FILED
Apr 13 2017, 7:47 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE –
Kory T. Bell NEW CASTLE COMMUNITY
Federico & Bell SCHOOL CORPORATION
Hagerstown, Indiana John C. Trimble
Richard Andrew Young Neal Bowling
Greensburg, Indiana Lewis Wagner, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Wyatt Severance, April 13, 2017
Appellant-Plaintiff, Court of Appeals Case No.
33A01-1609-CT-2088
v. Appeal from the Henry Circuit
Court
New Castle Community School The Honorable Kit C. Dean Crane,
Corporation a/k/a New Castle Judge
Career Center, Trial Court Cause No.
and 33C02-1504-CT-23
Turner Melton,
Appellees-Defendants
Baker, Judge.
Court of Appeals of Indiana | Opinion 33A01-1609-CT-2088 | April 13, 2017 Page 1 of 13
[1] In 2013, Wyatt Severance and Turner Melton were both enrolled in a
vocational education program operated by the New Castle Career Center,
which is administered through the New Castle Community School Corporation
(the “School”). A physical altercation between the two students resulted in a
serious leg injury to Severance, who filed a civil complaint against the School,
alleging negligence. The School moved for summary judgment on two
grounds: first, that Severance was contributorily negligent in bringing about his
injuries, thereby barring any recovery, and second, that the School did not
breach its duty to Severance. During the summary judgment stage, Severance
designated an expert affidavit, which the School moved to strike. The trial
court granted the School’s motion to strike and the School’s motion for
summary judgment. Finding that the trial court erred in granting the School’s
motion to strike and that there are genuine issues of material fact as to whether
the School breached its duty and whether Severance was contributorily
negligent precluding summary judgment, we reverse and remand.
Facts 1
[2] In the fall of 2013, Severance and Melton were two of sixteen students in the
School’s building trades program. Severance, who attended Hagerstown High
School, was seventeen years old and a first year in the program; Melton, who
1
We held oral argument on March 23, 2017, at Indiana University East in Richmond. We thank counsel for
their advocacy and extend our appreciation to the faculty, staff, and students for their hospitality and
thoughtful post-argument questions.
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attended Blue River Valley High School, was nineteen years old and a returning
second year. The program took place at a residential home construction site;
on school days, the students drove from their respective schools to the
construction site and worked for three hours each afternoon. The teacher,
Trevor Stout, who had taught in the program for ten years prior to this incident,
would assign tasks, and the students would disperse throughout the site to work
on them. John Edington was Stout’s aide. Stout created a structure where
second-year students would give directions to first-year students.
[3] Students described Melton as a “hothead” with anger issues, and they would
avoid Melton because of his verbal abuse and harassment. Appellant’s App.
Vol. II p. 89, 110-12, 114. The students believed that Melton enjoyed picking
fights with other students. One student had asked Stout whether he could be
kept separate from Melton because of Melton’s verbal abuse, personal
interactions, physical size, and attitude; Stout granted the student’s request.
Stout remembered Melton as a bossy and dominant person in the group. He
recognized that Melton would become frustrated if Stout did not answer his
questions to his satisfaction, and he saw Melton throw tools down and raise his
voice on the job site.
[4] Severance and Melton did not interact before their altercation. During the
program, Severance observed Melton belittling his work partners and
classmates in the presence of others, ordering other students to go to the tool
shed to get his tools, and taking credit for other students’ work. Severance did
not observe Melton make physical contact with anyone in the program; he did
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not know whether Melton had been involved in a physical altercation with
another student in the program or at Blue River High School; and he was not
aware of Melton making threats of physical harm to other students.
