MEMORANDUM DECISION
ON REHEARING
Oct 06 2015, 8:43 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 October 6, 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
Court of Appeals of Indiana | Memorandum Decision on Rehearing 74A04-1501-PL-16 | Oct. 6, 2015 Page 1 of 3
Boys’ Club of Owensboro,
Kentucky, Inc.,
Appellees-Defendants
Baker, Judge.
[1] Appellee Cliff Hagan’s Boys’ Club (the Boys’ Club) has filed a petition for
rehearing, raising multiple arguments regarding our decision in this matter. We
grant the petition for the limited purpose of addressing the third argument
raised by the Boys’ Club.
[2] The Boys’ Club correctly points out that we erroneously relied on evidence
regarding ongoing name-calling that stems from depositions that were taken
when the Boys’ Club was not present. Moreover, the name-calling incidents
were not part of the amended complaint.
[3] In relevant part, Indiana Trial Rule 32(A) states that depositions “may be used
against any party who was present or represented at the taking of the deposition
. . . or against any party who had reasonable notice thereof . . . .” In this case,
the Boys’ Club was not present or represented at the deposition in question, nor
did it have reasonable notice thereof. As a result, the deposition testimony of
Grant and Janet Johnson may not be used to create a genuine issue of material
fact against the Boys’ Club. We therefore strike the portions of our decision
that rely on such evidence with respect to the Boys’ Club.
Court of Appeals of Indiana | Memorandum Decision on Rehearing 74A04-1501-PL-16 | Oct. 6, 2015 Page 2 of 3
[4] Our conclusion herein does not change the outcome of the appeal, however,
inasmuch as there was a wealth of other evidence creating issues of material
fact with respect to the Boys’ Club. Specifically, the following incidents
occurred during the Boys’ Club after school program: (1) in May 2011, Myah
pulled a jump rope around Grant’s neck in a malicious manner; (2) during the
2010-11 school year, Jarron broke Grant’s Nintendo DS; and (3) in September
2011, Desmond pulled Grant’s legs while Grant was swinging, causing severe
bruising to Grant’s legs. The Boys’ Club did not take any remedial action with
respect to the student-to-teacher ratio as a result of these incidents. As we
stated in our original decision, reasonable factfinders could differ as to whether
the actions taken by the Boys’ Club went far enough to meet a standard of
reasonable and ordinary care. It is for a factfinder to resolve this question;
consequently, summary judgment was inappropriately granted and the
judgment of the trial court is reversed and remanded.
[5] In all respects aside from the limited discussion herein, we deny the Boys’ Club
petition for rehearing.
[6] Najam, J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision on Rehearing 74A04-1501-PL-16 | Oct. 6, 2015 Page 3 of 3