In the Matter of C.G. (Minor Child) and David Gutelius (Father) and Lori Gutelius (Mother) v. Union North United School Corporation ( 2020 )


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  •                                                                             FILED
    Sep 29 2020, 9:50 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEYS FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
    Daniel H. Pfeifer                                          Jonathan L. Mayes
    James P. Barth                                             Philip R. Zimmerly
    South Bend, Indiana                                        Sarah T. Parks
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In the Matter of C.G. (Minor                               September 29, 2020
    Child)                                                     Court of Appeals Case No.
    20A-CT-526
    and
    Appeal from the St. Joseph
    David Gutelius (Father) and Lori                           Superior Court
    Gutelius (Mother),
    The Honorable David C.
    Appellants-Plaintiffs,                                     Chapleau, Judge
    v.                                                 Trial Court Cause No.
    71D06-1904-CT-126
    Union North United School
    Corporation,
    Appellee-Defendant.
    Tavitas, Judge.
    Court of Appeals of Indiana | Opinion 20A-CT-526 | September 29, 2020                           Page 1 of 11
    Case Summary
    [1]   C.G., a minor by and through her parents, David Gutelius (“David”) and Lori
    Gutelius (“Lori”), appeals the trial court’s grant of summary judgment to
    Union North United School Corporation (“School Corporation”). We affirm.
    Issue
    [2]   C.G. raises one issue, which we restate as whether the trial court properly
    granted the School Corporation’s motion for summary judgment.
    Facts
    [3]   On October 26, 2017, C.G. was a freshman and attended basketball practice at
    LaVille High School. 1 The basketball coach, Hannah Amor (“Coach Amor”),
    was conducting a practice drill with the players. As the players practiced
    shooting layups, Coach Amor defended the goal and attempted to aggressively
    block or “swat” the player’s ball. Appellant’s App. Vol. II p. 31. As C.G. was
    running on the side of the basketball court to receive a ball, Coach Amor
    1
    We note that C.G. and Lori signed a Consent & Release Certificate (“Release”) that provided:
    I know that athletic participation is a privilege. I know of the risks involved in athletic
    participation, understand that serious injury, and even death, is possible in such participation,
    and choose to accept such risks. I voluntarily accept any and all responsibility for my own
    safety and welfare while participating in athletics, with full understanding of the risks involved,
    and agree to release and hold harmless my school, the schools involved and the IHSAA of and
    from any and all responsibility and liability, including any from their own negligence, for any
    injury or claim resulting from such athletic participation and agree to take no legal action
    against my school, the schools involved or the IHSAA because of any accident or mishap
    involving my athletic participation.
    Appellant’s App. Vol. II p. 35. The parties, however, do not mention this Release in their analysis of the
    issues. Accordingly, we express no opinion as to the Release’s impact on C.G.’s claim.
    Court of Appeals of Indiana | Opinion 20A-CT-526 | September 29, 2020                                  Page 2 of 11
    blocked a layup by one of C.G.’s teammates. The ball “blindsided” C.G. and
    struck her on the temple, causing a concussion.
    Id. at 30.
    C.G. does not believe
    that Coach Amor struck her with the basketball intentionally. C.G.
    acknowledged in her deposition that getting hit on the head with a basketball
    was “a possible outcome of playing.”
    Id. at 32. [4]
      In April 2019, C.G. filed a complaint against the School Corporation, which
    C.G. amended in September 2019. C.G. alleged that she suffered injuries as a
    result of the negligence of the School Corporation’s employee, Coach Amor. In
    November 2019, the School Corporation filed a motion for summary judgment.
    The School Corporation argued that it was entitled to summary judgment
    pursuant to Megenity v. Dunn, 
    68 N.E.3d 1080
    (Ind. 2017), and Pfenning v.
    Lineman, 
    947 N.E.2d 392
    (Ind. 2011), because “blocking a basketball shot is
    well within the ordinary conduct expected in basketball.”
    Id. at 21.
    In
    response, C.G. argued that: there is an exception for intentional or reckless
    actions; and whether Coach Amor’s actions were reckless is a question of fact
    for the jury to determine.
    [5]   After a hearing, the trial court entered summary judgment for the School
    Corporation. The trial court found that Coach Amor “did not breach any duty
    to [C.G.] by blocking the shot” and that C.G. could not satisfy the factors
    necessary to demonstrate reckless conduct.
    Id. at 12-13.
    C.G. now appeals.
    Court of Appeals of Indiana | Opinion 20A-CT-526 | September 29, 2020     Page 3 of 11
    Analysis
    [6]   C.G. challenges the trial court’s entry of summary judgment in favor of the
    School Corporation. Summary judgment is appropriate only when the moving
    party shows there are no genuine issues of material fact for trial and the moving
    party is entitled to judgment as a matter of law. Erie Indem. Co. for Subscribers at
    Erie Ins. Exch. v. Estate of Harris by Harris, 
    99 N.E.3d 625
    , 629 (Ind. 2018); see also
    Ind. Trial Rule 56(C). Once that showing is made, the burden shifts to the
    nonmoving party to designate appropriate evidence to demonstrate the actual
    existence of a genuine issue of material fact. Schoettmer v. Wright, 
    992 N.E.2d 702
    , 705-06 (Ind. 2013). When ruling on the motion, the trial court construes
    all evidence and resolves all doubts in favor of the non-moving party.
    Id. at 706.
    We review the trial court’s ruling on a motion for summary judgment de
    novo, and we take “care to ensure that no party is denied his day in court.”
    Id. “We limit our
    review to the materials designated at the trial level.” Gunderson v.
    State, Indiana Dep’t of Nat. Res., 
    90 N.E.3d 1171
    , 1175 (Ind. 2018), cert. denied.
    [7]   The issue here is whether Coach Amor’s conduct breached her duty of
    reasonable care to C.G. and the School Corporation is liable under the doctrine
    of respondeat superior. “[T]o prevail on a claim of negligence the plaintiff must
    show: (1) duty owed to plaintiff by defendant; (2) breach of duty by allowing
    conduct to fall below the applicable standard of care; and (3) compensable
    injury proximately caused by defendant’s breach of duty.” Goodwin v. Yeakle’s
    Sports Bar & Grill, Inc., 
    62 N.E.3d 384
    , 386 (Ind. 2016). Thus, C.G. was
    required to prove that: (1) Coach Amor owed C.G. a duty, (2) Coach Amor
    Court of Appeals of Indiana | Opinion 20A-CT-526 | September 29, 2020        Page 4 of 11
    breached that duty, and (3) the breach of duty proximately caused C.G.’s
    injury. Megenity v. Dunn, 
    68 N.E.3d 1080
    , 1083 (Ind. 2017). Under the doctrine
    of respondeat superior, an employer is liable for employees’ tortious acts where
    those acts occurred within the scope of employment. Cox v. Evansville Police
    Dep’t, 
    107 N.E.3d 453
    , 460 (Ind. 2018).
    [8]    Whether a party breached a duty is “usually a question of fact for the jury.”
    
