D.H., a Minor, by Her Parent, A.M.J., and A.M.J. Individually v. Mary Whipple, and Robert Whipple (Deceased)

FILED
May 29 2018, 7:55 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Robert H. Ebbs Michael R. Bain
Theresa L.D. Ebbs Lauren M. Hardesty
Katherine M. Marshall Hume Smith Geddes Green &
Glaser & Ebbs Simmons, LLP
Indianapolis, Indiana Indianapolis, Indiana
ATTORNEY FOR AMICUS CURIAE ATTORNEYS FOR AMICUS CURIAE
INDIANA TRIAL LAWYERS ASSOCIATION DEFENSE TRIAL COUNSEL OF
Scott A. Faultless INDIANA
Craig Kelley & Faultless LLC Lucy R. Dollens
Indianapolis, Indiana Jacob V. Bradley
Quarles & Brady LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.H. a Minor, by Her Parent, May 29, 2018
A.M.J., and A.M.J. Individually, Court of Appeals Case No.
Appellants-Plaintiffs, 48A05-1706-CT-1345
v. Appeal from the Madison Circuit
Court
Mary Whipple, The Honorable Thomas Newman,
Appellee-Defendant, Jr., Judge
and Trial Court Cause No.
48C03-1306-CT-101
Robert Whipple (Deceased)
Defendant Below.
Robb, Judge.
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Case Summary and Issue
[1] D.H. (“Child”), through her mother and guardian, A.M.J. (“Mother”), and
Mother individually (collectively, the “Appellants”), bring this interlocutory
appeal from the trial court’s grant of summary judgment on the issue of
negligence in favor of Mary Whipple, Mother’s mother and Child’s maternal
grandmother. Appellants present only one question for our review, whether the
trial court properly granted summary judgment. Concluding genuine issues of
material fact remain, we reverse and remand.
Facts and Procedural History
[2] Robert Whipple, Child’s step-grandfather and Mary’s husband until his death in
2017, had a history of child molestation. Robert molested his seven-year-old
daughter on multiple occasions in the 1960s and his six-year-old niece on
multiple occasions in 1980. As a result of his 1980 conduct, Robert was
charged with child molesting, a Class B felony. He confessed to the underlying
conduct and accepted a plea agreement involving counseling in lieu of
incarceration.
[3] Mary met Robert sometime in 1990 and the two were married on December 6,
1991. For medical reasons, Mary and Robert were unable to have sex during
their twenty-six-year marriage. By the time of Mary and Robert’s marriage,
Mother was an adult and living on her own. Sometime prior to 2009, Mother
and Child moved from Indianapolis to Anderson to help with Mary’s and
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Robert’s many health issues. During this time, and often at Mary’s invitation,
Child would visit and stay the night at the Whipples’ home.
[4] These visits increased in December 2009, after Child turned thirteen, because
she was no longer eligible to continue attending her daycare facility. Through
phone calls with Mary, Mother arranged for Child to stay at the Whipples’
home while Mother was at work. Mary, who was working in Indianapolis at
the time, told Mother that she would be home shortly after Child was dropped
off at the home. Mother would drop Child off around 4:30 p.m. and Mary
would arrive home around 5:30 or 6:00 p.m. Mary told Mother that it was “all
right” for Child to be with Robert until she returned home from work in
Indianapolis. Appendix of Appellants, Volume III at 50. From December
2009 through January 2010, Robert molested Child on some twelve occasions.
Child did not initially report the molestations, however, because Robert
threatened to kill Mother. Almost two years later, Child met with a detective
and reported the molestations, resulting in Robert’s arrest. Following a jury
trial in May 2013, Robert was found guilty of two counts of child molesting as
Class A felonies, and one count of child molesting as a Class C felony. Robert
was sentenced to thirty-five years in the Indiana Department of Correction.
[5] In June 2013, Appellants commenced this action by filing a complaint for
damages against Robert and Mary. Count I alleged that Robert committed
assault, battery, invasion of privacy, intentional infliction of emotional distress,
and negligent infliction of emotional distress. Count II alleged negligence on
behalf of Mary. Specifically, Appellants allege in Count II:
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12. On said occasions when Plaintiff Child was in the custody,
care and control of Defendant Mary Whipple, the Defendant had
a special responsibility to supervise Plaintiff Child, to keep her
from harm and out of danger, to make careful preparations to
enable Defendant to be vigilant in ascertaining risks that may
occur and to exercise reasonable care for Child’s safety and
protection.
13. Defendant Mary Whipple was, without limitation:
a) Negligent in her supervision of Child as she knew, or
should have known, that Defendant Robert Whipple was
sexually molesting and assaulting Child, and Defendant
Mary Whipple failed to warn Child and/or [Mother] of
the dangers, or otherwise protect Child from said wrongful
acts of her husband, Defendant Robert Whipple, and the
harm to result therefrom; and,
b) Negligent and careless in failing to provide a safe
environment and/or premises for Plaintiff Child, a child of
thirteen (13) years of age, when Defendant Mary Whipple
accepted the responsibility to care for Child and was
entrusted with her safety and well-being.
