FILED
Sep 29 2020, 9:50 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Daniel H. Pfeifer Jonathan L. Mayes
James P. Barth Philip R. Zimmerly
South Bend, Indiana Sarah T. Parks
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of C.G. (Minor September 29, 2020
Child) Court of Appeals Case No.
20A-CT-526
and
Appeal from the St. Joseph
David Gutelius (Father) and Lori Superior Court
Gutelius (Mother),
The Honorable David C.
Appellants-Plaintiffs, Chapleau, Judge
v. Trial Court Cause No.
71D06-1904-CT-126
Union North United School
Corporation,
Appellee-Defendant.
Tavitas, Judge.
Court of Appeals of Indiana | Opinion 20A-CT-526 | September 29, 2020 Page 1 of 11
Case Summary
[1] C.G., a minor by and through her parents, David Gutelius (“David”) and Lori
Gutelius (“Lori”), appeals the trial court’s grant of summary judgment to
Union North United School Corporation (“School Corporation”). We affirm.
Issue
[2] C.G. raises one issue, which we restate as whether the trial court properly
granted the School Corporation’s motion for summary judgment.
Facts
[3] On October 26, 2017, C.G. was a freshman and attended basketball practice at
LaVille High School. 1 The basketball coach, Hannah Amor (“Coach Amor”),
was conducting a practice drill with the players. As the players practiced
shooting layups, Coach Amor defended the goal and attempted to aggressively
block or “swat” the player’s ball. Appellant’s App. Vol. II p. 31. As C.G. was
running on the side of the basketball court to receive a ball, Coach Amor
1
We note that C.G. and Lori signed a Consent & Release Certificate (“Release”) that provided:
I know that athletic participation is a privilege. I know of the risks involved in athletic
participation, understand that serious injury, and even death, is possible in such participation,
and choose to accept such risks. I voluntarily accept any and all responsibility for my own
safety and welfare while participating in athletics, with full understanding of the risks involved,
and agree to release and hold harmless my school, the schools involved and the IHSAA of and
from any and all responsibility and liability, including any from their own negligence, for any
injury or claim resulting from such athletic participation and agree to take no legal action
against my school, the schools involved or the IHSAA because of any accident or mishap
involving my athletic participation.
Appellant’s App. Vol. II p. 35. The parties, however, do not mention this Release in their analysis of the
issues. Accordingly, we express no opinion as to the Release’s impact on C.G.’s claim.
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blocked a layup by one of C.G.’s teammates. The ball “blindsided” C.G. and
struck her on the temple, causing a concussion. Id. at 30. C.G. does not believe
that Coach Amor struck her with the basketball intentionally. C.G.
acknowledged in her deposition that getting hit on the head with a basketball
was “a possible outcome of playing.” Id. at 32.
[4] In April 2019, C.G. filed a complaint against the School Corporation, which
C.G. amended in September 2019. C.G. alleged that she suffered injuries as a
result of the negligence of the School Corporation’s employee, Coach Amor. In
November 2019, the School Corporation filed a motion for summary judgment.
The School Corporation argued that it was entitled to summary judgment
pursuant to Megenity v. Dunn, 68 N.E.3d 1080 (Ind. 2017), and Pfenning v.
Lineman, 947 N.E.2d 392 (Ind. 2011), because “blocking a basketball shot is
well within the ordinary conduct expected in basketball.” Id. at 21. In
response, C.G. argued that: there is an exception for intentional or reckless
actions; and whether Coach Amor’s actions were reckless is a question of fact
for the jury to determine.
[5] After a hearing, the trial court entered summary judgment for the School
Corporation. The trial court found that Coach Amor “did not breach any duty
to [C.G.] by blocking the shot” and that C.G. could not satisfy the factors
necessary to demonstrate reckless conduct. Id. at 12-13. C.G. now appeals.
