Civilo Cruz v. New Centaur, LLC, Centaur Acquisition, LLC d/b/a Indiana Grand Racing & Casino, Michael E. Lauer, Michael E. Lauer Racing Stables, Inc., Penny Lauer, and Marcelle Martins

FILED
Jun 26 2020, 12:05 pm

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
Jack A. Tandy Peter J. Sacopulos
Tandy Law Firm, LLC Sacopulos Johnson & Sacopulos
Shelbyville, Indiana Terre Haute, Indiana
R. Robert Yeager Scott E. Andres
Yeager Good & Baldwin Christopher J. Appel
Shelbyville, Indiana Due Doyle Fanning & Alderfer,
LLP
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Civilo Cruz, June 26, 2020
Appellant-Plaintiff, Court of Appeals Case No.
19A-CT-3003
v. Appeal from the Shelby Superior
Court
New Centaur, LLC, Centaur The Honorable R. Kent Apsley,
Acquisition, LLC d/b/a Indiana Judge
Grand Racing & Casino, Trial Court Cause No.
Michael E. Lauer, Michael E. 73D01-1806-CT-26
Lauer Racing Stables, Inc.,
Penny Lauer, and Marcelle
Martins,
Appellees-Defendants.

Riley, Judge.

Court of Appeals of Indiana | Opinion 19A-CT-3003 | June 26, 2020 Page 1 of 17
 STATEMENT OF THE CASE
[1] Appellant-Plaintiff, Civilo Cruz (Cruz), appeals the trial court’s grant of

summary judgment in favor of Appellees-Defendants, New Centaur, LLC, and

Centaur Acquisition, LLC, d/b/a Indiana Grand Racing & Casino

(collectively, Indiana Grand), and its award of partial summary judgment in

favor of Appellees-Defendants, Michael E. Lauer, Michael E. Lauer Racing

Stables, Inc., Penny Lauer (collectively, the Lauers). The Lauers cross-appeal

the trial court’s partial denial of summary judgment in favor of Cruz.

[2] We affirm in part, reverse in part, and enter full summary judgment for the

Lauers.

ISSUES
[3] Cruz presents us with two issues, which we restate as:

(1) Whether a genuine issue of material fact precluded the entry
of summary judgment on Cruz’s claims of negligence against
Indiana Grand; and

(2) Whether a genuine issue of material fact precluded the entry
of summary judgment on Cruz’s negligence claims against the
Lauers.

On cross-appeal, the Lauers present us with one issue, which we restate as:

Whether a genuine issue of material fact precluded the entry of summary

judgment on the issue of Martins’ employment status.

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 FACTS AND PROCEDURAL HISTORY
[4] Indiana Grand owns and operates the Indiana Downs horse racing track (the

track) located in Shelby County, Indiana. When races are not being held at the

track, racehorses are exercised and trained there. It is not uncommon for

exercise riders to be thrown from horses and for horses to become loose during

training. Indiana Grand has mounted employees, called outriders, who are

tasked with monitoring safety on the track during training and assisting when

necessary. In the event that a horse gets loose, the outriders are present to

attempt to corral the horse and alert a clocker via radio so that a siren can be

activated to alert others using the track to the presence of the loose horse.

[5] Marcelle Martins (Martins) is an experienced jockey licensed by the Indiana

Horse Racing Commission. In 2017, Martins was looking for work as a jockey

and exercised racehorses at the track without compensation in hopes of being

hired for races, which is a standard practice in the jockey industry. In 2018,

Martins began exercising horses for Michael E. Lauer Racing Stables at the

track. As part of her work, Martins frequently exercised a horse named

Accessorizing which was owned by Penny Lauer and trained by Michael

Lauer.

[6] On May 7, 2018, Martins exercised Accessorizing at the track. Cruz, who is an

experienced exercise rider, was exercising a horse he owned named Glitter Cat.

As Martins finished a turn around the track on Accessorizing, the horse began

to run out of Martins’ control. Martins called for an outrider for assistance.

Two Indiana Grand outriders were working the track that day, one of whom
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 attempted to gain control of Accessorizing’s reins, without success. Martins

was thrown from her mount, and Accessorizing ran toward a group of horses

which included Glitter Cat, ridden by Cruz. Accessorizing collided with Glitter

Cat, causing Cruz to be thrown to the ground and injured. After the collision,

the clocker sounded the alert of a loose horse on the track.