App. of Appellants, Vol. II at 18-19.
[6] Mary denied the allegations and eventually filed a motion for summary
judgment.1 As evidence in opposition to the motion, Appellants designated the
affidavit of Scott Sanderson, a detective with the Anderson Police Department,
1
Robert died in 2017 while serving his sentence and the allegations against Robert are not involved in this
appeal.
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who had interviewed both Robert and Mary in the course of investigating the
molestations. Detective Sanderson’s affidavit included the following:
10. I interviewed Robert E. Whipple on February 24, 2012, at
the Anderson Police Department, in the course of my
investigation of the State of Indiana v. Robert E. Whipple,
Cause Number 48C06-1204-FA-000655 case; and,
a. During that interview, Robert E. Whipple admitted to
molesting two children, other than [Child], in the past; one
was his biological daughter, and the other was his niece by
marriage.
b. During that interview, Robert E. Whipple informed me
that he had told his wife Mary Whipple that he had
molested a girl in the past.
c. It was and is my impression that, prior to December 20,
2009, Robert E. Whipple informed Mary Whipple that he
molested a child.
d. A true and accurate copy of the Anderson Police
Department Advice of Rights and my hand written notes
which were contained on the back side of the Advice of
Rights are attached hereto as Exhibit B.
e. A true and accurate copy of my type written notes of my
February 24, 2012 interview with Robert E. Whipple are
attached hereto as Exhibit C.
11. I spoke in person with Mary Whipple on February 24, 2012,
while she was at the Anderson Police Department with Robert E.
Whipple; and,
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a. During that conversation, Mary Whipple stated that a
long time ago Robert E. Whipple told her that he had
what she referred to as a “small or minor indiscretion” a
long time ago.
b. It was and is my impression that the “small or minor
indiscretion” that Mary Whipple was referring was child
molest.
c. It was and is also my impression that Mary Whipple
had knowledge prior to December 20, 2009 that Robert E.
Whipple molested at least one (l) child.
d. During that conversation, I spoke with Mary Whipple
about the allegations [Child] had made against Robert E.
Whipple; and, although she denied the allegations, she
advised basically that it was all her fault because she
worked all of the time, and Robert E. Whipple was home
alone with [Child].
e. A true and accurate copy of my hand written notes
which were contained on the back side of the Advice of
Rights are attached hereto as Exhibit B.
f. A true and accurate copy of my type written notes of my
February 24, 2012 conversation with Mary Whipple are
attached hereto as Exhibit C.
App. of Appellants, Vol. III at 85-86.
[7] Appellants’ designated evidence also included the following testimony from
Mary’s deposition:
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[Question]: If Detective Sanderson indicated that you made a
statement to him that you were aware of
indiscretions that [Robert] had had, would you have
any reason to dispute that?
[Mary]: If I was aware of any indiscretions. I don’t know if
I – don’t know if I would have said that. I wouldn’t
dispute anything I would have said to him because
if I said to him, it’s on record, but you have to
remember that this is just such a blur, I can’t
remember specifics.
[Question]: Do you recall using the words indiscretions – or
word indiscretion?
[Mary]: That would be a word I would use.
[Question]: And what would you use that word for?
[Mary]: Well, these issues, these sexual issues are most
definitely indis- -- you know, it’s wrong.
[Question]: When did you first learn about what you’re calling
indiscretions?
[Mary]: I would say when I was either with Child Protective
Services or Investigator Brooks. And I don’t know
what dates or years.
[Question]: Detective Brooks would be after 2009. Would CPS
be before or after 2009?
[Mary]: It – it ran very close. I don’t know.
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Id. at 33. After a hearing, the trial court granted Mary’s motion for summary
judgment. Appellants now appeal.
Discussion and Decision
I. Standard of Review
[8] When reviewing a grant or denial of a motion for summary judgment, our
standard of review is the same as it was for the trial court in ruling on the
motion initially. Knighten v. E. Chi. Hous. Auth., 45 N.E.3d 788, 791 (Ind. 2015).
The moving party carries the burden of showing there are no genuine issues of
material fact and it is entitled to judgment as a matter of law. Id. “A fact is
‘material’ if its resolution would affect the outcome of the case, and an issue is
‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of
the truth, or if the undisputed material facts support conflicting reasonable
inferences.” Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Unlike federal
practice, the moving party must go beyond merely showing the party carrying
the burden of proof lacks evidence on a necessary element and “affirmatively
negate an opponent’s claim.” Id. If the moving party carries Indiana’s “more
onerous burden,” then the non-moving party must present evidence establishing
the existence of a genuine issue of material fact. Id; Knighten, 45 N.E.3d at 791.
We consider only the evidence the parties designated to the trial court and we
construe all factual inferences in favor of the non-moving party, resolving all
doubts regarding the existence of a material issue against the moving party. See
Ind. Trial Rule 56(C), (H); Knighten, 45 N.E.3d at 791.
