. See Bellew v. Byers, 272 Ind. 37, 38, 396 N.E.2d 335, 336 (1979) (addressing a minor’s compromise claim in which the parent and natural guardian was paid an amount for the injuries to her three children in return for a release), abrogated on other grounds by Huffman v. Monroe Cnty. Cmty. Sch. Corp., 588 N.E.2d 1264 (Ind. 1992); Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 1998 Ohio 389, 696 N.E.2d 201, 206-207 (Ohio 1998) (holding that it was not appropriate to equate a pre-injury release with a post-injury release and that parents have the authority to bind their minor children to exculpatory agreements in favor of volunteers and sponsors of nonprofit sport activites where the cause of action sounds in negligence).

We next turn to whether the release applies to Taylor’s injury. The YMCA argues that the release form applies to Taylor’s action of sliding into second base during the softball game. [*10] The YMCA also argues that “one can take almost any on-field mishap and seek to couch it in terms of negligence by arguing for more padding, softer playing surfaces, rule changes, etc., but the fact remains that the injury arose because of a risk inherent in the game.” Appellant’s Reply Brief at 3. Taylor argues that the YMCA’s repeated reference to her injury being the result of her sliding into second base without referencing the accompanying allegations of the complaint that the injury was caused by the negligent maintenance of the second base is a glaring omission throughout the YMCA’s argument.

“It is well established in Indiana that [HN11] exculpatory agreements are not against public policy.” Stowers v. Clinton Cent. Sch. Corp., 855 N.E.2d 739, 749 (Ind. Ct. App. 2006), trans. denied. [HN12] “Generally, parties are permitted to agree that a party owes no obligation of care for the benefit of another, and thus, shall not be liable for consequences that would otherwise be considered negligent.” Marsh v. Dixon, 707 N.E.2d 998, 1000 (Ind. Ct. App. 1999), trans. denied. However, this court has held that an exculpatory clause will not act to absolve a party from liability unless it “‘specifically [*11] and explicitly refer[s] to the negligence of the party seeking release from liability.'” Id. (quoting Powell v. Am. Health Fitness Ctr. of Fort Wayne, Inc., 694 N.E.2d 757, 761 (Ind. Ct. App. 1998)). [HN13] An exculpatory clause may be found sufficiently specific and explicit on the issue of negligence even in the absence of the word itself. Anderson v. Four Seasons Equestrian Ctr., Inc., 852 N.E.2d 576, 581 (Ind. Ct. App. 2006), trans. denied. Furthermore, [HN14] an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity. Id. [HN15] The requirement of specificity is only necessary when the risk of harm is a latent danger, i.e. the defendant’s own negligence. Id. at 581-582.

The form signed by Taylor’s mother did not release the YMCA of liability for all negligent acts because the form did not contain any specific or explicit reference to the negligence of the YMCA or owner of the field. See Stowers, 855 N.E.2d at 749 (“The Stowers’ proposed instruction set out that the Release Forms did not absolve Clinton Central of liability for negligent acts if they did not contain language specifically referring [*12] to negligence; thus, it was a correct statement of the law.”). Thus, we must determine whether Taylor’s injury was derived from a risk inherent in the nature of the activity. See Anderson, 852 N.E.2d at 581 (holding that an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity).

Sliding into second base, notwithstanding its rigidity, is an activity inherent in the nature of playing baseball or softball and we conclude that Taylor’s injury was derived from a risk inherent in the nature of the activity. See id. at 584-585 (observing that the plaintiff was injured when attempting to mount her horse and concluding that the plaintiff’s damages were inherent in the nature of the activity of horse riding and that the trial court did not err by granting summary judgment to the defendants). The release attached to the YMCA’s motion to dismiss indicated that the owner of the field would not be responsible for any injury or medical expenses “incurred while participating in practice or playing in a game.” Appellant’s Appendix at 12. Based upon the language in the release, we conclude [*13] that the YMCA met its burden of making a prima facie showing that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law and that the burden then shifted to Taylor who did not designate any evidence to show that an issue of material fact existed. Accordingly, we conclude that the trial court erred by denying the YMCA’s motion for summary judgment.

For the foregoing reasons, we reverse the trial court’s denial of the YMCA’s motion for summary judgment.

Reversed.

FRIEDLANDER, J., and PYLE, J., concur.

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First of a kind! A release written so badly the assumption of risk language stopped the release from working for one defendant and did not cover the minors because the release did not name them.

How many times do I have to repeat this, hire an attorney to write your release? Hire an attorney that understands your activity and your guests. These releases (yes two of them) are truly ridiculous. The release attempted to cover skiing, snowboarding, “sliding,” (whatever that is) and the tubing hill. On top of that the skier responsibility code or “your responsibility code” was included in the release for tubing. Two different releases were signed for the same activity. Finally the language in the release was just plain wrong and the court pointed it out.

Sauter v. Perfect North Slopes, et. al., 2014 U.S. Dist. LEXIS 468

Plaintiff: James Stephen Sauter and Piper Sauter, Individually and as the Natural Guardians of M.S., a minor

Defendant:  Perfect North Slopes, Inc., Andrew Broaddus, Stephanie Daniel, Christopher Daniel, Jenny Warr, and Anthony Warr,

Plaintiff Claims: negligence

Defendant Defenses: release, assumption of risk, no duty owed

Holding: For the defendant snowtubers who hit the plaintiff’s and for the plaintiff’s against the ski area because the release failed.

 

The case is about facts that probably occur every day on a tubing hill. One group of three tubers, plaintiffs, veered into another lane in the run out. As the second group of tubers, defendant tubers, came down they hit the plaintiffs. The parents of the injured tubers filed suit against the ski area owner of the tubing hill Perfect North Slope, and the defendant tubers that hit the kids.

As luck would have it or actually extremely poor management of the legal issues and documents of the defendants; plaintiff’s signed one release to go tubing, and the defendant tubers signed a different release. The director of Snowsport’s Operations stated:

…testified that Perfect North Slopes was transitioning from the Skiing/Snowboarding/Tubing Waiver to the Snow Tubing Release of Liability for snow tubers and that it was by chance that the Snow Tube Defendants and Sauters signed different release forms.

Both groups of defendants filed motions for summary judgment leading to this decision.

Summary of the case

The court first looked at the claims against the defendant tubers. The plaintiff’s brought the defendant tubers into the case arguing the tubers assumed a duty of care to the plaintiff’s by signing the release. The plaintiff’s quote language in the release and specifically in the “Your Responsibility Code” in the release which they argued created liability on the part of the defendant tubers.

The Sauters contend that the duty was assumed upon signing the Skiing/Snowboarding/Tubing Waiver. Specifically, the Sauters rely on the waiver’s clauses that signors agree to “[a]lways stay in control, and be able to stop or avoid other people or objects,” and “[tube] safely and in control.”

Your responsibility control was based on skiers and boarders on ski slopes. It is based on the simple premise that skier and boarders can turn and stop, that you can ski and board under control. In tubing, the only control, you have is to hold on or not. “Your Responsibility Code” has no bearing on tubing and in this case gave the plaintiffs away to drag in other guests of the ski area.

Under Indiana law a contract that creates a duty can create negligence. That means you sign an agreement that says you will act or not act in a certain way. You breach that duty which causes injury to the other party to the contract, under Indiana law you could be liable. The contract created the standard of care you breached.

Generally, only the parties to the contract can create the duty which can create liability. Third parties, those not identified in the contract or signors to the contract are not part or have benefits or duties from the contract. It is difficult to bring third parties into a contract unless the contract is made to benefit the third party or contemplates the third party in the contract.

Here the court agreed with the defendant tubers that the contract they signed with the defendant ski area did not create a duty of care owed to the plaintiffs. However, that conclusion was based on a very thorough and intense review of the “release” the defendant tuber’s signed. There were several sentences in the agreement that caused the court’s concern.

The signor of the agreement which contained the skier responsibility code agreed to abide by the code. The release also stated, “…as a skier/snowboarder/slider, I have responsibilities to myself and others to ski/ride/tube safely and in control.” The plaintiff argued that those statements created an affirmative duty of care on the part of one group of tubers to another.

The ski area testified that the skier responsibility code had nothing to do with tubing. In fact, much of the deposition testimony incorporated into the decision concerning the intent of the ski area with the release was about the defendant tubers. The judge concluded: “It is illogical that Perfect North Slopes would intend for some snow tubers to affirmatively assume a duty of care to other patrons, while other snow tubers did not.” The third party defendants were dismissed from the case.

Defendant Ski Areas arguments

The same confusion that led to the release from the suit of the defendant tubers worked against the ski area. There is an axiom in the law that states a contract will be construed against the person who drafted it. This means if there is a section of the contract that could be interpreted either for or against the drafter; it will be interpreted against the drafter. This applies to all releases because releases are presented to the guests on a take it or leave it basis. As the drafter, the court figures they had the best chance to write the release correctly and thus wrote the release to help the other party if the release is confusing.

Badly written releases are legally termed ambiguous. Here the court held the release was ambiguous.

“Construction of the terms of a written contract is a pure question of law for the court, reviewed de novo.” If an instrument’s language is unambiguous, the parties’ intent is determined from the four corners of the instrument. If a contract is ambiguous or uncertain, its meaning is determined by extrinsic evidence, and its construction is a matter for the fact-finder. An ambiguity exists where a provision is susceptible to more than one interpretation, and reasonable persons would differ as to its meaning.

A patent ambiguity is apparent on the face of the instrument and arises from an inconsistency or inherent uncertainty of language used so that it either conveys no definite meaning or a confused meaning. Extrinsic evidence is not admissible to explain or remove a patent ambiguity. Conversely, a latent ambiguity does not emerge until one attempts to implement the words as directed in the instrument. Extrinsic evidence is admissible to explain a latent ambiguity.

Ambiguous contracts or releases cannot be upheld.

In reading the release signed by the plaintiff the court looked at whether it was intended to apply to the minor children. The first part of the release was written to prevent suits by the “signor.” In this case, the signor was the parents of the injured minors.

Only in the second part of the release, the medical authorization was there a mention to other parties, children or minors.

Each paragraph and sentence references that the signor understands, accepts, or agrees to the release’s terms. However, in the fourth paragraph, the release changes structure and states, “I authorize Perfect North Slopes Ski Patrol to administer treatment in the event of an injury to myself or to the minor for whom I am signing.”

Reading the contract as a whole, the court found the only part of the release that applied to the children was the medical authorization. The release part of the release only applied to the person who signed it.

The ski area was not released from the lawsuit.

So Now What?

When you have a new release, you shred, recycle, and throw out the old release. You don’t keep them around to save money or paper. The amount of paper you save is just a small percentage of what the parties will go through in a trial.

Make sure that your release does not create duties of care or promises that create liability for you or for third parties. You cannot disclaim liability for future injuries and promise not to injure a guest in the same document.

Don’t put anything in your release that could confuse or compromise the release. Here the skier responsibility code had no application to tubing and could have created liability for third parties. Why waste the space to complicate your document.

Never write, or use, a release that is confusing. Here the interpretation of several confusing sections led to the decision that could have gone either direction to some extent. Your release must be clear and distinctly understandable showing that the parties intend the document will prevent future litigation for any injuries.

The court never considered if the release covered minors. Here was a perfect opportunity for the court to hold that releases stopped suits by minors. However, the release was written so badly the court never even got to that issue.

How hard is it to include a simple phrase into a release so that other tubers are not drawn into a lawsuit? Do you think the defendant tubers are going to go tubing for a while, or for that matter, any other sport with other people they do not know? Instead of marketing and keeping people safe, the release at issue here probably helped keep people from the sport.

This contract was written to cover everything and effectively covered nothing. It just does not work to write releases to cover the world if your operation is that big. Your release must be written for the law of the state where you are operating or based and must be written to cover the activities your client’s are engaged in. Here the release was written to cover everything, written badly and ended up covering nothing.

The release in this case was a disaster. The new release was equally bad. Both were written badly and included language that made them ineffective at best and increased liability to a greater extent. It is difficult to write a release where the language voids it because you describe the risks improperly, however, this release did.

Other Tubing Cases

Tubing brings in a lot of money for a small space, and a well-written release keeps the money flowing            http://rec-law.us/So8QS8

Bad release and prepped plaintiff defeat motion for summary judgment filed by ski areahttp://rec-law.us/12mE4O1

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Sauter v. Perfect North Slopes, et. al., 2014 U.S. Dist. LEXIS 468

Sauter v. Perfect North Slopes, et. al., 2014 U.S. Dist. LEXIS 468

James Stephen Sauter and Piper Sauter, Individually and as the Natural Guardians of M.S., a minor, Plaintiffs, v. Perfect North Slopes, Inc., Andrew Broaddus, Stephanie Daniel, Christopher Daniel, Jenny Warr, and Anthony Warr, Defendants.

Case No. 4:12-cv-00027-TWP-WGH

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA, NEW ALBANY DIVISION

2014 U.S. Dist. LEXIS 468

January 3, 2014, Decided

January 3, 2014, Filed

PRIOR HISTORY: Sauter v. Perfect North Slopes, Inc., 2012 U.S. Dist. LEXIS 95882 (S.D. Ind., July 11, 2012)

CORE TERMS: snow, slope, tube, tubing, lane, summary judgment, patrons, ambiguity, skiing, signor, duty of care, snowboarding, tuber, ski, affirmatively, ambiguous, signing, safely, trail, authorization, extrinsic, collision, skier, sport, seal, language used, patent, release form, ride, top

COUNSEL: [*1] For JAMES STEPHEN SAUTER, Individually and as Natural Guardian of M.S., a Minor, PIPER SAUTER, Individually and as Natural Guardians of M.S., a Minor, Plaintiffs: Louise M Roselle, Paul M. De Marco, MARKOVITS, STOCK & DEMARCO, LLC, Cincinnati, OH; Wilmer E. Goering, II, ALCORN GOERING & SAGE, LLP, Madison, IN.

For PERFECT NORTH SLOPES, INC., Defendant: Michael C. Peek, CHRISTOPHER & TAYLOR, Indianapolis, IN.

JUDGES: Hon. Tanya Walton Pratt, United States District Judge.

OPINION BY: Tanya Walton Pratt

OPINION

ENTRY ON SUMMARY JUDGMENT

Following a tragic accident which occurred at Defendant Perfect North Slopes, Inc. (“Perfect North Slopes”) on January 30, 2011, Plaintiffs James Stephen Sauter (“Mr. Sauter”) and Piper Sauter (“Mrs. Sauter”) (collectively, “the Sauters”) filed this negligence action. Perfect North Slopes is a ski resort which among other activities, offers snow tubing, a recreational activity that involves sitting on an inner tube and sliding down a hill. The Sauters were at Perfect North Slopes with their three children, T.S. age 8, J.S., and M.S. age 10 (collectively, “the Sauter children”), on January 30, 2011, for a Boy Scouts event. While snow tubing, the Sauter children veered into Defendants’, [*2] Andrew Broaddus, Stephanie Daniel,1 Christopher Daniel, Jenny Warr, and Anthony Warr (collectively, “Snow Tube Defendants”), snow tube lane, after which the Snow Tube Defendants collided into the Sauter children. As a result of the collision, M.S. suffered a brain injury.

1 The Court notes that the Complaint and CM/ECF caption use this spelling for Stephanie Daniel’s name. However, Snow Tube Defendants’ briefing uses the spelling, “Stephany Daniel.” If “Stephanie” is incorrect, the parties are ordered to file a motion to correct the error.

The Sauters filed suit against both Perfect North Slopes and the Snow Tube Defendants for negligence. Before the Court are the Defendants’ separate Motions for Summary Judgment. The issue of Perfect North Slopes’ alleged negligence has not been briefed, and the sole issue before the Court regarding Perfect North Slopes is the validity and applicability of the release form signed by Mrs. Sauter. For the reasons set forth below, Perfect North Slopes’ Motion for Summary Judgment (Dkt. 75) is DENIED and the Snow Tube Defendants’ Motion for Summary Judgment (Dkt. 85) is GRANTED.

I. BACKGROUND

A. Snow Tubing and Perfect North Slopes

Perfect North Slopes is a [*3] ski resort located in Lawrenceburg, Indiana. It has terrain parks, ski slopes, and a snow tubing hill. Snow tubing involves sitting or lying inside a round inner tube and riding at a quick speed down a snow-covered slope. To reach the top of the snow tubing hill, patrons at Perfect North Slopes ride a moving walkway called the “magic carpet” up to the top of the hill. The snow tube hill is divided into multiple lanes separated by packed snow barriers approximately one foot high. On January 30, 2011, there were nine express lanes, nine regular lanes, and four super lanes on the snow tubing hill. Express lanes were longer than regular lanes and the super lanes were wider than regular lanes. The snow tubing hill flattens into a gravel lot called the “run-out” area, which is approximately 180 feet long. Snow tubers can average between 20 and 40 miles per hour down the hill.

Perfect North Slopes employees are located at the top of the snow tubing hill to direct the flow of patrons down the hill. The employees specifically determine when it is safe for patrons to proceed down the hill and they assist the patrons’ start by pushing or pulling the tubes into the designated lane. Perfect North [*4] Slopes also has employees located at the bottom of the hill to assist patrons exiting the snow tube area.