[7] On July 2, 2018, Cruz filed a complaint, which he amended on December 11,

2018, raising premises liability and negligence claims against Indiana Grand

and raising respondeat superior and negligent hiring claims against the Lauers. 1

On August 23, 2019, Indiana Grand filed its motion, brief, and designation of

evidence in support of summary judgment, arguing that it was entitled to

judgment as a matter of law because it owed no duty of care to Cruz, who had

assumed the risks of the inherently dangerous sport of horseracing. On August

26, 2019, the Lauers filed their motion, brief, and designation of evidence in

support of summary judgment, adopting Indiana Grand’s motion and

additionally arguing that they could not be held liable for Martins’ alleged

negligence under a theory of respondeat superior because she was an

independent contractor and not their employee. On September 23, 2019, Cruz

filed his motion, brief, and designation of evidence in opposition to summary

judgment, in which he argued, inter alia, that Indiana Grand had assumed a

1
Cruz also named Martins as a defendant and raised negligence claims against her. Martins did not appear
in the litigation and does not participate in this appeal.

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 duty of care toward him by employing outriders and using a loose horse alert

system.

[8] On October 23, 2019, the trial court held a hearing on Indiana Grand’s and the

Lauers’ motions for summary judgment. On November 21, 2019, the trial

court entered its Order granting summary judgment to Indiana Grand and the

Lauers on the issue of whether they could be found to have breached their duty

of care toward Cruz. The trial court ruled that, pursuant to Indiana’s sport

activity jurisprudence, in the context of the sport of horseracing, Cruz was

required to designate evidence supporting a finding that Appellees-Defendants

had intentionally caused Cruz’s injury or engaged in reckless conduct toward

him, which he had failed to do. The trial court further found that

[t]he injury suffered by Cruz, if any, was one that would be
expected to occur in the sport generally. A [h]orse getting loose
and running into other horses and riders is in the nature of what
might be ordinarily expected in the sport of horse racing.

Based upon the designated evidence, neither [Indiana Grand],
nor [the Lauers], would have had any objective reason to think
that Cruz would be oblivious to the danger involved or would fail
to protect himself from it. The defendants had an objectively
reasonable expectation that Cruz would realize the risk and take
appropriate precautions.

(Appellant’s App. Vol. II, p. 32). However, the trial court also partially denied

the Lauers’ motion because it found that genuine issues of material fact existed

on the issue of whether Martins was an independent contractor or an employee

of the Lauers.
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[9] Cruz now appeals and the Lauers cross-appeal. Additional facts will be

provided as necessary.

DISCUSSION AND DECISION
I. Standard of Review

[10] Summary judgment is appropriate if the designated evidence “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.” Ind. Trial Rule 56(C). We review both the

grant or denial of summary judgment de novo and apply the same standard as

the trial court. Kerr v. City of South Bend, 48 N.E.3d 348, 352 (Ind. Ct. App.

2015). The party moving for summary judgment bears the initial burden of

making a prima facie showing that there are no genuine issues of material fact

and that it is entitled to judgment as a matter of law. Sargent v. State, 27 N.E.3d

729, 731 (Ind. 2015). “Summary judgment is improper if the movant fails to

carry its burden, but if it succeeds, then the nonmoving party must come

forward with evidence establishing the existence of a genuine issue of material

fact.” Id. at 731-32. “All disputed facts and doubts as to the existence of

material facts must be resolved in favor of the non-moving party.” Kerr, 48

N.E.3d at 352. The non-moving party has the burden on appeal to persuade us

that the trial court’s grant of summary judgment was erroneous, but we will

carefully assess the trial court’s decision to ensure that the non-moving party

was not improperly denied his day in court. Id. We will affirm the trial court’s

summary judgment ruling on any basis supported by the designated evidence.

Hussain v. Salin Bank & Trust Co., 143 N.E.3d 322, 328 (Ind. Ct. App. 2020).

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[11] In addition, we note that the trial court entered findings of fact and conclusions

of law in support of its judgment. Special findings are not required in summary

judgment proceedings and are not binding on appeal. AutoXchange.com. Inc. v.

Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct. App. 2004). However,

such findings offer this court valuable insight into the trial court’s rationale for

its review and facilitate appellate review. Id.

II. Indiana Sports-Injury Jurisprudence

[12] The parties each claim that Indiana’s sports-injury law favors their summary

judgment arguments, so we begin with an examination of how that body of law

has developed in our state. In 2011, our supreme court issued the seminal case

of Pfenning v. Lineman, 947 N.E.2d 392, 396 (Ind. 2011), in which it addressed

the issue of a sports participant’s liability to others for injury incurred during

sporting activity. Sixteen-year-old Pfenning accompanied her grandfather to a

golf scramble, where she, accompanied by an employee of the scramble’s

organizer, drove a beverage cart owned by the golf course. Id. at 397. While

driving the beverage cart around the course, Pfenning was struck in the mouth

by a golf ball, suffering injuries. Id. Neither Pfenning nor her companion heard

the golfer yell “fore.” Id.

