Davis v. LeCuyer, 49A02-0501-CV-33.<SMALL><SUP>1</SUP></SMALL>

• Decision Date: 26 June 2006
• Docket Number: No. 49A02-0501-CV-33.&lt;SMALL&gt;&lt;SUP&gt;1&lt;/SUP&gt;&lt;/SMALL&gt;,49A02-0501-CV-33.&lt;SMALL&gt;&lt;SUP&gt;1&lt;/SUP&gt;&lt;/SMALL&gt
• Citation: 849 N.E.2d 750
• Parties: Douglas DAVIS, Robert E. Stone and D.L. Stone, Appellants-Defendants, v. Michael LeCUYER and Linda LeCuyer, Individually and as parents and natural guardians of Benton LeCuyer, a minor, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

Page 750

849 N.E.2d 750

Douglas DAVIS, