Tresa Megenity v. David Dunn

FILED
May 24 2016, 8:49 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kenneth G. Doane, Jr. Richard T. Mullineaux
Doane Law Office, LLC Crystal G. Rowe
Jeffersonville, Indiana Whitney E. Wood
Kightlinger & Gray, LLP
New Albany, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Tresa Megenity, May 24, 2016
Appellant-Plaintiff, Court of Appeals Case No.
22A04-1506-CT-722
v. Appeal from the Floyd Superior
Court
David Dunn, The Honorable Maria D. Granger,
Appellee-Defendant. Judge
Trial Court Cause No.
22D03-1309-CT-1354

Najam, Judge.

Statement of the Case
[1] Tresa Megenity appeals the trial court’s entry of summary judgment in favor of

David Dunn on Megenity’s complaint, in which she alleged that Dunn was

negligent and reckless and proximately caused her serious bodily injury during

a karate practice session. Megenity presents a single issue for our review,
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namely, whether there exists a genuine issue of material fact precluding

summary judgment in favor of Dunn.

[2] We reverse and remand for further proceedings.1

Facts and Procedural History
[3] On December 1, 2012, Megenity and Dunn were students at Terry Middleton’s

karate studio (“the studio”). Megenity had been taking classes there three or

four times a week for approximately two years, and she had attained a black

belt. Dunn was a newer student and had attained a green belt, which is five

levels lower than a black belt.

[4] On December 1, Megenity and Dunn were engaged in a drill called “kicking the

bag.” Appellant’s App. at 68. Approximately sixty students of all levels were

engaged in the drill that day, which involved the following: three people

(students and/or instructors), forming a triangle with approximately thirty feet

between them, holding rectangular bags in front of their bodies; and the

students lining up and sprinting to each bag in succession to perform a kick

against the bag. The first two bags were for side kicks, and the third bag was for

a front kick. A front kick involves a student “balancing on one foot,” raising his

knee, and kicking “with the heel and snap[ping] back.” Id. at 66-67. On that

date, Megenity had volunteered, as she had “countless” times before, to hold

1
We heard oral argument in this case on March 2, 2016.

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the third bag, for the front kick. Id. at 69. As a bag-holder, Megenity knew that

she had to “brace [her]self to take an impact of the kick,” which meant placing

her left foot behind her and her “right leg forward to brace for the kick.” Id.

[5] When it was Dunn’s turn to perform the kicks, he performed the first two kicks

“as hard as [he] could make them[,]” but without incident. Id. at 49. But

before kicking the bag Megenity was holding, Terry Middleton “advised

[Dunn] to hold back, which [he] did considerably.” Id. Nevertheless, when

Dunn kicked the bag being held by Megenity, instead of keeping one foot on

the ground as he kicked, he jumped as he kicked the bag. Megenity was

holding the bag in front of her body, including her face, and she did not see the

kick. As a result of the kick, Megenity “felt airborne and crashed on the

floor[.]” Id. at 68. The force of the impact caused Megenity’s left knee to

“double” and “sheared out” her anterior cruciate ligament (“ACL”) and

“damaged [her] menisci.” Id. at 73. Dunn later apologized to her, saying, “I’m

sorry. I didn’t mean to jump.” Id. at 72. Megenity underwent surgery and

rehabilitation, and she missed several months of work as a result.

[6] On September 11, 2013, Megenity filed a complaint against Dunn alleging that

he had “negligently, recklessly, and unreasonably caused” her injuries. Id. at 6.

Dunn filed an answer and, on November 19, 2014, Dunn filed a summary

judgment motion alleging that, under our supreme court’s holding in Pfenning v.

Lineman, 947 N.E.2d 392 (Ind. 2011), his conduct was reasonable as a matter of

law and did not constitute a breach of duty. In her response to Dunn’s

summary judgment motion, Megenity alleged that the designated evidence

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established a genuine issue of material fact whether Dunn’s conduct was

unreasonable and outside the range of ordinary behavior of participants in a

karate class. Following a hearing, the trial court entered summary judgment in

favor of Dunn. This appeal ensued.

