Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
Jul 19 2013, 6:34 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
DANIEL S. CHAMBERLAIN MARK D. GERTH
Doehrman Chamberlain JEFFREY D. HAWKINS
Indianapolis, Indiana MICHAEL WROBLEWSKI
Kightlinger & Gray, LLP
ATTORNEYS FOR AMICUS CURIAE: Indianapolis, Indiana
Indiana Trial Lawyer’s Association
DAVID W. STEWART
MICHAEL J. SOBIERAY
Stewart & Stewart
Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
A.M.D., a Minor, by his Parents and Guardians, )
JOHN DOE and JANE DOE, and JOHN DOE and )
JANE DOE, individually,
)
Appellants, )
)
vs. ) No. 49A04-1211-CT-551
)
YOUNG MEN’S CHRISTIAN ASSOCIATION )
OF GREATER INDIANAPOLIS, )
)
Appellee. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Heather Welch, Judge
Cause No. 49D12-0805-CT-20350
July 19, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
A.M.D., a minor, by his parents and guardians, John Doe and Jane Doe, and John Doe
and Jane Doe individually, appeal from the trial court’s order granting summary judgment in
favor of Young Men’s Christian Association of Greater Indianapolis and YMCA of Greater
Indianapolis (collectively, the YMCA) in an action brought by the Does alleging negligence
against the YMCA. The following issue is presented in this appeal: Did the trial court err by
granting summary judgment in favor of the YMCA under the doctrine of superseding
causation?
We reverse.
The facts designated to the trial court for purposes of ruling on the motion for
summary judgment follow. When A.M.D. was eight years old, he participated in a summer
day camp through the YMCA’s Day Camp Program at Lions Park in Zionsville, Indiana.
The camp was offered to children in grades kindergarten through sixth grade. On June 27,
2006, YMCA camp counselors accompanied A.M.D. and the other camp participants to
Creekside Park, which is a park immediately adjacent to Lions Park. On that particular day
there were fifteen to twenty children, ranging in age from six years old to twelve years old,
and three camp counselors at the park.
The purpose of the trip to Creekside Park was to give the children the opportunity to
enjoy rafting and playing in and around the water. The camp began that day at 7:00 a.m. and
the group walked over to Creekside Park at approximately 2:00 p.m. Until the time of the
incident giving rise to this appeal, there was nothing out of the ordinary at the park and there
were no activities or individuals that gave anyone at the YMCA cause for concern. In
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particular, there was no one at the park who was lingering around, looked out of place, or
generally looked suspicious.
During the rafting excursion, the counselors were situated such that one counselor,
Megan Donaldson, was positioned where the rafting began, and two counselors, Melissa
Raab and Jay Binkert, were positioned where the rafting ended. Shortly after the rafting
began, A.M.D. told Raab that he needed to go to the bathroom. Since the public restroom
was a ten-to-fifteen minute walk away, Raab allowed A.M.D. to urinate by some bushes that
were within Raab’s direct and unobstructed view. Raab instructed A.M.D. to remain by the
bush and to return when he was finished. At the time Raab instructed A.M.D. to urinate in
the bushes, she knew that the YMCA’s bathroom policy required at least one counselor and
one buddy to go with a camper to the restroom. No campers were to go to the bathroom by
themselves.
A.M.D. went to the bathroom by the bushes as instructed and was within Raab’s line
of sight. Raab momentarily turned her attention towards the creek to check on the other
children, and turned her attention away from A.M.D. for less than a minute. When Raab
looked back to check on A.M.D., he was gone. Unknown to A.M.D. and the YMCA
counselors, there was a sexual predator hiding in the woods near where A.M.D. was going to
the bathroom. It was later determined that Stephen Taylor was the person hiding in the
woods, and who attacked A.M.D. Taylor was so well hidden that A.M.D. did not see Taylor
approach him from the front until after he had finished going to the bathroom.
