Grant Johnson, Minor Child, by his Mother and Father, Don Johnson and Janice Johnson v. South Spencer School Corp. and Cliff Hagan's Boys' Club of Owensboro, Kentucky, Inc. (mem. dec.)

MEMORANDUM DECISION
Aug 04 2015, 8:49 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stacy K. Newton SOUTH SPENCER SCHOOL
Jackson Kelly PLLC CORPORATION
Evansville, Indiana Crystal G. Rowe
Kightlinger & Gray, LLP
New Albany, Indiana
Krystal Lechner
Kightlinger & Gray, LLP
Evansville, Indiana
ATTORNEYS FOR APPELLEE
CLIFF HAGAN’S BOYS’ CLUB
Danny E. Glass
John J. Kreighbaum
Fine & Hatfield
Evansville, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Grant Johnson, Minor Child, by August 4, 2015
his Mother and Father, Don Court of Appeals Case No.
Johnson and Janice Johnson, 74A04-1501-PL-16
Appeal from the Spencer Circuit
Appellants-Plaintiffs,
Court
v. The Honorable Jonathan A. Dartt,
Judge

South Spencer School Cause No. 74C01-1205-PL-284
Corporation and Cliff Hagan’s

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 Boys’ Club of Owensboro,
Kentucky, Inc.,
Appellees-Defendants

Baker, Judge.

[1] Grant Johnson (Grant), by his mother, Janice Johnson (Janice), and his father,

Don Johnson (Don), appeals the trial court’s order granting summary judgment

in favor of South Spencer School Corporation (the School) and Cliff Hagan’s

Boys’ Club of Owensboro, Kentucky (Boys’ Club). The Johnsons filed a

complaint against the School and the Boys’ Club for negligence stemming from

multiple instances of verbal and physical bullying by other students against

Grant. The trial court found that there were no genuine issues of material fact

and that the School and the Boys’ Club were entitled to judgment as a matter of

law. We disagree, finding issues of material fact rendering summary judgment

inappropriate. We reverse and remand for further proceedings.

Facts
[2] Grant was a second grade student at Rockport Elementary School during the

2010-11 school year and a third grade student during the 2011-12 school year.

During recess times at school, one teacher and one teacher’s aide were assigned

to monitor three classes of students on the playground, which generally equated

to approximately 60 students.

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 Second Grade: At School
[3] From August 2010 through February 2011, Grant was allegedly bullied by

Preston, a classmate. Specifically, Preston frequently called Grant names and

hit him. Janice and Don spoke with Grant’s teacher and Scot French, the

school principal, regarding these incidents. The Johnsons allege that Preston

picked on Grant on a daily basis.

[4] In February 2011, as Grant’s class was lining up to go inside after recess,

Preston turned around and scratched Grant on the face. Grant has a scar on his

face as a result of the incident. Grant reported the incident to his teacher, who

told him he should have reported it to the recess teacher. Janice also spoke

with French about the altercation.

[5] In March 2011, Preston grabbed Grant’s arm and squeezed his fingernails into

Grant. Janice reported the incident to French, who followed up with the boys.

Preston admitted to the allegation. French made Preston apologize to Grant,

took away Preston’s recess for a week, and told the boys they were not allowed

to play together for the remainder of the school year. The boys were also

physically separated in their classroom and were not permitted to stand in line

together.

[6] During that same period of time, Sebastien, another classmate, frequently stole

items out of Grant’s backpack. When Grant reported the thefts to his teacher,

she demanded proof of the theft. Grant subsequently felt that his teacher did

not trust him, so he stopped telling her when things happened to him.

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 Second Grade: At Boys’ Club
[7] The Boys’ Club, an entity entirely separate from the School, ran the after school

care program that Grant attended. During the after school program, multiple

kids frequently called Grant “fat” and “gay.” Grant reported the harassment to

employees of the Boys’ Club, who advised Grant to ignore the name-calling.

[8] At some point during second grade, Jarron, a fifth grade student, picked up

Grant’s handheld Nintendo DS and refused to give it back to Grant. The boys

argued over the DS, Jarron continued to refuse to return the DS to grant, and

the DS got broken during the struggle. Grant began crying and reported the

incident to Boys’ Club employees, who made Jarron sit in time out.