Discussion and Decision
[7] Our standard of review for summary judgment appeals 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).

The initial burden is on the summary-judgment movant to
“demonstrate[] the absence of any genuine issue of fact as to a
determinative issue,” at which point the burden shifts to the non-
movant to “come forward with contrary evidence” showing an
issue for the trier of fact. Id. at 761-62 (internal quotation marks
and substitution omitted). And “[a]lthough the non-moving
party has the burden on appeal of persuading us that the grant of
summary judgment was erroneous, we carefully assess the trial
court’s decision to ensure that he was not improperly denied his
day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
omitted).

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Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to

Hughley).

[8] The parties agree that, because Megenity’s injuries stem from a sporting

activity, our supreme court’s decision in Pfenning governs the outcome of this

appeal. In Pfenning, our supreme court “reject[ed] the concept that a participant

in a sporting event owes no duty of care to protect others from inherent risks of

the sport, but adopt[ed] instead the view that summary judgment is proper

when the conduct of a sports participant is within the range of ordinary

behavior of participants in the sport and therefore is reasonable as a matter of

law.” 947 N.E.2d at 396. In particular, the court held as follows:

Significant variations . . . can be seen among the decisions from
our sister jurisdictions as they wrestle with the issue of liability
for sports injuries. In resolving the issue for Indiana, a foremost
consideration must be the Indiana General Assembly’s
enactment of a comparative fault system and its explicit direction
that “fault” includes assumption of risk and incurred risk. Ind.
Code § 34-6-2-45(b). These concepts focus on a plaintiff’s
venturousness and require a subjective determination. Smith[ v.
Baxter], 796 N.E.2d [242,] 244[ (Ind. 2003)]. As noted above,
decisions of this Court have established that such considerations
of a plaintiff’s incurred risk, even if evaluated by an objective
standard, cannot be used to support a finding of no duty in a
negligence action. See Heck[ v. Robey], 659 N.E.2d [498,] 505
[(Ind. 1995)]; Smith, 796 N.E.2d at 245. In contrast, the sports
injury decisions of the Court of Appeals have employed
consideration of the “inherent risks” of a sport to justify
development of a no-duty rule. We view the evaluation of such
inherent risks to be tantamount to an objective consideration of
the risk of harm that a plaintiff undertakes and thus

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unsatisfactory because it violates the Comparative Fault Act and
the precedent of this Court.

As to judicial policy, however, we are in agreement with our
colleagues in the Court of Appeals and many of the courts of our
fellow states 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. See Bowman[ v.
McNary], 853 N.E.2d [984,] 991-92 [(Ind. Ct. App. 2006)]; Mark
[v. Moser], 746 N.E.2d [410,] 419 [(Ind. Ct. App. 2001)]. Sound
policy reasons support “affording enhanced protection against
liability to co-participants in sports events.” Bowman, 853 N.E.2d
at 992. Athletic activity by its nature involves strenuous and
often inexact and imprecise physical activity that may somewhat
increase the normal risks attendant to the activities of ordinary
life outside the sports arena, but this does not render
unreasonable the ordinary conduct involved in such sporting
activities.