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[9] Indiana’s heightened summary judgment standard “consciously errs on the side
of letting marginal cases proceed to trial on the merits, rather than risk short-
circuiting meritorious claims.” Hughley, 15 N.E.3d at 1004. Summary
judgment is rarely appropriate in negligence cases because they are “particularly
fact sensitive and are governed by a standard of the objective reasonable
person—one best applied by a jury after hearing all of the evidence.” Rhodes v.
Wright, 805 N.E.2d 382, 387 (Ind. 2004) (internal citations and quotations
omitted).
II. Admissible Evidence
[10] As an initial matter, Mary alleges that Appellants rely on “mere speculation in
their statement of facts, argument, and appendix.” Appellee’s Brief at 10.
Specifically, Mary’s argument focuses on Appellants’ reliance on Detective
Sanderson’s affidavit in which he gives his “impressions” from his interviews
with Robert and Mary. See App. of Appellants, Vol. III at 85-86.
[11] In ruling on a motion for summary judgment, a trial court may only consider
material deemed appropriate by Indiana Trial Rule 56(E). Duncan v. Duncan,
764 N.E.2d 763, 766 (Ind. Ct. App. 2002), trans. denied. That rule provides:
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. Sworn or
certified copies not previously self-authenticated of all papers or
parts thereof referred to in an affidavit shall be attached thereto
or served therewith.
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The affidavit requirements of Trial Rule 56(E) are mandatory and a court
considering a summary judgment motion should disregard inadmissible
information contained in supporting or opposing affidavits. Id. The party
offering the affidavit into evidence bears the burden of establishing its
admissibility. Id.
[12] At the summary judgment hearing, Mary alleged that Detective Sanderson’s
speculations were based solely on inadmissible hearsay and violated the Indiana
Dead Man’s Statute, arguing:
Just to add an additional wrinkle to this case. It’s hearsay.
Whatever [Robert] told affidavit [sic] or told Detective Sanderson
what is more it’s in violation of the dead man [sic] statutes. He
passed away in February of two thousand seventeen. So you
need to have more evidence then [sic] [Robert] telling an Officer
two and a half years after the incident yeah I did molest someone
in the past. There is if they can point to any evidence from Mary
Whipple stated yes I knew that he had done this act prior to
December of two thousand nine after fifty hours of depositions, I
am still looking for it. It’s not there and that and I will leave it at
that.
Transcript, Volume I at 34-35.
[13] However, on appeal, although Mary employs a subheading titled, “Appellants
rely on hearsay and speculation as factual evidence,” Appellee’s Br. at 10, she
never advances an argument regarding hearsay or the Indiana Dead Man’s
Statute. Indiana Appellate Rule 46(A)(8) provides that the argument section of
the appellant’s brief must “contain the contentions of the appellant on the issues
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presented, supported by cogent reasoning,” along with citations to the
authorities, statutes, and parts of the record relied upon, and a clear showing of
how the issues and contentions in support thereof relate to the particular facts
under review. Because Mary failed to do so, she has therefore waived these
arguments.2 See, e.g., Reed v. Reid, 980 N.E.2d 277, 297 (Ind. 2012) (“Failure to
comply with this rule results in waiver of the argument on appeal.”).
[14] In place of those arguments, Mary alleges that Detective Sanderson’s use of the
word “impression” constitutes improper opinion testimony by a lay witness.
Appellee’s Br. at 10. “A mere general objection, or an objection on grounds
other than those raised on appeal, is ineffective to preserve an issue for appellate
review.” Raess v. Doescher, 883 N.E.2d 790, 797 (Ind. 2008). As such, we view
Mary’s somewhat casual comments regarding hearsay and the Indiana Dead
Man’s Statute as insufficient to preserve the error of improper opinion
testimony. Mary has therefore waived any objection and Detective Sanderson’s
affidavit may be considered. See Riggin v. Rea Riggin & Sons, Inc., 738 N.E.2d
2
Even if Mary had not waived the issue of the Indiana Dead Man’s Statute by failing to advance an
argument on appeal, the litigation involving Robert’s estate is not before us. See ¶ 5, supra; Ind. Code § 34-45-
2-4(a)(3) (the statute applies to suits or proceedings: “where a judgment or allowance may be made or
rendered for or against the estate represented by the executor or administrator”). Moreover, rather than
excluding evidence, the statute prevents a particular class of witnesses from testifying as to the claims against
the estate, Paullus v. Yarnelle, 633 N.E.2d 304, 308 (Ind. Ct. App. 1994), and there is no evidence that
Detective Sanderson is a “necessary party to the issue,” Ind. Code § 34-45-2-4(d) (providing that for a witness
to be incompetent to testify, with minor exceptions, they must be both “a necessary party to the issue or
record” and have an interest which is “adverse to the estate”). Because Detective Sanderson would neither
gain, nor lose, by the direct legal operation of the judgment, he does not have an interest which renders him
incompetent to testify. See Fisher v. Estate of Haley, 695 N.E.2d 1022, 1028 (Ind. Ct. App. 1998) (holding that
although the plaintiff was not a direct party to the action, because he stood to gain from a judgment for
retained corporate earnings, he was therefore a “party to the issue”).