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Once Taylor emerged from the woods, he approached A.M.D., told him he was a
doctor, and offered to give A.M.D. a piggy-back ride, which A.M.D. accepted. Taylor
successfully lured A.M.D. farther into the woods where they were both alone and out of sight
from any of the YMCA camp counselors. While hidden in the woods, Taylor sexually
assaulted A.M.D. Once Raab noticed that A.M.D. was not by the bushes, she immediately
began looking for A.M.D. and screaming his name. Ultimately, A.M.D. was found, but the
perpetrator had run away. Approximately six months later, Taylor was arrested on an
unrelated charge and was subsequently identified as the person who had sexually assaulted
A.M.D. Taylor was convicted of a class A felony and was sentenced to fifty years in the
Department of Correction. See Taylor v. State, 891 N.E.2d 155 (Ind. Ct. App. 2008), trans.
denied, cert. denied, 555 U.S. 1142, 129 S.Ct. 1008 (2009), reh’g denied, 129 S.Ct. 1665;
Taylor v. State, No. 06A04-1009-PC-557, 951 N.E.2d 312 (July 29, 2011), trans. denied.
Prior to June 27, 2006, the YMCA was not aware of any criminal incidents or crimes
that were committed at the Lions or Creekside Parks. Prior to June of 2006, there were no
other incidents of violent or sexual assaults reported at Creekside Park. There have been no
incidents of violent or sexual assaults reported at Lions Park for at least the past twenty-five
years.
On May 7, 2008, the Does individually, and on behalf of A.M.D., filed a negligence
action against the YMCA. The YMCA filed a motion for summary judgment in the action
presenting the following two claims: 1) The YMCA was not the proximate cause of
A.M.D.’s injuries because Taylor’s criminal actions were not reasonably foreseeable; and 2)
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the exculpatory clause contained in the camper application signed by Jane Doe released the
YMCA from any and all claims. The Does filed their opposition to the YMCA’s motion for
summary judgment claiming that the following four theories precluded the entry of summary
judgment in the YMCA’s favor: 1) The YMCA negligently supervised A.M.D.; 2) the
YMCA failed to prevent foreseeable intentional conduct by a third-party; 3) the YMCA did
not have to be the sole cause of A.M.D.’s injuries; and 4) the YMCA is not released from its
responsibility to A.M.D. and his parents by virtue of the exculpatory clause contained in the
camper application form signed by Jane Doe.
On September 17, 2012, the trial court held a hearing on the YMCA’s motion for
summary judgment. In part, the trial court’s order on summary judgment reads as follows:
The Court hereby finds that the Defendant, YMCA, is entitled to summary
judgment as a matter of law and the Court hereby GRANTS the Defendant,
YMCA’s, Motion for Summary Judgment. The Court hereby DENIES the
Plaintiffs’ Partial Motion for Summary Judgment regarding the exculpatory
clause. The Court further notes that the Defendant never disputed that they
had a duty to supervise A.M.D. Thus, the Court does not find this issue was
before the Court and the Court declines to address the Plaintiffs[sic] Motion
for Partial Summary Judgment on this issue as it is moot due to the Court’s
ruling on the issue of proximate cause. There is no just reason for delay, and
[the YMCA] is entitled to judgment in their favor and against A.M.D., a
Minor, by His Parents and Guardians, JOHN DOE AND JANE DOE, and
JOHN DOE AND JANE DOE, Individually on the Plaintiffs’ Complaint as a
matter of law. This Judgment is a full, complete, and final Judgment on the
Plaintiffs’ Complaint as to [the YMCA] in this case. The Clerk of this Court
shall enter the Judgment in the Judgment Docket.
Appellant’s Appendix at 21. A.M.D. and the Does appeal. Additional facts will be supplied
where necessary.
5
A.M.D. and the Does contend that the trial court erred by granting the YMCA’s
motion for summary judgment and by denying their motion for partial summary judgment on
the issue of the impact of the exculpatory clause in the camper application signed by Jane
Doe. The trial court included in its summary judgment order specific findings of fact and
conclusions of law. A trial court’s specific findings and conclusions are not required, and,
while they offer insight into the trial court’s rationale for the judgment entered, and facilitate
our review, we are not limited to reviewing the trial court’s reasons for granting or denying
summary judgment. Trustcorp Mortg. Co. v. Metro Mortg. Co., Inc., 867 N.E.2d 203 (Ind.