We conclude that sound judicial policy can be achieved within
the framework of existing Indiana statutory law and
jurisprudence. As noted previously, there are three principal
elements in a claim for negligence: duty, breach of duty, and a
proximately caused injury. When there is no genuine issue of
material fact and any one of these elements is clearly absent,
summary judgment is appropriate. Colen v. Pride Vending Serv.,
654 N.E.2d 1159, 1162 (Ind. Ct. App. 1995), trans. denied. But
rather than focusing upon the inherent risks of a sport as a basis
for finding no duty, which violates Indiana statutory and
decisional law, the same policy objectives can be achieved
without inconsistency with statutory and case law by looking to
the element of breach of duty, which is determined by the
reasonableness under the circumstances of the actions of the
alleged tortfeasor. Breach of duty usually involves an evaluation
of reasonableness and thus is usually a question to be determined
by the finder of fact in negligence cases. Kroger Co. v. Plonski, 930
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N.E.2d 1, 9 (Ind. 2010); [N. Ind. Pub. Serv. Co. v.] Sharp, 790
N.E.2d [462,] 466 [(Ind. 2003)]. But in cases involving sports
injuries, and in such cases only, we conclude that a limited new
rule should apply acknowledging that reasonableness may be
found by the court as a matter of law. As noted above, the sports
participant engages in physical activity that is often inexact and
imprecise and done in close proximity to others, thus creating an
enhanced possibility of injury to others. The general nature of the
conduct reasonable and appropriate for a participant in a particular
sporting activity is usually commonly understood and subject to
ascertainment as a matter of law. This approach is akin to that
taken by the Arizona courts in Estes [v. Tripson, 932 P.2d 1364,
1367 (Ariz. Ct. App. 1997),] when faced with the Arizona
Constitution’s explicit declaration that assumption of risk is a
question of fact that shall be left to the jury.[]

We hold that, in negligence claims against a participant in a
sports activity, if the conduct of such participant is within the
range of ordinary behavior of participants in the sport, the
conduct is reasonable as a matter of law and does not constitute a
breach of duty.[]

In any sporting activity, however, a participant’s particular
conduct may exceed the ambit of such reasonableness as a matter
of law if the “participant either intentionally caused injury or
engaged in [reckless] conduct.” Bowman, 853 N.E.2d at 988
(quoting Mark, 746 N.E.2d at 420). Such intentional or reckless
infliction of injury may be found to be a breach of duty.

Id. at 403-04 (footnotes omitted, emphasis added).

[9] In Pfenning, plaintiff was driving a beverage cart around a golf course when she

was suddenly struck in the mouth by a golf ball. Id. at 397. Lineman, who was

golfing at the same course, hit “a low drive from the sixteenth tee

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approximately eighty yards away [from Pfenning]. [Lineman]’s drive traveled

straight for approximately sixty to seventy yards and then severely hooked to

the left” before it struck Pfenning. Id. Pfenning sued Lineman and other

defendants, and the trial court entered summary judgment in favor of the

defendants. On transfer, our supreme court held that, “[a]s to [Lineman]’s

hitting an errant drive which resulted in [Pfenning]’s injury, such conduct is

clearly within the range of ordinary behavior of golfers and thus is reasonable as

a matter of law and does not establish the element of breach required for a

negligence action.” Id. at 404. The court further found that “whether and how

a golfer yells ‘fore’ in a particular situation cannot be a basis for a claim of

negligence, [and] it likewise cannot support a claim of liability based on

recklessness.” Id. at 405.

[10] This court has interpreted and applied the rule in Pfenning on two occasions,

and we find those opinions instructive here. In Welch v. Young, 950 N.E.2d

1283, 1292 (Ind. Ct. App. 2011), a baseball player warming up with a baseball

bat struck the plaintiff with the bat, and we held that “factual issues about ‘the

conduct of [the] participant’ . . . preclude[d] our determination whether, as a

matter of law, [the defendant’s] conduct was ‘within the range of ordinary

behavior of participants in the sport.’” (Quoting Pfenning, 947 N.E.2d at 404).

In particular, we held as follows:

there are fact issues as to whether the injury took place on the
field or outside the playing area, and whether the game was
underway or had not yet started. As we cannot be certain from
the designated evidence before us whether Welch was injured

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before or during the game and whether she and Jordan Young
were inside the ball field or outside it in an area where spectators
normally are present, we cannot determine as a matter of law
whether Jordan Young’s behavior while taking warmup swings
was within the range of ordinary behavior of participants in little
league baseball.

Id.