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Analysis
[6] C.G. challenges the trial court’s entry of summary judgment in favor of the
School Corporation. Summary judgment is appropriate only when the moving
party shows there are no genuine issues of material fact for trial and the moving
party is entitled to judgment as a matter of law. Erie Indem. Co. for Subscribers at
Erie Ins. Exch. v. Estate of Harris by Harris, 99 N.E.3d 625, 629 (Ind. 2018); see also
Ind. Trial Rule 56(C). Once that showing is made, the burden shifts to the
nonmoving party to designate appropriate evidence to demonstrate the actual
existence of a genuine issue of material fact. Schoettmer v. Wright, 992 N.E.2d
702, 705-06 (Ind. 2013). When ruling on the motion, the trial court construes
all evidence and resolves all doubts in favor of the non-moving party. Id. at
706. We review the trial court’s ruling on a motion for summary judgment de
novo, and we take “care to ensure that no party is denied his day in court.” Id.
“We limit our review to the materials designated at the trial level.” Gunderson v.
State, Indiana Dep’t of Nat. Res., 90 N.E.3d 1171, 1175 (Ind. 2018), cert. denied.
[7] The issue here is whether Coach Amor’s conduct breached her duty of
reasonable care to C.G. and the School Corporation is liable under the doctrine
of respondeat superior. “[T]o prevail on a claim of negligence the plaintiff must
show: (1) duty owed to plaintiff by defendant; (2) breach of duty by allowing
conduct to fall below the applicable standard of care; and (3) compensable
injury proximately caused by defendant’s breach of duty.” Goodwin v. Yeakle’s
Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016). Thus, C.G. was
required to prove that: (1) Coach Amor owed C.G. a duty, (2) Coach Amor
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breached that duty, and (3) the breach of duty proximately caused C.G.’s
injury. Megenity v. Dunn, 68 N.E.3d 1080, 1083 (Ind. 2017). Under the doctrine
of respondeat superior, an employer is liable for employees’ tortious acts where
those acts occurred within the scope of employment. Cox v. Evansville Police
Dep’t, 107 N.E.3d 453, 460 (Ind. 2018).
[8] Whether a party breached a duty is “usually a question of fact for the jury.”
Megenity, 68 N.E.3d at 1083. Our Supreme Court, however, has created a
“‘limited new rule’ applying only to sports-injury cases—cases where the
alleged tortfeasor is a sports participant.” Id. (quoting Pfenning v. Lineman, 947
N.E.2d 392, 403-04 (Ind. 2011)). The Court held that “a sports participant
breaches no duty as a matter of law by engaging in conduct ‘ordinary . . . in the
sport,’ but may breach a duty by injuring someone intentionally or recklessly.”
Id. (quoting Pfenning, 947 N.E.2d at 404).
[9] To prove an intentional infliction of a sports injury, the plaintiff must
demonstrate that: (1) the defendant sports participant either desired to cause the
consequences of his act or believed those consequences were substantially
certain to result; and (2) the intent to injure falls “‘totally outside the range of
ordinary activity involved in the sport’ overall.” Id. at 1085 (quoting Welch v.
Young, 950 N.E.2d 1283, 1290 (Ind. Ct. App. 2011)).
[10] To prove a reckless infliction of a sports injury, the plaintiff must demonstrate
that: (1) the defendant sports participant intentionally acted or intentionally
failed to act; (2) in doing so, the defendant was consciously indifferent to the
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plaintiff’s safety; and (3) the defendant’s particular conduct—including state of
mind—falls “‘totally outside the range of ordinary activity involved in the
sport.’” Id. (quoting Welch, 950 N.E.2d at 1290).
[11] Our Supreme Court applied the Pfenning formulation in Megenity, where Tresa
Megenity was attending a karate class and was injured when she volunteered to
hold the flying-kick bag during practice drills. Another student in the class,
Dunn, performed a “jump kick”, rather than a flying kick, which sent Megenity
“flying and crashing to the floor, injuring her knee.” Id. at 1082. Megenity
filed a complaint against Dunn and argued that he “negligently, recklessly, and
unreasonably” injured her. Id. The trial court, however, granted summary
judgment to Dunn because “the jump kick was ‘ordinary behavior of
participants in karate within the context of a ‘kicking the bag’ drill.” Id.
