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ATTORNEY FOR APPELLANTS Daniel L. Brown Salem, Indiana

ATTORNEY FOR APPELLEES Thomas E. Scifres Salem, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 88S05-0710-CV-423 BETH PALMER KOPCZYNSKI, INDIVIDUALLY AND AS NEXT FRIEND AND PARENT OF ALISHA PALMER AND ALISHA PALMER,

FILED
Jun 04 2008, 9:03 am
of the supreme court, court of appeals and tax court

CLERK

Appellants (Plaintiffs below), v. DAVID BRYAN BARGER AND PEGGY LUCAS BARGER, Appellees (Defendants below). _________________________________ Appeal from the Washington Superior Court, No. 88D01-0401-CT-030 The Honorable Frank Newkirk, Jr., Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 88A05-0612-CV-703 _________________________________ June 4, 2008 Boehm, Justice. This case presents two issues of first impression. We hold that under some circumstances a minor's invitation to enter the premises may bind the landowner for purposes of premises liability, and that a trampoline may constitute an attractive nuisance. In this case both issues turn on facts not appropriately resolved on summary judgment.

Facts and Procedural History On January 30, 2002, twelve-year-old Alisha Palmer was at home after school with her brothers, Dylan, nine, and Michael, ten. Her mother, Beth Palmer Kopczynski, was still at work. Next door, six-year-old Bryan Barger was jumping on the Bargers' trampoline in an unenclosed area behind the Bargers' house. unusual. At some point that afternoon, Bryan asked Dylan to jump with him, and Michael Spears, another neighbor, aged thirteen or fourteen, also joined them. Alisha testified that she also started using the trampoline a short time later, after Bryan "asked me if I wanted to jump with him." The parties agree that Bryan's invitations to Alisha and her brother were the first Bryan was jumping without supervision, which was not

communications between the Palmers and the Bargers. Alisha had previously watched Bryan jump, but she had never been on a trampoline before. As she was jumping, someone "stole" her jump, i.e., landed and changed the tension and height of the surface just before she landed. As a result, she injured her knee. Alisha and her mother filed a complaint for damages against the Bargers, alleging both premises liability and liability for an attractive nuisance. The Bargers moved for summary judgment, claiming that Alisha was a trespasser and that the attractive nuisance doctrine did not apply. The trial court granted summary judgment in favor of the Bargers. The Court of Appeals affirmed, finding no premises liability because Alisha was a trespasser and there was no evidence of willful or wanton conduct on the part of the Bargers. Kopczynski v. Barger, 870 N.E.2d 1, 9 (Ind. Ct. App. 2007). The Court of Appeals also found that the attractive nuisance doctrine did not apply because the plaintiffs failed to establish either that the trampoline was particularly dangerous or attractive to children or that the Bargers knew that children would trespass and be injured on the trampoline. Id. at 10. Judge Crone dissented, concluding that material issues of fact remained as to both Alisha's status on the premises and also whether the trampoline was an attractive nuisance. Id. at 11. We granted transfer. 878 N.E.2d 215 (Ind. 2007) (table).

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Standard of Review In reviewing summary judgment rulings, we apply the same standard as the trial court. Row v. Holt, 864 N.E.2d 1011, 1013 (Ind. 2007). We affirm summary judgment unless there is a genuine issue as to a material fact or the moving party is not entitled to a judgment as a matter of law. Id. All facts and reasonable inferences from them are to be construed in favor of the nonmoving party. Naugle v. Beech Grove City Sch., 864 N.E.2d 1058, 1062 (Ind. 2007). I. Count IPremises Liability The amended complaint describes Count I as a claim for negligence. The plaintiffs' brief on appeal asserts that discovery had "more clearly defined" that count as a claim for premises liability and a claim for negligent supervision. However, the plaintiffs' argument focuses

entirely on premises liability, and cites the alleged lack of supervision as evidence of breach under premises liability rather than as a separate tort, so we will treat it as such. A landowner's liability to persons on the premises depends on the person's status as a trespasser, licensee, or invitee. Burrell v. Meads, 569 N.E.2d 637, 639 (Ind. 1991). The Bargers argue that Alisha was a trespasser, and therefore their only duty was to refrain from willful or wanton behavior. The plaintiffs contend Alisha was a social guest and therefore an invitee to whom the Bargers owed a duty to exercise reasonable care for her protection while on the premises. The Court of Appeals held that the determination of Alisha's status--and therefore the duty owed to Alisha by the Bargers--is a matter of law for the trial court. Kopczynski v. Barger, 870 N.E.2d 1, 5 (Ind. Ct. App. 2007) (citing Taylor v. Duke, 713 N.E.2d 877, 881 (Ind. Ct. App. 1999)). We have observed that the existence of a duty is ordinarily a question of law for the court to decide, but it may turn on factual issues that must be resolved by the trier of fact. Rhodes v. Wright, 805 N.E.2d 382, 386 (Ind. 2004) (citing Douglass v. Irvin, 549 N.E.2d 368, 369 n.1 (Ind. 1990) ("While it is clear that the trial court must determine if an existing relationship gives rise to a duty, it must also be noted that a factual question may be interwoven with the determination of the existence of a relationship, thus making the ultimate existence of a duty a mixed question of law and fact.")); see Restatement (Second) of Torts

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