[9] In May 2011, Grant and Myah, a fifth-grade student, were playing jump rope

together. A Boys’ Club employee observed Myah “pull the rope around

[Grant’s] neck maliciously.” Appellants’ App. p. 247. Grant was left with a

rope burn around his neck, and received medical treatment as a result of the

incident.

Third Grade: At School
[10] In August 2011, during recess, Grant had given a Pokemon card to a friend to

hold. Preston took the card and refused to return it. Grant and another student

approached Preston to retrieve the card. Preston grabbed Grant on the wrist,

causing bruising, and Grant pushed Preston. Janice reported the incident to

Grant’s teacher. Grant and Preston had been deliberately assigned to different

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 third grade classrooms; after this incident, they were instructed to stay away

from each other during recess.

Third Grade: At Boys’ Club
[11] In September 2011, at the after school program, Grant was swinging on a

swingset when Desmond, a fifth grade student, pulled Grant’s leg. This action

caused Grant to spin and repeatedly hit the poles, causing severe bruising to his

legs. Desmond was one of the students who repeatedly called Grant “fat” and

“gay” on a near-daily basis.

[12] After the incident on the swings, the Johnsons decided that the School was no

longer a safe place for Grant. They transferred him to a private school in the

middle of his third grade year.

[13] On May 24, 2012, the Johnsons filed a complaint against the School and the

Boys’ Club for negligence. On December 12, 2013, the School filed a motion

for summary judgment, and on August 12, 2014, the Boys’ Club filed a motion

for summary judgment. The trial court summarily granted both motions on

December 16, 2014. The Johnsons now appeal.

Discussion and Decision

I. Standard of Review
[14] Our standard of review on summary judgment is well established:

We review summary judgment de novo, applying the same standard as
the trial court: “Drawing all reasonable inferences in favor of . . . the

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 non-moving parties, summary judgment is appropriate ‘if the
designated evidentiary matter shows that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment
as a matter of law.’ ” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.
2009) (quoting T.R. 56(C)). “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.” Id. (internal citations omitted).
The initial burden is on the summary-judgment movant to
“demonstrate [ ] the absence of any genuine issue of fact as to a
determinative issue,” at which point the burden shifts to the non-
movant to “come forward with contrary evidence” showing an issue
for the trier of fact. Id. at 761–62 (internal quotation marks and
substitution omitted). And “[a]lthough the non-moving party has the
burden on appeal of persuading us that the grant of summary
judgment was erroneous, we carefully assess the trial court’s decision
to ensure that he was not improperly denied his day in
court.” McSwane v. Bloomington Hosp. & Healthcare Sys., 916 N.E.2d
906, 909–10 (Ind. 2009) (internal quotation marks omitted).
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).

[15] Our Supreme Court has very recently cautioned that “[a]s long as competent

evidence has been designated in response to a summary judgment motion, . . .

‘weighing [the evidence]—no matter how decisively the scales may seem to

tip—[is] a matter for trial, not summary judgment.’” Stafford v. Szymanowski, 31

N.E.3d 959, 963 (Ind. 2015) (quoting Hughley, 15 N.E.3d at 1005-06). In other

words, if any weighing of evidence—of the facts—is required, then summary

judgment is inappropriate.

[16] It is well accepted that “[u]nder Indiana summary judgment procedure, a

nonmovant is not required to come forward with contrary evidence until the

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 party seeking summary judgment demonstrates the absence of a genuine issue

of material fact.” Kennedy v. Murphy, 659 N.E.2d 506, 508 (Ind. 1995). In other

words, “[m]erely alleging that the plaintiff has failed to produce evidence on

each element [of a cause of action] is insufficient to entitle the defendant to

summary judgment under Indiana law.” Deuitch v. Fleming, 746 N.E.2d 993

(Ind. Ct. App. 2001).