Ct. App. 2007). A trial court’s order granting summary judgment may be affirmed upon any
theory supported by the designated materials. Id. Additionally, the fact that the parties filed
cross-motions for summary judgment does not alter our standard of review. Id. In that
situation, we consider each motion separately in order to determine whether the moving party
is entitled to judgment as a matter of law. Id.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. Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011). “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). Where the action
involves negligent supervision of a child, we have made the following observation:
[T]here is a well-recognized duty in tort law that persons entrusted with
children have a duty to supervise their charges. The duty is to exercise
ordinary care on behalf of the child in custody. The duty exists whether or not
the supervising party has agreed to watch over the child for some form of
6
compensation. However, the caretaker is not an insurer of the safety of the
child and has no duty to foresee and guard against every possible hazard.
Davis v. LeCuyer, 849 N.E.2d 750, 757 (Ind. Ct. App. 2006). Our Supreme Court announced
the three-part test for determining whether to impose a duty at common law in Webb v.
Jarvis, 575 N.E.2d 992 (Ind. 1991), viz. (1) the relationship between the parties, (2) the
reasonable foreseeability of harm to the person injured, and (3) public policy concerns, but
that analysis is not necessary where the duty is well settled. Northern Ind. Pub. Serv. Co. v.
Sharp, 790 N.E.2d 462 (Ind. 2003). Furthermore, the trial court found and the parties do not
contest the finding that the YMCA owed a duty to supervise A.M.D.
In this case, the question presented on appeal concerns the issue of causation. We
have held that causation is an essential element of a negligence claim. Bush v. N. Ind. Pub.
Serv. Co., 685 N.E.2d 174, 178 (Ind. Ct. App. 1997). “The injurious act must be both the
proximate cause and the cause in fact of an injury. Generally, causation, and proximate cause
in particular, is a question of fact for the jury’s determination.” Correll v. Ind. Dep’t of
Transp., 783 N.E.2d 706, 707 (Ind. Ct. App. 2002). In the present case, the trial court
entered summary judgment in favor of the YMCA after engaging in an analysis of causation,
which we reproduce in pertinent part as follows:
Summary Judgment Standard
....
11. This Court notes the issue presented by YMCA’s Motion for Summary
Judgment only addresses the element of causation. The Court does find under
well-settled Indiana Law that the YMCA had a duty to supervise A.M.D.
However, the issue for this Court is whether there is a material dispute of fact
on the element of proximate cause.
7
12. In order to prevail in a negligence action, the plaintiff must demonstrate
all the requisite elements of a cause of action: “(1) a duty owed by the
defendant to the plaintiff, (2) a breach of that duty by the defendant, and (3) an
injury to the plaintiff as a proximate result of the breach.” Ford Motor Co. v
Rushford, 868 N.E.2d 806, 810 (Ind. 2007). The question of whether the
defendant owes the plaintiff a legal duty is generally one of law for the court.
Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind. 1992).
....
17. Causation is an essential element of a negligence claim. Bush v. Northern
Indiana Pub. Serv. Co., 685 N.E.2d 174, 178 (Ind. Ct. App. 1997), trans.
denied (1999). “Proximate cause has two components: causation-in-fact and
scope of liability. City of Gary ex rel. King v. Smith & Wesson Corp., 801
N.E.2d 1222, 1243-44 (Ind. 2003). To establish factual causation, the plaintiff
must show that but for the defendant’s allegedly tortious act or omission, the
injury at issue would not have occurred. Id. The scope of liability doctrine
asks whether the injury was a “natural and probable consequence” of the
defendant’s conduct, which in the light of the circumstances, should have been
foreseen or anticipated. Id. at 1244. Liability is not imposed on the defendant
if the ultimate injury was not “reasonably foreseeable” as a consequence of the
act or omission. Id. Therefore, the fundamental test of proximate cause is
“reasonable foreseeability”. Lutheran Hospital of Indiana, Inc v. Blaser,634
N.E.2d 864, 871 (Ind. Ct. App. 1994).
18. Generally, causation, and proximate cause in particular, is a question of
fact for the jury’s determination. Adams Twp. Of Hamilton County v.