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292, 306 n.9 (Ind. Ct. App. 2000) (concluding that we may consider affidavits
regardless of impropriety where party failed to adequately object to their
admission).
[15] Waiver notwithstanding, we do not view Deputy Sanderson’s “impression”
statement as improper opinion testimony. Appellee’s Br. at 10. Mary
seemingly confines this argument to one instance: that it was Detective
Sanderson’s “impression that, prior to December 20, 2009, Robert B. Whipple
informed Mary Whipple that he that he molested a child.” App. of Appellants,
Vol. III at 85. Opinion testimony by a lay witness is limited to those opinions
rationally based on some combination of the witness’s own personal
observation, knowledge, and past experience. Ackles v. Hartford Underwriters Ins.
Corp., 699 N.E.2d 740, 743 (Ind. Ct. App. 1998), trans. denied. “Lay witness
opinion testimony must not only be based on the personal perception of the
witness, it also must be ‘rationally’ based on that perception. Thus, speculation
or testimony based on improper inferences is inadmissible.” Id.
[16] Here, Mary argues that Detective Sanderson does not have personal knowledge
that “prior to December 20, 2009,” Robert informed Mary that he molested a
child. Appellee’s Br. at 10. In context, immediately preceding that statement,
Detective Sanderson stated that “Robert E. Whipple informed me that he had
told his wife Mary Whipple that he had molested a girl in the past.” App. of
Appellants, Vol. III at 85. Thus, the issue becomes only whether Robert told
Mary that information prior to December 20, 2009—the date of the first
molestation underlying Appellants’ cause of action.
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[17] In Satterfield v. State, our supreme court explained:
Helpful opinions are not exclusive to experts or skilled witnesses.
Any witness “not testifying as an expert”—whether an ordinary
lay witness or a skilled witness—may testify “in the form of an
opinion” if it is “(a) rationally based on the perception of the
witness and (b) helpful to a clear understanding of the witness’s
testimony or determination of a fact in issue.” Ind. Evidence
Rule 701. “The requirement that the opinion be ‘rationally
based’ on perception simply means that the opinion must be one
that a reasonable person could normally form from the perceived
facts,” Davis v. State, 791 N.E.2d 266, 268 (Ind. Ct. App. 2003),
trans. denied, which are facts received “directly through any of the
[witness’s own] senses,” Ashworth v. State, 901 N.E.2d 567, 572
(Ind. Ct. App. 2009) (quoting Kubsch v. State, 784 N.E.2d 905,
922 (Ind. 2003) (defining “perception” under Evidence Rule
701)), trans. denied. And the witness’s opinion is “helpful” “if the
testimony gives substance to facts, which were difficult to
articulate.” McCutchan v. Blanck, 846 N.E.2d 256, 262 (Ind. Ct.
App. 2006).
33 N.E.3d 344, 352 (Ind. 2015).
[18] Here, Detective Sanderson’s “impression” is both rationally based on his
perception and helpful to a clear understanding of his testimony. Indeed, even
absent an express statement, there are countless context clues in the course of a
conversation from which the recipient of information can determine, or at least
opine, the order in which events occurred. Mary argues, however, that this
“impression” is not rational considering Mary’s and Robert’s subsequent
testimony—referring to the fact that both Mary and Robert denied having any
such conversation. But this is no matter. As noted above, a statement is
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rational if a reasonable person could form the opinion from the perceived facts
and we need not look to other testimony to determine whether the opinion is
consistent. Davis, 791 N.E.2d at 268. Therefore, even if Mary had not waived
this issue for our review, Detective Sanderson’s “impression” would
nevertheless be admissible evidence for the trial court’s evaluation on summary
judgment.
III. Negligent Supervision
[19] Having concluded Appellants’ designated evidence was admissible, we turn to
Appellants’ claim that the trial court improperly granted summary judgment to
Mary on the issue of negligence. We agree.
[20] Appellants advance two general theories of negligence against Mary: (1)
negligent supervision; and (2) premises liability. See App. of Appellants, Vol. II
at 18-19. For all claims of negligence, a plaintiff must show a duty owed to the
plaintiff by the defendant, a breach of that duty, and a compensable injury
proximately caused by the breach. Kroger Co. v. Plonski, 930 N.E.2d 1, 6 (Ind.
2010). We begin with negligent supervision.
[21] At the core of this appeal is whether Mary owed Appellants a duty of care
because, “[a]bsent a duty, there can be no breach and, therefore, no recovery in
negligence.” Bowman ex rel. Bowman v. McNary, 853 N.E.2d 984, 990 (Ind. Ct.