II. Cross-Appeal
[17] The School raises one argument on cross-appeal, which is that the trial court

improperly considered certain supplemental evidence designated by the

Johnsons in response to the School’s summary judgment motion. In

responding to the School’s summary judgment motion, the Johnsons timely

filed a brief and a volume of exhibits. A designation of specific facts that the

Johnsons believed supported a denial of summary judgment was included in

their brief. Specifically, the brief referred to specific pages contained in multiple

depositions. The volume of exhibits inadvertently omitted some of those

depositions, as the first draft of the document was completed before all

depositions were complete. When the Johnsons became aware of the omission,

they filed a supplemental volume of exhibits. The School had copies of all of

the depositions before the brief was filed, and no new testimony from those

depositions was designated other than that already cited in the brief.

[18] We see no reason to conclude that the trial court should have declined to

consider the Johnsons’ supplemental designation of evidence. The error was

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 inadvertent and the School suffered no prejudice as a result. Therefore, we

move on to consider the appeal.

III. Negligence
[19] To prove a negligence claim, a plaintiff must show that (1) the defendant owed

plaintiff a duty, (2) the defendant breached that duty, and (3) plaintiff’s injury

was proximately caused by the breach. Winfrey v. NLMP, Inc., 963 N.E.2d 609,

612 (Ind. Ct. App. 2012). Whether a defendant owes a duty of care to a

plaintiff is a question of law for the court to decide. Id. To determine whether a

duty exists, we must consider the relationship between the parties, the

reasonable foreseeability of harm to the person injured, and public policy

concerns. Yost v. Wabash College, 3 N.E.3d 509, 515 (Ind. 2014). “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,

which is best applied by a jury after hearing all the evidence.” Kramer v. Catholic

Charities of Diocese of Fort Wayne-S. Bend, Inc., 32 N.E.3d 227, 231 (Ind. 2015).

A. Duty
[20] The School and the Boys’ Club both concede that they owed Grant a duty of

care during school hours and after-school hours, respectively. All parties agree

that Miller v. Griesel, 261 Ind. 604, 308 N.E.2d 701 (Ind. 1974), controls. The

Miller Court held that there is “a duty for school authorities to exercise

reasonable care and supervision for the safety of the children under their

control. . . . [T]he relationship of school pupils and school authorities should

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 call into play the well recognized duty in tort law that persons entrusted with

children . . . have a special responsibility recognized by the common law to

supervise their charges.” Id. at 611, 308 N.E.2d at 706. This duty may, in some

instances, require the school “to anticipate and guard against conduct of

children by which they may harm themselves or others.” Id. at 612, 308 N.E.2d

at 706. The Miller Court also cautioned, however, that “schools are not

intended to be insurers of the safety of their pupils, nor are they strictly liable for

any injuries that may occur to them.” Id.

[21] In this case, therefore, it can be held as a matter of law that the School and the

Boys’ Club owed a duty “to exercise ordinary and reasonable care for the safety

of” Grant while he was in their care. Id.

B. Breach
[22] Next, we turn to the issue of breach of duty. Whether there has been a breach

of duty in a negligence action is generally a question of fact that is inappropriate

for resolution by summary judgment. Henderson v. Reid Hosp. and Healthcare

Servs., 17 N.E.3d 311, 320 (Ind. Ct. App. 2014), trans. denied. Only if all facts

are undisputed and only one inference can be drawn from those facts can the

issue of breach of duty be decided on summary judgment as a matter of law. Id.

[23] In this case, there are a number of incidents and ongoing behaviors that form

the basis of the Johnsons’ complaint, as well as actions taken by School officials

and Boys’ Club employees in response:

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  Ongoing name-calling during both school and after-school hours.
 Janice states that she reported the name-calling to School and Boys’
Club officials. They deny receiving any such information, so no
action was taken.
 At school in February 2011, Preston scratched Grant in the face, leaving
a scar.
 In response, Grant’s second grade teacher spoke to the class about
getting along and being nice to one another. She spoke with Preston
and Grant about proper behavior, reviewed the school behavior plan,
and took one recess away from Preston.
 At school in March 2011, Preston grabbed Grant’s arm and squeezed
with his fingernails.
 In response, French followed up with the students. Preston admitted
the allegations. French made Preston apologize, took away one week
of recess, and told the boys they could not play together for the rest of
the school year.
 Grant and Preston were also separated in the classroom and were not
permitted to stand in line together. Their teacher worked with the
class on thinking before reacting.
 After school in May 2011, Myah pulled a jump rope around Grant’s neck
in a malicious manner.
 In response, the Boys’ Club supervisor who observed the incident
notified Janice.
 During the 2010-11 school year, Sebastien stole items out of Grant’s
backpack.
 In response, Grant’s teacher demanded proof before searching a
particular backpack. She would tell the whole class that if the missing
item showed up, the class would get to have its last recess period.
Frequently, the item would then be “found.” The teacher instructed
the children not to steal from each other.
 Eventually, the teacher forbade the children from bringing outside
toys to school.
 After school during the 2010-11 school year, Jarron broke Grant’s
Nintendo DS.
 In response, Boys’ Club employees made Jarron sit in time out.

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  During school in August 2011, Preston refused to return a Pokemon card
to Grant and grabbed Grant on the wrist, causing bruising.
 In response, French spoke with the boys, who admitted to the
altercation. French stated that the boys could not play together
during the new school year.
 After school in September 2011, Desmond pulled Grant’s legs while
Grant was swinging, causing severe bruising to Grant’s legs.
 In response, the Boys’ Club director spoke to his staff, but they had
not written up the incident because Grant did not report it at the time
it occurred.

Neither the School nor the Boys’ Club took any remedial action with respect to

the student to teacher ratio during recess time or after-school hours.

Additionally, neither entity took any steps with respect to the verbal abuse

Grant was allegedly receiving on an ongoing basis.

[24] There is a genuine issue of material fact regarding whether the School and the

Boys’ Club were aware of the ongoing name-calling. Moreover, while the

School and the Boys’ Club addressed issues as they occurred, reasonable

factfinders could differ as to whether the actions they took went far enough to

meet a standard of reasonable and ordinary care. In other words, we believe

that the factfinder should resolve the question of whether the School and the

Boys’ Club breached their duty of care to Grant by failing to take additional,

remedial actions when it became apparent that there was an ongoing problem,

and/or by failing to provide adequate supervision. We express no opinion

about whether a breach actually occurred; instead, we merely find that issues of

fact remain that render this case inappropriate for resolution by summary

judgment.

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 C. Causation
[25] The final element of a negligence claim is causation. The defendant’s conduct

is the proximate cause of a plaintiff’s injury when the injury is “the natural and

probable consequence of the negligent act which, in light of the attending

circumstances, could have been reasonably foreseen or anticipated.” Arnold v.

F.J. Hab, Inc., 745 N.E.2d 912, 917 (Ind. Ct. App. 2001). Summary judgment is

almost always inappropriate on the issue of proximate cause. Florio v. Tilley,

875 N.E.2d 253, 255 (Ind. Ct. App. 2007). If, however, a case is plain and

undisputable, and only a single inference or conclusion may be drawn from the

evidence, the question of proximate cause may be determined as a matter of

law. Miller v. Bernard, 957 N.E.2d 685, 697 (Ind. Ct. App. 2011).

[26] Similar to the element of breach of duty, we find that whether the injuries

suffered by Grant were the natural and probable consequences of the School’s

and Boys’ Club’s failure to take further, remedial actions, and/or by failure to

provide adequate supervision, is best answered by a trier of fact. We cannot

find that there is only a single inference or conclusion to be drawn from the

evidence in this record.1

[27] We emphasize, again, our Supreme Court’s recent reminder “[a]s long as

competent evidence has been designated in response to a summary judgment

1
As with the element of breach, we express no opinion on whether any alleged breach of duty was the
proximate cause of Grant’s injuries. We merely find that the issue should be resolved by a factfinder.

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 motion, . . . ‘weighing [the evidence]—no matter how decisively the scales may

seem to tip—[is] a matter for trial, not summary judgment.’” Stafford, 31

N.E.3d at 963 (quoting Hughley, 15 N.E.3d at 1005-06). Bearing that in mind,

we can only find in this case that the trial court erred by granting summary

judgment in favor of the School and the Boys’ Club on the Johnsons’

complaint.

[28] The judgment of the trial court is reversed and remanded for further

proceedings.

Najam, J., and Robb, J., concur.

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