    Megenity, 68 N.E.3d at 1083
    . Our Supreme Court, however, has created a
    “‘limited new rule’ applying only to sports-injury cases—cases where the
    alleged tortfeasor is a sports participant.”
    Id. (quoting Pfenning v.
    Lineman, 
    947 N.E.2d 392
    , 403-04 (Ind. 2011)). The Court held that “a sports participant
    breaches no duty as a matter of law by engaging in conduct ‘ordinary . . . in the
    sport,’ but may breach a duty by injuring someone intentionally or recklessly.”
    Id. (quoting 
    Pfenning, 947 N.E.2d at 404
    ).
    [9]    To prove an intentional infliction of a sports injury, the plaintiff must
    demonstrate that: (1) the defendant sports participant either desired to cause the
    consequences of his act or believed those consequences were substantially
    certain to result; and (2) the intent to injure falls “‘totally outside the range of
    ordinary activity involved in the sport’ overall.”
    Id. at 1085
    (quoting Welch v.
    Young, 
    950 N.E.2d 1283
    , 1290 (Ind. Ct. App. 2011)).
    [10]   To prove a reckless infliction of a sports injury, the plaintiff must demonstrate
    that: (1) the defendant sports participant intentionally acted or intentionally
    failed to act; (2) in doing so, the defendant was consciously indifferent to the
    Court of Appeals of Indiana | Opinion 20A-CT-526 | September 29, 2020        Page 5 of 11
    plaintiff’s safety; and (3) the defendant’s particular conduct—including state of
    mind—falls “‘totally outside the range of ordinary activity involved in the
    sport.’” Id. (quoting 
    Welch, 950 N.E.2d at 1290
    ).
    [11]   Our Supreme Court applied the Pfenning formulation in Megenity, where Tresa
    Megenity was attending a karate class and was injured when she volunteered to
    hold the flying-kick bag during practice drills. Another student in the class,
    Dunn, performed a “jump kick”, rather than a flying kick, which sent Megenity
    “flying and crashing to the floor, injuring her knee.”
    Id. at 1082.
    Megenity
    filed a complaint against Dunn and argued that he “negligently, recklessly, and
    unreasonably” injured her.
    Id. The trial court,
    however, granted summary
    judgment to Dunn because “the jump kick was ‘ordinary behavior of
    participants in karate within the context of a ‘kicking the bag’ drill.”
    Id. [12]
      On appeal, Dunn argued that he was entitled to the protections announced in
    Pfenning because a jump kick is “ordinary” in karate generally.
    Id. at 1083.
    Megenity, however, argued that Dunn’s actions were not “ordinary conduct”
    because a jump kick was “extraordinary” in a kicking-the-bag drill specifically.
    Id. (emphasis in original).
    Our Supreme Court held “that, under the reasoning
    of Pfenning, ordinary behavior turns on the sport generally—not the specific
    activity.”
    Id. at 1084.
    Accordingly, Dunn’s “jump kick was ordinary, even if it
    was contrary to protocol for the kicking-the-bag drill.”
    Id. The Court concluded
    that, as a matter of law, Dunn “did not breach a duty by simply
    executing a jump kick while engaged in karate.”
    Id. at 1085
    .
    