App. 2006) (citation and quotation omitted). Generally, the existence of a duty
is a pure question of law appropriate for disposition by summary judgment.
Ind. Dep’t of Transp. v. Howard, 879 N.E.2d 1119, 1122 (Ind. Ct. App. 2008).
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However, where factual questions are interwoven, the existence of a duty may
be a mixed question of law and fact to be determined by the fact-finder. Id.
A. Waiver
[22] As a preliminary matter, Mary alleges that the Appellants waived arguments
regarding “in loco parentis, custodians, and assumed duty” pertaining to the
claim of negligent supervision because they “were not properly raised at the
trial court level.” Appellee’s Br. at 7.
[23] It is well established that Appellants “may not change [their] theory on appeal
and argue an issue that was not properly presented to the trial court.” Pardue v.
Smith, 875 N.E.2d 285, 289-90 (Ind. Ct. App. 2007). “Nor may a party raise a
new issue on appeal under the cloak of evidence relevant to a similar, yet
distinct issue that was properly pled before the trial court.” Id. This is based on
notions of fairness which require an opposing party have notice of an issue
which was not previously pleaded at the trial court level. Id.
[24] We have explained, however:
The rule that parties will be held to trial court theories by the
appellate tribunal does not mean that no new position may be
taken, or that new arguments may not be adduced; all it means is
that substantive questions independent in character and not
within the issues or not presented to the trial court shall not be
first made upon appeal. Questions within the issues and before
the trial court are before the appellate court, and new arguments
and authorities may with strict propriety be brought forward.
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Dedelow v. Pucalik, 801 N.E.2d 178, 183-84 (Ind. Ct. App. 2003) (quotation
omitted) (agreement expressed by Wagner v. Yates, 912 N.E.2d 805, 811 n.3
(Ind. 2009)).
[25] With the exception of in loco parentis, which was not adequately developed until
Appellants’ reply brief, we conclude that Appellants sufficiently raised the
issues they now argue on appeal. See Felsher v. Univ. of Evansville, 755 N.E.2d
589, 593 n.6 (Ind. 2001) (noting that appellants are not permitted to present
new arguments in their reply briefs, and any argument an appellant fails to
adequately raise in their initial brief is waived for appeal). Accordingly,
Appellants have not waived the remaining arguments.
B. Duty
[26] Returning to the core of this appeal—the element of duty—Mary argues that to
determine whether a duty existed, we must look to the three-part balancing test
originally outlined in Webb v. Jarvis: (1) the relationship between the parties; (2)
the foreseeability of harm; and (3) public policy concerns. 575 N.E.2d 992, 995-
97 (Ind. 1991). However, as our supreme court has long held and Appellants
now argue, “a judicial determination of the existence of a duty is unnecessary
where the element of duty has already been declared or otherwise articulated.”
Rogers v. Martin, 63 N.E.3d 316, 321 (Ind. 2016) (quotation and citation
omitted). Here, we conclude that genuine questions of material fact remain
regarding (1) whether Mary possessed a duty of care as a person to whom the
care of a child was entrusted; and/or (2) whether Mary assumed a duty a care.
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1. Entrusted with the Care of a Child
[27] Appellants first allege, “The duty of a person who assumes custody of a child to
exercise reasonable care for the safety of the child has already been declared
and is well established in this state and throughout the country.” Br. of
Appellants at 13. Indeed, Indiana law recognizes a duty of care on behalf of a
person to whom the care of a child is entrusted. See, e.g., Vetor by Weesner v.
Vetor, 634 N.E.2d 513, 515 (Ind. Ct. App. 1994) (noting that child’s grandfather
“owed her a duty of reasonable care as the person to whom her care had been
entrusted.”). “The duty exists whether or not the supervising party has agreed
to watch over the child for some form of compensation.” Davis v. LeCuyer, 849
N.E.2d 750, 757 (Ind. Ct. App. 2006), trans. denied.
[28] In Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011), a sixteen-year-old
accompanied her grandfather to a golf outing with the permission of her
mother. Grandfather then volunteered granddaughter, who was unfamiliar
with the sport of golf, to operate a beverage cart during the golf outing. After
making several trips around the golf course, granddaughter was struck in the
mouth with an errant tee-ball, injuring her mouth, jaw, and teeth.
Granddaughter sued her grandfather alleging, inter alia, negligent supervision
and, in turn, grandfather argued that he did not owe his granddaughter a duty
of care. The trial court granted summary judgment in favor grandfather and we
affirmed on appeal.
[29] On transfer, our supreme court declined grandfather’s invitation to apply
Webb’s three-part balancing test and instead relied upon the “well recognized
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duty in tort law that persons entrusted with children . . . have a special
responsibility by the common law to supervise their charges.” Id. at 410. The
court then concluded that a duty existed because granddaughter “was explicitly
entrusted to her grandfather’s care and supervision by her mother.” Id.
