Preview:

ATTORNEY FOR APPELLANT Christine M. Marcuccilli Rothberg Logan & Warsco LLP Fort Wayne, Indiana

ATTORNEY FOR APPELLEE JOSEPH E. LINEMAN Marie Anne Hendrie The Law Offices of Hanover Ins. Group, Inc. South Bend, Indiana

ATTORNEYS FOR APPELLEE MARION ELKS COUNTRY CLUB LODGE #195 Ryan L. Leitch Laura S. Reed James O. Giffin Riley Bennett & Egloff, LLP Indianapolis, Indiana ATTORNEY FOR APPELLEE THE ESTATE OF JERRY A. JONES Kyle C. Persinger Spitzer Herriman Stephenson Holderead Musser & Conner, LLP Marion, Indiana

ATTORNEYS FOR APPELLEE WHITEY'S 31 CLUB, INC. James J. Shea, Sr. Linda A. Polley Hunt Suedhoff Kalamaros, LLP Fort Wayne, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 27S02-1006-CV-331 CASSIE E. PFENNING, v.

FILED
May 18 2011, 3:10 pm
of the supreme court, court of appeals and tax court

CLERK

Appellant (Plaintiff below),

JOSEPH E. LINEMAN, WHITEY'S 31 CLUB, INC., MARION ELKS COUNTRY CLUB LODGE #195, AND THE ESTATE OF JERRY A. JONES, Appellees (Defendants below). _________________________________ Appeal from the Grant Superior Court, No. 27D01-0702-CT-127 The Honorable Jeffrey D. Todd, Judge _________________________________ On Transfer from the Indiana Court of Appeals, No. 27A02-0905-CV-444 _________________________________ May 18, 2011 Dickson, Justice.

Cassie Pfenning, injured by a golf ball at a golf outing when she was age sixteen, filed this damage action against multiple defendants: the Estate of Jerry A. Jones, her grandfather,

who brought her to the event; Joseph E. Lineman, a golfer who hit the ball that struck her; Whitey's 31 Club, Inc., a tavern in Marion, Indiana, that promoted the event; and the Marion Elks Country Club Lodge #195, operator of the golf course. After the trial court granted summary judgment in favor of each of the four defendants, the plaintiff appealed, claiming that genuine issues exist to preclude summary judgment on her various claims of general negligence, negligent supervision, and premises liability of the defendants. The Court of Appeals affirmed. Pfenning v. Lineman, 922 N.E.2d 45 (Ind. Ct. App. 2010). Because this Court has not previously addressed the issue of a sports participant's liability to others, we granted transfer and now affirm summary judgment in favor of the golfer and the Elks but reverse summary judgment as to Whitey's and the grandfather. We reject the concept that a participant in a sporting event owes no duty of care to protect others from inherent risks of the sport, but adopt instead the view that summary judgment is proper when the conduct of a sports participant is within the range of ordinary behavior of participants in the sport and therefore is reasonable as a matter of law.

In separate but parallel rulings, the trial court granted each defendant's motion for summary judgment, finding no genuine issues of material fact, but otherwise not detailing any analysis or reasoning. Appealing from these summary judgment entries, the plaintiff has sought reversal, urging that her claims of negligent supervision, failure to instruct, premises liability, and golfer liability due to the absence of incurred risk are matters upon which the facts are undisputed in her favor or upon which there are genuine issues of fact, precluding summary judgment. Appellant's Br. at 6.

An appellate court reviewing summary judgment analyzes the issues in the same way as would a trial court. Carie v. PSI Energy, Inc., 715 N.E.2d 853, 855 (Ind. 1999). A party seeking summary judgment must establish that "the designated evidentiary matter shows 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." Ind. Trial Rule 56(C). The party moving for summary judgment bears the initial burden to establish its entitlement to summary judgment. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 975 (Ind. 2005). "Only then does the burden fall upon the non-moving party to set forth specific facts demonstrating a genuine issue for trial." Outcalt v. Wardlaw, 750 N.E.2d 859, 862 (Ind. Ct. App. 2001), trans. not sought. The reviewing court must "construe the 2

evidence in favor of the non-movant, and resolve all doubts against the moving party." Shambaugh & Son, Inc. v. Carlisle, 763 N.E.2d 459, 461 (Ind. 2002).