On January 30, 2011, Perfect North Slopes had rules and regulations governing use of the snow tubing hill. The rules and regulations were posted throughout the park, as well as broadcast on a loud speaker system. Only one rider was allowed per tube. Linking — allowing a number of tubers going at one time in one lane — was allowed as conditions warranted. Linking was to be single file and “[w]hen linking, tubers must hold on to each other’s short tube handles the entire time.” Dkt. 85-23 at 2. Perfect North Slopes’ website FAQs stated that, “[o]n the main hill, as many as three tubes can ‘link’ together.” Dkt. 129-10 at 2. Perfect North Slopes also recommended that parents supervise their children at all times.

B. The Releases

Before participating in snow tubing, all patrons were required to sign a release form prepared by Perfect North Slopes. On January 30, 2011, Perfect North Slopes provided the Snow Tube Defendants with a release titled “Skiing/Snowboarding/Tubing Waiver”. Mrs. Sauter was provided a release titled “Snow Tubing Release of Liability”. The [*5] two forms differed in language.

The Skiing/Snowboarding/Tubing Waiver included the following language in its “YOUR RESPONSIBILITY CODE”:

A. Always stay in control, and be able to stop or avoid other people or objects.

B. People ahead of you have the right of way. It is your responsibility to avoid them.

C. You must not stop where you will obstruct a trail, or are not visible from above.

D. Whenever starting downhill or merging into a trail, look uphill and yield to others.

E. Always use devices to help prevent runaway equipment.

F. Observe all posted signs and warnings. Keep off closed trails and out of closed areas.

G. Prior to using any lift, you must have knowledge and ability to load and unload safely.

This is a partial list. Be safety conscious.

Dkt. 85-21 at 1. This waiver also states that, “as a skier/snowboarder/slider, I have responsibilities to myself and others to ski/ride/tube safely and in control.” Dkt. 85-21 at 1. Each of the five Snow Tube Defendants signed this release.

Conversely, the Snow Tubing Release of Liability form did not have a personal responsibility code. It included language releasing Perfect North Slopes of liability for claims of personal injury, death and/or property [*6] damage. Dkt. 85-20 at 1 (under seal). It acknowledged acceptance of risk of snow tubing as a hazardous activity and risk of injury. It specifically stated, “I authorize Perfect North Slopes Ski Patrol to administer treatment in the event of an injury to myself or to the minor for whom I am signing.” Dkt. 85-20 at 1 (under seal). It further stated:

I, the undersigned, acknowledge that I have read this agreement and release of liability and I understand its contents and in the event that I am signing on behalf of any minors, that I have full authority to do so, realizing its binding effect on them as well as myself. I understand that my signature below expressly waives any rights I may have to sue Perfect North Slopes, Inc. for injuries and damages.

Dkt. 85-20 at 1 (under seal). Mrs. Sauter filled in the names of her three children and signed and dated this release.

C. The Collision

After Mrs. Sauter signed the release, Mr. Sauter took their three children to the “magic carpet,” where he escorted the children in line and then left. The Sauter children and Snow Tube Defendants each made their way to the top of the snow tubing hill. The Sauter children went to Express Lane 7 and the Snow Tube [*7] Defendants went to Express Lane 8. The Sauter children linked their tubes and were pushed down the lane by Perfect North Slopes employee Kelsi Carlson (“Ms. Carlson”). Unfortunately, at some point during their ride, the Sauter children veered out of their lane into Express Lane 8 and came to a stop before the end of the lane 8. Two of the Sauter children got out of their tubes and were pulling the third child in his or her tube toward the “magic carpet”. The Snow Tube Defendants had linked their five tubes and were pushed down lane 8 by Ms. Carlson. Stephanie Daniel went down the hill backwards in her tube and could not see where the tube was going. The Snow Tube Defendants collided with the Sauter children in Express Lane 8, approximately 25 feet short of the end of the snow tube slope. The Snow Tube Defendants’ tubes continued down Express Lane 8 after the collision and came to a stop in the gravel run-out area. Both Stephanie Daniel and Christopher Daniel suffered minor injuries from the collision. M.S. was knocked unconscious by the collision and was seriously injured.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the pleadings, [*8] depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews “the record in the light most favorable to the nonmoving party and draw[s] all reasonable inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). However, “[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted). “In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citation and internal quotations omitted). Finally, “neither the mere existence [*9] of some alleged factual dispute between the parties nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted).

III. DISCUSSION

As previously discussed, the Sauters’ Complaint alleges both Perfect North Slopes and the Snow Tube Defendants were negligent. Perfect North Slopes filed a motion for summary judgment based on the Snow Tubing Release of Liability and the Snow Tube Defendants move for summary judgment on the bases that they acted reasonably at all times and owed no duty to the Sauter Children. The motion’s are addressed in turn.

A. Snow Tube Defendants’ Motion for Summary Judgment

The Court must first address whether the Snow Tube Defendants owed a duty of care to M.S., because in the absence of duty a claim of negligence necessarily fails. See Kroger Co. v. Plonski, 930 N.E.2d 1, 6 (Ind. 2010). The Snow Tube Defendants contend they had no duty of care toward the Sauter children, and thus should be dismissed from the suit. The Sauters contend that the duty was assumed upon signing the Skiing/Snowboarding/Tubing [*10] Waiver. Specifically, the Sauters rely on the waiver’s clauses that signors agree to “[a]lways stay in control, and be able to stop or avoid other people or objects,” and “[tube] safely and in control.” Dkt. 85-21 at 1.

In Indiana, “[i]f a contract affirmatively evinces an intent to assume a duty of care, actionable negligence may be predicated upon the contractual duty.” Merrill v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258, 1268 (Ind. Ct. App. 2002). To make this determination, “it is the court’s duty to ascertain the intent of the parties at the time the contract was executed as disclosed by the language used to express their rights and duties.” Walker v. Martin, 887 N.E.2d 125, 135 (Ind. Ct. App. 2008). “Generally, only parties to a contract or those in privity with the parties have rights under a contract.” OEC-Diasonics, Inc. v. Major, 674 N.E.2d 1312, 1314-15 (Ind. 1996). The Indiana Supreme Court has stated that:

One not a party to an agreement may nonetheless enforce it by demonstrating that the parties intended to protect him under the agreement by the imposition of a duty in his favor. To be enforceable, it must clearly appear that it was the purpose or a purpose of the contract [*11] to impose an obligation on one of the contracting parties in favor of the third party. It is not enough that performance of the contract would be of benefit to the third party. It must appear that it was the intention of one of the parties to require performance of some part of it in favor of such third party and for his benefit, and that the other party to the agreement intended to assume the obligation thus imposed.

Id. at 1315 (quoting Kirtley v. McClelland, 562 N.E.2d 27, 37 (Ind. Ct. App. 1990)).

The Snow Tube Defendants argue that the Skiing/Snowboarding/Tubing Waiver does not affirmatively create a duty of care of the signor of the waiver to other patrons at Perfect North Slopes. The Court agrees. The waiver included the following general language:

A. Always stay in control, and be able to stop or avoid other people or objects.

B. People ahead of you have the right of way. It is your responsibility to avoid them.

C. You must not stop where you will obstruct a trail, or are not visible from above.

D. Whenever starting downhill or merging into a trail, look uphill and yield to others.

E. Always use devices to help prevent runaway equipment.

F. Observe all posted signs and warnings. Keep [*12] off closed trails and out of closed areas.

G. Prior to using any lift, you must have knowledge and ability to load and unload safely.

This is a partial list. Be safety conscious.

Dkt. 85-21 at 1. This list of responsibilities appears at the beginning of the waiver and by signing the waiver, a signor attests that he or she is “familiar with and will adhere to” the responsibilities. The waiver also states: “as a skier/snowboarder/slider, I have responsibilities to myself and others to ski/ride/tube safely and in control.” Dkt. 85-21 at 1. This statement appears within the first full paragraph of the waiver, in which the signor also acknowledges the risks of the snow sports offered at Perfect North Slopes, Perfect North Slopes’ lack of duty to warn of dangers, and that participating in snow sports is voluntary with knowledge of the aforesaid risks.

The Court is not persuaded by the Sauters’ argument that the recitation of these responsibilities, even with the acknowledgment of the signor to adhere to them, represents an affirmative assumption of a duty of care. First, the “Your Responsibility Code” includes basic safety instructions and concludes with the words, “This is a partial list. Be [*13] safety conscious.” This implies not that the list imposes affirmative duties that are actionable if ignored, but that it is a general guideline. Second, the statement that the signor will tube safely and in control is included as one of many acknowledgments in a paragraph that ends with the statement, “I . . . hereby expressly agree to accept and assume all such risks of [in]jury or death associated with the sport of snow skiing/boarding/tubing.” Dkt. 85-2 at 1. This affirmative assumption of the risks does not mention the responsibilities listed within the same paragraph. Instead, the language regarding the responsibilities includes the words “recognize,” “familiar,” and “agree.” However, it does not affirmatively state the signor “assumes” those responsibilities.

Especially considering that the Sauters are third parties to the contract between the Snow Tube Defendants and Perfect North Slopes, there is no evidence that “it was the intention of one of the parties to require performance of some part of it in favor of such third party and for his benefit, and that the other party to the agreement intended to assume the obligation thus imposed.” OEC-Diasonics, Inc., 674 N.E.2d at 1315. [*14] While performance of the responsibilities listed certainly would benefit third parties like the Sauters and M.S., there is no evidence of clear intent as required.

Further, to the extent the contract language is ambiguous regarding the assumption of a duty of care, the extrinsic evidence of record supports the Snow Tube Defendants’ position. The Director of Snow Sports Operations at Perfect North Slopes, Mike Mettler (“Mr. Mettler”), explained during his deposition that the “Your Responsibility Code” section of the Skiing/Snowboarding/Tubing Waiver was derived from the “Skier’s Responsibility Code” developed by the National Ski Areas Association as a standard code for all skiers and snowboarders. Dkt. 85-7 at 5, 111:14-20. Mr. Mettler testified that there are not standard rules for snow tubing, the “Your Responsibility Code” did not apply to snow tubing, and that snow tubing is inherently distinct from skiing or snowboarding, particularly because a snow tuber lacks the ability to steer and control the tube. Dkt. 85-7 at 5, 111:22-25; Dkt. 85-8 at 51-53, 214:22-216:21; Dkt. 85-8 at 51, 214:6-21. Perhaps also telling, the Snow Tubing Release of Liability signed by Mrs. Sauter did not [*15] include a “Your Responsibility Code” section or any similar language. Mr. Mettler testified that Perfect North Slopes was transitioning from the Skiing/Snowboarding/Tubing Waiver to the Snow Tubing Release of Liability for snow tubers and that it was by chance that the Snow Tube Defendants and Sauters signed different release forms. He further stated that there were no distinction between the forms in terms of responsibilities while snow tubing. Dkt. 85-8 at 50, 213:7-17.

Mr. Mettler’s explanations support the conclusion that the Snow Tube Defendants did not assume a specific duty of care to other patrons. First, Perfect North Slopes did not expect or intend for snow tubers to have the exact abilities and safety responsibilities as skiers and snow boarders given the differences between the sport activities. Second, Perfect North Slopes was phasing out use of the Skiing/Snowboarding/Tubing Waiver for snow tubing, and the new form, the Snow Tubing Release of Liability, did not include any mention of responsibilities to stop and give right of way to other patrons. It is illogical that Perfect North Slopes would intend for some snow tubers to affirmatively assume a duty of care to other [*16] patrons, while other snow tubers did not. The random nature of who signed which form is evidence that Perfect North Slopes considered the two forms to contain the same obligations and releases.

Accordingly, the Court finds that the Sauters have not established as a matter of law that the Snow Tube Defendants affirmatively assumed a duty of care to the Sauter children. Nor have the Sauters established a common law duty existed. Therefore, the Snow Tube Defendants’ motion is GRANTED and they will be dismissed from the suit.

B. Perfect North Slopes’ Motion for Summary Judgment

At first glance, Perfect North Slopes’ motion is seemingly straightforward, as it contends that the Sauters released all claims for liability when Mrs. Sauter signed the Snow Tubing Release of Liability form on behalf of her children. The Sauters respond with two arguments in the alternative. First, they ask the Court to invalidate the release on public policy grounds, an issue on which the Indiana Supreme Court has not spoken. Second, the Sauters contend the language of the release does not contain a waiver of claims on behalf of minors. Because the Court finds that the release is ambiguous and thus does not bar the [*17] Sauters’ claim against Perfect North Slopes, the Court will not speculate on the public policy issue raised by the Sauters.

The Sauters contend that the Snow Tubing Release of Liability does not waive a minor’s possible negligence claims against Perfect North Slopes. The Indiana standard of review for contract interpretation is as follows:

“Construction of the terms of a written contract is a pure question of law for the court, reviewed de novo.” Harrison v. Thomas, 761 N.E.2d 816, 818 (Ind. 2002). If an instrument’s language is unambiguous, the parties’ intent is determined from the four corners of the instrument. City of Indianapolis v. Kahlo, 938 N.E.2d 734, 744 (Ind. Ct. App. 2010), trans. denied. If a contract is ambiguous or uncertain, its meaning is determined by extrinsic evidence and its construction is a matter for the fact-finder. Kahlo, 938 N.E.2d at 744. An ambiguity exists where a provision is susceptible to more than one interpretation and reasonable persons would differ as to its meaning. Gregg v. Cooper, 812 N.E.2d 210, 215 (Ind. Ct. App. 2004). But the fact that the parties disagree over the meaning of the contract does not, in and of itself, establish an ambiguity. [*18] Everett Cash Mut. Ins. Co. v. Taylor, 926 N.E.2d 1008, 1013 (Ind. 2010) (citation omitted).

When interpreting a written contract, the court should attempt to determine the parties’ intent at the time the contract was made, which is ascertained by the language used to express their rights and duties. Kahlo, 938 N.E.2d at 744. A court should construe the language of a contract so as not to render any words, phrases, or terms ineffective or meaningless. Hammerstone v. Ind. Ins. Co., 986 N.E.2d 841, 846 (Ind. Ct. App. 2013).

Claire’s Boutiques, Inc. v. Brownsburg Station Partners LLC, 997 N.E.2d 1093, 1097 (Ind. Ct. App. 2013). Furthermore, an ambiguity may be patent or latent:

A patent ambiguity is apparent on the face of the instrument and arises from an inconsistency or inherent uncertainty of language used so that it either conveys no definite meaning or a confused meaning. Extrinsic evidence is not admissible to explain or remove a patent ambiguity. Conversely, a latent ambiguity does not emerge until one attempts to implement the words as directed in the instrument. Extrinsic evidence is admissible to explain a latent ambiguity.

Weinreb v. Fannie Mae, 993 N.E.2d 223, 232 (Ind. Ct. App. 2013) [*19] (internal citations omitted). If an ambiguity arises by reason of the language used, construction of the ambiguous contract is a question of law for the court. Farmers Elevator Co. of Oakville, Inc. v. Hamilton, 926 N.E.2d 68, 80 (Ind. Ct. App. 2010).

The Sauters present the release form as a dual-purpose document; a medical authorization on one hand, and a release of liability on the other. They argue that nowhere does the release explicitly release the claims of minors, and the only reference to minors is in regard to medical authorization. The Court agrees that at best, the release is ambiguous regarding whether a minor’s claims against Perfect North Slopes are waived.

Specifically, the release is written from the viewpoint of an adult signor. Each paragraph and sentence references that the signor understands, accepts, or agrees to the release’s terms. However, in the fourth paragraph, the release changes structure and states, “I authorize Perfect North Slopes Ski Patrol to administer treatment in the event of an injury to myself or to the minor for whom I am signing.” Dkt. 85-20 at 1 (under seal). In the seventh and final paragraph the release also states, “I, the undersigned, acknowledge [*20] that I have read this agreement and release of liability and I understand its contents and in the event that I am signing on behalf of any minors, that I have full authority to do so, realizing its binding effect on them as well as myself.” Dkt. 85-20 at 1 (under seal). Perfect North Slopes argues this final statement applies to the entirety of the agreement, while the Sauters argue it applies only to the medical authorization.

Contract interpretation requires “the contract to be read as a whole, and the language construed so as not to render any words, phrases, or terms ineffective or meaningless.” Stewart v. TT Commercial One, LLC, 911 N.E.2d 51, 56 (Ind. Ct. App. 2009). Here, the release inserts a specific reference to minors only regarding medical authorization. It does not reference minors regarding acceptance of risk, awareness that tubing is a hazardous activity, or releasing Perfect North Slopes from damage resulting from negligence, or any other clause. This disparity creates a susceptibility of more than one interpretation of the release’s provisions. However, if Perfect North Slopes’ interpretation that the final statement applies to the entire release was accepted, the specific [*21] reference to minors regarding medical authorization would be rendered redundant or unnecessary. Rather, it is reasonable to interpret the release as referencing minors when the release specifically applies to them, which is reiterated at the conclusion of the release. Thus, the Court finds the contract ambiguous. The ambiguity is a patent one, as it is inherent in the language of the document. In this circumstance, extrinsic evidence is not admissible or necessary to the Court’s determination. The release does not include a clear, unambiguous waiver of M.S.’s claims against Perfect North Slopes for its alleged negligence. Therefore, Perfect North Slopes’ motion is DENIED.