[30] Here, it remains a question of fact whether Mother entrusted Child to Mary’s
care and supervision. See Ind. Dep't of Transp., 879 N.E.2d at 1122 (noting the
existence of a duty may be a mixed question of law and fact). Mother made the
arrangements for Child to stay at the Whipples’ home on the phone with Mary
and Mary repeatedly invited Child to stay at the home and went so far as to
give Child her own room at the residence. Mary told Mother that it was “all
right” for Child to be with Robert until she returned home from work and that
she would be home shortly after Child was dropped off. App. of Appellants,
Vol. III at 50. On these facts, a reasonable factfinder could conclude that
Mother entrusted Child’s care and supervision to Mary, her own mother, and
not to Robert.
2. Assumed Duty
[31] Alternatively, a factfinder could reasonably conclude that Mary assumed a duty
of care. In Yost v. Wabash College, our supreme court explained:
“A duty of care may . . . arise where one party assumes such a
duty, either gratuitously or voluntarily. The assumption of such
a duty creates a special relationship between the parties and a
corresponding duty to act in the manner of a reasonably prudent
person.” Delta Tau Delta, [Beta Alpha Chapter v. Johnson, 712
N.E.2d 968, 975 (Ind. 1999)] (alteration in original) (quoting
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Plan–Tec, Inc. v. Wiggins, 443 N.E.2d 1212, 1219 (Ind. Ct. App.
1983)), trans. not sought. The assumption of such a duty requires
affirmative, deliberate conduct such that it is “apparent that the
actor . . . specifically [undertook] to perform the task that he is
charged with having performed negligently, ‘for without the
actual assumption of the undertaking there can be no correlative
legal duty to perform that undertaking carefully.’” Lather v. Berg,
519 N.E.2d 755, 766 (Ind. Ct. App. 1988) (quoting Blessing v.
United States, 447 F. Supp. 1160, 1188-89 (E.D. Pa. 1978)), reh'g
and trans. denied; see also King v. Northeast Sec., Inc., 790 N.E.2d
474, 486-87 (Ind. 2003) (quoting Lather). Where “the record
contains insufficient evidence to establish such a duty, the court
will decide the issue as a matter of law.” Delta Tau Delta, 712
N.E.2d at 975. The liability for the breach of assumed duty is
expressed in the Restatement (Third) of Torts: Physical and
Emotional Harm § 42 (2012), which states:
An actor who undertakes to render services to another and
who knows or should know that the services will reduce
the risk of physical harm to the other has a duty of
reasonable care to the other in conducting the undertaking
if:
(a) the failure to exercise such care increases the risk
of harm beyond that which existed without the
undertaking, or
(b) the person to whom the services are rendered or
another relies on the actor’s exercising reasonable
care in the undertaking.
Thus, to impose liability resulting from breach of assumed duty,
it is essential to identify and focus on the specific services
undertaken. Liability attaches only for the failure to exercise
reasonable care in conducting the “undertaking.”
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3 N.E.3d 509, 517 (Ind. 2014).
[32] Mary argues the record contains insufficient evidence to establish a specific
assumed duty, other than a “vague claim” of failure to provide care, and urges
the application of our decision in Merchants Nat’l Bank v. Simrell’s Sports Bar &
Grill, Inc., 741 N.E.2d 383 (Ind. Ct. App. 2000). Appellee’s Br. at 18. Although
Mary’s argument is correct in the sense that we must “focus on the specific
services undertaken,” Yost, 3 N.E.3d at 517, we nevertheless find the designated
evidence sufficient to create a question of fact for the jury.
[33] In Merchants National Bank, the plaintiff was shot and killed by another bar
patron shortly after leaving a bar. After his death, his estate sued the bar
alleging, inter alia, that the bar assumed a duty to protect its patrons from the
criminal acts of third persons. In finding no assumed duty, we concluded:
there is no designated evidence that [the bar], through affirmative
conduct or agreement, gratuitously undertook a duty to protect
[the plaintiff] from the unforeseeable criminal act of a third-party.
The Administrator points to evidence that [the bar] provided
security for its patrons on Thursday, Friday and Saturday nights
when it featured a band. However, it is undisputed that [the
plaintiff] was shot on a Tuesday night. The evidence is
insufficient to establish, as a matter of law, that [the bar] assumed
a duty to protect [the plaintiff] from [the] criminal act.
741 N.E.2d at 388.
[34] Here, we may generally categorize Mary’s assumed duty as one to protect Child
from the foreseeable criminal attacks of third parties. The facts underlying
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Appellants’ assumed duty argument are essentially the same as those
underlying whether Mary had a duty as a person to whom the care of a child
was entrusted. Similarly, the designated facts are sufficient to create a question
of fact as to whether Mary engaged in “affirmative, deliberate conduct” such
that it was apparent that she specifically undertook to protect Child from a
foreseeable criminal attack. Yost, 3 N.E.3d at 517; see also Merchants Nat’l Bank,
741 N.E.2d at 388 (noting the “existence and extent” of an assumed duty “is
ordinarily a question of fact for the trier of fact”). For, if a factfinder so
concludes, this assumption of duty would create “a special relationship between
the parties and a corresponding duty to act in the manner of a reasonably
prudent person.” Yost, 3 N.E.3d at 517.