[5] Around 12 p.m. on November 26, 2013, Melton stole Severance’s bag of
sunflower seeds out of Severance’s hands as Severance was waiting for class to
begin. Stout assigned six students, including Severance and Melton, to clean
the basement. Melton came down the steps to the basement giving orders to
the other students; he told the other students that they were not working hard
enough. Severance asked Melton, “What is your issue, man?” and said to him,
“Hey, I just want you to stop.” Appellant’s App. Vol. II p. 80-81, 113. Melton
approached and started threatening Severance, asking him, “What are you
going to do about it?” Appellant’s App. Vol. II p. 80-81. Melton pushed
Severance back about seven steps and pinned him against a wall while shoving
a broom to Severance’s throat. Severance said, “I don’t know what I’m going
to do about it.” Appellant’s App. Vol. II p. 81.
[6] Melton then hit Severance with the broom. Severance managed to get the
broom from Melton and swung the brush end of it at Melton from about six feet
away. Melton then knocked the broom from Severance’s hands and ran toward
Severance; Severance did not run toward Melton. Melton got behind
Severance, blocked his vision, and wrapped his right leg around Severance’s left
leg and pulled Severance over. Severance felt a “pop.” Appellant’s App. Vol.
II p. 83. He collapsed on the ground and blacked out. Severance suffered a
tibial plateau fracture that required surgery and resulted in a permanent injury.
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Melton walked away, left the basement, and left the job site. The altercation
lasted no more than two and one-half minutes.
[7] Severance filed a civil complaint against Melton and the School, alleging
negligence.2 On April 19, 2016, the School moved for summary judgment on
two grounds: first, that Severance was contributorily negligent in bringing
about his injuries, thereby barring any recovery, and second, that the School did
not breach its duty to Severance. On May 13, 2016, Severance opposed the
School’s motion, requested a hearing, and designated evidence, including an
expert affidavit of Dr. Jean Peterson. The trial court scheduled the summary
judgment hearing for August 5, 2016.
[8] On August 1, 2016, the School moved to strike Dr. Peterson’s affidavit, arguing
that it contained conclusory opinions unsupported by facts or evidence, lacked
explanation of the methodologies that she used to reach her conclusions, and
included a conclusion of law that the School was negligent. On August 5, 2016,
Severance opposed the School’s motion to strike; also on August 5, 2016, the
trial court struck the affidavit without argument. During the summary
judgment hearing, Severance requested the court to reconsider its strike, but the
court did not grant his request. On August 8, 2016, the trial court entered
summary judgment in favor of the School. Severance now appeals.
2
Melton is not a party to this appeal.
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Discussion and Decision
[9] Severance presents two issues on appeal: first, that the trial court erred by
striking Dr. Peterson’s affidavit, and second, that the trial court erred by
granting summary judgment.
I. Motion to Strike
[10] Severance argues that the trial court erred by striking Dr. Peterson’s affidavit
because the School’s motion to strike was untimely and because striking it was
against the logic and facts before the court.
[11] The decision to admit or exclude evidence lies within the sound discretion of
the trial court. E.g., Morse v. Davis, 965 N.E.2d 148, 155 (Ind. Ct. App. 2012).
We will reverse only if the trial court’s decision “is clearly against the logic and
effect of the facts and circumstances before the court or the reasonable,
probable, and actual deductions to be drawn therefrom.” Id.
[12] Severance designated Dr. Peterson’s affidavit as evidence in his opposition to
summary judgment in order to help the trial court understand the nature and
culture of bullying. In her affidavit, Dr. Peterson presented fifteen ways
through which the altercation could have been prevented. She discussed
bullying culture, how it was present in this school, and the appropriate level of
supervision for this group of students. Her curriculum vitae, which outlines her
experience, training, and education, was attached to her affidavit.
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[13] When the School filed its motion to strike the affidavit and argued in front of
the trial court, it contended that Dr. Peterson lacked proper credibility as an
expert. At oral argument, the School argued that Dr. Peterson’s affidavit was
not relevant to this case because it did not address the dispositive issues, one of
which, according to the School, is whether the School failed to adequately
supervise the program in which the students were participating. We agree with
the School that one of this case’s dispositive issues is whether the School
provided an appropriate level of supervision to the students, but unlike the
School, we find Dr. Peterson’s affidavit directly relevant to this question. Dr.