IV. CONCLUSION

For the reasons set forth above, the Snow Tube Defendants’ Motion for Summary Judgment (Dkt. 85) is GRANTED. The Sauters’ claims against the Snow Tube Defendants are DISMISSED with prejudice. Perfect North Slopes’ Motion for Summary Judgment (Dkt. 75) is DENIED. The Sauters’ negligence claim may proceed. No final judgment will issue for the Snow Tube Defendants until the remaining claims against Perfect North Slopes are resolved.

SO ORDERED.

Date: 01/03/2014

/s/ Tanya Walton Pratt

Hon. Tanya Walton Pratt, [*22] Judge

United States District Court

Southern District of Indiana

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Indiana Equine Liability Statute used to stop litigation

Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501

Issue of failure to post the required notice, not at issue when the plaintiff admitted reading the sign on the other building.

In this case, the plaintiff was an adult leader of a 4-H house club. The plaintiff had helped the kids and participated in the activity for years and owned seven horses. During an event, the plaintiff was moving to assist a child who had lined her horse up in a way that was irritating other horses. While moving to assist the child the plaintiff was kicked by a horse.

The event was held in a building that was only used once a year. Normally, all events were held at the horse building. The horse building had the required Indiana Equine Liability Act signs on all entrances into the building. The plaintiff had been in the Horse Building and admitted seeing the signs.

The defendant filed a motion for summary judgment, which was granted by the trial court based upon the issue that the accident was caused by a horse, and the defendant was protected under the Indiana statute. The motion was granted, and the plaintiff appealed.

Summary of the case

The plaintiff claimed the 4-H club was negligent for having a horse show in premises that were unsuitable for such activities. The plaintiff also argued that there were no warning signs as required by the statute posted around the building were the accidents occurred.

The court reviewed the statute and the required posting of the warning notice. The statute could not be used as a defense, unless there was a sign posted around the building or on the premises.

34-31-5-3.  Warning notices required.

(a)        This chapter does not apply unless an equine activity sponsor or an equine professional posts and maintains in at least one (1) location on the grounds or in the building that is the site of an equine activity a sign on which is printed the warning notice set forth in section 5 [IC 34-31-5-5] of this chapter.

(b)        A sign referred to in subsection (a) must be placed in a clearly visible location in proximity to the equine activity.

(c)The warning notice on a sign referred to in subsection (a) must be printed in black letters, and each letter must be at least one (1) inch in height.

The court found that signs on the other building were sufficient to meet the requirements of the statute. It did so not by finding the signs were present, but by finding the plaintiff did not prove the signs were absent. An affidavit of the defendant stating the signs were present shifted the burden of proof to the plaintiff and the plaintiff failed to prove the necessary facts.

The plaintiff then argued that her injury did not arise from an inherent risk of an equine activity. (Really? The number-one  thing’s horses do is kick; number two is bite and number three throw  you off; This from a person who has been kicked, bitten and thrown off horses.)

The court found the plaintiff was injured by an inherent risk of hanging around horses.

The statutory definition of “inherent risks of equine activities” includes, without limitation, “[t]he unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals,” and “[t]he propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.” Ind. Code § 34-6-2-69. Such risks directly caused Perry’s injury, in that the horse kicked as part of an unpredictable reaction to the other horse nearby and, Perry alleges, the close quarters and unfamiliar environment of the Show Barn.

So Now What?

The obvious argument of the plaintiff was the injury was not due to the actions of the horse but because of the negligence of the 4-H. This normally is very effective in eliminating the defense of equine liability statutes. The human was liable; the horse was not the cause of the accident, just what was being ridden.

Looking at the argument a different way, the ladder failed not because the ladder broke, but because the person who placed the ladder where he did, caused the ladder to break.

The second issue is always having extra statutorily required warning signs, posting them wherever  there are horses. It would have been easy to post a sign on the entrance with tape just for the event. Better, post a warning sign near the entrance into the grounds and on every building.

Finally, this was a lucky case. Another court could have ruled the club was negligent for creating the situation. Most courts have. Since equine liability acts have been enacted, lawsuits against horses have disappeared, however, suits against horse owners are on the rise.

Like a broken record, having all the participants, youth, parents and adults sign a release would have prevented this action, or at least made it even quicker to dismiss under Indiana’s law.

Plaintiff: Teresa Perry

 

Defendant: Whitley County 4-H Clubs Inc.

 

Plaintiff Claims: Negligence

 

Defendant Defenses: Indiana Equine Liability Statute

 

Holding: For the defendant. The acts that gave rise to the plaintiff’s injuries were protected from suit by the Indiana statute.

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Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501

Perry v. Whitley County 4-H Clubs Inc., 931 N.E.2d 933; 2010 Ind. App. LEXIS 1501

Teresa Perry, Appellant-Plaintiff, vs. Whitley County 4-H Clubs Inc., Appellee-Defendant.

No. 92A03-1002-CT-101

Court Of Appeals Of Indiana

931 N.E.2d 933; 2010 Ind. App. LEXIS 1501

August 16, 2010, Decided

August 16, 2010, Filed

PRIOR HISTORY: [**1]

APPEAL FROM THE WHITLEY CIRCUIT COURT. The Honorable James R. Heuer, Judge. Cause No. 92C01-0809-CT-652.

COUNSEL: ATTORNEY FOR APPELLANT: SARAH E. RESER, Glaser & Ebbs, Fort Wayne, Indiana.

ATTORNEY FOR APPELLEE: CARRIE KOONTZ GAINES, Kopka, Pinkus Dolin & Eads, L.L.C., Mishawaka, Indiana.

JUDGES: ROBB, Judge. FRIEDLANDER, J., and KIRSCH, J., concur.

OPINION BY: ROBB

OPINION

[*934] OPINION – FOR PUBLICATION

ROBB, Judge

Case Summary and Issue

Teresa Perry appeals the trial court’s entry of summary judgment in favor of Whitley County 4-H Clubs, Inc. (the “4-H Club”) on Perry’s negligence complaint for personal injuries suffered during a horse competition sponsored by the 4-H Club. For our review, Perry raises two issues, which we consolidate and restate as whether the trial court properly granted summary judgment based on the Indiana Equine Activity Statute. Concluding there is no genuine issue of material fact and the Equine Activity Statute bars Perry’s claim for injuries resulting from inherent risks of equine activities, we affirm.

Facts and Procedural History

The undisputed facts and those most favorable to Perry as the non-movant are as follows. At all relevant times, Perry, an adult, was a member of the 4-H Clubs Equine Advisory [**2] Board, which provides guidance and instruction to children participating in the 4-H Club’s horse events, and was herself a regular participant in those [*935] events. Perry was also the owner of seven horses. In July 2007, the 4-H Club held horse practices and competitions at the Whitley County Fairgrounds as part of the Whitley County Fair. These events were generally held in the 4-H Club’s Horse Barn, but one event, the Large Animal Round Robin Competition, was held in the 4-H Club’s Show Barn, located next to the Horse Barn. The Horse Barn is over 100 feet wide but the Show Barn is approximately thirty-six feet wide along its shorter side. Horses were generally familiar with the Horse Barn but unfamiliar with the Show Barn, where they were “not allowed any other time” besides the Round Robin Competition. Appellant’s Appendix at 88. At all entrances to the Horse Barn, the 4-H Club had posted “Equine Activity warning signs” that were “clearly visible.” Id. at 18-19 (affidavit of Bill Leeuw, 4-H Club’s President of the Board).

On July 25, 2007, the Round Robin Competition was held. The Equine Advisory Board and volunteers selected the horses to be shown, and Perry herself selected one of those [**3] horses “at the last minute.” Id. at 93. Perry was present at the Round Robin Competition as an Equine Advisory Board member responsible for the safety of children handling the horses. As part of the event, seven horses were led from the Horse Barn into the Show Barn and lined up approximately two and one-half feet apart along the shorter side of the Show Barn. The horses were then turned over to children who did not normally handle horses but had experience handling animals such as pigs and cows and had received brief instruction on how to handle a horse. After one of the children finished leading a horse through a series of maneuvers, the child left the horse facing away from the center of the Show Barn, in the opposite direction from the neighboring horses and with its rear next to the head of a neighboring horse. The horse facing backwards began sniffing the rear of the neighboring horse, which pinned its ears against its head as a sign it was agitated. Perry realized this situation posed a danger to the child handling the horse facing backwards. Perry therefore approached the child and told the child to turn the horse around. As the child was doing so, the neighboring horse kicked [**4] Perry in the knee. Perry was thrown back and suffered personal injuries.

In September 2008, Perry filed a complaint against the 4-H Club alleging her injuries were caused by the 4-H Club’s negligence in “allowing horse activities to be conducted on premises unsuitable for such activities.” Id. at 6. As specifically argued by Perry at the summary judgment hearing, she alleged the 4-H Club was negligent in deciding to hold the Round Robin Competition in the Show Barn instead of the Horse Barn, as the smaller Show Barn “requires horses to be placed close together, increasing the chances that a child near the horse will be injured by one. It’s also an environment the horses aren’t familiar with, which makes it more likely that a horse will get spooked and kick someone.” Transcript at 4. Among the 4-H Club’s affirmative defenses, it alleged in its answer that Perry’s claim was barred by the Indiana Equine Activity Statute.

The 4-H Club filed a motion for summary judgment based in part on the Equine Activity Statute. Following a hearing, the trial court on January 27, 2010, issued its order granting summary judgment to the 4-H Club. The trial court found and concluded in relevant part:

14. [**5] The [4-H Club] was a sponsor of an equine activity when the accident occurred.

15. [Perry] was a participant in the equine activity in her capacity as a safe [*936] keeper when she approached the horses and was kicked.

16. The Equine Activities Act . . . is applicable to this case.

17. Being kicked by a horse is an inherent risk of equine activity.

18. There is no evidence in the designation of material facts that [the 4-H Club] committed an act or omission which constituted a reckless disregard for the safety of [Perry] or that any other conditions set in [Indiana Code section] 34-31-5-2 existed at the time of the accident.

Appellant’s App. at 5. Perry now appeals.

Discussion and Decision

I. Standard of Review

[HN1] We review a summary judgment order de novo. Tri-Etch, Inc. v. Cincinnati Ins. Co., 909 N.E.2d 997, 1001 (Ind. 2009). In so doing, we stand in the same position as the trial court and must determine whether the designated evidence shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind. 2009). In making this determination, we construe [**6] the evidence in a light most favorable to the non-moving party and resolve all doubts as to the existence of a genuine factual issue against the moving party. N. Ind. Pub. Serv. Co. v. Bloom, 847 N.E.2d 175, 180 (Ind. 2006). Our review of a summary judgment motion is limited to those materials designated by the parties to the trial court. Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). The movant has the initial burden of proving the absence of a genuine factual dispute as to an outcome-determinative issue and only then must the non-movant come forward with evidence demonstrating genuine factual issues that should be resolved at trial. Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994).

Because this case turns on the proper application of the Equine Activity Statute, we also recite our well-established standard of review for interpretation of statutes:

[HN2] When courts set out to construe a statute, the goal is to determine and give effect to the intent of the legislature. The first place courts look for evidence is the language of the statute itself, and courts strive to give the words their plain and ordinary meaning. [**7] We examine the statute as a whole and try to avoid excessive reliance on a strict literal meaning or the selective reading of individual words. We presume the legislature intended the language used in the statute to be applied logically, consistent with the statute’s underlying policy and goals, and not in a manner that would bring about an unjust or absurd result.

Cooper Indus., LLC v. City of South Bend, 899 N.E.2d 1274, 1283 (Ind. 2009) (citations omitted).

II. Equine Activity Statute

A. Warning Signs

Perry argues the trial court erred in granting summary judgment because there is a genuine issue of fact as to whether the 4-H Club complied with the warning sign requirements of the Equine Activity Statute. We address this sub-issue first because it bears on the threshold applicability of the Equine Activity Statute as a bar to Perry’s claim. See Ind. Code § 34-31-5-3(a) (providing [HN3] “[t]his chapter does not apply unless” equine activity sponsor has posted at least one complaint warning sign). In response to Perry’s argument, the 4-H Club initially [*937] contends Perry waived the argument by not raising it to the trial court prior to the summary judgment hearing. We disagree. In general, arguments [**8] by an appellant are waived if not presented to the trial court on summary judgment, see Cook v. Ford Motor Co., 913 N.E.2d 311, 322 n.5 (Ind. Ct. App. 2009), trans. denied, and summary judgment may not be reversed on the grounds of a genuine factual issue “unless the material fact and the evidence relevant thereto shall have been specifically designated to the trial court,” T.R. 56(H). However, Perry did argue at the summary judgment hearing that the evidence designated by the 4-H Club was insufficient to establish its compliance with the warning sign requirements of the Equine Activity Statute. Moreover, this issue was already before the trial court based upon the 4-H Club’s motion for summary judgment and designation of material facts.

Proceeding to Perry’s claim, [HN4] the Equine Activity Statute provides that an equine activity sponsor, as a condition precedent to immunity under the statute, must post and maintain a warning sign in at least one location “on the grounds or in the building that is the site of an equine activity.” Ind. Code § 34-31-5-3(a)I. The sign “must be placed in a clearly visible location in proximity to the equine activity,” and the warning must be printed in black [**9] letters at least one inch in height. Ind. Code § 34-31-5-3(b), (c). The warning must state: “Under Indiana law, an equine professional is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities.” Ind. Code § 34-31-5-5.

The undisputed evidence is that the 4-H Club, on the day of the incident, maintained “Equine Activity warning signs” on all entrances to the Horse Barn, and the signs were “clearly visible.” Appellant’s App. at 18-19. The 4-H Club’s equine activities were regularly held inside the Horse Barn, except for the Round Robin Competition held in the Show Barn located next to the Horse Barn. Perry acknowledged in her deposition she had seen “those signs” on the Horse Barn, id. at 114, and did not designate any evidence the signs were absent on the day of the incident or lacked the specific warning required by Indiana Code section 34-31-5-5. Perry argues, in effect, that because the only photographs the 4-H Club properly designated to the trial court do not directly show the signs contained the specific warning required, 1 the 4-H Club did not meet its burden of making a prima facie case of compliance [**10] with the statute. We decline Perry’s invitation to, in effect, interpret the Equine Activity Statute to require an equine activity sponsor to submit such photographic or documentary evidence in order to support its claim of immunity. Rather, we conclude the affidavit the 4-H Club properly designated established its prima facie case that it maintained proper warning signs, such that the burden shifted to Perry to come forward with evidence the signs were deficient. Because she did not do so, there is no genuine issue of fact as to the warning signs, and the trial court [*938] properly concluded the Equine Activity Statute applies to this case.

1 The parties dispute, and it is unclear from the record, whether a photograph identified as Defendant’s Exhibit A at Perry’s deposition, and allegedly included along with the deposition in the 4-H Club’s designation of evidence, was actually part of the designated material submitted to the trial court. That photograph, unlike those included as the 4-H Club’s Exhibit C in support of summary judgment and to which the 4-H Club referred at the summary judgment hearing, shows a warning sign containing the text specified in Indiana Code section 34-31-5-5.

B. [**11] Inherent Risk of Equine Activities

Perry also argues the trial court erred in granting summary judgment because there is a genuine issue of fact as to whether her injuries resulted from an inherent risk of equine activities. The Equine Activity Statute provides:

[HN5] Subject to section 2 of this chapter, an equine activity sponsor or equine professional is not liable for:

(1) an injury to a participant; or

(2) the death of a participant;

resulting from an inherent risk of equine activities.

Ind. Code § 34-31-5-1(a). 2 [HN6] The definition of “inherent risks of equine activities” is:

the dangers or conditions that are an integral part of equine activities, including the following:

(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.

(2) The unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals.

(3) Hazards such as surface and subsurface conditions.

(4) Collisions with other equines or objects.

(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the [**12] animal or not acting within the participant’s ability.

Ind. Code § 34-6-2-69. The Equine Activity Statute further provides:

[HN7] Section 1 of this chapter does not prevent or limit the liability of an equine activity sponsor . . .:

(1) who:

(A) provided equipment or tack that was faulty and that caused the injury; and

(B) knew or should have known that the equipment or tack was faulty;

(2) who provided the equine and failed to make reasonable and prudent efforts based on the participant’s representations of the participant’s ability to:

(A) determine the ability of the participant to engage safely in the equine activity; and

(B) determine the ability of the participant to safely manage the particular equine;

(3) who:

(A) was in lawful possession and control of the land or facilities on which the participant sustained injuries; and

(B) knew or should have known of the dangerous latent condition that caused the injuries;

if warning signs concerning the latent dangerous condition were not conspicuously posted on the land or in the facilities;

(4) who committed an act or omission that:

(A) constitutes reckless disregard for the safety of the participant; and

(B) caused the injury; or

[*939] (5) who intentionally [**13] injured the participant.