[35] Underlying our decisions in many assumption of duty cases is our reluctance to
impute broad definitions of duty that essentially render a party the guarantor of
another’s safety. See Hous. Auth. of City of South Bend v. Grady, 815 N.E.2d 151,
160 (Ind. Ct. App. 2004); Merchants Nat’l Bank, 741 N.E.2d at 389; Fast Eddie’s v.
Hall, 688 N.E.2d 1270, 1274 (Ind. Ct. App. 1997), trans. denied. This concern,
however, is not present where a party takes affirmative action in creating a
foreseeable harm—as is alleged here. Accordingly, we conclude questions of
fact remain regarding whether Mary assumed a duty to protect Child from the
foreseeable criminal attacks of third parties.
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C. Breach
[36] Turning to the second element of negligence—breach—Appellants allege this
too remains a question of fact. We agree.
[37] “The question of the breach of a duty is usually one for the trier of fact.” Cox v.
Paul, 828 N.E.2d 907, 911 (Ind. 2005). “However, if any reasonable jury would
conclude that a specific standard of care was or was not breached, the question
of breach becomes a question of law for the court.” Id. at 912.
[38] First, in the context of a duty of care on behalf of a person to whom the care of
a child is entrusted, we return to our discussion of Pfenning, where a sixteen-
year-old accompanied her grandfather to a golf outing and was struck with an
errant golf ball. 947 N.E.2d at 397. In reversing the trial court’s grant of
summary judgment, our supreme court explained:
While the mechanism of her injury, being struck by an errant golf
ball, is not an unusual risk to adults on a golf course, a possible
viable claim for breach of duty is nevertheless shown by the
particular circumstances of the present case. The grandfather
does not challenge the facts and inferences indicating that he was
aware of the plaintiff's age, her lack of familiarity with golf, and
particularly her lack of awareness of the risk of injury from
wayward golf balls. The designated evidence does not establish
that the plaintiff's mother was aware of and agreed to her
daughter’s exposure to such risks. As to the issue of breach of
duty, whether it was reasonable for him to subject her to such
risks depends upon genuine issues of fact for determination at
trial.
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Id. at 410. Although the mechanism of injury here is quite different from that of
Pfenning, we find its reasoning persuasive regarding negligent supervision of a
child and its accompanying standard of care.
[39] Taking the facts, as we must, in favor of Appellants, the designated evidence
supports a finding that Mary breached her duty of care when she allowed Child
to be left alone with an individual, indeed her husband, whom she knew to
have previously molested a child. Perhaps more importantly, however,
knowing this past, Mary reassured Mother that it was “all right” for Child to be
left alone with Robert until she returned home from work in Indianapolis. App.
of Appellants, Vol. III at 50. And, like Pfenning, the evidence fails to establish
that Mother was aware of and agreed to Child’s exposure to such risks and a
determination of whether it was reasonable for Mary to subject Child to such
risks “depends upon genuine issues of fact for determination at trial.” Id. at
410.
[40] As to breach of an assumed duty, Mary argues simply that “absent a duty, there
can be no breach.” Appellee’s Br. at 20. However, in her motion for summary
judgment, Mary relied on Restatement (Second) of Torts Section 3153 for the
proposition that generally a person has no duty to control the conduct of a third
3
There is no duty to control the conduct of a third person as to prevent him from causing physical harm to
another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon
the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to
protection.
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person, nor to warn those endangered by such conduct, in the absence of a
“special relationship” either to the third person or to the victim. Appellants’
App., Vol. II at 216-17.
[41] Finding no Indiana precedent directly on point, we turn to Pamela L. v. Farmer,
112 Cal. App. 3d 206 (1980), where the Second District (Division 5) of the
California Courts of Appeal addressed an analogous factual situation and faced
a similar argument on appeal. There, three minors sued a husband and wife
alleging, inter alia, negligence arising from husband’s sexual molestation of the
minors in their home. The minors alleged that wife already knew of husband’s
prior history of molesting women and children but nevertheless encouraged and
invited plaintiffs to use the swimming pool at her house and told plaintiffs’
parents that it was safe for their children to play at her house while she was at
work and her husband was home. In holding that wife had assumed a “special
relationship,” the court explained:
Respondent cites the principle that generally a person has no
duty to control the conduct of a third person, nor to warn those
endangered by such conduct, in the absence of a “special
relationship” either to the third person or to the victim.
However, this rule is based on the concept that a person should
not be liable for “nonfeasance” in failing to act as a “good
Samaritan.” It has no application where the defendant, through
his or her own action (misfeasance) has made the plaintiff’s
position worse and has created a foreseeable risk of harm from
the third person. In such cases the question of duty is governed
by the standards of ordinary care.