Peterson presented fifteen ways or actions that the School could have taken to
provide adequate supervision and possibly prevent the altercation and injury.
She also discussed what the teachers should have been aware of—such as the
group’s interpersonal interactions and Melton’s behavior—in order to provide
that supervision. Therefore, Dr. Peterson’s expertise could assist the trial court
in addressing the dispositive issues of the case. We conclude that the trial court
erred in striking Dr. Peterson’s affidavit.
[14] Because we conclude, based on the substantive merits of the issue, that the trial
court erred in striking the affidavit, we need not discuss Severance’s other
argument that the School’s motion to strike was untimely.
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II. Summary Judgment
[15] Severance argues that summary judgment should not have been granted
because the School did not negate any element of Severance’s claims and
because Severance was not contributorily negligent as a matter of law.
[16] Our standard for 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 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).
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Summary judgment is
rarely appropriate in negligence actions because negligence cases are
particularly fact sensitive and are governed by a standard of the objective
reasonable person. M.S.D. of Martinsville v. Jackson, 9 N.E.3d 230, 235 (Ind. Ct.
App. 2014), abrogated on other grounds. This standard is best applied by a jury
after hearing all of the evidence. Id.
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A. Negligence
[17] The tort of negligence is comprised of the following three elements: (1) a duty
owed to the plaintiff by the defendant; (2) a breach of that duty by the
defendant; and (3) an injury to the plaintiff proximately caused by that breach.
Ashcraft v. Ne. Sullivan Cty. Sch. Corp., 706 N.E.2d 1101, 1103 (Ind. Ct. App.
1999). To prevail on a motion for summary judgment in a negligence action,
the defendant must demonstrate that the undisputed material facts negate at
least one of the elements essential to plaintiff's claim or that the claim is barred
by an affirmative defense. Id.
[18] Indiana schools’ duty to protect their students “has been necessarily defined by
the specific circumstances of each case.” McClyde v. Archdiocese of Indianapolis,
752 N.E.2d 229, 233 (Ind. Ct. App. 2001). “[S]ummary judgment is especially
inappropriate where the critical question for resolution is whether the defendant
exercised the requisite degree of care under the factual circumstances.” Id.
(citation and quotation marks omitted). To show that the School breached its
duty to him, Severance is required to show that (1) Melton had a propensity
toward violence; (2) the School was aware of Melton’s propensity; (3) the
School failed to adequately supervise the students; and (4) the School’s
inadequate supervision resulted in Severance’s injuries. Id.
[19] In Miller v. Griesel, 261 Ind. 604, 613, 308 N.E.2d 701, 707 (1974), a case
involving a child’s injuries sustained during recess at school, our Supreme
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Court recognized a duty for school authorities to exercise reasonable care for
the safety of their children. Our Supreme Court wrote:
Of course what constitutes due care and adequate supervision
depends largely upon the circumstances surrounding the incident
such as the number and age of the students left in the classroom,
the activity in which they were engaged, the duration of the
period in which they were left without supervision, the case of
providing some alternative means of supervision and the extent
to which the school board has provided and implemented
guidelines and resources to insure adequate supervision.
Id. The court held that the trial court’s grant of judgment on the evidence at the
end of plaintiff’s case was proper due to the plaintiff’s failure to present a prima
facie showing of the school’s breach of duty. Id.
[20] In McClyde, a student made a comment to his classmate, who then physically
attacked the student. 752 N.E.2d at 231. The student filed a civil complaint
against the school, and when he opposed summary judgment, he filed affidavits
from his parents. Id. The school filed a motion to strike the mother’s affidavit,
alleging that it was based on hearsay, inadmissible opinion testimony, and
testimony lacking a proper foundation for personal knowledge. Id. at 234. The
trial court did not strike any of the statements in question, which resulted in
conflicting designated evidence. Id. at 235. This Court found that the affidavit
created genuine issues of material fact, and we reversed the trial court’s grant of
summary judgment in favor of the school. Id.
