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FOR PUBLICATION

ATTORNEYS FOR APPELLANT: EDWARD F. HARNEY, JR. MICHAEL E. SIMMONS MARK M. HOLDRIDGE Hume Smith Geddes Green Simmons, LLP Indianapois, Indiana

ATTORNEYS FOR APPELLEES: WILLIAM E. WININGHAM CHRISTOPHER G. STEVENSON Wilson Kehoe & Winingham Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
) ) ) Appellant-Defendant, ) ) vs. ) ) JUSTIN STICHNOTH and CORRAINE STICHNOTH, ) ) Appellees-Plaintiffs. ) SHAFER & FREEMAN LAKES ENVIRONMENTAL CONSERVATION CORPORATION,

No. 91A04-0611-CV-661

APPEAL FROM THE WHITE CIRCUIT COURT The Honorable Robert W. Thacker, Judge Cause No. 91C01-0409-CC-50

November 29, 2007

OPINION - FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Shafer & Freeman Lakes Environmental Conservation Corporation ("Shafer") appeals from the trial court's judgment in favor of Justin and Corraine Stichnoth (collectively "the Stichnoths") on their complaint alleging negligence. Shafer presents four issues for our review: 1. Whether the trial court erred when it denied Shafer's summary judgment motion on the issue of whether Justin was a licensee when he dove into Lake Shafer. Whether the trial court abused its discretion when it denied Shafer's motion to bifurcate the trial. Whether the trial court abused its discretion when it permitted expert testimony regarding Justin's impaired earning capacity. Whether the trial court abused its discretion when it denied Shafer's motion to withdraw its nonparty defense.

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We affirm. 1 FACTS AND PROCEDURAL HISTORY On July 17, 2004, Justin, who was twenty-six years old at the time, was visiting his parents at their house located on Lake Shafer. During a conversation that day, Justin's father, Kerry, told Justin about a dredge pipe that had been installed in the channel near their dock. Kerry explained that recently he had gotten his boat "hung up" on the dredge pipe. Transcript at 570. Shortly thereafter, Justin took a running dive off of his parents' dock into the channel. Justin had frequently made shallow-water dives off of his parents' dock over the years. But that day, Justin struck his head on the dredge pipe, which was located on the channel floor, approximately seventeen feet from the
We heard oral argument in this case on October 29, 2007, at Indiana University School of LawBloomington.
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dock. As a result, Justin sustained fractures to three of his cervical vertebrae and a spinal cord contusion. Justin was initially rendered a paraplegic, but after months of rehabilitation, he was able to breathe on his own, walk, and lift his arms to his face. On September 22, 2004, the Stichnoths filed a complaint against Shafer alleging that Shafer's negligence caused Justin's personal injuries. In particular, the Stichnoths alleged that Shafer was negligent in failing to warn that there was a pipe beneath the water's surface, in failing to mark the pipe so that it would be visible to users of the lake, and in failing to use reasonable care in dredging the lake. In its answer, Shafer denied the allegations of negligence and asserted affirmative defenses, including naming Justin's parents as nonparties. Thereafter, the Stichnoths amended their complaint to name Commonwealth Engineers as a defendant. Commonwealth Engineers

subsequently reached a settlement with the Stichnoths and were dismissed from the case. And Shafer named Commonwealth Engineers as a nonparty. On August 15, 2006, Shafer filed a Motion for Summary Judgment on the issue of whether Justin was a licensee of Shafer. In addition, Shafer moved to bifurcate the trial on the issues of liability and damages. following a hearing. On October 6, Shafer filed a Motion to Exclude in Whole or in Part Plaintiffs' Expert Witness, Dr. Edward Berla. The Stichnoths hired Dr. Berla to testify regarding Justin's impaired earning capacity as a result of his injuries. The trial court denied Shafer's motion to exclude Dr. Berla's testimony. The trial court denied those motions

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On October 16, the jury trial commenced. On the final day of trial, when the parties were ready to discuss final instructions, Shafer moved to withdraw Kerry Stichnoth and Commonwealth Engineers as nonparties. The Stichnoths objected, and the trial court denied the motion following argument. Accordingly, both nonparties were named on the verdict forms. After deliberations, the jury returned a verdict in favor of the Stichnoths in the amount of $3,398,000. And the jury assessed fault as follows: Justin 50%; Shafer 30%; and Kerry Stichnoth 20%. The trial court entered judgment against Shafer in the amount of $1,019,400. This appeal ensued. DISCUSSION AND DECISION Issue One: Summary Judgment Shafer first contends that the trial court erred when it denied its summary judgment motion alleging that Justin was a licensee as a matter of law. When reviewing summary judgment, this court views the same matters and issues that were before the trial court and follows the same process. Estate of Taylor ex rel. Taylor v. Muncie Med. Investors, L.P., 727 N.E.2d 466, 469 (Ind. Ct. App. 2000), trans. denied. We construe all facts and reasonable inferences to be drawn from those facts in favor of the nonmoving party. Jesse v. Am. Cmty. Mut. Ins. Co., 725 N.E.2d 420, 423 (Ind. Ct. App. 2000), trans. denied. Summary judgment is appropriate when the designated evidence demonstrates that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). The tort of negligence is comprised of three elements: 1) a duty on the part of the defendant in relation to the plaintiff; 2) a failure by the defendant to conform its conduct
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to the requisite standard of care; and 3) an injury to the plaintiff proximately caused by the failure. Estate of Pflanz v. Davis, 678 N.E.2d 1148, 1151 (Ind. Ct. App. 1997). The law is well-established that a person entering upon the land of another comes upon the land either as an invitee, licensee or trespasser. Id. The person's status on the land defines the nature of the duty owed by the landowner to the visitor. Id. The question of whether one is an invitee or a licensee is a matter of law. Jump v. Bank of Versailles, 586 N.E.2d 873, 875 (Ind. Ct. App. 1992). Again, in its summary judgment motion, Shafer argued that Justin was a licensee as a matter of law. The Stichnoths argued that Justin was an invitee. Our courts have had several opportunities to discuss the distinction between invitees and licensees. In McCormick v. State, 673 N.E.2d 829, 836-37 (Ind. Ct. App. 1996), this court observed: In Indiana, those persons described in the Restatement (Second) of Torts

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