[11] In Haire v. Parker, 957 N.E.2d 190, 192 (Ind. Ct. App. 2011), trans. denied, Haire

was helping a friend with an all-terrain vehicle (“ATV”) at an “off road vehicle

and motorcycle park” when Parker lost control of his ATV, which went

airborne and landed on Haire. After Haire filed a complaint, Parker moved for

summary judgment alleging in relevant part that he was entitled to summary

judgment under the holding in Pfenning. The trial court granted the motion.

On appeal, Haire argued that Pfenning did not apply because they had not been

engaged in an organized sport, but only “recreational ATV usage[.]” Id. at 199.

We reversed the trial court, holding as follows:

[E]ven assuming that this case is one “involving sports injuries,”
we cannot say that the “general nature of the conduct reasonable
and appropriate for a participant” in ATV riding “is usually
commonly understood and subject to ascertainment as a matter
of law.” [Pfenning, 947 N.E.2d] at 403-04. Specifically, we
cannot say as a matter of law and Parker does not direct our
attention to any designated evidence suggesting that his conduct
of starting his ATV while standing beside it after the ATV had
“tipped over” was conduct within the range of ordinary behavior
of participants in the sport and reasonable as a matter of law.
Appellants’ App[.] at 143. Accordingly, we conclude that an
issue of fact exists as to whether Parker’s actions constituted a

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breach of duty and that the trial court erred in granting Parker’s
motion for summary judgment.

Id. at 201.

[12] Thus, this court has applied the rule in Pfenning to mean that a breach may not

be found as a matter of law in every sporting activity-related summary

judgment case. Rather, the designated evidence must support such a

determination, as we held in Welch, and the ordinary behavior of participants in

a sport must be commonly understood, as we held in Haire.

[13] Our analysis here turns on the issue of whether what constitutes reasonable and

appropriate conduct in a karate class is “commonly understood” and can be

determined as a matter of law. See Pfenning, 947 N.E.2d at 403-04. We observe

that, unlike baseball, football, basketball, or golf, as likely examples, karate is

not a sport with which most Americans are familiar, either through personal

participation or through enjoyment as a spectator. While in Pfenning, the court

held that a golfer’s errant drive was “clearly within the range of ordinary

behavior of golfers and thus is reasonable as a matter of law,” 947 N.E.2d at

404, we cannot say that the common understanding of karate includes detailed

knowledge of the types of kicks that are within the range of ordinary behavior

for a particular exercise.

[14] Dunn designated evidence in support of his contention that jump kicks are

within the ordinary behavior of a karate student engaged in some types of

practice drills. But Megenity presented designated evidence to show that this

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particular kick in these particular circumstances was outside the range of

ordinary behavior. In particular, Megenity testified that: Dunn was supposed

to perform a front kick, which involves keeping one foot on the floor while the

kicking foot strikes the bag; Megenity had held bags during kicking-the-bag

drills “countless” times during her time at the studio without incident, and she

knew how to brace herself for a front kick; Dunn apologized for jumping during

the kick; she inferred from Dunn’s apology that he had performed a jump kick,

which “is where you run and . . . spring off of your body before you do the kick

into the bag”; the difference in impact between a running front kick and a jump

kick is “[e]xponential”; “[j]ump kicks [had] nothing to do with [the kicking-the-

bag drill]”; jump kicks are “always done into the air,” not with another person;

and jump kicks were “not done” in the course of normal conduct for the class.

Appellant’s App. at 69, 78. In sum, Megenity, who holds a black belt, testified

that Dunn had performed a jump kick and that a jump kick directed toward

another person is unreasonable, inappropriate, and not within the range of a

karate participant’s ordinary behavior, whether in practice or in competition.

[15] We hold that the “general nature of the conduct reasonable and appropriate for

a participant” in a karate practice drill is not “commonly understood and

subject to ascertainment as a matter of law.” See Pfenning, 947 N.E.2d at 403-

04. And Megenity has designated evidence to establish a genuine issue of

material fact whether Dunn’s kick was a jump kick and, if so, whether such a

kick was outside the range of ordinary behavior for a karate student engaged in

a kicking-the-bag practice drill. Accordingly, we cannot say that Dunn did not

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breach his duty of care to Megenity as a matter of law, and the trial court erred

when it entered summary judgment in favor of Dunn.