[13] Pfenning brought suit against the owner of the golf course, the scramble

organizer, her grandfather, and the golfer who hit the shot that injured her,

raising claims of general negligence, negligent supervision, and premises

liability. Id. at 396. All the defendants sought, and were awarded, summary

judgment. Id. In affirming the grant of summary judgment on the claim of the

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 golfer’s liability, the court noted that “strong public policy considerations favor

the encouragement of participation in athletic activities and the discouragement

of excessive litigation of claims by persons who suffer injuries from participants’

conduct” and, thus, that sound policy reasons supported enhanced protection

against liability to co-participants in sports events. Id. at 403. The court

observed that a plaintiff seeking damages based on negligence must establish

that the defendant owed him a duty, that duty was breached, and the plaintiff’s

injuries were proximately caused by the breach. Id. at 397. While the issue of

breach of duty of care towards others engaged in the sport usually entails an

evaluation of reasonableness by the fact-finder, the court adopted a new rule

limited to sports activity cases that, as a matter of law, when a sports participant

injures another while engaging in conduct ordinary to the sport, without intent

or recklessness, the participant breaches no duty for purposes of a negligence

claim. Id. at 404. The court held that the acts of hitting an errant golf shot and

not yelling “fore” were activities within the range of ordinary conduct for

golfers, and was, thus, reasonable as a matter of law, precluding a finding on

the element of breach necessary for a negligence action. Id. at 404-05.

[14] In affirming the trial court’s award of summary judgment for the golf course

owner, our supreme court first observed that its new rule extending enhanced

protection from liability to participants in sport did not extend to persons or

entities beyond the participant who allegedly caused the injury at the base of the

claim. Id. at 405. Some of Pfenning’s claims against the course owner were

framed as negligence allegations that the course owner had breached its duty of

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 care towards her, it had failed to follow its own safety protocols for providing

safety instructions to beverage cart operators, and it was negligent for allowing

a minor to operate the cart. Id. at 405-06. The court rejected Pfenning’s

formulation of separate negligence claims and addressed all her claims as

sounding in premises liability due to the fact that it was the course owner being

sued, the course’s employees had controlled most of the details of the golf

outing, and Pfenning’s injuries had arisen from a condition on the premises. Id.

at 406. The court went to apply well-established premises liability principles

and found that there was no showing that the course owner should have

reasonably expected that Pfenning would fail to discover or realize the danger

of errant golf drives or the risk of being struck by an errant golf ball involved an

unreasonable risk of harm. Id. at 407.

[15] In South Shore Baseball, LLC v. DeJesus, 11 N.E.3d 903, 905 (Ind. 2014), a

spectator sued the operator of a baseball stadium where she was hit by a foul

ball during a game. DeJesus sat just beyond the protective netting South Shore

had erected behind home plate to protect spectators from foul balls, a danger

ticket holders were warned about on their tickets, signage erected in the

stadium, and through an announcement prior to the commencement of the

game. Id. DeJesus was injured when a pop-up foul ball hit her in the face. Id.

[16] DeJesus brought claims of premises liability and negligence against South

Shore, alleging, inter alia, that South Shore had breached its duty of care toward

her by failing to extend the protective netting adequately along the foul ball line

and that South Shore was negligent in the design, construction, and

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 maintenance of the ballpark which did not have adequate protective netting. Id.

at 905-06. South Shore sought, and was denied, summary judgment. Id. at

906. We reversed the denial of summary judgment in light of Pfenning, and our

supreme court agreed, finding that, in light of its multiple warnings regarding

the dangers of foul balls, South Shore would have had no reason to believe that

DeJesus would not realize the danger or that she would not protect herself from

it. Id. at 910.

[17] As to DeJesus’s negligence claims, the court addressed her argument that, by

erecting the protective netting at its stadium, South Shore had assumed a duty

of care to protect her from foul balls entering the stands. Id. The court noted

that it had adopted the rule for assumption of duty from the Restatement

(Third) of Torts which provides that

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.

Id. at 911. The court found that summary judgment on DeJesus’s assumption

of duty claim was merited because she did not allege an increased risk of harm

and could not establish reliance, as her designated deposition testimony showed

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 that she had seen foul balls enter the stands at the stadium before and she

admitted that she knew there was a chance she could be hit by a ball where she

had sat on the day she was injured. Id.