Ind. Code § 34-31-5-2(b). As Indiana’s Equine Activity Statute has not previously been interpreted in any reported case, 3 we will cite for their persuasive value the decisions of other jurisdictions that have interpreted similar statutes.

2 “Equine activity,” pursuant to its statutory definition, includes among other things “[e]quine shows, fairs, competitions, performances, or parades that involve equines.” Ind. Code § 34-6-2-41(a). “Equine activity sponsor” means “a person who sponsors, organizes, or provides facilities for an equine activity.” Ind. Code § 34-6-2-42. Perry does not dispute that the 4-H Club qualifies as an equine activity sponsor.

3 In Anderson v. Four Seasons Equestrian Center, Inc., 852 N.E.2d 576 (Ind. Ct. App. 2006), trans. denied, the only reported case citing the Equine Activity Statute, this court affirmed summary judgment for the defendant on the alternative grounds of waiver and release of liability. Id. at 585. We concluded the waiver applied because the plaintiff’s fall from a horse that moved while the plaintiff was attempting to mount it resulted from a risk “inherent in the nature of the activity of horse riding.” Id. at 584. However, [**14] we did not explicitly base that conclusion upon the text of the Equine Activity Statute.

Perry’s argument is that a reasonable trier of fact could find the cause of her injury was not an inherent risk of equine activities, but negligence of the 4-H Club in staging the Round Robin Competition. Perry makes no argument that any of the exceptions to immunity spelled out in Indiana Code section 34-31-5-2(b) (“Section 2(b)”) — faulty equipment or tack, provision of the equine and failure to make reasonable and prudent efforts to match the participant to the particular equine and equine activity, a latent premises defect, reckless disregard, or intentional injury — apply in this case. Therefore, we must examine whether and to what extent, consistent with the Equine Activity Statute, an equine activity sponsor may be liable for simple negligence allegedly causing injury to a participant.

Initially we note that negligence of an equine activity sponsor neither is one of the exceptions to immunity listed in Section 2(b), nor is it included in the non-exclusive list of inherent risks of equine activity under Indiana Code section 34-6-2-69. Thus, Indiana’s Equine Activity Statute, like equine activity [**15] statutes in some states but unlike some others, is silent on the place of sponsor negligence in the overall scheme of equine liability. Compare Lawson v. Dutch Heritage Farms, Inc., 502 F.Supp.2d 698, 700 (N.D. Ohio 2007) (noting Ohio’s Equine Activity Liability Act, like some other states?, is “silent as to simple negligence as an inherent risk”) (quotation omitted); with Beattie v. Mickalich, 486 Mich. 1060, 1060 784 N.W.2d 38, 2010 Mich. LEXIS 1452, 2010 WL 2756979, at *1 (Mich., July 13, 2010) (per curiam) (Michigan’s Equine Activity Liability Act abolishes strict liability for equines but expressly provides liability is not limited “‘if the . . . person . . . [c]ommits a negligent act or omission that constitutes a proximate cause of the injury?” (quoting Mich. Comp. Laws § 691.1665)). Because it is as important to recognize what a statute does not say as what it does say, City of Evansville v. Zirkelbach, 662 N.E.2d 651, 654 (Ind. Ct. App. 1996), trans. denied, and [HN8] statutes granting immunity, being in derogation of the common law, are strictly construed, see Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 281 (Ind. 1994), we conclude the Equine Activity Statute was not intended by the general assembly [**16] to abrogate the cause of action for common-law negligence of an equine activity sponsor. However, pursuant to the clear text of the statute, a negligence action is precluded if the injury resulted from an inherent risk of equine activities and the facts do not fit one of the exceptions to immunity provided by Section 2(b). Stated differently, if none of the Section 2(b) exceptions apply, then an equine activity sponsor is not liable for failing to use reasonable care to mitigate an already inherent risk of equine activities that ultimately resulted in a participant’s injury.

[*940] Turning to Perry’s claim, she was injured when unexpectedly kicked by a horse that became agitated during the 4-H Club’s Round Robin Competition. The horse became agitated because another horse was standing too close nearby and began sniffing its rear, and to remove the danger to the child handling the other horse, Perry intervened. The statutory definition of “inherent risks of equine activities” includes, without limitation, “[t]he unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals,” and “[t]he propensity of an equine to behave in ways [**17] that may result in injury, harm, or death to persons on or around the equine.” Ind. Code § 34-6-2-69. Such risks directly caused Perry’s injury, in that the horse kicked as part of an unpredictable reaction to the other horse nearby and, Perry alleges, the close quarters and unfamiliar environment of the Show Barn. See Kangas v. Perry, 2000 WI App 234, 239 Wis.2d 392, 620 N.W.2d 429, 433 (Wis. Ct. App. 2000) (based on Wisconsin’s similar definition of inherent risks, concluding “horses? propensity to move without warning is an inherent risk of equine activity contemplated by the statute”), review denied. We therefore conclude Perry’s injury resulted from inherent risks of equine activities within the meaning of the Equine Activity Statute.

Perry argues the likelihood of a horse becoming agitated and kicking, and a child becoming endangered and needing to be rescued by a supervisor such as Perry, were unreasonably increased by the 4-H Club’s decision to hold the Round Robin Competition in the Show Barn, a cramped space unfamiliar to the horses. Even if that is true, however, the 4-H Club’s conduct would have contributed to Perry’s injury only by heightening the already inherent risk that a horse might [**18] behave unpredictably and in an injury-causing manner. Thus, Perry’s argument that her injury resulted not from an inherent risk of equine activities, but from the 4-H Club’s negligence in its manner of staging the Round Robin Competition, amounts to hair splitting irrelevant to the Equine Activity Statute. As explained above, the statute does not require that an equine activity sponsor’s alleged negligence in no way contribute to the injury complained of. Rather, the Equine Activity Statute only requires that, in order for immunity to apply, the injury must have resulted from broad categories of risk deemed integral to equine activities, regardless of whether the sponsor was negligent. See Ind. Code §§ 34-6-2-69; 34-31-5-1.

Perry also relies on cases from other jurisdictions that, while involving similar statutes, are distinguishable on their facts. In Steeg v. Baskin Family Camps, Inc., 124 S.W.3d 633 (Tex. App. 2003), review dismissed, the court held summary judgment for the defendant improper where there was evidence the proximate causes of the rider’s fall included the saddle slipping and the defendant’s negligent failure to secure the saddle. Id. at 639-40. In Fielder v. Academy Riding Stables, 49 P.3d 349 (Colo. Ct. App. 2002), [**19] cert. denied, the court held the defendant was not entitled to immunity where the defendant’s wranglers negligently failed to remove a screaming child from a horse, an “obvious danger” the wranglers had notice of well before the horse bolted. Id. at 351-52. Here, by contrast, there is no evidence the 4-H Club ignored an obvious, imminent danger or that Perry’s injury directly resulted from anything other than unpredictable horse behavior.

In sum, the facts viewed most favorably to Perry as the party opposing summary judgment show her injury resulted from inherent risks of equine activities and the 4-H Club was negligent, if at all, only for [*941] failing to mitigate those inherent risks. Therefore, the trial court properly concluded the Equine Activity Statute bars Perry’s claim and properly granted summary judgment to the 4-H Club.

Conclusion

There are no genuine issues of material fact that the 4-H Club complied with the warning sign requirements of the Equine Activity Statute and that Perry’s injury resulted from inherent risks of equine activities. Therefore, Perry’s claim is barred by the Equine Activity Statute and the trial court properly granted summary judgment to the 4-H Club.

Affirmed.

FRIEDLANDER, [**20] J., and KIRSCH, J., concur.


Indiana Equine Activity Statute

BURNS INDIANA STATUTES ANNOTATED

Title 34 Civil Law and Procedure

Article 6 Definitions

Chapter 2 Definitions

Go to the Indiana Code Archive Directory

Burns Ind. Code Ann. § 34-6-2-40 (2013)

34-6-2-40. Equine.

“Equine”, for purposes of IC 34-31-5, means a horse, pony, mule, donkey, or hinny.

HISTORY: P.L.1-1998, § 1.

34-6-2-41. Equine activity.

(a) “Equine activity”, for purposes of IC 34-31-5, includes the following:

(1) Equine shows, fairs, competitions, performances, or parades that involve equines and any of the equine disciplines, including dressage, hunter and jumper horse shows, grand prix jumping, three (3) day events, combined training, rodeos, driving, pulling, cutting, polo, steeplechasing, English and western performance riding, endurance trail riding and western games, and hunting.

(2) Equine training or teaching activities.

(3) Boarding equines.

(4) Riding, driving, inspecting, or evaluating an equine, whether or not monetary consideration or anything of value is exchanged.

(5) Rides, trips, hunts, or other equine activities of any type (even if informal or impromptu) that are sponsored by an equine activity sponsor.

(6) Placing or replacing horseshoes on an equine.

(b) The term does not include being a spectator at an equine activity.

HISTORY: P.L.1-1998, § 1.

34-6-2-42. Equine activity sponsor.

“Equine activity sponsor”, for purposes of IC 34-31-5, means a person who sponsors, organizes, or provides facilities for an equine activity.

HISTORY: P.L.1-1998, § 1.

34-6-2-43. Equine professional.

“Equine professional”, for purposes of IC 34-31-5, means a person who, for compensation:

(1) instructs a participant on riding, driving, or being a passenger upon an equine;

(2) rents to a participant an equine for the purpose of riding, driving, or being a passenger upon the equine; or

(3) rents equipment or tack to a participant.

HISTORY: P.L.1-1998, § 1.

34-6-2-69. Inherent risks of equine activities.

“Inherent risks of equine activities”, for purposes of IC 34-31-5, means the dangers or conditions that are an integral part of equine activities, including the following:

(1) The propensity of an equine to behave in ways that may result in injury, harm, or death to persons on or around the equine.

(2) The unpredictability of an equine’s reaction to such things as sound, sudden movement, unfamiliar objects, people, or other animals.

(3) Hazards such as surface and subsurface conditions.

(4) Collisions with other equines or objects.

(5) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant’s ability.

HISTORY: P.L.1-1998, § 1.

NOTES:

NOTES TO DECISIONS

Go to Summary Judgment Proper. Summary Judgment Proper.

Go to Topic List Summary Judgment Proper.

In a negligence complaint brought by an equine event participant against an equine event sponsor for personal injuries suffered during a horse competition, the court properly granted summary judgment to the sponsor because the facts viewed most favorably to the participant showed that her injury, occurring when she was unexpectedly kicked by a horse that became agitated during the sponsor’s competition because another horse was standing too close and began sniffing its rear, resulted from the inherent risks of equine activities in IC 34-6-2-69. Clubs, Inc., 931 N.E.2d 933, 2010 Ind. App. LEXIS 1501 (2010).

34-6-2-95. Participant.

(a) “Participant”, for purposes of IC 34-31-5, means a person, whether an amateur or a professional, who engages in an equine activity, whether or not a fee is paid to participate in the equine activity.

(b) “Participant”, for purposes of IC 34-31-9, has the meaning set forth in 34-31-9-7.

HISTORY: P.L.1-1998, § 1; P.L.6-2012, § 219, emergency eff. February 22, 2012.

NOTES: Amendments.

The 2012 amendment added the (a) designation and added (b).

34-31-5-1. Limitation on liability—Claims prohibited.

(a) Subject to section 2 [IC 34-31-5-2] of this chapter, an equine activity sponsor or equine professional is not liable for:

(1) an injury to a participant; or

(2) the death of a participant;

resulting from an inherent risk of equine activities.

(b) Subject to section 2 of this chapter, a participant or participant’s representative may not:

(1) make a claim against;

(2) maintain an action against; or

(3) recover from;

an equine activity sponsor or equine professional for injury, loss, damage, or death of the participant resulting from an inherent risk of equine activities.

HISTORY: P.L.1-1998, § 27.

NOTES:

NOTES TO DECISIONS

Go to Appellate Review. Appellate Review.Go to Summary Judgment Proper. Summary Judgment Proper.

Go to Topic List Appellate Review.

In a case in which a rider sued an equestrian center and its owner after the rider was injured while mounting her horse, because the trial court properly granted summary judgment for defendants based upon the fact the rider had waived any claim against defendants by signing a waiver agreement, the propriety of the trial court’s decision concerning defendants’ immunity under the equine activities statute, IC 34-31-5-1, was not addressed on appeal. Anderson v. Four Seasons Equestrian Ctr., Inc., 852 N.E.2d 576, 2006 Ind. App. LEXIS 1588 (2006).

Go to Topic List Summary Judgment Proper.

In a negligence complaint brought by an equine event participant against an equine event sponsor for personal injuries suffered during a horse competition, the court properly granted summary judgment to the sponsor under IC 34-31-5-5 because the undisputed evidence was that the sponsor, on the day of the incident, maintained “Equine Activity warning signs” on all entrances to the horse barn, the signs were clearly visible, and the participant acknowledged seeing the signs on the horse barn. Clubs, Inc., 931 N.E.2d 933, 2010 Ind. App. LEXIS 1501 (2010).

34-31-5-2. Limitations on applicability of chapter.

(a) This section does not apply to the horse racing industry.

(b) Section 1 [IC 34-31-5-1] of this chapter does not prevent or limit the liability of an equine activity sponsor or an equine professional:

(1) who:

(A) provided equipment or tack that was faulty and that caused the injury; and

(B) knew or should have known that the equipment or tack was faulty;

(2) who provided the equine and failed to make reasonable and prudent efforts based on the participant’s representations of the participant’s ability to:

(A) determine the ability of the participant to engage safely in the equine activity; and

(B) determine the ability of the participant to safely manage the particular equine;

(3) who:

(A) was in lawful possession and control of the land or facilities on which the participant sustained injuries; and

(B) knew or should have known of the dangerous latent condition that caused the injuries;

if warning signs concerning the dangerous latent condition were not conspicuously posted on the land or in the facilities;

(4) who committed an act or omission that:

(A) constitutes reckless disregard for the safety of the participant; and

(B) caused the injury; or

(5) who intentionally injured the participant.

(c) Section 1 of this chapter does not prevent or limit the liability of an equine activity sponsor or an equine professional under the product liability laws.

HISTORY: P.L.1-1998, § 27.

34-31-5-3. Warning notices required.

(a) This chapter does not apply unless an equine activity sponsor or an equine professional posts and maintains in at least one (1) location on the grounds or in the building that is the site of an equine activity a sign on which is printed the warning notice set forth in section 5 [IC 34-31-5-5] of this chapter.

(b) A sign referred to in subsection (a) must be placed in a clearly visible location in proximity to the equine activity.

(c) The warning notice on a sign referred to in subsection (a) must be printed in black letters, and each letter must be at least one (1) inch in height.

HISTORY: P.L.1-1998, § 27.

NOTES:

NOTES TO DECISIONS

Go to Warning in Compliance. Warning in Compliance.

Go to Topic List Warning in Compliance.

In a negligence complaint brought by an equine event participant against an equine event sponsor for personal injuries suffered during a horse competition, the court properly granted summary judgment to the sponsor under IC 34-31-5-5 because the undisputed evidence was that the sponsor, on the day of the incident, maintained “Equine Activity warning signs” on all entrances to the horse barn, the signs were clearly visible, and the participant acknowledged seeing the signs on the horse barn. Clubs, Inc., 931 N.E.2d 933, 2010 Ind. App. LEXIS 1501 (2010).

34-31-5-4. Written contracts.

(a) If there is a written contract, this chapter does not apply unless the written contract entered into by an equine professional for:

(1) the providing of professional services;

(2) the providing of instruction; or

(3) the rental of:

(A) equipment or tack; or

(B) an equine;

to a participant contains in clearly readable print the warning notice set forth in section 5 [IC 34-31-5-5] of this chapter.

(b) The warning notice required by subsection (a) must be included in a written contract described in subsection (a) whether or not the contract involves equine activities on or off the location or site of the equine professional’s business.

HISTORY: P.L.1-1998, § 27.

34-31-5-5. Contents of warning notice.

The warning notice that must be printed on a sign under section 3 [IC 34-31-5-3] of this chapter and included in a written contract under section 4 [IC 34-31-5-4] of this chapter is as follows:

WARNING

Under Indiana law, an equine professional is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities.

HISTORY: P.L.1-1998, § 27.

NOTES:

NOTES TO DECISIONS

Go to Warning in Compliance. Warning in Compliance.

Go to Topic List Warning in Compliance.

In a negligence complaint brought by an equine event participant against an equine event sponsor for personal injuries suffered during a horse competition, the court properly granted summary judgment to the sponsor under IC 34-31-5-5 because the undisputed evidence was that the sponsor, on the day of the incident, maintained “Equine Activity warning signs” on all entrances to the horse barn, the signs were clearly visible, and the participant acknowledged seeing the signs on the horse barn. Clubs, Inc., 931 N.E.2d 933, 2010 Ind. App. LEXIS 1501 (2010).

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Indiana Sales Representative 24-4-7-0.1

BURNS INDIANA STATUTES ANNOTATED

Title 24 Trade Regulations; Consumer Sales and Credit

Article 4 Regulated Businesses

Chapter 7 Contracts with Wholesale Sales Representatives

Go to the Indiana Code Archive Directory

Burns Ind. Code Ann. § 24-4-7-0.1 (2012)

24-4-7-0.1. Applicability of IC 24-4-7 to contracts formed before September 1, 1985.