[12] On appeal, Dunn argued that he was entitled to the protections announced in
Pfenning because a jump kick is “ordinary” in karate generally. Id. at 1083.
Megenity, however, argued that Dunn’s actions were not “ordinary conduct”
because a jump kick was “extraordinary” in a kicking-the-bag drill specifically.
Id. (emphasis in original). Our Supreme Court held “that, under the reasoning
of Pfenning, ordinary behavior turns on the sport generally—not the specific
activity.” Id. at 1084. Accordingly, Dunn’s “jump kick was ordinary, even if it
was contrary to protocol for the kicking-the-bag drill.” Id. The Court
concluded that, as a matter of law, Dunn “did not breach a duty by simply
executing a jump kick while engaged in karate.” Id. at 1085.
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[13] The Court then considered whether Megenity presented evidence of
“intentional or reckless infliction of injury.” Id. Megenity conceded that the
student did not injure her “intentionally.” Id. As for whether Megenity
presented evidence of reckless infliction of injury, the Court held:
[E]ven if we assume for purposes of summary judgment that the
first element is satisfied—that Dunn jump-kicked intentionally—
the second and third elements are missing. True, Dunn failed to
keep one foot grounded during the kick; he used “extreme” force
against a padded bag; and he later apologized, saying he “didn’t
mean to jump.” But none of that shows he consciously
disregarded his classmate’s safety. And without such conscious
disregard, nothing took Dunn’s jump kick totally outside the
range of ordinary behavior in karate overall. Certainly, Indiana
strongly prefers trials, even when a plaintiff’s evidence is dubious.
Yet here, the evidence Megenity needs is not merely thin; it is
absent.
We do note that different evidence might write a different story.
Megenity might have had sufficient circumstantial evidence of
conscious disregard if Dunn had directed his jump kick at her
head instead of the padded bag. But Dunn’s errant kick, without
more, is not reckless. Rather, it is part of the sport.
Id. at 1086. The Court concluded that Dunn’s action was “ordinary conduct in
the sport of karate generally, and no evidence shows intent or recklessness.” Id.
Accordingly, the Court found no breach as a matter of law and affirmed the
grant of summary judgment to Dunn.
[14] Here, C.G. was injured at a high school basketball practice during layup drills.
During the drill, the coach acted as the defensive player and attempted to
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defend the goal by “swatting” the player’s basketball if the player did not
properly perform the layup. Appellant’s App. Vol. II p. 31. When the coach
swatted another player’s basketball, the ball hit C.G. on the head, causing a
concussion. C.G. acknowledged in her deposition that getting hit on the head
with a basketball was “a possible outcome of playing.” Id. at 32.
[15] Swatting or blocking the basketball during a layup is ordinary in the sport of
basketball. C.G. seemingly concedes this point. See Appellant’s Br. p. 6
(“While it is true that ‘blocking a shot’ is within the ordinary conduct of
basketball players, it cannot be said as a matter of law, that a Coach’s aggressive
shot blocking during a practice drill falls within the ordinary scope of the
game.”). Accordingly, pursuant to Megenity and Pfenning, if Coach Amor was a
sports participant, there was no breach of duty as a matter of law unless the
coach’s actions were intentional or reckless. See Megenity, 68 N.E.3d at 1083
(holding that “a sports participant breaches no duty as a matter of law by
engaging in conduct ‘ordinary . . . in the sport,’ but may breach a duty by
injuring someone intentionally or recklessly”) (quoting Pfenning, 947 N.E.2d at
404).
[16] C.G., however, argues that the protections described in Megenity and Pfenning
do not apply to coaches, whom C.G. contends are non-participants. C.G.,
however, did not make this argument to the trial court and raises this argument
for the first time on appeal. Accordingly, this argument is waived. Evergreen
Shipping Agency Corp. v. Djuric Trucking, Inc., 996 N.E.2d 337, 340 (Ind. Ct. App.