[18] In Megenity v. Dunn, 68 N.E.3d 1080, 1084 (Ind. 2017), the court clarified what

constituted “ordinary behavior” within a sport for purposes of the new rule set

out in Pfenning. Megenity was injured during a karate class when Dunn

performed a jump kick rather than the less powerful flying kick Megenity was

expecting. Id. at 1082. Megenity sued Dunn, alleging that he had negligently,

recklessly, and unreasonably injured her. Id. Dunn moved for summary

judgment pursuant to Pfenning, arguing that the jump kick was ordinary

behavior for karate, and, thus, that he breached no duty toward Megenity as a

matter of law. Id. In affirming the trial court’s grant of summary judgment to

Dunn, our supreme court cited Pfenning and clarified that, in order to determine

what is “ordinary behavior” for purposes of a Pfenning analysis, courts must

look to the sport generally and not the specific activity that was being engaged

in at the time of the injury. Id. at 1084. The court held that approach made

sense, because “sports are imprecise and physically intense. And when

Hoosiers play sports—performing activities ordinary in that context—they

should not fear that judges will later armchair-quarterback their every

movement.” Id.

[19] With these principles in hand, we turn to the issues raised by Cruz.

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 III. Indiana Grand

[20] In his Complaint, Cruz raised premises liability and negligence claims against

Indiana Grand. In his appellate brief, Cruz acknowledges that if the facts

alleged by him in his Complaint are considered sports activity consistent with

Pfenning, South Shore, and Megenity, “the premises liability claim against Indiana

Grand is subject to summary judgment.” (Appellant’s Br. p. 13). The issue of

whether Martins and Cruz were engaged in a sports activity when Cruz was

injured was not litigated by the parties during the summary judgment

proceedings, and Cruz fails to develop any further argument on the issue.

Accordingly, inasmuch as Cruz argues that he and Martins were not engaged in

a sports activity when they exercised horses on May 7, 2018, Cruz has waived

the issue. See Cavens v. Zaberdac, 849 N.E.2d 526, 533 (Ind. 2006) (“Issues

not raised at the trial court are waived on appeal.”); see also Ind. Appellate

Rule 46(A)(8)(a) (providing that arguments must be supported by cogent

reasoning, legal authority, and citations to the record).

[21] Cruz maintains that his “negligence claim based on the actions of Indiana

Grand employees is distinct from the premises liability claim and should

survive summary judgment.” (Appellant’s Br. p. 13). Cruz also maintains that

his claim should survive because genuine issues of material fact existed about

whether Indiana Grand had breached the duty of care it owed him after it

assumed that duty by employing outriders and the loose-horse siren system.

Cruz alleged negligence on Indiana Grand’s part as follows:

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 14. On said date, [Indiana Grand] had a duty to maintain
appropriate safety measures at the racetrack in conformity with
rules of the racing profession and rules adopted by the Indiana
Race Horse Commission. [Indiana Grand] failed in its duty to
maintain appropriate safety measures at the racetrack on May 7,
2018, proximately causing the injuries to [Cruz].

(Appellant’s App. Vol. II, p. 65). We find Cruz’s argument to be unavailing for

at least two reasons. In Pfenning, our supreme court found that her claims,

including her claim that the golf course was negligent for failing to follow its

own safety protocols, were truly claims sounding in premises liability, in part

because she raised her claims against the property owner and her injuries were

the result of a condition on the land. Pfenning, 947 N.E.2d at 406. We find the

same to be true here: Although styled as a negligence claim, Cruz’s allegation

is truly in the nature of a premises liability claim because it is made against the

track’s owner and his injuries were caused by a condition at the track. As noted

above, Cruz has conceded and waived his premises liability claims.

[22] In addition, South Shore illustrates that, in order to survive summary judgment

on a claim of assumed duty, Cruz was required to allege and demonstrate fact

issues on increased risk of harm to him as a result of Indiana Grand’s alleged

negligence or that he relied upon Indiana Grand’s exercise of care with its

safety measures. See South Shore, 11 N.E.3d at 911. Cruz’s argument on appeal

consists entirely of outlining the facts he considers showed that Indiana Grand

breached its purported assumed duty of care toward him. Cruz does not direct

our attention to any allegation or evidence showing that Indiana Grand

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 increased the risk of harm to him as a result of its alleged negligence or that he

relied upon Indiana Grand’s exercise of care with its safety measures.

Accordingly, we conclude that the trial court properly entered summary

judgment in favor of Indiana Grand on Cruz’s negligence claim. See id.