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This latter principle is embodied in Restatement Second of Torts
section 302B which provides: “An act or an omission may be
negligent if the actor realizes or should realize that it involves an
unreasonable risk of harm to another through the conduct of the
other or a third person which is intended to cause harm, even
though such conduct is criminal.”
Here respondent did not merely fail to prevent harm to plaintiffs
from [her husband]. Respondent by her own acts increased the
risk of such harm occurring. According to the allegations . . .,
respondent “encouraged and invited” the children to play in her
swimming pool, prepared refreshments to “entice” the children,
and “encouraged the parents . . . to permit” the children to come
to her premises by telling them it would be perfectly safe for the
girls to swim when respondent was not there, because her
husband would be there. This was done, it is alleged, with
knowledge that [her husband] had molested women and children
in the past and that it was reasonably foreseeable he would do so
again if left alone with the children on the premises. By
encouraging and inviting the children to be alone with [her
husband] under circumstances where he would have peculiar
opportunity and temptation to commit such misconduct,
respondent could be held to have unreasonably exposed the
children to harm.
Id. at 209-10 (citations and footnote omitted).
[42] On these surprisingly similar facts, we find Pamela L.’s reasoning appropriate
here, too. Accordingly, the designated facts are sufficient to create a question of
fact as to whether Mary undertook a “special relationship” with Child and,
more importantly, whether Mary breached a duty of care by permitting—or
even encouraging—Child to be left alone with someone she may have known to
have molested a child in the past.
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D. Proximate Cause
[43] Finally, Appellants argue the trial court’s grant of summary judgment was
inappropriate because proximate causation remains a question of fact. Again,
we agree.
[44] A negligent act is said to be the proximate cause of an injury “if the injury is a
natural and probable consequence, which in the light of the circumstances,
should have been foreseen or anticipated.” Bader v. Johnson, 732 N.E.2d 1212,
1218 (Ind. 2000).
Proximate cause in Indiana negligence law has two aspects. The
first—causation in fact—is a factual inquiry for the jury. If the
injury would not have occurred without the defendant’s negligent
act or omission, there is causation in fact. A second component
of proximate cause is the scope of liability. That issue, which is
also for the trier of fact, turns largely on whether the injury “is a
natural and probable consequence, which in the light of the
circumstances, should have been foreseen or anticipated.” Under
this doctrine, liability may not be imposed on an original
negligent actor who sets into motion a chain of events if the
ultimate injury was not reasonably foreseeable as the natural and
probable consequence of the act or omission.
City of Gary v. Smith & Wesson, 801 N.E.2d 1222, 1243-44 (Ind. 2003) (citations
omitted).
[45] On appeal, Mary argues that Robert’s actions constituted “intervening criminal
act[s] of a third party” which broke the causal chain of liability as it relates to
Mary, Appellee’s Br. at 24, because the “willful, malicious, criminal act of a
third party is an intervening act which breaks the causal chain between the
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alleged negligence and the resulting harm.” Id. at 23-24 (quoting Fast Eddie’s,
688 N.E.2d at 1274).
[46] On this point, we turn to our supreme court’s decision in Frankenmuth Mut. Ins.
Co. v. Williams by Stevens, 690 N.E.2d 675 (Ind. 1997). There, a babysitter’s
husband molested one of the children in her care and while examining the
child’s claim of negligent supervision and the insurance company’s motion for
summary judgment based on exclusions in its policy, our supreme court
explained:
Where a person’s negligence creates a situation in which a third
party might commit an intentional tort or criminal act, the
negligence is not a proximate cause of any resulting injuries
unless the negligent person “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.” Restatement (Second) of Torts § 448 (1965); cf.
Hooks SuperX, Inc. v. McLaughlin, 642 N.E.2d 514, 520–21 (Ind.
1994) (holding as matter of law that voluntary and willful suicide
constitutes intervening cause). A factfinder in White’s case
would have had to decide (1) whether she was negligent and (2)
whether she knew or should have known that her husband would
molest [the child].
Id. at 678. Therefore, if it can be said that Mary realized or should have
realized the likelihood that such a situation might be created, and that Robert
might avail himself of the opportunity to commit such a tort or crime, then
Mary may still be found liable for her negligence. Id.
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[47] Here, we conclude that because the record contains conflicting evidence
regarding Mary’s role in Child being left alone with Robert and whether Mary
knew or should have known about Robert’s past, both components of
proximate cause—causation in fact and scope of liability—remain questions of
fact for the jury. Accordingly, the trial court’s grant of summary judgment was
inappropriate.4
Conclusion
[48] Because genuine questions of material fact remain regarding all three elements
of negligence, the trial court erred by granting summary judgment. We
therefore reverse the judgment of the trial court and remand for further
proceedings consistent with this opinion.
[49] Reversed and remanded.
Crone, J., and Bradford, J., concur.
4
Because we conclude genuine questions of material fact on the issue of negligent supervision remain, we
need not address the alternative negligence claim based on premises liability.
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