The addition of this chapter by P.L.238-1985 does not apply to contracts formed before September 1, 1985.

24-4-7-1. “Commission” defined.

As used in this chapter, “commission” means compensation that accrues to a sales representative, for payment by a principal, at a rate expressed as a percentage of the dollar amount of orders taken or sales made by the sales representative.

24-4-7-2. “Person” defined.

As used in this chapter, “person” means an individual, corporation, limited liability company, partnership, unincorporated association, estate, or trust.

24-4-7-3. “Principal” defined.

As used in this chapter, “principal” means a person who:

(1) Manufactures, produces, imports, sells, or distributes a product for wholesale;

(2) Contracts with a sales representative to solicit wholesale orders for the product; and

(3) Compensates the sales representative, in whole or in part, by commission.

24-4-7-4. “Sales representative” defined.

As used in this chapter, “sales representative” means a person who:

(1) Contracts with a principal to solicit wholesale orders in Indiana; and

(2) Is compensated, in whole or in part, by commission.

The term does not include a person who places orders or purchases on the person’s own account for resale.

24-4-7-5. Payment of commissions following termination of contract — Civil action — Attorney’s fees.

(a) If a contract between a sales representative and a principal is terminated, the principal shall, within fourteen (14) days after payment would have been due under the contract if the contract had not been terminated, pay to the sales representative all commissions accrued under the contract.

(b) A principal who in bad faith fails to comply with subsection (a) shall be liable, in a civil action brought by the sales representative, for exemplary damages in an amount no more than three (3) times the sum of the commissions owed to the sales representative.

(c) In a civil action under subsection (b), a principal against whom exemplary damages are awarded shall pay the sales representative’s reasonable attorney’s fees and court costs. However, if judgment is entered for the principal and the court determines that the action was brought on frivolous grounds, the court shall award reasonable attorney’s fees and court costs to the principal.

24-4-7-6. Doing business in Indiana.

For purposes of Indiana trial rule 4.4, a principal who contracts with a sales representative to solicit wholesale orders for a product in Indiana is doing business in Indiana.

24-4-7-7. Revocable offer of commission.

(a) If a principal makes a revocable offer of a commission to a sales representative who is not an employee of the principal, the sales representative is entitled to the commission agreed upon if:

(1) the principal revokes the offer of commission and the sales representative establishes that the revocation was for a purpose of avoiding payment of the commission;

(2) the revocation occurs after the sales representative has obtained a written order for the principal’s product because of the efforts of the sales representative; and

(3) the principal’s product that is the subject of the order is shipped to and paid for by a customer.

(b) This section may not be construed:

(1) to impair the application of IC 32-21-1 (statute of frauds);

(2) to abrogate any rule of agency law; or

(3) to unconstitutionally impair the obligations of contracts.

24-4-7-8. Waiver of statutory provision.

A provision in a contract between a sales representative and a principal that waives a provision of this chapter by:

(1) An express waiver; or

(2) A contract subject to the laws of another state; is void.

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Ski Binding Failure to Release under Indiana Law

Moore v. Sitzmark Corporation and Salomon North America, Inc., 555 N.E.2d 1305; 1990 Ind. App. LEXIS 769; CCH Prod. Liab. Rep. P12,523

Indiana, like most states’, product liability law is controlled by statute which severely limits the defenses available to a defendant. Here the retailer and manufacture were sued for injuries when a ski binding failed to release, both being in the chain of the sale of the product. The plaintiff had signed a “sales slip” which contained release language when she picked up the skis; however the sales slip (release) was only effective against one of the three claims of the plaintiff.

The defendants had filed a motion for summary judgment at the trial court which was granted on all counts. The plaintiff appealed and the appellate court reversed on two of the three product liability claims.

The plaintiff had purchased new skis and bindings from the retailer Sitzmark Corporation which included bindings manufactured by Salomon North America. On the plaintiff’s third run while skiing and her first fall on her new equipment she fell suffering a compound fracture.

The plaintiff sued claiming negligence and strict liability. The negligence claim included two sub-claims negligent design of the bindings and negligent adjustment of the bindings by the retailer. The defenses were “incurred risk” and the release contained in the sales slip. Indiana uses the term incurred risk instead of the term assumption of the risk.

Summary of the case

The language in the sales slip that constituted the release language, excerpted below, did not contain the magic word release. It only talked about assumption of the risk issues. The plaintiff did acknowledge understanding the language.

I have been instructed in the use of my equipment, I have read the manufacturer’s instruction pamphlet (new bindings only), I have made no misrepresentation in regard to my height, weight, age, or skiing ability . . . . I understand that there are inherent and other risks involved in the sport for which this equipment is to be used, snow skiing, that injuries are a common and ordinary occurrence of the sport and I freely assume those risks. I understand that the ski boot binding system will not release at all times or under all circumstances, nor is it possible to predict every situation in which it will release and is therefore no guarantee for my safety. I therefore release the ski shop and its owners, agents and employees from any and all liability for damage and from the selection, adjustment and use of this equipment, accepting myself the full responsibility for any and all such damage or injury which may result.

The court reversed the lower court and reinstated the plaintiff’s strict liability claim. Strict liability is set out by statute in Indiana, Ind. Code 33-1-1.5-1 et seq. The court stated the statute had a three part test for the manufacture and retailer to use as a defense in a strict liability claim.

First, a plaintiff’s knowledge of the defect.

Second, a plaintiff’s unreasonable use of the product despite knowledge of the defect.

Third, a plaintiff’s injuries caused by the product.

The court analyzed the arguments and decided that neither defendant could prove that the plaintiff new of any defect in the binding. This was different from the argument they could prove, through the release language that “Moore knew her bindings would not release under all circumstances.” Because neither defendant could win on step one the case was sent back.

The first negligence claim was a common law negligence claim. Common law meaning the law that evolved over time (and not based on statute), usually from the law carried over from Great Britain. The common law was developed in England during the 1500’s from the King’s decrees and the church’s equity decisions. As time progressed these laws became more streamline and eventually codified, or written down. The common law still exists in all states and is the basis for the law in every state (Louisiana being the sole exception). Only when a statute has been created will a section of the common law for that state disappear or cease to exist. Ninety-nine percent of all negligence claims are common law. A state may have a void in its common law, an area that has never been decided in the state before, however this is getting rare now days.

A common law product liability action in Indiana can be defeated by the defense of incurred or assumption of the risk. However assumption of the risk as a defense had been merged into comparative negligence in Indiana at this time.

The defendants argued that by signing the sales slip the plaintiff assumed the risk of the defect in the product. The court however found the sales slip was proof of assumption of the risk, but not of assumption of negligence the difference is the greater requirement of knowledge required by the statute. Because the first time she fell was also the time she was injured the plaintiff had no direct knowledge of the defect of the product. In this case defect would mean failure of the binding to release. As such, the defense failed because there was no proof of assumption of the risk of negligence. Because the binding has not failed to release prior to the injury, the plaintiff had no knowledge of the binding failing to release that she could assume. This claim was also sent back to the lower court.

The third and final claim was based on negligently “setting, adjusting or checking the bindings.” Here the sales slip with its release language was effective. The court stated “These alleged acts of negligence are exactly those for which Moore granted Sitzmark a release of liability when she read and signed the sales slip.” This final claim was dismissed by the appellate court.

This case is a little confusing because of two issues. Indiana law on product liability is different from many states and the release language in the sales slip was very poorly written. There is not much that can be done about Indiana’s product liability law and the limitation on the defenses available manufacture’s and retailers. However a well written release might have prevented one of the product liability claims.

So Now What?

The release is not clearly identified, other than in a sales slip in this opinion. However during this period, these releases were fairly uniform and used by shops across the US. These preprinted forms are written in a way as to not cause a problem with any state laws rather than to effectively stop a claim.

Having a release in this case that specifically used the word the negligence and identified the defendants as the shop, by name and all manufactures would be the first start. The court spent a lot of space finding a way to bring the manufacture into the defense provided by the release language when the language did not specifically mention the manufacture. The language of the release should incorporate the necessary defenses of the Indiana Strict Liability Act so that the defense in the act is available. The negligence claims should be identified both for negligent acts, negligent mounting and setting and negligent in the design, manufacture or construction of the product. The language should also include more specific assumption of the risk language so the purchaser or customer who is having repairs done understands the risks are not that the binding may not work, but that the risk is the binding will not work and that the user should ski knowing that and in a safe way.

A well written release, based on Indiana law may be difficult to do. However, a well written release will still be better than the one at issue here. Each claim that survives the motions and appeal increases the cost of litigating and the cost of a possible settlement. If the release had eliminated one more of the claims a lower settlement would be easier to achieve, maybe even a complete win at trial.

Plaintiff: Eldonna Moore

 

Defendant: Sitzmark Corporation and Salomon North America, Inc.,

 

Plaintiff Claims: negligence (product liability) and strict liability

 

Defendant Defenses: Assumption of the Risk (Incurred Risk) and Release

 

Holding: One claim dismissed based on the release and the two remaining claims sent back to the trial court.

 

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Moore v. Sitzmark Corporation and Salomon North America, Inc., 555 N.E.2d 1305; 1990 Ind. App. LEXIS 769; CCH Prod. Liab. Rep. P12,523

Moore v. Sitzmark Corporation and Salomon North America, Inc., 555 N.E.2d 1305; 1990 Ind. App. LEXIS 769; CCH Prod. Liab. Rep. P12,523

Eldonna Moore, Plaintiff-Appellant, v. Sitzmark Corporation and Salomon North America, Inc., Defendants-Appellees

No. 73A01-8908-CV-332

Court of Appeals of Indiana, First District

555 N.E.2d 1305; 1990 Ind. App. LEXIS 769; CCH Prod. Liab. Rep. P12,523

June 27, 1990, Filed

PRIOR HISTORY: [**1] Appeal from the Shelby Superior Court No. 1; The Honorable Jonathan E. Palmer, Judge; Cause No. 20C01-8806-CP-095.

COUNSEL: Attorneys for Appellant: C. Warren Holland, Michael W. Holland, William J. Rumely, Holland & Holland, Indianapolis, Indiana.

Attorneys for Appellees: C. Wendell Martin, Amy L. Rankin, Martin, Wade, Hartley & Hollingsworth, Indianapolis, Indiana.

JUDGES: Baker, J. Ratliff, C.J., and Hoffman, P.J., concur.

OPINION BY: BAKER

OPINION

[*1306] Plaintiff-appellant Eldonna Moore (Moore) broke her leg in a snow skiing accident. She subsequently brought this suit against defendant-appellees Salomon North America, Inc. (Salomon) and Sitzmark Corporation (Sitzmark), the manufacturer and seller, respectively, of the ski bindings she was using when she broke her leg The trial court granted summary judgment to Salomon and Sitzmark, and Moore now appeals. We affirm in part and reverse in part.

On February 18, 1986, Moore, an experienced skier, purchased a pair of new downhill skis and new bindings from Sitzmark. Sitzmark installed the bindings, known as Salomon 747 bindings, on the skis, and adjusted them to release based on Moore’s weight. At the time of purchase, Moore signed a sales slip which contained the following [**2] language.

I have been instructed in the use of my equipment, I have read the manufacturer’s instruction pamphlet (new bindings only), I have made no misrepresentation in regard to my height, weight, age, or skiing ability . . . . I understand that there are inherent and other risks involved in the sport for which this equipment is to be used, snow skiing, that injuries are a common and ordinary occurrence of the sport and I freely assume those risks. I understand that the ski boot binding system will not release at all times or under all circumstances, nor is it possible to predict every situation in which it will release and is therefore no guarantee for my safety. I therefore release the ski shop and its owners, agents and employees from any and all liability for damage and from the selection, adjustment and use of this equipment, accepting myself the full responsibility for any and all such damage or injury which may result.

Moore admits to having read and understood the sales slip.

On March 1, 1986, Moore went to Sugarloaf Mountain in Michigan and used her new skis and bindings for the first time. She made two uneventful “runs” down the most difficult slope. On her third trip [**3] down the slope, however, she took a severe fall, during which the binding on her right ski did not release. As a result of the fall, she suffered a compound fracture of her right femur.

Moore brought suit against Salomon and Sitzmark, alleging theories of negligence and strict liability. The negligence claim against Salomon was premised on negligent design, and the negligence claim against Sitzmark was premised on negligent adjustment of the bindings. In their motions for summary judgment, Salomon and Sitzmark argued that Moore had incurred the risk, and the trial court granted the motions on that basis. On appeal, Moore raises two restated issues for our review. First, whether the trial court erred in finding she had incurred the risk. Second, whether the release of liability Moore signed was effective.

[HN1] When reviewing a grant of summary judgment, we apply the same standards as the trial court, and examine the pleadings, depositions, answers to interrogatories, [*1307] admissions, and affidavits filed with the court in the light most favorable to the party opposing summary judgment. Hatton v. Fraternal Order of Eagles (1990), Ind. App., 551 N.E.2d 479. Summary judgment is appropriate [**4] only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Id. When a defendant is the moving party, it is entitled to judgment as a matter of law when it demonstrates one of two things. First, that the undisputed material facts negate at least one element of the plaintiff’s claim. Second, the defendant may raise an affirmative defense which bars the plaintiff’s claim. 3 W. HARVEY, INDIANA PRACTICE § 56.9 at 629 (1988). If a defendant cannot make one of these showings, summary judgment is improper.

I. INCURRED RISK

A. Strict Liability

Moore argues she incurred only the ordinary risk of falling while skiing. Based on the language in the sales slip’s release of liability, Salomon and Sitzmark argue Moore incurred the risk that her bindings could fail to release and that she might suffer harm as a result. Salomon and Sitzmark are correct, but that is not dispositive of the case.

Moore’s strict liability theory, based on her allegation that the bindings were defective, is a statutory cause of action controlled by the Indiana Product Liability Act, IND. CODE 33-1-1.5-1 et seq. [HN2] The Act has preempted the Indiana common [**5] law of strict liability and “governs all actions in which the theory of liability is strict liability in tort.” IND. CODE 33-1-1.5-1. See Koske v. Townsend Engineering Co. (1990), Ind., 551 N.E.2d 437. Under the Act,

(a) One who sells, leases, or otherwise puts into the stream of commerce any product in a defective condition unreasonably dangerous to any user or consumer or to his property is subject to liability for physical harm caused by that product to the user or consumer or his property if that user or consumer is in the class of persons that the seller should reasonably foresee as being subject to the harm caused by the defective condition, and if:

(1) the seller is engaged in the business of selling such a product; and

(2) the product is expected to and does reach the user or consumer without substantial alteration in the condition in which it is sold by the person sought to be held liable under this chapter.

IND. CODE 33-1-1.5-3(a). IND. CODE 33-1-1.5-2 defines a seller as “a person engaged in business as a manufacturer, a wholesaler, a retailer, a lessor, or a distributor.” Accordingly, if Moore can prove the bindings were in a defective condition unreasonably dangerous, [**6] Salomon as manufacturer, and Sitzmark as retail seller, will be subject to liability under the Act.

The Act provides that defendants may raise the affirmative defense of incurred risk, as Salomon and Sitzmark did here. [HN3] “It is a defense that the user or consumer bringing the action knew of the defect and was aware of the danger and nevertheless proceeded unreasonably to make use of the product and was injured by it.” IND. CODE 33-1-1.5-4(b)(1) (emphasis added). The party asserting incurred risk bears the burden of proving the defense by a preponderance of the evidence, Get-N-Go, Inc. v. Markins (1989), Ind., 544 N.E.2d 484, reh’g granted on other grounds, 550 N.E.2d 748, and this requires three showings under IND. CODE 33-1-1.5-4(b)(1). First, a plaintiff’s knowledge of the defect. See, e.g., Corbin v. Coleco Industries, Inc. (7th Cir. 1984) 748 F.2d 411. Second, a plaintiff’s unreasonable use of the product despite knowledge of the defect. Third, a plaintiff’s injuries caused by the product. 1

1 In reality, of course, the third element will generally be shown by the plaintiff, requiring the party raising incurred risk to prove only the first two elements.

[**7] This is where Salomon and Sitzmark fail. Neither of them asserts that Moore knew of any defect in the bindings, they merely argue Moore knew her bindings would not release under all circumstances. [*1308] Absent the threshold showing that Moore knew of a defect in the bindings, neither Salomon nor Sitzmark is entitled to summary judgment on the grounds of incurred risk. The trial court’s grant of summary judgment on Moore’s strict liability theory was improper. 2

2 If, upon remand, Salomon and Sitzmark are able to prove Moore incurred the risk of a defect in the bindings, this will act as a complete bar to Moore’s strict liability claim. [HN4] The Comparative Fault Act, IND. CODE 34-4-33-1 et seq., does not include strict liability theory actions, but only those actions based on fault. See IND. CODE 34-4-33-1.

