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FOR PUBLICATION
ATTORNEY FOR APPELLANTS: DANIEL L. BROWN Allen, Allen & Allen Salem, Indiana ATTORNEY FOR APPELLEES: THOMAS E. SCIFRES Thomas E. Scifres, P.C. Salem, Indiana

IN THE COURT OF APPEALS OF INDIANA
BETH PALMER KOPCZYNSKI, Individually and as next friend and parent of ALISHA PALMER and ALISHA PALMER, Appellants-Plaintiffs, vs. DAVID BRYAN BARGER and PEGGY LUCAS BARGER, Appellees-Defendants. ) ) ) ) ) ) ) ) ) ) ) )

No. 88A05-0612-CV-703

APPEAL FROM THE WASHINGTON SUPERIOR COURT The Honorable Frank Newkirk, Jr., Judge Cause No. 88D01-0401-CT-030

June 27, 2007 OPINION - FOR PUBLICATION

BAKER, Chief Judge

Appellants-plaintiffs Beth Palmer Kopczynski (Beth) and her minor daughter, Alisha Palmer (collectively, the Palmers), appeal the trial court's grant of summary judgment in favor of appellees-defendants David and Peggy Barger (collectively, the Bargers) on their claims for negligence and premises liability. Specifically, the Palmers claim that summary judgment was improper because there was a genuine issue of material fact as to whether the Bargers were negligent in allowing Alisha to play on their trampoline without any supervision. Alternatively, the Palmers contend that the Bargers should be held liable for the injuries that Alisha sustained because the trampoline was an attractive nuisance. Concluding that summary judgment was properly entered for the Bargers, we affirm the judgment of the trial court. FACTS Sometime in late 2001 or early 2002, Beth rented a mobile home in Washington County next to the Bargers' residence. On January 30, 2002, twelve-year-old Alisha and her two brothers arrived home from school shortly before 4:00 p.m. Beth was at work, and she had given the children instructions to stay in the house and complete their chores. Alisha did not have permission from the Bargers to enter their property or use the trampoline that was in the yard. Moreover, the Palmers had never spoken with the Bargers or visited them before the incident occurred. Beth had expressly instructed Alisha and the other children to "stay in their own yard" for their own safety because there were "dump trucks" on the neighboring property. Appellees' App. p. 21. Sometime before Beth returned home from work, the Bargers' six-year-old son, 2

Bryan, was jumping on the Bargers' trampoline. Bryan's mother was at work, and his father was indoors tending to the Bargers' other child--four-month-old Katelyn. The undisputed evidence shows that Bryan invited Alisha and one of her brothers to join him and another friend on the trampoline. Alisha stated that she had no reason to believe that the Bargers knew she was jumping on the trampoline. As all four were jumping, Alisha landed awkwardly and sustained a serious injury to her right knee. Although the Bargers allowed Bryan to jump unsupervised, the trampoline contained the following instructions and warnings: Only one person at a time on the trampoline. Not recommended for use by children under 6 years of age. Multiple jumpers increase the chances of loss of control, collisions, and falling off. This can result in broken head, neck, back or leg. Appellants' App. p. 86. Additional instructions to the "supervisor" provided that: "All trampoline users must have mature, knowledgeable supervision, regardless of the skill or age of the jumper." Id. at 87. The Bargers knew of the safety instructions and had told Bryan not to permit anyone to use the trampoline without their permission and to make sure that only one person jumped on the trampoline at a time. The Bargers had previously "run off" other children from the neighborhood who had played on the trampoline without their permission. Id. at 57, 75. Alisha acknowledged that none of her family members had ever entered the Bargers' property before January 30, 2002, and she characterized her relationship with the Bargers as that of "strangers." Id. at 39. Indeed, the invitation from Bryan for Alisha to jump on the trampoline was the first communication between the two families in the three months that 3

they had been neighbors. Because of Alisha's injuries, the Palmers filed a complaint for damages against the Bargers on January 22, 2004, alleging that the Bargers negligently permitted Alisha to jump on the trampoline without any supervision. Thereafter, on December 30, 2005, the Palmers amended their complaint, asserting that the Bargers could also be liable under an attractive nuisance theory. On June 9, 2006, the Bargers filed an amended motion for summary judgment, 1 claiming that they were entitled to a judgment as a matter of law because Alisha was a trespasser on the property and that the doctrine of attractive nuisance was inapplicable under these circumstances. Following a hearing on August 25, 2006, the trial court granted the Bargers' motion for summary judgment. The Palmers now appeal. DISCUSSION AND DECISION I. Standard of Review Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). In reviewing a summary judgment ruling, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. AutoXchange.com, Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 47 (Ind. Ct. App. 2004). 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. In doing so, we consider all of

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The Bargers filed their initial motion for summary judgment on August 12, 2005. Appellants' App. p. 204.