[16] Reversed and remanded for further proceedings.

May, J., concurs.

Riley, J., dissents with separate opinion.

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IN THE
COURT OF APPEALS OF INDIANA

Tresa Megenity, Court of Appeals Case No.
22A04-1506-CT-722
Appellant-Plaintiff,

David Dunn,
Appellee-Defendant.

Riley, Judge dissenting

[17] I respectfully dissent from the majority’s decision reversing the trial court’s

summary judgment and holding that a genuine issue of material fact exists as to

whether Dunn’s kick “was outside the range of ordinary behavior for a karate

student engaged in a kicking-the-bag practice drill.” (Slip op. p. 11).

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[18] As noted by the majority, our supreme court’s seminal decision in Pfenning v.

Lineman, 947 N.E.2d 392 (Ind. 2011), addressed the duty of care owed by

participants in athletic events. Rejecting the concept that a participant in a

sporting event owes no duty of care to protect others from inherent risks of the

sport, our supreme court adopted the rule that “if the conduct of such

participant is within the range of ordinary behavior of participants in the sport,

the conduct is reasonable and does not constitute a breach of duty.” Id. at 404

(emphasis added). “The general nature of the conduct reasonable and

appropriate for a participant in a particular sporting activity is usually

commonly understood and subject to ascertainment as a matter of law.” Id. at

403-04. In the facts before it, the Pfenning court opined that hitting an “errant

drive” represents conduct “clearly within the range of ordinary behavior of

golfers[.]” Id. at 404.

[19] Applying Pfenning and its progeny, the majority then analyses whether Dunn’s

particular kick was outside the range of ordinary behavior under the particular

circumstances before this court and concluded that “the general nature of the

conduct reasonable and appropriate for a participant in a karate practice drill is

not commonly understood and subject to ascertainment as a matter of law.”

(Slip op. p. 11) (quoting Pfenning, 947 N.E.2d at 403-04) (emphasis added). I

disagree with the majority’s analysis as it represents a more narrow rule than

our supreme court proponed in Pfenning.

[20] As Pfenning noted, a “sports participant engages in physical activity that is often

inexact and imprecise and done in close proximity to others[.]” Id. at 403.
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Even though no Indiana case has addressed sport injuries as a result of

participating in karate, the sport is generally commonly understood as a high

contact sport, involving throws, strikes, and other techniques encouraging

physical contact between the participants. Most sports acknowledge that

mistakes will happen and Megenity and Dunn understood this when they

signed their application for membership in the studio by acknowledging that

“[c]aution must be used while participating in this program.” (Appellant’s App.

p. 99). As such, Megenity was instructed in the proper foot placement to safely

absorb the impact of the kick during the kicking-the-bag practice drill, which

was conducted with participants versed in different skill levels.

[21] “Athletic activity by its nature involves strenuous and often inexact and

imprecise physical activity that may somewhat increase the normal risks

attendant to the activities of ordinary life outside the sports arena, but this does

not render unreasonable the ordinary conduct involved in such sporting

activities.” Id. at 403. By focusing on whether Dunn’s particular kick was

“outside the range of ordinary behavior for a karate student engaged in a

kicking-the-bag practice drill,” the majority limits its review to the particular

exercise instead of the broader scope of the sport of karate, as instructed by

Pfenning. (Slip op. p. 11) (emphasis added). Although Pfenning 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,” the majority opens the

door again to a fact sensitive inquiry in every sports negligence case as to the

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exactness and preciseness of a particular exercise within that broader sport. Id.

at 403.

[22] Based on the facts before me, I would conclude that Dunn’s conduct was within

the ordinary range of behavior of participants in karate and would affirm the

trial court’s summary judgment in favor of Dunn.

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