B. Negligence

A similar analysis applies to Moore’s negligent design theory against Salomon. [HN5] A plaintiff may, of course, bring a negligence action against the manufacturer of a product. See, e.g., Jarrell [**8] v. Monsanto Co. (1988), Ind. App., 528 N.E.2d 1158; Pfisterer v. Grisham (1965), 137 Ind. App. 565, 210 N.E.2d 75; MacPherson v. Buick Motor Co. (1916), 217 N.Y. 382, 111 N.E. 1050. Such an action is not subject to the terms of the Indiana Product Liability Act; rather, it is a common law action. Koske, supra, 551 N.E.2d at 443. In turn, the manufacturer may raise the defense of incurred risk. See Pfisterer, supra. In a negligence action, the defense of incurred risk is specifically subject to the terms of the Comparative Fault Act. See IND. CODE 34-4-33-2(a).

As all the parties to this dispute correctly point out, incurred risk involves a mental state of venturousness on the part of the actor against whom it is asserted, and requires a subjective analysis of the actor’s actual knowledge and voluntary acceptance of the risk. Get-N-Go, supra; Power v. Brodie (1984), Ind. App., 460 N.E.2d 1241; Kroger Co. v. Haun (1978), 177 Ind. App. 403, 379 N.E.2d 1004. As with the parties’ dispute over incurred risk in the context of a strict liability theory, the question here revolves around the proper definition of the risk that may or may not have been incurred.

[**9] As we have already discussed, by signing the release in the sales slip, Moore incurred the risk that her bindings would not release under all circumstances and that she might suffer injuries in the event of a failure to release. This was merely an acknowledgement of the laws of physics, however. There is no evidence Moore knew of any alleged negligent design of the bindings. Salomon argues vigorously that Indiana case law defines the risk as solely the risk of injury, not the risk of negligence. 3 Salomon is mistaken.

3 Salomon and Sitzmark make much of the voluntariness of Moore’s actions (i.e., purchasing the bindings, signing the release, and skiing for pleasure) in incurring the risk of her bindings failing to release. It is hornbook law that [HN6] actions which are not truly voluntary do not amount to an incurrence of risk. See, e.g., Get-N-Go, supra; Richarson v. Marrell’s (1989), Ind. App., 539 N.E.2d 485, trans. denied; St. Mary’s Byzantine Church v. Mantich (1987), Ind. App., 505 N.E.2d 811, trans. denied. Moore’s actions were indeed voluntary, but this is immaterial; the proper definition of the risk is the dispositive issue in this case.

[**10] In Pfisterer, supra, the plaintiff lost part of her finger while using a slide at the defendants’ resort park. The plaintiff had used slides before, but had never used the slide which injured her prior to the time of injury. In discussing the defense of incurred or assumed risk, the court held the plaintiff “assumed or incurred the risks inherent and incident to the use of this slide, but she did not assume or incur the risk that the slide might be defectively constructed. [She] could not assume or incur the risk of a latent defect of which she had neither notice nor knowledge, either express or implied.” 4 Pfisterer, supra, 137 Ind. App. at 572, 210 N.E.2d at 78-79.

4 The plaintiff was 13 years old at the time of the accident. The court, however, did not in any way rely on the plaintiff’s youth as a basis for its decision.

In a similar case, the Missouri Court of Appeals held a high school pole vaulter assumed the inherent risks of pole vaulting, but not the risks of the manufacturer’s negligence. McCormick v. Lowe & Campbell Athletic Goods Co. (1940), 235 Mo. App. 612, 144 S.W.2d 866.

[**11] Similarly, the evidence most favorable to Moore reveals she had no knowledge [*1309] of any negligent design flaws in the bindings. Moreover, she had not fallen while using the new bindings prior to the fall which injured her. Even if she had, assuming any defect was latent, she could not incur the risk of the defect without notice of the defect. 5 Moore did not incur the risk of negligent design by Salomon. The trial court’s grant of summary judgment to Salomon on Moore’s negligence theory was improper.

5 [HN7] If any defect was open and obvious under the rule enunciated in Bemis Co. v. Rubush (1981), Ind., 427 N.E.2d 1058, 1061, cert. denied (1982), 459 U.S. 825, 103 S. Ct. 57, 74 L. Ed. 2d 61, Moore may not recover on her negligence theory. Koske, supra, did not abrogate the open and obvious rule, but rather held it inapplicable to actions under the Indiana Product Liability Act. The rule is still applicable in product negligence liability cases. Koske, supra, 551 N.E.2d at 443. See Also Bridgewater v. Economy Eng’g Co. (1985), Ind., 486 N.E.2d 484, modified on other grounds in Get-N-Go, Inc. v. Markins (1990), 550 N.E.2d 748.

[**12] II. EFFECT OF RELEASE

Moore’s negligence complaint against Sitzmark alleged Sitzmark had been negligent in setting, adjusting, or checking the bindings. These alleged acts of negligence are exactly those for which Moore granted Sitzmark a release of liability when she read and signed the sales slip. This release was valid under Indiana law, LaFrenz v. Lake Cty. Fair Bd. (1977), 172 Ind. App. 389, 360 N.E.2d 605, and the trial court properly granted summary judgment to Sitzmark on Moore’s negligence theory.

The trial court’s summary judgment in favor of Sitzmark on Moore’s negligence theory is affirmed. The trial court’s summary judgment in favor of Sitzmark on Moore’s strict liability theory, and in favor of Salomon on both Moore’s strict liability and negligence theories is reversed. The cause is remanded to the trial court for further proceedings consistent with this opinion.

Ratliff, C.J., and Hoffman, P.J., concur.

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Indiana adopts the higher standard of care between participants in sporting events in this Triathlon case

Mark, v. Moser, 46 N.E.2d 410; 2001 Ind. App. LEXIS 671

This decision examines the different legal decisions involving lawsuits between participants in Indiana and other states.

The plaintiff and the defendant were racing in a triathlon. Both agreed to abide by the rules of USA Triathlon, and both signed releases. While in the bicycle portion

English: Transition area (bicycles) of Hamburg...

of the race, the defendant cut in front of the plaintiff causing a collision. The defendant was disqualified for violating the USA Triathlon rule concerning endangerment.

No cyclist shall endanger himself or another participant. Any cyclist who intentionally presents a danger to any participant or who, in the judgment of the Head Referee, appears to present a danger to any participants shall be disqualified.

The referee stated the defendant’s conduct was not intentional, “rather, he was disqualified for violating the rule “because, by moving over, an accident occurred.” As you can seem the rule, and its interpretation are subject wide interpretation and would lead to more arguments (lawsuits) after that.

The plaintiff sued the defendant for negligence and for acting intentionally, recklessly and willfully causing her injuries. The defendant filed a motion for summary judgment on both claims. The trial court granted the motion on the negligence claim and denied the motion on the second claim, the international acts.

In some jurisdictions, you can appeal motions for summary judgment that do not finish the case in its entirety. Here the plaintiff appealed the decision. Whether or not you can appeal the decision is dependent on the state rules of civil and appellate procedure.

Summary of the case

The Indian appellate court did a thorough analysis of the legal issues after determining this was an issue of first impression in Indiana. An issue of first impression is one where the court has not ruled on this particular legal issue before.

The issue was what was the standard of care owed by co-participants in a sporting event. The standard for a school sporting event was negligence. The court stated that the standard was negligence, low, because of the duty the school personnel had to exercise reasonable care over the students.

The court then looked at other decisions for the duty between co-participants. The court found three states, Arizona, Nevada and Wisconsin where the duty was negligence. The court found California, Connecticut, Illinois, Kentucky, Louisiana, Massachusetts, Michigan, Missouri, Nebraska, New Jersey, New Mexico, New York, Ohio, and Texas had adopted a “reckless or intentional conduct” or a “willful and wanton or intentional misconduct” standard of care. This is a much higher standard of care than the negligence standard.

English: Triathlon photographs from the Chinoo...

The court found the higher standard of care was established because participants assume the risk of the activity, to stop mass litigation that would arise every time a foul occurs, and not to limit the sport because of the fear of liability.

The Indiana court determined that participants in sports activities:

…assume the inherent and foreseeable dangers of the activity and cannot recover for injury unless it can be established that the other participant either intentionally caused injury or engaged in conduct so reckless as to be totally outside the range of ordinary activity involved in the sport.

The court granted the summary judgment as to the first count, the negligence claim and sent the second claim back to the lower court to determine if the plaintiff could prove that the action of the defendant was intentional, reckless and willful when he rode his bike. The court sent it back with this statement.

…the trial court must determine whether Kyle’s [defendant] action was an inherent or reasonably foreseeable part of the sport, such that Rebecca [plaintiff] assumed the risk of injury as a matter of law. In our view, it is reasonably foreseeable that a competitor in a cycling race may attempt to cut in front of co-participants in an effort to advance position. Thus, if Rebecca is unable to develop the facts beyond those presented at this juncture, we would conclude that Kyle’s action was an inherent risk in the event that Rebecca assumed as a matter of law, thereby precluding recovery.

That is a very specific statement as to how the lower court must examine the facts in the case.

The appellate court also made another statement that is very important in this day and age.

As is generally the case, the release form that Rebecca signed does not relieve Kyle from liability as co-participants are not listed among the specific entities or individuals released from liability ac-cording to the plain language of the document.

The court looked at the release to determine if the release stopped the suit even though that was not argued by the parties.

So Now What?

A triathlon bicycle with triathlon handlebar a...

It’s OK to play touch football, softball and have fun in Indiana.

At the same time, the court pointed out the fact that if the release had included the term co-participants in the release, the lawsuit might have started because the defendant would have been protected.

Here just one additional word in the release might have stopped a lawsuit.

What do you think? Leave a comment.

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Mark, v. Moser, 46 N.E.2d 410; 2001 Ind. App. LEXIS 671

Mark, v. Moser, 46 N.E.2d 410; 2001 Ind. App. LEXIS 671

Rebecca J. Mark, Appellant-Plaintiff, vs. Kyle Moser, Appellee-Defendant.

No. 29A02-0010-CV-623

COURT OF APPEALS OF INDIANA, SECOND DISTRICT

746 N.E.2d 410; 2001 Ind. App. LEXIS 671

April 19, 2001, Decided

PRIOR HISTORY: [**1] APPEAL FROM THE HAMILTON SUPERIOR COURT. Cause No. 29D03-9806-CT-323. The Honorable William Hughes, Judge.

DISPOSITION: Trial court’s decision affirmed with respect to Count I. Remanded to trial court for further proceedings on Count II consistent with this opinion.

COUNSEL: FOR APPELLANT: JOSEPH A. CHRISTOFF, KONRAD M. L. URBERG, Christoff & Christoff, Fort Wayne, Indiana.

FOR APPELLEE: STEVEN K. HUFFER, DEREK L. MANDEL, Huffer & Weathers, P.C., Indianapolis, Indiana.

JUDGES: BAKER, Judge. BROOK, J., and BARNES, J., concur.

OPINION BY: BAKER

OPINION

[*413] BAKER, Judge

Today we are called upon to clearly define the standard of care one competitor owes another in a sporting event. Although this court may have tangentially addressed the issue in the past, there has been no case since the adoption of the Comparative Fault Act where an in-depth analysis was warranted. Thus, the precise issue we must decide is whether a participant in an athletic activity may recover in tort for injury as the result of another participant’s negligent conduct.

FACTS

The uncontroverted facts are that on September 7, 1997, Rebecca Mark (Rebecca) and Kyle Moser (Kyle) were co-participants in a triathlon competition in [**2] Marion County, which consisted of three events, swimming, bicycling, and running. Before the competition, each triathlon participant agreed to abide by the rules adopted by USA Triathlon. In addition, all the participants signed an entry form, which included a waiver provision and release from liability.

During the bicycling leg of the triathlon, Kyle was riding on the left side of Rebecca and cut in front of her. As a result, the two bicycles collided and Rebecca was hospitalized with serious injuries. Kyle was subsequently disqualified for violating the USA Triathlon rule against endangerment. That rule provides: “No cyclist shall endanger himself or another participant. Any cyclist who intentionally presents a danger to any participant or who, in the judgment of the Head Referee, appears to present a danger to any participants shall be disqualified.” Record at 115. The triathlon referee, Ardith Spence, stated that Kyle’s conduct was not considered intentional; rather, he was disqualified for violating the rule “because, by moving over, an accident occurred.” R. at 111.

On June 7, 1998, Rebecca filed a two-count complaint against Kyle. In Count I, Rebecca alleged that the collision [**3] was caused by Kyle’s negligence and, in the alternative, in Count II, Rebecca alleged that Kyle acted intentionally, recklessly and willfully in causing her injuries. In response, on September 29, 2000, Kyle filed a motion for summary judgment as to both counts of Rebecca’s complaint. Specifically, Kyle argued that Rebecca was barred from recovering on a negligence theory and, instead, asserted that she was required to establish that he intentionally, recklessly, willfully, or wantonly caused her injuries. In addition, Kyle argued that there was no evidence indicating that he had intentionally or recklessly caused the collision between the two bicycles.

The trial court held a hearing on Kyle’s motion on June 7, 2000. Thereafter, on August 3, 2000, the trial court granted summary judgment as to Count I of Rebecca’s complaint and denied it as to Count II. Rebecca now appeals the trial court’s judgment regarding the negligence count.

DISCUSSION AND DECISION

I. Standard of Review

The standard of review of a summary judgment is well settled. [HN1] This court [*414] applies the same standard as the trial court. USA Life One Ins. Co. v. Nuckolls, 682 N.E.2d 534, 537 (Ind. 1997). [**4] We do not weigh the evidence designated by the parties. Instead, we liberally construe the evidence in the light most favorable to the non-moving party. Id. Summary judgment is appropriate only if the pleadings and the evidence show both the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Butler v. City of Indianapolis, 668 N.E.2d 1227, 1228 (Ind. 1996). Where material facts conflict, or undisputed facts lead to conflicting material inferences, summary judgment is inappropriate. Id.

II. The Current State of the Law

A. Indiana Law

Many people might think that Rebecca’s claim would be barred because she in some way incurred, or assumed, the risk of injury by participating in the sporting event. However, under present Indiana law that would not necessarily be the case if the standard of care was negligence. On January 1, 1985, Indiana adopted the Comparative Fault Act (the Act). IND. CODE § 34-51-2-1 to -19. The Act was intended to ameliorate the harshness of the then prevailing common law doctrine of contributory negligence. [**5] Baker v. Osco Drug, Inc., 632 N.E.2d 794, 797 (Ind. Ct. App. 1994). Under the common law rule, a slightly negligent plaintiff was precluded from recovery of any damages, even against a highly culpable tortfeasor. Id. In [HN2] contrast, under the Act, if a plaintiff’s conduct satisfies the statutory definition of “fault,” he will be permitted to recover damages, but those damages will be reduced by his proportion of fault. Id. However, if the plaintiff’s percentage of fault is assessed at greater than fifty percent, his recovery will still be completely barred. Id. For purposes of defining comparative fault, [HN3] the term “fault” includes “any act or omission that is negligent, willful, wanton, reckless, or intentional towards the person or property of others. The term also includes unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid an injury or to mitigate damages.” I.C. § 34-6-2-45(b). [HN4] This inclusion of “incurred risk” in the definition of fault abolishes incurred risk as a complete bar to recovery and establishes that the fault of each party should be apportioned. [**6] Baker, 632 N.E.2d at 797. Thus, under Indiana law, if we adopt negligence as the standard of care between co-participants in a sporting event, it would be a question of fact for the jury to decide whether the plaintiff in any way incurred the risk of harm but is, nevertheless, entitled to recover for his injury.

Our supreme court has not specifically addressed the standard of care between co-participants in athletic events. However, it has addressed the appropriate standard of care owed by an educational institution and its representatives to students for injuries sustained while playing campus sports. [HN5] In this context, the court has adopted a negligence standard. See Beckett v. Clinton Prairie Sch. Corp., 504 N.E.2d 552, 554 (Ind. 1987) (holding that school personnel have a duty to exercise reasonable care over students participating in a school activity under school supervision, in a case involving a collision between two student baseball players). Our supreme court adopted this standard based on its recognition that there is a well-established “duty on the part of school personnel to exercise ordinary and reasonable care for the safety of children [**7] under their authority.” Beckett, 504 N.E.2d at 553; cf. Brewster v. Rankins, 600 N.E.2d 154, 158 (Ind. Ct. App. 1992) (holding that [*415] while school authorities have a duty to exercise reasonable care for the safety of children under their tutelage, they have no duty to prevent a student from injuring other players while practicing his golf swing at home). According to the court, whether school personnel exercised their duty with the level of care of an ordinary prudent person under the same or similar circumstances is generally a factual question for the determination of the jury. Beckett, 504 N.E.2d at 554.