Sturdevant, 570 N.E.2d 87, 90 (Ind. Ct. App. 1991). However, “Where only a
single conclusion can be drawn from the set of facts, proximate cause is a
question of law for the court to decide.[”] Merchants National Bank v.
Simrell’s, 741 N.E.2d 383, 389 (Ind. Ct. App. 2000).
19. In this case, the facts are undisputed and only a single conclusion can be
drawn or inferred from the facts. Therefore, the Court finds that the issue of
proximate cause is a question of law not fact.
8
Appellant’s Appendix at 13-16. The trial court then analyzed cases addressing the issue
whether intentional criminal acts of third parties break the chain of causation under the
doctrines of superseding and intervening causation. 1
Our Supreme Court in Control Techniques examined whether Indiana’s Comparative
Fault Act 2 had subsumed or abrogated the doctrines of superseding and intervening
causation, and the impact of the viability of those doctrines, such that error could be
predicated upon the refusal to instruct the jury thereon. In concluding that no instruction on
the doctrine of superseding causation was warranted, the Supreme Court stated as follows:
For the reasons expressed below, we agree with the Court of Appeals that no
separate instruction is required. In capsule form, we conclude that the
doctrines of causation and foreseeability impose the same limitations on
liability as the “superseding cause” doctrine. Causation limits a negligent
actor’s liability to foreseeable consequences. A superseding cause is, by
definition, one that is not reasonably foreseeable. As a result, the doctrine in
today’s world adds nothing to the requirement of foreseeability that is not
already inherent in the requirement of causation.
1
The Supreme Court described the doctrine as follows:
The doctrine of superseding or intervening causation has long been part of Indiana common
law. It provides that when a negligent act or omission is followed by a subsequent negligent
act or omission so remote in time that it breaks the chain of causation, the original wrongdoer
is relieved of liability. A subsequent act is “superseding” when the harm resulting from the
original negligent act “could not have reasonably been foreseen by the original negligent
actor.” Whether the resulting harm is “foreseeable” such that liability may be imposed on
the original wrongdoer is a question of fact for a jury.
Control Techniques, Inc. v. Johnson, 762 N.E.2d 104 (Ind. 2002) (internal citations omitted)(emphasis
supplied).
2
Ind. Code Ann. § 34-51-2-1 et seq. (West, Westlaw current through June 29 2013, excluding P.L. 205-
2013).
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Control Techniques, Inc. v. Johnson, 762 N.E.2d at 108. The court went on to hold that the
adoption of the Comparative Fault Act did not affect the doctrine of superseding cause. Id.
The YMCA argues that the trial court correctly found that Taylor’s criminal conduct
was a superseding or intervening cause of the harm to A.M.D. and cites Restatement
(Second) of Torts § 448 in support. The Restatement provides as follows:
The act of a third person in committing an intentional tort or crime is a
superseding cause of harm to another resulting therefrom, although the actor’s
negligent conduct created a situation which afforded an opportunity to the third
person to commit such a tort or crime, unless the actor at the time of his
negligent conduct realized or should have realized the likelihood that such a
situation might be created, and that a third person might avail himself of the
opportunity to commit such a tort or crime.
The YMCA claims that it was not foreseeable that a sexual predator would be lying in wait in
the woods in an attempt to sexually molest one of their campers, and in particular, A.M.D.
Restatement (Second) of Torts §449, known as the very duty doctrine, provides as
follows: If the likelihood that a third person may act in a particular manner is the hazard or
one of the hazards which makes the actor negligent, such an act whether innocent, negligent,
intentionally tortious, or criminal does not prevent the actor from being liable for harm
caused thereby. At the heart of these concepts is the necessity for an analysis of
foreseeability.
The YMCA’s bathroom procedure for the camp, as set forth in the camp brochures
provides as follows:
No camper is ever alone and no camper is ever alone with a staff member. All
campers will take trips to the bathroom with entire camp and/or camp groups
and camp staff. Campers will only use bathrooms inspected for safety by camp
staff.