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the designated evidence in the light most favorable to the non-moving party. Id. The party appealing the grant of summary judgment has the burden of persuading this court that the trial court's ruling was improper. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. Ayres v. Indian Heights Volunteer Fire Dep't, Inc., 493 N.E.2d 1229, 1234 (Ind. 1986). Summary judgment is rarely appropriate in negligence cases because they are particularly fact sensitive and are governed by a standard of the objective reasonable person--one best applied by a jury after hearing all of the evidence. Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004). Nonetheless, summary judgment is appropriate when the undisputed material evidence negates one element of a negligence claim. Id. at 385. An individual's status on the premises of another, along with the duty owed, is a matter of law for determination by the trial court. Taylor v. Duke, 713 N.E.2d 877, 881 (Ind. Ct. App. 1999). Therefore, when the question is one of the plaintiff's visitor status, the issue "is proper for summary judgment." Morningstar v. Maynard, 798 N.E.2d 920, 922 (Ind. Ct. App. 2003). II. The Palmers' Arguments A. Negligence The Palmers first contend that the trial court erred in granting summary judgment for the Bargers because the designated evidence established that Alisha was a social guest on their property when she was using the trampoline. Thus, the Palmers argue that a genuine issue of material fact existed as to whether the Bargers should be liable for Alisha's injuries because they failed to supervise the children while they were playing on the trampoline. 5

To establish a claim for negligence, a plaintiff must establish that (1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; and (3) the breach of duty proximately caused the injury. Dennis v. Greyhound Lines, Inc., 831 N.E.2d 171, 173 (Ind. Ct. App. 2005), trans. denied. The first step in resolving premises liability matters is to determine the plaintiff's visitor status, which defines the duty owed by the landowner. Morningstar, 798 N.E.2d at 922. When applying the negligence standard to accidents that are caused by a condition on an individual's premises, the duty owed by a landowner to an entrant on the land is determined by the entrant's status as an invitee, licensee, or trespasser. Burrell v. Mead, 569 N.E.2d 637, 639 (Ind. 1991). That said, our task is not to judge whether the Palmers have proved each element of their claim; instead, we must determine whether the Bargers have adequately met their burden of proving a lack of any genuine issue of material fact in the evidence designated to the trial court. Dennis, 831 N.E.2d at 173. We note that the lowest duty is owed to trespassers, to whom the landowner only has the duty to refrain from willfully or wantonly injuring the trespasser after discovering his presence on the premises. Taylor, 713 N.E.2d at 881. Wanton and willful conduct consists of either: (1) an intentional act done with reckless disregard of the natural and probable consequence of injury to a known person under the circumstances known to the actor at the time; or (2) an omission or failure to act when the actor has knowledge of the natural and probable consequence of injury and has opportunity to avoid that risk. Nesvig v. Town of Porter, 668 N.E.2d 1276, 1283 (Ind. Ct. App. 1996). Known probability of injury is the key to the consideration of wantonness. Taylor, 713 N.E.2d at 882. While trespassers and licensees both enter the premises for their own convenience, 6

curiosity, or entertainment, licensees are privileged to enter or remain on the land by virtue of the owner's or occupier's permission. Burrell, 569 N.E.2d at 639-40. The landowner owes a licensee the same duty owed to a trespasser, but the landowner must also refrain from acting in a manner that increases the licensee's peril. More specifically, the landowner must warn a licensee of any latent danger on the premises of which the landowner has knowledge. Taylor, 713 N.E.2d at 881. The highest duty is owed to an invitee. An invitee may fall within one of three categories: public invitee, business visitor, or social guest. Id. The landowner must exercise reasonable care for the protection of the invitee while on the premises. Burrell, 569 N.E.2d at 639-40. The Burrell court adopted the Restatement (Second) of Tort's definition of this duty: "A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (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." Id. at 639-40. The duty of reasonable care extends not only to harm caused by a condition on the land but also to activities being conducted on the land. Estate of Pflanz, 678 N.E.2d 1148, 1151 (Ind. Ct. App. 1997). In determining whether an individual is an invitee or a licensee, the distinction between the terms "invitation" and "permission" becomes critical. Rhoades v. Heritage Inv., LLC, 839 N.E.2d 788, 792 (Ind. Ct. App. 2005), trans. denied. This court has observed that the landowner is not an insurer of the safety of children. 7

Swanson v. Shroat, 345 N.E.2d 872, 877 (Ind. Ct. App. 1976). However, courts must consider the ability of a child to perceive and avoid danger in evaluating the premises owner's liability for a child, in light of the child's youth and lack of experience, with the understanding that "dangers that may be obvious to an adult are often hidden to a child." Id. Thus, as this court recognized in Johnson v. Pettigrew:

[An] invitee's peculiar status as a child may alter the degree of "reasonable care and diligence" required on the part of the occupier of land. Indeed, the court recognized this possibility in City of Birmingham v. Whitfield, 29 Ala.App. 454, 197 So. 666 (1940): "[T]he degree of caution which is necessary to reach the required standard of reasonable care to be exercised may vary according to the capacity of the person with respect to whom such duty exists. . . those upon whom the duty rests of exercising reasonable care toward children must calculate upon the fact that children are expected to act according to their known characteristics and childish impulses." 29 Ala.App.458, 197 So., at 670. ... The child's ignorance of the danger in such a case would trigger the duty to warn on the occupier of the land, even though there might be no duty to warn an adult in the same position. 595 N.E.2d 747, 750 (Ind. Ct. App. 1992) (quoting Second Restatement of Torts

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