Our supreme court has also recognized, however, [HN6] that if the student athlete can be shown to have incurred the risks inherent in the sports event, this acts as a potential bar to recovery. Id.; see also Clark v. Wiegand, 617 N.E.2d 916, 919 (Ind. 1993) (holding that the question of whether a student in a university judo class incurred the risk of injury from another student so as to bar recovery from the university was a question for the jury). According to the Beckett court, for the “doctrine of incurred [**8] risk” to affect the plaintiff’s likelihood or percentage of recovery, it is not enough that the plaintiff merely has a general awareness of a potential for mishap in engaging in the particular sports activity. Id. Rather, the doctrine involves a subjective analysis focusing upon the plaintiff’s actual knowledge and appreciation of the specific risk and voluntary acceptance of that risk. Clark, 617 N.E.2d at 919 (stating that whether the possibility of sustaining a knee ligament injury while participating in a judo class “was within the plaintiff’s actual knowledge, appreciation, and voluntary acceptance, is a factual matter not easily susceptible to determination as a matter of law”). 1

1 For another case where a student brought suit against the school corporation for injuries caused by a fellow student during a sports event, see Huffman v. Monroe County Community Sch. Corp., 588 N.E.2d 1264 (Ind. 1992). In that case, the plaintiff sustained head and shoulder injuries when a fellow student struck her in the back of the head with a shot put during a track meet. Id. at 1264.

[**9] In Duke’s GMC v. Erskine, 447 N.E.2d 1118, 1118 (Ind. Ct. App. 1983), a panel of this court addressed the situation where a sports participant sued for injuries caused by another player. Duke’s GMC involved a golfer, Erskine, who sued for loss of an eye from being struck by a golf ball at a country club. Id. In addition to being decided prior to Indiana’s adoption of the Comparative Fault Act, Duke’s GMC is distinguishable from the case at bar because the court was not confronted with the standard of care between sports co-participants and because Erskine sued the corporation that paid the dues of its president who hit the golf ball causing the injury, rather than suing the president himself. Id. Specifically, in Duke’s GMC, this court was called upon to decide whether the trial court erred in admitting certain evidence and in the instructions it gave to the jury. In addressing whether the trial court’s instruction regarding incurred risk was erroneous, this court approved the parties’ assertion that a golfer could not incur the risk of another golfer’s negligence as a matter of law. This court then discussed the instruction based on a negligence [**10] standard, but it never addressed the standard of care one competitor owes another in a sporting event. However, when discussing the appropriateness of the trial court’s instructions regarding damages, the Duke’s GMC court did examine how violations of the rules of sport affect the negligence analysis. In so doing, this court recognized that the “rules of sport are at least an indicia of the standard of care which players owe each other,” and concluded that “while a violation [*416] of those rules may not be negligence per se, it may well be evidence of negligence.” 2 Id. at 1124.

2 The parties dispute whether the court in this case proceeded under a standard of negligence or reckless misconduct. Appellant’s brief at 8; Appellee’s brief at 4-5. While the standard is unclear, it appears from the court’s holding and analysis of how violations of the rules of sport affect the negligence analysis, that it permitted the case to proceed under a negligence standard. Duke’s GMC, 447 N.E.2d at 1124.

[**11] [HN7]

Thus, under the current state of Indiana law, in actions for sports-related injuries against school authorities, rather than against a co-participant, liability will attach in the event that negligence is shown. We note, however, that the plaintiff’s negligence claim is subject to the defense of incurred risk, which requires the defendant to establish that the plaintiff had actual knowledge of the risk that resulted in his injury. Should the defendant carry his burden of proof on this defense, the plaintiff’s recovery will be reduced or eliminated depending on the degree of the plaintiff’s fault.

B. Law in Other Jurisdictions

The authority from other jurisdictions is instructive with regard to the standard of care to be applied between co-participants in a sports activity. Other jurisdictions have generally taken one of two approaches to this issue, and have adopted either a negligence or recklessness standard. They have also recognized two principle defenses, contributory negligence and assumption of risk.

Arizona, Nevada, and Wisconsin judge sports injury cases between co-participants according to an “ordinary care” or negligence standard. See Estes v. Tripson, 188 Ariz. 93, 932 P.2d 1364, 1366 (Ariz. Ct. App. 1997); [**12] Auckenthaler v. Grundmeyer, 110 Nev. 682, 877 P.2d 1039, 1043 (Nev. 1994); Lestina v. West Bend Mut. Ins. Co., 176 Wis. 2d 901, 501 N.W.2d 28, 33 (Wis. 1993). The primary argument for adhering to the negligence standard is the belief that this standard is flexible enough to be applied to a wide range of situations because it only requires that a person exercise ordinary care under the circumstances. See Auckenthaler, 877 P.2d at 1043; Lestina, 501 N.W.2d at 33. Thus, “within the factual climate of . . . sporting events, the question posed is whether the defendant participated in a reasonable manner and within the rules of the game or in accordance with the ordinary scope of the activity.” Auckenthaler, 877 P.2d at 1043 (citing Lestina, 501 N.W.2d at 33).

The majority of other states have adopted a “reckless or intentional conduct” or a “willful and wanton or intentional misconduct” standard. These states include California, Connecticut, Illinois, Kentucky, Louisiana, Massachusetts, Michigan, Missouri, Nebraska, New Jersey, New Mexico, New York, Ohio, and Texas. See Knight v. Jewett, 3 Cal. 4th 296, 834 P.2d 696, 711 (Cal. 1992) [**13] (applying a recklessness standard to an injury in an informal game of coed football); Jaworski v. Kiernan, 241 Conn. 399, 696 A.2d 332, 339 (Conn. 1997) (holding that a recklessness or intentional misconduct standard should be used in a case involving a recreational soccer game); Hoke v. Cullinan, 914 S.W.2d 335, 339 (Ky. 1995) (applying a recklessness standard with respect to an injury sustained in a doubles tennis match); Picou v. Hartford Ins. Co., 558 So. 2d 787, 790 (La. Ct. App. 1990) (applying recklessness as the standard for injuries sustained during a softball game); Gauvin v. Clark, 404 Mass. 450, 537 N.E.2d 94, 96 (Mass. 1989) (adopting a “reckless disregard of safety” standard in a case involving a college hockey game); Ritchie-Gamester [*417] v. City of Berkley, 461 Mich. 73, 597 N.W.2d 517, 518 (Mich. 1999) (holding that co-participants owe each other a duty not to engage in reckless misconduct in a case involving a collision between two recreational skaters); Dotzler v. Tuttle, 234 Neb. 176, 449 N.W.2d 774, 779 (Neb. 1990) (adopting a recklessness standard with respect to injuries [**14] sustained in a “pickup” basketball game); Crawn v. Campo, 136 N.J. 494, 643 A.2d 600, 601 (N.J. 1994) (adopting a “reckless disregard for the safety of others” standard in a case involving a “pickup” softball game); Kabella v. Bouschelle, 100 N.M. 461, 672 P.2d 290, 293 (N.M. Ct. App. 1983) (adopting recklessness as the standard for injuries sustained during an informal game of tackle football); Turcotte v. Fell, 68 N.Y.2d 432, 502 N.E.2d 964, 968, 510 N.Y.S.2d 49 (N.Y. 1986) (concluding that a “reckless or intentional” standard applied in a case involving a professional jockey injured during a horse race); Marchetti v. Kalish, 53 Ohio St. 3d 95, 559 N.E.2d 699, 703 (Ohio 1990) (applying the recklessness standard to a minor who was injured participating in a recreational game of “kick the can”); Hathaway v. Tascosa Country Club, Inc., 846 S.W.2d 614, 616 (Tex. App. 1993) (applying a “reckless or intentional” standard in a case involving an injury suffered during a recreational golf game).

Of those states that have adopted a recklessness or intentional misconduct standard, some, including Illinois [**15] and Missouri, have explicitly limited application of this standard to contact sports. See Pfister v. Shusta, 167 Ill. 2d 417, 657 N.E.2d 1013, 1017, 212 Ill. Dec. 668 (Ill. App. Ct. 1995) (holding that participants who voluntarily engage in contact sports cannot recover for injuries resulting from the negligence of other players and, instead, must establish willful and wanton or intentional misconduct); Zurla v. Hydel 289 Ill. App. 3d 215, 681 N.E.2d 148, 152, 224 Ill. Dec. 166 (Ill. App. Ct. 1997) (holding that negligence is the appropriate standard of care between co-participants in golf); Novak v. Virene, 224 Ill. App. 3d 317, 586 N.E.2d 578, 579, 166 Ill. Dec. 620 (Ill. App. Ct. 1991) (concluding that negligence is the appropriate standard between skiers); Gamble v. Bost, 901 S.W.2d 182, 186 (Mo. Ct. App. 1995) (holding that a negligence standard is proper in bowling, a non-contact sport) trans. denied; Ross v. Clouser, 637 S.W.2d 11, 14 (Mo. 1982) (adopting a recklessness standard for contact sports). 3

3 One critic has noted that a “shortcoming of the recklessness standard is the inconsistent formulas courts have established to define recklessness.” Ian M. Burnstein, Liability For Injuries Suffered In The Course of Recreational Sports: Application of the Negligence Standard, 71 U. Det. Mercy L. Rev. 993, 1014 (1994). Burnstein points out that the Louisiana Court of Appeals in Bourque v. Duplechin, 331 So. 2d 40, 43 (1976), defined recklessness “in terms of consequences to the victim,” whereas the Illinois Court of Appeals in Nabozny v. Barnhill, 31 Ill. App. 3d 212, 334 N.E.2d 258, 261 (Ill. App. Ct. 1975), defined it in terms of the “actor’s ‘reckless disregard’ for the safety of other players.” Id. The New Mexico Court of Appeals in Kabella, 672 P.2d at 294, “defined reckless disregard as reckless or willful conduct,” and other jurisdictions have used the definition set out in the Restatement (Second) of Torts (1965). Id.

[**16] Courts that have departed from the negligence standard and adopted an elevated standard of care in the co-participant context, have recognized public policy justifications for doing so. Specifically, some courts have feared that use of an ordinary negligence standard could result in a flood of litigation. For example, in Jaworski, the Supreme Court of Connecticut declined to adopt a negligence standard, acknowledging that:

If simple negligence were to be adopted as the standard of care, every punter with whom contact is made, every midfielder [*418] high sticked, every basketball player fouled, every batter struck by a pitch, and every hockey player tripped would have the ingredients for a lawsuit if injury resulted.

696 A.2d at 338. The Jaworski court went on to state that given “the number of athletic events taking place in Connecticut over the course of a year . . . such potential for a surfeit of lawsuits . . . should not be encouraged.” Id.

Several courts have also recognized that “fear of civil liability stemming from negligent acts occurring [during] an athletic event could curtail the proper vigor with which the game should be played and discourage [**17] individual participation.” Ross, 637 S.W.2d at 14. The Supreme Court of New Jersey in Crawn, noted that “one might well conclude that something is terribly wrong with a society in which the most commonly-accepted aspects of play–a traditional source of a community’s conviviality and cohesion–spurs litigation.” 643 A.2d at 600. With the foregoing in mind, the Crawn court went on to adopt “the heightened recklessness standard,” recognizing this as a “commonsense distinction between excessively harmful conduct and the more routine rough-and-tumble of sports that should occur freely on the playing field and should not be second-guessed in courtrooms.” Id.

Apart from policy rationales, some courts have justified adoption of a recklessness or intentional standard of care on the grounds that a participant in a sports activity assumes the risks inherent in that activity. See, e.g., Knight, 834 P.2d at 712; Marchetti, 559 N.E.2d at 703-04; Turcotte, 502 N.E.2d at 967; Ross, 637 S.W.2d at 14. Assumption of risk can be applied in its primary or secondary sense. See Fowler V. [**18] Harper et al., The Law of Torts § 21.0 (3d ed. 1996). Secondary assumption of risk is applied according to a subjective standard. Therefore, “if the plaintiff knows, understands, and appreciates a risk and deliberately encounters it, he assumes that risk in the secondary sense.” Heidi C. Doerhoff, Penalty Box or Jury Box? Deciding Where Professional Sports Tough Guys Should Go, 64 Mo. L. Rev. 739, 751 (1999). Whether the plaintiff appreciated and was willing to encounter the particular risk is a “factual determination[] usually reserved to the jury.” Id.

Secondary assumption of risk has been subsumed by comparative fault in many jurisdictions and is no longer a defense. However, New York and California recognize primary assumption of risk as having survived enactment of their comparative negligence statutes. These two states have retained assumption of risk in the sports injury context by recasting it as a no-duty rule. Essentially, under the primary assumption of risk doctrine, a sports participant defendant owes no duty of care to a co-participant with respect to risks that are considered to be within the ordinary range of activity involved in the sport. [**19] See Knight, 834 P.2d at 711; Turcotte, 502 N.E.2d at 970. Because primary assumption of risk “is a policy-driven concept that flows from the legal relationship of the parties, not their subjective expectations,” it is applied according to an objective, rather than subjective, standard. Doerhoff, 64 Mo. L. Rev. at 751. Thus, for purposes of determining whether the doctrine negates a defendant’s duty of care, thereby barring a plaintiff’s action, the plaintiff’s “knowledge plays a role but [the] inherency [of the risks involved in the particular sport] is the sine qua non.” Morgan v. State, 90 N.Y.2d 471, 685 N.E.2d 202, 208, 662 N.Y.S.2d 421 (N.Y. 1997). Whether a duty of care attends the relationship between the parties “is a question of law reserved to the [*419] court.” Doerhoff, 64 Mo. L. Rev. at 751. If no such duty is found to exist, then an action for personal injury will be barred as a matter of law absent evidence of reckless or intentionally harmful conduct. Turcotte, 502 N.E.2d at 967.

Courts that have adopted the recklessness or intentional standard have also tended to hold rule violations as an inherent and anticipated [**20] part of the game. Burnstein, 71 U. Det. Mercy L. Rev. at 993. The Supreme Court of Connecticut has justified this tendency by reasoning that the “normal expectations of participants in contact team sports includes the potential for injuries resulting from conduct that violates the rules of sport.” Jaworski, 696 A.2d at 337. Thus, “Connecticut, like other jurisdictions that have adopted the reckless or intentional standard of care, allows a participant in a sporting event to escape liability when his conduct is ‘part of the game’ even though it violates [the] rules” of the sport. Mark M. Rembish, Liability for Personal Injuries Sustained in Sporting Events After Jaworski v. Kierney, 18 Quinnipiac L. Rev. 307, 341 (1998).

In sum, the majority of jurisdictions that have considered the issue of the appropriate standard of care between co-participants in sporting activities, have adopted a standard of care that exceeds negligent conduct. The rationale behind this heightened standard of care is the fear of a flood of litigation, the desire to encourage vigorous athletic competition and participation in sporting events, and the perception that risk of injury is a common [**21] and inherent aspect of sports and recreational activity.

C. Analysis

In determining the appropriate standard of care between co-participants in sporting activities in Indiana, we are mindful that in Indiana, as in the rest of the United States, participation in recreational sports has become an increasingly popular leisure time activity. Indeed, over the last decade, more Americans than ever before “have joined recreational softball, basketball, football [and] other types of sports leagues,” and there has also been a dramatic increase in participation in high school and college organized sports. Burnstein, 71 U. Det. Mercy L. Rev. at 993. Our legislature also emphasized and endorsed the growing importance of sporting and recreational activities in Indiana, when it enacted a statute specifically immunizing landowners from liability if they have opened their property for recreational use. See IND. CODE § 14-22-10-2. 4

4 [HN8] The Indiana Recreational Use Statute provides that the owner of premises used for recreational purposes, such as swimming, camping, hiking, and sightseeing, does not assume responsibility or incur liability, for personal injury or property damage caused by an action or failure to act of persons using the premises. I.C. § 14-22-10-2. Baseball and sledding are among the sporting activities that have been recognized as being covered by the Recreational Use Statute. See Cunningham v. Bakker Produce, Inc., 712 N.E.2d 1002 (Ind. Ct. App. 1999), trans. denied; Civils v. Stucker, 705 N.E.2d 524 (Ind. Ct. App. 1999).

[**22] After reviewing the decisions of other jurisdictions that have considered this issue, we are convinced that a negligence standard would be over-inclusive. Specifically, we believe that adopting a negligence standard would create the potential for mass litigation and may deter participation in sports because of fear of incurring liability for the injuries and mishaps incident to the particular activity. Further, we believe that the duty of care between co-participants in sports activities is sufficiently distinguishable from Indiana cases where a student athlete sues an educational institution or its representatives, to merit a heightened standard of care. Specifically, application of a negligence [*420] standard is justified where a student athlete sues a school or its representatives because there is a well-established duty on the part of such institutions and their personnel to exercise ordinary and reasonable care for the safety of those under their authority. See Beckett, 504 N.E.2d at 553. However, no such analogous authority or responsibility exists between co-participants in sporting events, and therefore, we are not compelled to adopt a similar standard in this context. [**23] 5 Finally, as a matter of policy, we prefer to avoid the need to hold a jury trial to determine whether the plaintiff incurred the risk of injury in every case involving a sports injury caused by a co-participant. We can prevent this necessity by adopting an objective primary assumption-of-risk doctrine and a standard of care greater than negligence.

5 Moreover, to the extent Duke’s GMC is inconsistent with this opinion it is disapproved.

Accordingly, we hold that [HN9] voluntary participants in sports activities assume the inherent and foreseeable dangers of the activity and cannot recover for injury unless it can be established that the other participant either intentionally caused injury or engaged in conduct so reckless as to be totally outside the range of ordinary activity involved in the sport. 6 [HN10] The plaintiff’s assumption of risk is primary in nature inasmuch as it flows from the legal relationship of the parties, is evaluated according to an objective standard rather than a subjective standard, and [**24] acts to bar recovery. Thus, it is a question of law for the determination of the court, whether the injury-causing event was an inherent or reasonably foreseeable part of the game, such that the plaintiff is considered to have assumed the risk. If the court determines that the plaintiff did assume the risk, then the plaintiff’s cause fails. If, on the other hand, the court determines that plaintiff did not assume the risk, then the cause proceeds to a jury to determine, as a question of fact, whether the co-participant intentionally or recklessly caused the injury.