10
Appellant’s Appendix at 179. Additionally, day campers were to go to the bathroom in pairs,
with one counselor present. The YMCA’s Code of Conduct for Day Camp Counselors
provided as follows with respect to restroom supervision:
3. Restroom supervision: Staff will make sure the restroom is not occupied by
suspicious or unknown individuals before allowing children to use the
facilities. Staff will stand in the doorway while children are using the
restroom. This policy allows privacy for the children and protection for the
staff (not being alone with a child). If staff are assisting younger children,
doors to the facility must remain open. No child, regardless of age, should
ever enter a restroom alone on a field trip. Always send children in pairs, and
whenever possible, with staff.
Id. at 213.
Further, the counselors were instructed that they shall never leave a child
unsupervised. In particular, a day camp counselor, the position Raab held with the YMCA at
the time of the molestation, has the general function of directly supervising approximately
twelve campers and taking responsibility for each child’s safety. Several of the major
responsibilities of the Camp Site Director involved the protection of the campers, such as
personally supervising the campers at all times, being directly responsible for the daily safety
and schedule of the campers, and maintaining a clean, neat, and safe campsite.
Raab’s deposition testimony indicated her understanding that an eight-year-old child
should not be allowed to go to the restroom by himself or wander off because the YMCA did
not want the child to get lost, suffer any harm, or be attacked. She further attested to the fact
that under the YMCA’s rules campers are allowed to use only those bathrooms inspected by
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staff to make sure there was no one suspicious lurking around or lingering. Another YMCA
employee attested as follows:
Q: What are the bathroom procedures for the YMCA?
A: For one staff person to accompany two children to the restroom.
Q: And why do you have that procedure or policy?
A: To protect children and to protect the staff.
Q: Protect children from what?
A: Potential child-on-child abusers or any interaction of any kind that’s
inappropriate, fighting.
Q: Well, you would also have that policy and procedure for the one staff
and two children to prevent sexual molestation from third parties,
correct?
A: Correct.
Q: And that’s exactly what happened here; Mr. Taylor came upon the
scene, found this child and assaulted him?
A: I can’t . . . .
Id. at 181.
Other designated evidence before the trial court suggested that until the time of the
incident giving rise to this appeal, there was nothing out of the ordinary at the park and there
were no activities or individuals that gave anyone at the YMCA cause for concern on the day
in question. In particular, there was no one at the park who was lingering around, looked out
of place, or generally looked suspicious. Furthermore, prior to June 27, 2006, the YMCA
was not aware of any criminal incidents or crimes that were committed at the Lions or
Creekside Parks. Additionally, prior to June of 2006, there were no other incidents of violent
or sexual assaults reported at Creekside Park. There have been no incidents of violent or
sexual assaults reported at Lions Park for at least the past twenty-five years.
We disagree that only one conclusion can be drawn or inferred from the undisputed
facts. “[A]n actor need not foresee the exact manner in which harm occurs, but must, in a
12
general way, foresee the injurious consequences of his act.” Rauck v. Hawn, 564 N.E.2d
334, 339 (Ind. Ct. App. 1990). Furthermore, a determination of whether Taylor’s act was a
superseding or intervening cause of A.M.D.’s harm such that the original chain of causation
has been broken depends on a determination of whether it was reasonably foreseeable under
the circumstances that an actor would intervene in such a way as to cause the resulting injury.
Scott v. Retz, 916 N.E.2d 252 (Ind. Ct. App. 2009).
In order to make that determination, three factors are pertinent to the analysis. First,
courts on review have examined whether the intervening actor is independent from the
original actor. Id. Next, we examine whether the instrumentality of harm was under the
complete control of the intervening actor. Id. Third, we examine whether the intervening
actor as opposed to the original actor is in a better position to prevent the harm. Id. At a
minimum, the facts pertinent to the third factor are in dispute. Whether the criminal assault
on A.M.D. by a stranger, Taylor, was foreseeable by the YMCA such that the chain of
causation was broken, should be decided by a trier of fact and not as a matter of law. 3
Judgment reversed.
ROBB, C.J., and KIRSCH, J., concur.
3
The trial court did not resolve the issue of whether the exculpatory clause in the camper application signed by
Jane Doe released YMCA from liability because the issue was moot. We do not address the arguments
pertaining to the release of liability because there is no ruling on this issue subject to our review.
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