    Court of Appeals of Indiana | Opinion 20A-CT-526 | September 29, 2020      Page 6 of 11
    [13]   The Court then considered whether Megenity presented evidence of
    “intentional or reckless infliction of injury.”
    Id. Megenity conceded that
    the
    student did not injure her “intentionally.”
    Id. As for whether
    Megenity
    presented evidence of reckless infliction of injury, the Court held:
    [E]ven if we assume for purposes of summary judgment that the
    first element is satisfied—that Dunn jump-kicked intentionally—
    the second and third elements are missing. True, Dunn failed to
    keep one foot grounded during the kick; he used “extreme” force
    against a padded bag; and he later apologized, saying he “didn’t
    mean to jump.” But none of that shows he consciously
    disregarded his classmate’s safety. And without such conscious
    disregard, nothing took Dunn’s jump kick totally outside the
    range of ordinary behavior in karate overall. Certainly, Indiana
    strongly prefers trials, even when a plaintiff’s evidence is dubious.
    Yet here, the evidence Megenity needs is not merely thin; it is
    absent.
    We do note that different evidence might write a different story.
    Megenity might have had sufficient circumstantial evidence of
    conscious disregard if Dunn had directed his jump kick at her
    head instead of the padded bag. But Dunn’s errant kick, without
    more, is not reckless. Rather, it is part of the sport.
    Id. at 1086.
    The Court concluded that Dunn’s action was “ordinary conduct in
    the sport of karate generally, and no evidence shows intent or recklessness.”
    Id. Accordingly, the Court
    found no breach as a matter of law and affirmed the
    grant of summary judgment to Dunn.
    [14]   Here, C.G. was injured at a high school basketball practice during layup drills.
    During the drill, the coach acted as the defensive player and attempted to
    Court of Appeals of Indiana | Opinion 20A-CT-526 | September 29, 2020      Page 7 of 11
    defend the goal by “swatting” the player’s basketball if the player did not
    properly perform the layup. Appellant’s App. Vol. II p. 31. When the coach
    swatted another player’s basketball, the ball hit C.G. on the head, causing a
    concussion. C.G. acknowledged in her deposition that getting hit on the head
    with a basketball was “a possible outcome of playing.”
    Id. at 32. [15]
      Swatting or blocking the basketball during a layup is ordinary in the sport of
    basketball. C.G. seemingly concedes this point. See Appellant’s Br. p. 6
    (“While it is true that ‘blocking a shot’ is within the ordinary conduct of
    basketball players, it cannot be said as a matter of law, that a Coach’s aggressive
    shot blocking during a practice drill falls within the ordinary scope of the
    game.”). Accordingly, pursuant to Megenity and Pfenning, if Coach Amor was a
    sports participant, there was no breach of duty as a matter of law unless the
    coach’s actions were intentional or reckless. See 
    Megenity, 68 N.E.3d at 1083
    (holding that “a sports participant breaches no duty as a matter of law by
    engaging in conduct ‘ordinary . . . in the sport,’ but may breach a duty by
    injuring someone intentionally or recklessly”) (quoting 
    Pfenning, 947 N.E.2d at 404
    ).
    [16]   C.G., however, argues that the protections described in Megenity and Pfenning
    do not apply to coaches, whom C.G. contends are non-participants. C.G.,
    however, did not make this argument to the trial court and raises this argument
    for the first time on appeal. Accordingly, this argument is waived. Evergreen
    Shipping Agency Corp. v. Djuric Trucking, Inc., 
    996 N.E.2d 337
    , 340 (Ind. Ct. App.
    2013); Mid-States Gen. & Mech. Contracting Corp. v. Town of Goodland, 811 N.E.2d
    Court of Appeals of Indiana | Opinion 20A-CT-526 | September 29, 2020     Page 8 of 11
    425, 438 n.2 (Ind. Ct. App. 2004) (“An appellant who presents an issue for the
    first time on appeal waives the issue for purposes of appellate review.”).
    [17]   Waiver notwithstanding, C.G.’s argument is unpersuasive. In support of her
    argument, C.G. relies on public policy considerations noted in Pfenning of