6 This author has advanced the position before, in his concurring opinion in Lincke v. Long Beach Country Club, 702 N.E.2d 738, 741 (Ind. Ct. App. 1998), that co-participants in sporting activities should be considered to have assumed the inherent and foreseeable dangers of the activity as a matter of law. Specifically, this author stated that: “Any golfer in the rough of a hole which runs parallel to another should, as a matter of law, know the dangers of approaching golfers. To be surprised that approaching drivers hook or slice is akin to being surprised that not everyone shoots par. We have said often that ‘there comes a point where this Court should not be ignorant as judges of what we know as men [or women].’ This is a shining example of the application of that maxim.” Id. (quoting Willner v. State, 602 N.E.2d 507, 509 (Ind. 1992)).

[**25] In addition, because we recognize that rule infractions, deliberate or otherwise, are an inevitable part of many [HN11] sports, a co-participant’s violation of the rules of the game may be evidence of liability, but shall not per se establish reckless or intentional conduct. We share the Supreme Court of Connecticut’s recognition that:

In athletic competitions, the object obviously is to win. In games, particularly those . . . involving some degree of physical contact, it is reasonable to assume that the competitive spirit of the participants will result in some rules violations and injures. That is why there are penalty boxes, foul shots, free kicks, and yellow cards.

Jaworski, 696 A.2d at 337. Thus, while some injuries may result from rules violations, we believe such violations are nonetheless an accepted part of any competition and among the anticipated risks of participation in the game.

[*421] We are affording enhanced protection against liability to co-participants in sports events, in part, because we recognize that they are not in a position, practically speaking, to protect themselves from claims. Event organizers, sponsors, and the like, are able to safeguard [**26] themselves from liability by securing waivers. They usually accomplish this by requiring each participant to sign a waiver and assumption-of-risk form as a condition of competing in the event. 7 However, in most instances, it is simply infeasible for participants to protect themselves by similar means. Indeed, at large sporting events, participants would have to exchange many releases in order to avoid liability. 8 Under the common law system of contributory fault, application of the doctrine of incurred risk would have allowed the judiciary to protect parties who, as here, cannot take steps to legally protect themselves from liability. However, when our legislature abandoned contributory negligence as a total bar to recovery and established a comparative negligence regime, it did not account for situations where parties are unable to protect themselves from liability. Thus, there is a void in the law. We recognize that [HN12] one of the responsibilities of the judiciary is to fill such voids. Accordingly, we determine that, [HN13] as a matter of law, participants in sporting events will not be permitted to recover against their co-participants for injuries sustained as the result of the inherent [**27] or foreseeable dangers of the sport.

7 Indeed, in the case at bar Rebecca was required to sign an “Acknowledgment, Waiver and Release From Liability” form in order to participate in the Triathlon. R. at 71. The release provided, in part:

(c) I WAIVE, RELEASE, AND DISCHARGE from any and all claims, losses, or liabilities for death, personal injury, partial or permanent disability, property damage, medical or hospital bills, theft or damage of any kind, including economic losses which may in the future arise out of or relate to my participation in or my traveling to a USAT sanctioned event, THE FOLLOWING PERSONS OR ENTITIES: USAT, EVENT SPONSORS, RACE DIRECTORS, EVENT PRODUCERS, VOLUNTEERS, ALL STATES, CITIES, COUNTIES, OR LOCALITIES IN WHICH EVENTS OR SEGMENTS OF EVENTS ARE HELD, AND THE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND AGENTS OF ANY OF THE ABOVE EVEN IF SUCH CLAIMS, LOSSES, OR LIABILITIES ARE CAUSED BY NEGLIGENT ACTS OR OMISSIONS OF THE PERSONS I AM HEREBY RELEASING OR ARE CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OF ANY OTHER PERSON OR ENTITY. (d) . . . I also ASSUME ANY AND ALL OTHER RISKS associated with participating in USAT sanctioned events including but not limited to falls, contacts and/or effects with other participants . . . and I further acknowledge that these risks include risks that may be the result of the negligence of the persons or entities mentioned above in paragraph (c) or of other persons or entities.

R. at 71.

As is generally the case, the release form that Rebecca signed does not relieve Kyle from liability as co-participants are not listed among the specific entities or individuals released from liability according to the plain language of the document. See OEC-Diasonics, Inc. v. Major, 674 N.E.2d 1312, 1314 (Ind. 1996) (stating that [HN14] a “release document[] shall be interpreted in the same manner as any other contract document.” Thus, where the language is unambiguous, it should be interpreted as to its clear terms.).

[**28]

8 For example, there were “more than 23,000” participants in the 2000 Mini Marathon in Indianapolis. Indianapolis Life 500 Festival Mini Marathon and 500 Festival 5K, at http://www.500festival.com. (last visited Mar. 7, 2001). Had each of the 23,000 participants attempted to obtain a release from the other 22,999 participants, this would have required the execution and exchange of 52,897,700 release forms. This endeavor would have taken even longer than it would take for this author to complete the requisite 13.1 miles of the mini marathon.

[*422] The foregoing standard means, in essence, that [HN15] an action will lie in tort between co-participants in sports events “when players step outside of their roles as fellow competitors” and recklessly or intentionally inflict harm on another. Doerhoff, 64 Mo. L. Rev. at 744. A player will be considered to have acted in reckless disregard of the safety of another player if “he does an act, or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable person to realize, not only that [**29] his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.” Restatement (Second) of Torts § 500 (1965). A player acts intentionally when he desires to cause the consequences of his act, or when he believes that the consequences are substantially certain to result from it. Id. § 8a. Thus, [HN16] recklessness differs from intentional wrongdoing in that while the act must be intended by the actor in order to be considered reckless, the actor does not intend the harm that results from the act.

Applying the foregoing standard, liability will not lie where the injury causing action amounts to a tactical move that is an inherent or reasonably foreseeable part of the game and is undertaken to secure a competitive edge. Thus, where a baseball pitcher throws the ball near the batter to prevent him from crowding the home plate, and the ball ends up striking the batter and causing injury, the pitcher’s conduct would not be actionable. Similarly, there would be no tort liability where the defense in a football game strategically “blitzes” the opposing team’s quarterback resulting [**30] in injury, or where one basketball team is leading by a point and, seconds from the end of the game, a member of that team chooses to foul the opponent when he drives the lane for a “slam dunk,” thereby forcing him to try to win the game at the free throw line.

In contrast, if a co-participant vents his anger at another player by means of a physical attack, such conduct would be actionable. Instances of such tortious conduct would be where one boxer bites his opponent’s ear during a boxing match, 9 or where a soccer or football player punches another player after a tackle. Similarly, if a baseball batter in a fit of anger intentionally flips his bat towards the opposing team’s dugout and injures one of the players, liability might attach for such recklessness.

9 As one commentator has noted, “it is inconceivable that professional boxing or full contact karate matches could be conducted without some injury to one or both participants [as] causing bodily harm is the very essence of the match.” Daniel Lazaroff, Torts & Sports: Participant Liability to Co-participants for Injuries Sustained During Competition, 7 U. Miami Ent. & Sports L. Rev. 191, 194 (1990). However, while injury as the result of a “left hook” or “jab” is considered an inherent or reasonably foreseeable part of professional boxing, injury as the result of a bite is not.

[**31] In light of these examples, it is our view that adoption of the recklessness or intentional conduct standard preserves the fundamental nature of sports by encouraging, rather than inhibiting, competitive spirit, drive, and strategy. Moreover, this standard will avoid judicial review of the kind of risk-laden conduct that is inherent in sports and generally considered to be part of the game, while at the same time imposing liability for acts that are clearly unreasonable and beyond the realm of fair play. Further, we believe that adoption of this standard will not compromise Indiana’s status as the “Amateur Sports Capital of the World.” Tammy Lieber, 20 Years of [*423] Amateur Sports, Indianapolis Bus. J., Apr. 12, 1999, at 3A. 10

10 As a result of the Indiana Sports Corporation’s initiative to turn Indianapolis into the “Amateur Sports Capital of the World,” Indiana has hosted several major sporting events and enjoyed the attendant economic, cultural, and recreational benefits. Lieber, supra, at 41A. Some of the major sporting events that Indiana has hosted include the: Pan American Games; Indianapolis 500 Mile Race; Brickyard 400-NASCAR Winston Cup Series; World Championships in gymnastics, rowing, and track and field; Olympic trials for canoe/kayak, diving, rowing, swimming, track and field and wrestling; U.S. National Championships in diving, figure skating, gymnastics, rowing, and swimming; Hoosier Basketball Classic; Big Ten Men’s and Women’s Swimming and Diving Championships and Outdoor Track and Field Championships; and the International Race of Champions (IROC). In 2001 Indiana will host, among other events, the World Police and Fire Games, Hoosier State Games, Coca Cola Circle City Classic, Youthlinks Indiana Charity Golf Tournament, RCA Tennis Championships, Corporate Challenge, PeyBack Classic II, and the USA Judo National High School and Collegiate Championships. Other sporting events scheduled to take place in Indiana during the next few years include the 14th World Basketball Championship for Men in 2002, the 2003 World Gymnastics Championships, the 2004 World Swimming Championships, and the 2006 NCAA Men’s Final Four. Correspondence from the Indiana Sports Corporation (March 7, 2001) (on file with author).

[**32] D. Rebecca’s Claim

We now return to Rebecca’s contention that the trial court erred in granting summary judgment in favor of Kyle on Count I of her complaint, in which Rebecca alleged that Kyle acted negligently in causing her injuries. In light of our holding regarding the appropriate standard of care between co-participants in a sporting event, allegation or proof of negligent conduct is insufficient to create liability. Thus, Count I of Rebecca’s complaint must fail.

With regard to Count II, alleging that Kyle acted intentionally, recklessly and willfully in causing her injuries, the trial court must determine whether Kyle’s action was an inherent or reasonably foreseeable part of the sport, such that Rebecca assumed the risk of injury as a matter of law. In our view, it is reasonably foreseeable that a competitor in a cycling race may attempt to cut in front of co-participants in an effort to advance position. Thus, if Rebecca is unable to develop the facts beyond those presented at this juncture, we would conclude that Kyle’s action was an inherent risk in the event that Rebecca assumed as a matter of law, thereby precluding recovery.

CONCLUSION

[**33] We thus conclude that the trial court properly granted summary judgment in favor of Kyle as to Count I of Rebecca’s complaint. Accordingly, we affirm the trial court’s decision with respect to Count I. We also remand to the trial court for further proceedings on Count II consistent with this opinion, to determine whether, under the facts of this case as they develop, Rebecca assumed the risk of injury as a matter of law.

BROOK, J., and BARNES, J., concur.


Four releases signed and all of them thrown out because they lacked one simple sentence!

Releases have to be written correctly and they have to be written in conjunction with all of the possible defendants to a suit.

This is a sad case stemming from the death of young man who had traveled from Ohio

Photograph of girls performing synchronized tr...

Photograph of girls performing synchronized trampoline at WAGC in Quebec November 2007. Trampqueen 21:52, 15 November 2007 (UTC) (Photo credit: Wikipedia)

to Tennessee to participate in a gymnastic event, the John Macready Flip Fest Invitational in Knoxville. The deceased was an experienced participant on the trampoline. During the event, he fell off the trampoline hitting the concrete floor with his head.

His parents sued the organizer of the event, Top Flight Gymnastics, the sanctioning organizations, USA Gymnastics (USAG) and the United States Gymnastics Federation (USGF). These three defendants, Top Flight, USAG and USGF as well as the booster club for Top Flight had releases that were signed by the deceased and or his mother or father.
The deceased mother stated she signed the release for the event in Kentucky. (No explanation was given why she signed the release in Kentucky.) The USGF and USAG releases were part of membership applications and probably signed in Ohio. It was not stated where the Top Flight release was signed.
The deceased and the plaintiffs lived in Ohio. USAG and USGF were based in Indiana but sanctioned events all over the US. Top Flight was located in Tennessee where the accident occurred.
The defendants filed a motion for summary judgment arguing that the release should be reviewed under Ohio’s law. The reason for this is because Ohio upholds a release signed by a parent. (See States that allow a Parent to Sign away a Minor’s right to sue.) The court fist had to determine what law applied, Ohio or Tennessee. No one was arguing for Kentucky or Indiana. Neither of those states allows a parent to sign away a minor’s right to sue.
The plaintiffs sued for negligence “in that they sanctioned an event which failed to provide a safe environment, utilized untrained spotters, failed to ensure sufficient floor matting, failed to require experienced and trained spotters, and failed to require sufficient safety matting.”

Summary of the case

This case was brought in Federal District Court as a diversity case. That means that one or more of the parties is located outside of the state of where the lawsuit is filed and the amount being asked for is in excess of $75,000.  
The Federal Court had to decide which law would be applied to the case. This is called a “Choice of Laws” issue, meaning the court has to decide which state law will be used to decide the case. Step one in this decision, is to decide which states have a relationship with the lawsuit. How that decision is made is based on the law of the state where the court is. The case was filed in the United States District Court for the Eastern District of Tennessee, so Tennessee’s law was used to decide which state law would be used to the Choice of Law question which then would be used to decide which state law would be applied to the case.
In Tennessee, the test to decide which state law is to be applied is the “the most significant relationship” test.
In an action for wrongful death, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, to which event the local law of the other state will be applied.
The court ruled that because the accident occurred in Tennessee, Tennessee had the most significant relationship to the case. The court applied the four-part Tennessee test to make that decision. The court looked at the following questions to determine what state law would be applied:
(1) the place where the injury occurred,
(2) the place where the conduct causing the injury occurred,
(3) the domicile, residence, nationality, place of incorporation and place of business of the parties, and
(4) the place where the relationship, if any, between the parties is centered.
Tennessee was where the injury occurred, the place where the conduct causing the injury occurred. Tennessee “was the only mutual and central contact these parties had with one another.”
The court then looked at Tennessee’s law concerning releases and held all four releases void. Tennessee does not recognize a parent’s right to sign away a minor’s right to sue. Childress v. Madison County, 777 S.W.2d 1 (Tenn.App. 1989). The decision, on what state law to apply, decided the real legal issue in one sentence.
Of the four states in question, Tennessee, Indiana, Kentucky and Ohio, only if the choice of a law’s question had found Ohio, the place where two releases had been signed, would the case end. Simply put, the case would have ended if the court could have applied Ohio’s law to the facts.
The court then took on an interesting turn. The court stated, on its own, that the release also failed because the allegations of the complaint pleaded intentional conduct recklessness or gross negligence. Under Tennessee law gross negligence and reckless conduct are not protected by a release. The court then said, “defendants’ failure to provide a safe environment, failure to utilize trained spotters, and failure to ensure sufficient safety matting, all constitute gross negligence and reckless conduct.”
Rarely do courts look at the facts and then develop claims or defenses for one side or the other. Here, the court did just that. The court created additional claims for the plaintiff. Nowhere else in the decision did the court allude to allegations on the part of the plaintiffs whom any of the defendants acted a grossly negligent way.

So Now What?

I’ve written about it several times before about jurisdiction and venue. See A Recent Colorado Supreme Court Decision lowers the requirements to be brought into the state to defend a lawsuit, The legal relationship created between manufactures and US consumers and Shark Feeding Death triggers debate. Jurisdiction is the term applied to the law that is to be applied to the case. This case is a legal argument over jurisdiction. Venue is the legal term used to describe where, what city and state the court that hears the case will be.
Releases must first have the correct language to make the release effective in barring claims and lawsuits. It must have a well written negligence clause.
However, if your release does not have a jurisdiction and venue clause, just like this case, your release is worthless a lot of the time. If anyone can change the venue to another state, and/or change the jurisdiction to another state you have just wasted paper.
As I repeat over and over again.
1.      Your release must be written by an attorney who is familiar with your activities and the law concerning releases.
2.    Your release must have a well written negligence clause. It must, according to the state law of the jurisdiction you decide, meet the requirements to be upheld.
3.    Your release must have a jurisdiction and venue clause. Period!
If you wrote your release I now it fails the first and second parts of the test. I suspect even if an attorney wrote your release, it might fail the third part of the test.

What do you think? Leave a comment.

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Avalanche: Man-Made Snow to the Ground







In one of the most bizarre occurences an avalanche occured in the Midwest.

during the fall of 2006 at the Indian ski resort Perfect North Slope. This central Indiana resort was making snow on bare ground, as is common at most resorts. After a night of snow making the staff arrived to see the slope had avalanched.

Not enough research was done on this avalanche but several firsts or at least extremely unusual things occurred during this avalanche

  • ·An avalanche occurred in the Midwest
  • ·The avalanche was composed of 100% man made snow
  • ·The avalanche slid on bare ground with no snow layer below

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