Ansick v. Hillenbrand Industries, Inc.

• Decision Date: 26 July 1996
• Docket Number: No. IP95-0207C-B/S.,IP95-0207C-B/S.
• Citation: 933 F. Supp. 773
• Parties: Denise ANSICK, Plaintiff, v. HILLENBRAND INDUSTRIES, INC.; John Hillenbrand and Joan Hillenbrand, individually and as husband and wife; and Daniel Hillenbrand; Defendants.
• Court: U.S. District Court — Southern District of Indiana

933 F. Supp. 773

Denise ANSICK, Plaintiff, v. HILLENBRAND INDUSTRIES, INC.; John Hillenbrand and Joan Hillenbrand, individually and as husband and wife; and Daniel Hillenbrand; Defendants.

No. IP95-0207C-B/S.

United States District Court, S.D. Indiana, Indianapolis Division.

July 26, 1996.

COPYRIGHT MATERIAL OMITTED

Heidi L. Moegerle, Cohen & Morelock, Indianapolis, Indiana, for Plaintiff.

John M. Choplin, Norris Choplin & Schroeder, George E. Purdy, Bose McKinney & Evans, Indianapolis, Indiana, for Defendants.

ENTRY

BARKER, Chief Judge.

Plaintiff Denise Ansick was injured when she was thrown from a horse while attending a party hosted by John and Joan Hillenbrand at Jawacdah Farm on May 29, 1993. Defendants Hillenbrand Industries and John, Joan and Daniel Hillenbrand have filed motions for summary judgment and motions to strike the affidavit of Julie Draper, which has been offered in support of plaintiff's response to defendants' motions for summary judgment. For the reasons discussed below, the motions to strike are GRANTED and the motions for summary judgment are GRANTED.

I. BACKGROUND

Jawacdah Farm ("the farm") is a recreational facility owned by defendant Hillenbrand Industries.¹ The farm is used as a conference center by Hillenbrand Industries for the entertainment of customers and for corporate seminars. (H.I. Interrogatory Ans. No. 10). Hillenbrand Industries has given limited permission for a few people to board horses at stables located at the farm. Gus Litmer, a maintenance man employed by Hillenbrand Industries for over eighteen years, is responsible for daily care of the horses boarded there, including watering and feeding the horses and maintaining the stables. (Litmer Aff., ¶¶ 2,4; H.I. Interrogatory Ans. No. 11). Hillenbrand Industries does not, however, own any of the horses boarded at the farm; its employees and customers are not allowed to ride the horses; and it does not promote, advertise or conduct horse-related activities. (Brinkmoeller Aff., ¶ 8; Nobbe Aff., ¶ 10; H.I. Interrogatory Ans. No. 11). Hillenbrand Industries is not responsible for training the horses, saddling or bridling the horses, or supervising horse-riding activities. (H.I. Interrogatory Ans. No. 15). Hillenbrand Industries does not control who rides horses boarded at the farm; riders must obtain permission to ride from the horse-owners. (Brinkmoeller Aff., ¶¶ 12-13; Nobbe Aff., ¶¶ 15-16; Litmer Aff., ¶¶ 7-8).

In May, 1993, ten horses were boarded at the farm, including six horses owned by Larry Kennedy. (Litmer Dep., at 27). Members of the Hillenbrand family and their guests, when accompanied by a Hillenbrand family member, had permission to ride horses owned by Larry Kennedy. (Kennedy Dep., at 12, 24; Litmer Dep., at 15, 24; Dan H. Aff., at ¶ 12). Brownie, the horse involved in the incident which gave rise to this lawsuit, was owned by Kennedy, and was boarded at the farm from approximately 1983 to 1995, when he and four of Kennedy's other horses were sold at an auction. (Kennedy Aff., ¶ 5; Litmer Dep., at 28). For the entire time he has been boarded at the farm, Brownie has been blind in his left eye. (Litmer Dep., at 73).

Members of the Hillenbrand family are permitted to reserve Jawacdah Farm for private family gatherings and are allowed to invite guests to these gatherings. (Brinkmoeller Dep., at 33-34). These private family events are not sponsored, hosted, conducted, or controlled by Hillenbrand Industries, and Hillenbrand Industries exercises no control over who is invited to these family gatherings. (Brinkmoeller Aff., ¶ 7; Nobbe Aff., ¶ 8; John H. Interrogatory Ans. No. 9). However, when members of the Hillenbrand family reserve the farm for private use, Hillenbrand Industries provides meals, beverages, housekeeping and security services; and provides detailed rules for the family's use of the farm. (Brinkmoeller Dep., at 53; H.I. Exh. E).