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[21] Under Miller, the requisite degree of due care in this case is dictated by the
specific circumstances—the number and age of the students in the program, the
work in which they were engaged, the duration of the period in which they
were left without supervision, and the guidelines and resources provided to
insure adequate supervision. We recognize that this vocational program
provides its students with the opportunity to work independently in a
professional setting. Nonetheless, a question of fact remains as to whether the
degree of supervision in the School was adequate.
[22] Designated evidence exists as to what Stout knew about Melton’s behavior and
the culture that pervaded the vocational program, making it possible for Stout
or the School to be unaware of what an adequate level of supervision would
even be for this program. Brad Gregory, one of the other students who was
working in the basement, stated that he “never said anything to Mr. Stout,” that
he could tell that Stout “was very busy and this led me to try most things
without bothering him,” and that “[a] lot went on behind Mr. Stout’s back that
we did not tell him about, for example, e-cigarettes, smokeless tobacco, and
cigarettes.” Appellant’s App. Vol. II p. 111. Gregory also stated that “[i]f at all
possible, everyone in the class, including myself[,] would avoid Turner Melton
because he would be so verbally abusive . . . .” Id. at 110. Stout stated that
Melton would sometimes become frustrated and “throw tools down,” id. at
132; he also stated that he “never had any notice that Turner Melton posed as a
physical threat to the safety of others in the program.” Appellee’s App. Vol. II
p. 39. Accordingly, we find that a genuine issue of material fact exists as to
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whether the School provided adequate supervision. This issue should be
addressed by the trier of fact.
B. Contributory Negligence
[23] Finally, we address the School’s argument that because it is a government
entity, and the common law defense of contributory negligence remains
applicable for governmental defendants, even a slight degree of negligence on
the part of Severance operates as a total bar to his action for damages against
the School. We disagree.
[24] Contributory negligence is the failure of a person to exercise for his own safety
that degree of care and caution which an ordinary, reasonable, and prudent
person in a similar situation would exercise. Whitmore v. S. Bend Pub. Transp.
Corp., 7 N.E.3d 994, 997 (Ind. Ct. App. 2014). Generally, it is a question of fact
for the jury to decide. Id. It will only be a question of law appropriate for
summary judgment if the facts are undisputed and only a single inference can
be drawn therefrom. Id.
[25] This Court has recently discussed whether contributory negligence applies to
cases such as this one. In M.S.D. of Martinsville, we noted that
in a society where bullying is a pervasive and confusing problem,
especially among young, school-aged children, we question
whether the issue of contributory negligence can be properly
resolved as a matter of law, especially when, as here, a victim is
not the initial aggressor in an altercation, but merely fails to
meekly walk away from an attacker who is violently disposed,
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and especially where the victim appears to have been unaware
that the attacker was armed.
9 N.E.3d at 248. This Court found that because the facts were subject to more
than one reasonable inference, the trial court did not err in finding that the issue
of the victim’s contributory negligence is most appropriately a matter for the
jury. Similarly, here, Severance cannot be found as a matter of law
contributorily negligent based on the actions that he took. A factfinder might
reasonably determine that a reasonably prudent person might have acted as
Severance did during this incident; a factfinder might also reasonably determine
that Severance was not an initial aggressor in the altercation, but a person who
merely failed to meekly walk away from Melton. Accordingly, we find that
there are genuine issues of material fact as to whether Severance was
contributorily negligent, and that the determination is better left to the jury.
[26] For these reasons, we conclude that the trial court erred when it granted the
School’s motion to strike Dr. Peterson’s affidavit and the School’s motion for
summary judgment. Dr. Peterson’s affidavit relates to a dispositive issue in this
case. Further, genuine issues of material fact exist as to whether the School
breached its duty to protect Severance and whether Severance was
contributorily negligent in a manner which proximately caused his injuries.
[27] The judgment of the trial court is reversed and remanded for further
proceedings.
Robb, J., and Altice, J., concur.
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Wyatt Severance v. New Castle Community School Corporation a/k/a New Castle Career Center, and Turner Melton
Combined Opinion