2013); Mid-States Gen. & Mech. Contracting Corp. v. Town of Goodland, 811 N.E.2d
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425, 438 n.2 (Ind. Ct. App. 2004) (“An appellant who presents an issue for the
first time on appeal waives the issue for purposes of appellate review.”).
[17] Waiver notwithstanding, C.G.’s argument is unpersuasive. In support of her
argument, C.G. relies on public policy considerations noted in Pfenning of
“‘affording enhanced protection against liability to co-participants in sports
events.’” Pfenning, 947 N.E.2d at 403 (quoting Bowman ex rel. Bowman v.
McNary, 853 N.E.2d 984, 992 (Ind. Ct. App. 2006), disapproved of on other
grounds by Pfenning, 947 N.E.2d 392)). C.G. also relies on Bowman, which
noted: “[Co-participants] are not in a position, practically speaking, to protect
themselves from claims. Event organizers, sponsors, and the like, are able to
safeguard themselves from liability by securing waivers.” According to C.G.,
the policy considerations of protecting co-participants are “largely absent from a
case involving an adult coach’s physical intervention in a youth basketball
drill.” Appellant’s Br. p. 9.
[18] The School Corporation, however, argues that the Supreme Court has not
“created an exception for coaches who are participating in drills with their
players as ‘non-participants’ or ‘quasi-participants’ as contended by [C.G.].”
Appellee’s Br. p. 7. The School Corporation points to Geiersbach v. Frieje, 807
N.E.2d 114, 120 (Ind. Ct. App. 2004), trans. denied, disapproved of on other grounds
by Pfenning, 947 N.E.2d 392, which addressed whether a coach, who injured a
player in practice while throwing a baseball, was a “participant.” The
Geiersbach court concluded that “[t]hose participating in the event or practice
should be precluded from recovering for injuries received resulting from dangers
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or conduct inherent in the game unless they prove that the conduct was reckless
or the injury was intentional.” Geiersbach, 807 N.E.2d at 120. The Court
applied this standard to “all participants in the sporting event” and defined
participant as “any person who is part of the sporting event or practice
involved. This would include players, coaches, and players who are sitting on
the bench during play.” Id.
[19] Although the Supreme Court in Pfenning disagreed with the “no-duty approach”
used in Geiersbach, the Court did not disagree with or comment on the
definition of “participant” set out in Geiersbach. Pfenning, 947 N.E.2d at 404
n.3. The Pfenning court did note that its new rule—"finding no breach by an
athlete engaged in the sport’s ordinary activities”—applies “to conduct of sports
participants, not promoters of sporting events . . . .” Pfenning, 947 N.E.2d at
407. Coach Amor was not a promoter of a sporting event, and the exception
noted in Pfenning does not apply here. Coach Amor also was not an “[e]vent
organizer[ ], sponsor[ ], and the like” mentioned in Bowman. Rather, Coach
Amor was acting as a defensive player and participating in drills during
practice. The policy concerns cited by C.G. are inapplicable here. We
conclude that Coach Amor was a sports participant, and the standard set forth
in Megenity and Pfenning applies.
[20] Because Coach Amor was a sports participant engaging in conduct that was
ordinary in the sport, there was no breach of duty as a matter of law unless
Coach Amor’s actions were intentional or reckless. See Megenity, 68 N.E.3d at
1083. C.G. acknowledged in her deposition that she does not believe Coach
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Amor struck her with the basketball intentionally, and no evidence was
presented to indicate intentional conduct. On appeal, C.G. makes no argument
that Coach Amor struck her recklessly. Accordingly, C.G. has failed, as a
matter of law, to demonstrate a breach of duty, and the trial court properly
granted summary judgment to the School Corporation.
Conclusion
[21] The trial court properly granted summary judgment to the School Corporation
on C.G.’s claim. We affirm.
[22] Affirmed.
Kirsch, J., and Pyle, J., concur.
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