The relevant facts presented in the designated evidence are mostly undisputed. On August 19, 2006, a golf outing, the annual Whitey's 31 Club Scramble, was held at the Elks and attended by customers and friends of Whitey's and its proprietor. Persons wishing to participate signed up on a poster board that had been hung on a wall at Whitey's. Each golfer paid a charge of $45.00 per person to the Elks, which provided the golf carts and the beverages that were made available to the golfers. Whitey's provided the sign-up list to the Elks, which then made cart signs, team sheets, score cards, and starting hole assignments. The plaintiff, Cassie Pfenning, then sixteen years old, attended the outing at the invitation of her grandfather and with the permission of her mother. The grandfather previously had signed up at Whitey's as a volunteer to drive a beverage cart at the event. He brought the plaintiff with him for company. Shortly after the plaintiff and her grandfather arrived at the event, he retrieved a gasoline motor powered beverage cart for their use. It had a large cooler on the back containing water, soda pop, and beer. This beverage cart had no windshield, and the evidence is in conflict regarding whether it was equipped with a roof. Shortly after providing the plaintiff with the beverage cart, the grandfather joined a shorthanded group of golfers and left the plaintiff at the beverage cart with Lottie Kendall, sister of the grandfather and a great aunt of the plaintiff. But within about ten minutes, the great aunt also joined another group of golfers, and an employee of Whitey's, Christie Edwards, joined the plaintiff and was present with her on the beverage cart during the event. The plaintiff drove the cart, and Christie served the beverages to groups of golfers on the golf course for about three and a half hours. After making several trips around the 18-hole golf course, the plaintiff 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. The ball was a low drive from the sixteenth tee approximately eighty yards away. The golfer's drive traveled straight for approximately sixty to seventy yards and then severely hooked to the left. He noticed the roof of another cart in the direction of the shot and shouted "fore." But neither the plaintiff nor her beverage-serving companion heard anyone shout "fore." After hearing a faint yelp, the golfer ran in the direction of the errant ball and discovered the plaintiff with her injuries. She suffered injuries to her mouth, jaw, and teeth. 3

In the trial court proceedings, the Elks sought summary judgment, urging that participants and spectators in sporting events are precluded from recovery for injuries that result from the sport's inherent dangers and that the Elks had no liability as the operator of the golf course because it was entitled to expect the plaintiff to realize and appreciate the dangers she encountered. The golfer supported his request for summary judgment by contending that he had no duty of care to a co-participant at a sporting event with respect to risks inherent in the sport. Whitey's sought summary judgment, alleging that it was not subject to premises liability and did not otherwise owe any duty to the plaintiff. The grandfather sought summary judgment on grounds that he did not have a legal duty to warn his granddaughter about the inherent risks of driving the beverage cart during the golf event.

1. Motion for Summary Judgment by the Golfer

The golfer, Joseph Lineman, sought summary judgment on grounds that he could not be held liable under a negligence theory because the plaintiff was a co-participant in the sporting event, and her injuries resulted from an inherent risk of the sport.

Although this Court has not addressed the issue, several decisions from the Indiana Court of Appeals, invoking varying and inconsistent rationales, have concluded that participants in athletic events owe no duty of care as to risks inherent in the sport and must refrain only from intentional or reckless infliction of injury to others.

The focus on duty arises from its role as one of the essential elements of a negligence action. 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. Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120, 1123 (Ind. 2010). "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). The determination of whether a duty exists is generally an issue of law to be decided by the court. N. Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 466 (Ind. 2003). To decide whether a duty exists, a three-part 4

balancing test developed by this Court "can be a useful tool." Kephart, 934 N.E.2d at 1123; Sharp, 790 N.E.2d at 465. This test, first enunciated in Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991), balances three factors: "(1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns." Id. at 995. Notwithstanding the helpfulness of the Webb test in many situations, a precise formulation of the basis for finding duty has proven quite elusive. It is . . . not surprising to find that the problem of duty is as broad as the whole law of negligence, and that no universal test for it ever has been formulated. . . . But it should be recognized that "duty" is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. . . . No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists. Gariup Constr. Co. v. Foster, 519 N.E.2d 1224, 1227 (Ind. 1988) (quoting W. PAGE KEETON ET
AL., PROSSER AND KEETON ON THE LAW OF TORTS

Download Cassie E. Pfenning v. Joseph Lineman, et al..pdf

Indiana Law