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ATTORNEYS FOR APPELLANT
Kenneth J. Allen Michael T. Terwilliger William James Lazarus Kenneth J. Allen & Associates, P.C. Valparaiso, Indiana

ATTORNEYS FOR APPELLEE
Michael D. Sears Maryann Kusiak McCauley Jill M. Grecco Singleton, Crist, Austgen & Sears, LLP Munster, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 45S03-0506-CV-262 HOWARD AND MERRY FUNSTON, v. SCHOOL TOWN OF MUNSTER, Appellees (Defendant below). Appellants (Plaintiffs below),

CONTINENTAL LEISURE SALES, INC. F/K/A, SEAVEY CORPORATION, INC., and AAU/MUNSTER BASKETBALL CLUB, (Defendants below). 1 _________________________________ Appeal from the Lake Superior Court, No. 45D11-0103-CT-119 The Honorable Jeffery J. Dywan, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 45A03-0402-CV-63 _________________________________ June 28, 2006 Dickson, Justice.

Contributory negligence is generally a question of fact requiring trial by jury or court, but summary judgment may be proper where the undisputed facts and resulting inferences establish that the defendant is entitled to judgment as a matter of law. This is such a case. We affirm the trial court's grant of summary judgment.
Defendants Continental Leisure Sales, Inc. and AAU/Munster Basketball Club are not seeking relief on appeal and have not filed a brief as appellant or appellee. Pursuant to Indiana Appellate Rule 17(A), however, a party of record in the trial court is a party on appeal.
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Howard Funston was injured when he fell from a set of bleachers while watching his son participate in an Amateur Athletic Union (AAU) basketball game at the Munster High School gymnasium. Mr. Funston and his wife, the plaintiffs-appellants, thereafter commenced this action against the School Town of Munster ("the school"), Continental Leisure Sales, Inc. f/k/a Seavey Corp., AAU/Munster Basketball Club, and another defendant that has since been dismissed.

Under an agreement with the AAU, Munster High School provided six identical five-row portable aluminum bleacher sets. Each set of bleachers had no back support for the top row of seating, and none of the sets were pushed against a wall. For two games, Mr. Funston sat on the lower seats of two of the six separate but identical sets of bleachers, leaning back on the higher rows of the bleachers for support. During the third game of the day, he sat on the top row of a third set of identical bleachers. In an effort to get comfortable, Mr. Funston crossed his legs and leaned back, falling backwards off the bleachers and sustaining injuries.

The school filed a motion for summary judgment, asserting that Mr. Funston was contributorily negligent as a matter of law. The trial court agreed and granted the school's motion. The Court of Appeals reversed. Funston v. Sch. Town of Munster, 822 N.E.2d 985 (Ind. Ct. App. 2004). We granted transfer.

Summary judgment is proper "if 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." Trial Rule 56(C); see also Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2004); Butler v. City of Peru, 733 N.E.2d 912, 915 (Ind. 2000). All facts and reasonable inferences are construed in favor of the non-moving party. Catt v. Bd. of Comm'rs, 779 N.E.2d 1, 3 (Ind. 2002).

The plaintiffs' claims against the school, a governmental entity, are unlike most Indiana actions for negligence, where a plaintiff's contributory fault does not bar recovery unless it exceeds fifty percent of the total fault proximately contributing to the damages and otherwise oper-

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ates only to reduce a plaintiff's damages in proportion to fault. Ind.

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Indiana Law