On Memorial Day weekend, May 29-31, 1993, defendants John and Joan Hillenbrand reserved the farm for a private, pre-Indianapolis 500 party. They invited their son, Dan Hillenbrand, to the party, and gave him permission to invite guests. Dan invited his college friend, Tim Martin. Martin, with Dan's permission, invited his girlfriend, plaintiff Denise Ansick, a professional ice skater, and two of her fellow Ice Capades skaters, Dory and Cindy. (Ansick Interrogatory Ans. No. 6; Dan H. Dep., at 41-43).

Martin, Ansick, Dory and Cindy arrived at the farm Saturday evening, May 29. At some point during the party, Martin, who had gone horseback riding on his previous visit to the farm in 1988, asked Dan if they could go riding, and Dan said that they could go later. (Martin Dep., at 47, 52-53, 93). At approximately 11:00-11:30 p.m. that evening, Dan, Cindy, Martin and Ansick went to the stable. (Martin Dep., at 95). On the way to the stable, Dan decided that it would be best if they rode double, since both he and Martin were experienced riders and he wasn't sure how comfortable Ansick and Cindy were on horses. (Dan H., Dep at 57). Once at the stable, Dan selected two horses, and he and Martin saddled and bridled the horses. (Dan H. Dep., at 62-67; Martin Dep., at 102). Dan and Cindy mounted their horse without incident, but when Martin tried to mount, Brownie stepped away from him twice before he was able to successfully mount. (Martin Dep., at 109-111). Although Dan thought this was normal behavior for a horse (Dan H. Dep., at 70-71), Martin thought Brownie seemed a bit "skittish", and decided to take him out for a short run and walk to make sure Brownie was calm and safe before having Ansick mount. (Martin Dep., at 95; Ansick Dep., at 83-84). After running Brownie for approximately five minutes, Martin was satisfied that Brownie was calmed down and safe to ride, and returned to the stable area where Ansick was waiting. (Martin Dep., at 115-16). According to Ansick and Martin, as soon as Ansick hit the saddle, Brownie bucked, stood up on its hind legs, and then fell over backwards. (Martin Dep., at 125; Ansick Aff., ¶ 7).² Ansick fell to the ground and fractured her right elbow. (Ansick Dep., at 125). Because of these injures, Ansick claims that she can no longer work as a professional ice skater. (Ansick Dep., at 139; Ladd Dep., at 40). Ansick has brought this lawsuit against Hillenbrand Industries and John, Joan and Dan Hillenbrand, claiming that they breached their duty of care towards her by negligently permitting her to ride Brownie, a horse she alleges was "known to have temperamental, vicious and/or dangerous propensities." (Complaint, at ¶ 14).

II. SUMMARY JUDGMENT STANDARD

Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary judgment shall be granted

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.Pro. 56(c). A genuine issue of material fact exists if there is sufficient evidence for a jury to return a verdict in favor of the non-moving party on the particular issue. Methodist Medical Center v. American Medical Sec., Inc., 38 F.3d 316, 319 (7th Cir. 1994). In considering a summary judgment motion, a court must draw all justifiable inferences in the light most favorable to the opposing party, and must resolve any doubt against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991); Becker v. Tenenbaum-Hill Associates, Inc., 914 F.2d 107, 110 (7th Cir.1990). While the burden rests squarely on the party moving for summary judgment to show "that there is an absence of evidence to support the nonmoving party's case", Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986), the nonmoving party may not simply rest on the pleadings, but must affirmatively demonstrate by specific factual allegations that a genuine issue of material fact exists for trial. Billups v. Methodist Hosp. of Chicago, 922 F.2d 1300, 1302 (7th Cir.1991); Bratton v. Roadway Package System, Inc., 77 F.3d 168, 173 (7th Cir.1996). Conclusory allegations by a party opposing a motion for summary judgment cannot defeat the motion. Smith v. Shawnee Library System, 60 F.3d 317, 320 (7th Cir.1995). "The moving party is `entitled to a judgment as a matter of law' if the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. If doubts remain, however, as to the existence of a material fact, then those doubts should be resolved in favor of the nonmoving party and summary judgment denied. See, Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir.1989).

III. ANALYSIS

Defendants John, Joan and Daniel Hillenbrand, and Hillenbrand Industries argue that summary judgment is appropriate both because Ansick has failed to demonstrate that Brownie possessed temperamental, vicious or dangerous tendencies, or that the defendants knew of any such tendencies; and because Ansick incurred the risk of her injuries. In addition to these two arguments, Hillenbrand Industries also argues that it is entitled to summary judgment because it is immune from liability under the Indiana Recreational Use Statute, because it was not in possession or control of the farm or of Brownie at the time Ansick was injured, and because Ansick was not an invitee of Hillenbrand Industries to whom it owed a duty of care.

A. Duty to warn of animal's dangerous tendencies.

Under Indiana law, to establish a prima facie case of negligence, Ansick must "present admissible evidence that defendants owed Ansick a duty, that the duty was breached, and that the breach proximately caused her injury." Buckner v....