Kopczynski v. Barger

CRONE, Judge,

dissenting.

I respectfully disagree with the majority’s conclusion that Alisha was a trespass*11er and that the trampoline was not an attractive nuisance as a matter of law. Therefore, I dissent.

In determining Alisha’s visitor status, I believe that we must also consider Bryan’s invitation to jump on the trampoline from Alisha’s perspective. In Holman, upon which the majority relies in concluding that Bryan lacked authority to invite Alisha to jump on the trampoline, the court addressed not only whether the homeowners’ minor daughter had authority to consent to her boyfriend’s entry into the home, but also whether the boyfriend’s belief that he had permission to enter was reasonable. See 816 N.E.2d at 81 (“A defendant’s belief that he has permission to enter must be reasonable in order for him to avail himself of the defense of consent [to the crime of residential entry].”). Likewise here, I believe that the reasonableness of twelve-year-old Alisha’s belief that she had permission to jump on the Bargers’ trampoline by virtue of six-year-old Bryan’s invitation must be considered in determining her visitor status and presents a genuine issue of material fact that precludes a determination of her status as a matter of law.4 See J.C. Penney Co. v. Wesolek, 461 N.E.2d 1149, 1153 (Ind.Ct.App.1984) (“[T]he facts of a particular case determine[] the visitor’s status and the owner’s corresponding duty.”), modified on reh’g on other grounds, 465 N.E.2d 763.

Even assuming, as the majority concludes, that Alisha was a trespasser, I believe that there remains a genuine issue of material fact as to whether the trampoline was an attractive nuisance. We must consider the following factors:

(1) The' structure or condition complained of must be maintained or permitted upon the property -by the owner or the occupant thereof. (2) It must be peculiarly dangerous to children and of such a nature that they will not comprehend the danger. (3) It must be particularly attractive to children and provide a special enticement for children to play or sport thereon. (4) The owner must know, or the facts alleged must be such as to charge him with constructive knowledge, of the existence of such structure or condition, and that children do or are likely to trespass upon his property and be injured by such structure or condition. (5) The injury sustained must be the natural, probable and foreseeable result of the original wrong complained of.

Pier, 243 Ind. at 205, 182 N.E.2d at 258.

The Bargers maintained a trampoline on their property. It seems clear that trampolines are peculiarly dangerous to children, who are neither as discerning nor as dexterous as most adults. I disagree with the majority’s conclusion that the “designated evidence established that Alisha knew of the trampoline’s dangers[.]” Slip op. at 15. She had never jumped on a trampoline before, and there is no indication that she was aware that jumping on a trampoline, either alone or with other children, could result in injury. On summary judgment, the Bargers had the burden of establishing that Alisha comprehended the dangers of jumping on a trampoline, and they failed to meet this burden. The fact that the Bargers had previously chased uninvited neighborhood children off the trampoline demonstrates that trampolines are particularly attractive to children and “provide a special enticement for children to play or sport thereon.” The Bargers’ shooing away of the children, along with the dire safety warnings on the trampoline itself, put them on notice that children *12were likely to trespass upon their property and be injured by the trampoline. Finally, I believe that a trier of fact should determine whether Alisha’s knee injury was a natural, probable, and foreseeable result of her entering the Bargers’ property to jump on the trampoline.

In sum, I would reverse the trial court’s grant of summary judgment in favor of the Bargers and remand for further proceedings to determine Alisha’s visitor status and whether the trampoline was an attractive nuisance.

. By way of illustration, there is no evidence that Alisha was aware that the Bargers had told Bryan not to permit anyone to use the trampoline without their permission. ;