    “‘affording enhanced protection against liability to co-participants in sports
    events.’” 
    Pfenning, 947 N.E.2d at 403
    (quoting Bowman ex rel. Bowman v.
    McNary, 
    853 N.E.2d 984
    , 992 (Ind. Ct. App. 2006), disapproved of on other
    grounds by Pfenning, 
    947 N.E.2d 392
    )). C.G. also relies on Bowman, which
    noted: “[Co-participants] are not in a position, practically speaking, to protect
    themselves from claims. Event organizers, sponsors, and the like, are able to
    safeguard themselves from liability by securing waivers.” According to C.G.,
    the policy considerations of protecting co-participants are “largely absent from a
    case involving an adult coach’s physical intervention in a youth basketball
    drill.” Appellant’s Br. p. 9.
    [18]   The School Corporation, however, argues that the Supreme Court has not
    “created an exception for coaches who are participating in drills with their
    players as ‘non-participants’ or ‘quasi-participants’ as contended by [C.G.].”
    Appellee’s Br. p. 7. The School Corporation points to Geiersbach v. Frieje, 
    807 N.E.2d 114
    , 120 (Ind. Ct. App. 2004), trans. denied, disapproved of on other grounds
    by Pfenning, 
    947 N.E.2d 392
    , which addressed whether a coach, who injured a
    player in practice while throwing a baseball, was a “participant.” The
    Geiersbach court concluded that “[t]hose participating in the event or practice
    should be precluded from recovering for injuries received resulting from dangers
    Court of Appeals of Indiana | Opinion 20A-CT-526 | September 29, 2020     Page 9 of 11
    or conduct inherent in the game unless they prove that the conduct was reckless
    or the injury was intentional.” 
    Geiersbach, 807 N.E.2d at 120
    . The Court
    applied this standard to “all participants in the sporting event” and defined
    participant as “any person who is part of the sporting event or practice
    involved. This would include players, coaches, and players who are sitting on
    the bench during play.”
    Id. [19]
      Although the Supreme Court in Pfenning disagreed with the “no-duty approach”
    used in Geiersbach, the Court did not disagree with or comment on the
    definition of “participant” set out in Geiersbach. 
    Pfenning, 947 N.E.2d at 404
    n.3. The Pfenning court did note that its new rule—"finding no breach by an
    athlete engaged in the sport’s ordinary activities”—applies “to conduct of sports
    participants, not promoters of sporting events . . . .” 
    Pfenning, 947 N.E.2d at 407
    . Coach Amor was not a promoter of a sporting event, and the exception
    noted in Pfenning does not apply here. Coach Amor also was not an “[e]vent
    organizer[ ], sponsor[ ], and the like” mentioned in Bowman. Rather, Coach
    Amor was acting as a defensive player and participating in drills during
    practice. The policy concerns cited by C.G. are inapplicable here. We
    conclude that Coach Amor was a sports participant, and the standard set forth
    in Megenity and Pfenning applies.
    [20]   Because Coach Amor was a sports participant engaging in conduct that was
    ordinary in the sport, there was no breach of duty as a matter of law unless
    Coach Amor’s actions were intentional or reckless. See 
    Megenity, 68 N.E.3d at 1083
    . C.G. acknowledged in her deposition that she does not believe Coach
    Court of Appeals of Indiana | Opinion 20A-CT-526 | September 29, 2020      Page 10 of 11
    Amor struck her with the basketball intentionally, and no evidence was
    presented to indicate intentional conduct. On appeal, C.G. makes no argument
    that Coach Amor struck her recklessly. Accordingly, C.G. has failed, as a
    matter of law, to demonstrate a breach of duty, and the trial court properly
    granted summary judgment to the School Corporation.
    Conclusion
    [21]   The trial court properly granted summary judgment to the School Corporation
    on C.G.’s claim. We affirm.
    [22]   Affirmed.
    Kirsch, J., and Pyle, J., concur.
    Court of Appeals of Indiana | Opinion 20A-CT-526 | September 29, 2020   Page 11 of 11
    

Document Info

Docket Number: 20A-CT-526

Filed Date: 9/29/2020

Precedential Status: Precedential

Modified Date: 4/17/2021