IV. The Lauers

[23] Cruz made two negligence allegations against the Lauers in his Complaint, one

of which he has abandoned on appeal, namely that they had breached their

duty of care toward him by allowing a horse ridden by Martins to become

unrestrained. Cruz’s other allegation of negligence was that

13. [The Lauers] breached [their] duty by employing an exercise
rider who was unlicensed and/or incapable of maintaining
control of her horse.

[24] (Appellant’s App. Vol. II, p. 65). Cruz argues that partial summary judgment

was precluded because the Lauers were not shielded from liability by the

holding of Pfenning and genuine issues of material fact existed regarding “the

Lauers’ belief of Martins’ horse riding abilities prior to allowing her to exercise

the horse Accessorizing on May 7, 2018.” (Appellant’s Br. p. 20).

[25] We agree with Cruz’s contention that the Lauers are not protected by the rule

announced in Pfenning. See Pfenning, 947 N.E.2d at 405 (“The blanket

protection from liability embodied in the new formulation does not extend to

persons or entities other than the athlete whose conduct allegedly caused a

claimed injury.”). However, we disagree with him that the Lauers were not

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 entitled to summary judgment. Cruz does not dispute that Martins is shielded

from liability pursuant to Pfenning and Megenity. If Martins cannot be held

liable, then there is no negligence to impute to the Lauers on a theory of

respondeat superior. See Bd. of Sch. Comm’rs of City of Indianapolis v. Pettigrew,

851 N.E.2d 326, 332 (Ind. Ct. App. 2006) (observing that once a servant is

released of liability, no negligence can be imputed to the principal for purposes

of creating respondeat superior liability), trans. denied.

[26] Cruz has also failed to demonstrate that summary judgment was precluded on

his negligent employment claim. Negligent retention and supervision is a

distinct tort from respondeat superior. Scott v. Retz, 916 N.E.2d 252, 257 (Ind.

Ct. App. 2009). Under a theory of negligent retention and supervision, liability

may be imposed on an employer when an employee “steps beyond the

recognized scope of his employment to commit a tortious injury upon a third

party.” Clark v. Aris, Inc., 890 N.E.2d 760, 765 (Ind. Ct. App. 2008) (quotation

omitted), trans. denied. The tort has the following relevant elements:

A master is under a duty to exercise reasonable care so to control
his servant while acting outside the scope of his employment as to
prevent him from intentionally harming others or from so
conducting himself as to create an unreasonable risk of bodily
harm to them, if (a) the servant . . .is using a chattel of the
master, and (b) the master (i) knows or has reason to know that
he has the ability to control his servant, and (ii) knows or should
know of the necessity and opportunity for exercising such
control.

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 Hayden v. Franciscan Alliance, Inc., 131 N.E.3d 685, 693 (Ind. Ct. App. 2019),

trans. denied, (emphasis added). Cruz acknowledges in his appellate brief that

Martins “was instructed to gallop Accessorizing.” (Appellant’s Br. p. 8). Cruz

does not contend that there was any factual dispute that Martins galloped

Accessorizing on May 7, 2018. Therefore, even if we were to assume that

Martins was an employee of the Lauers, Cruz has failed to demonstrate that

there was a factual dispute to be resolved that Martins was acting outside of the

scope of her employment on May 7, 2018, and summary judgment was,

therefore, merited for the Lauers.

[27] Cruz also argues that the Lauers can be held liable for injuries caused by

Accessorizing because they either “knew the animal had dangerous

propensities, or [] the animal in question is part of a class of animals that are

known to have dangerous propensities.” (Appellant’s Reply Br. p. 6).

However, Cruz did not raise this argument in the trial court or his Appellant’s

Brief, and it is waived. See French v. State, 778 N.E.2d 816, 825-26 (Ind. 2002)

(holding that issues raised in a reply brief for the first time are waived).

Therefore, we do not address it.

CROSS-APPEAL
[28] The Lauers argue on cross-appeal that there were no genuine issues of material

fact regarding their contention that Martins was an independent contractor, not

an employee as alleged by Cruz, and that they were entitled to full summary

judgment. Given our resolution of Cruz’s claims on appeal, we reverse the trial

court’s partial denial of summary judgment in favor of Cruz on the issue of
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 Martins’ employment status and enter summary judgment in favor of the

Lauers on this issue.

CONCLUSION
[29] Based on the foregoing, we conclude that no genuine issue of material fact

precluded entry of summary judgment in favor of Indiana Grand and the

Lauers on Cruz’s negligence claims.

[30] Affirmed in part and reversed in part.

Mathias, J. and Tavitas, J. concur

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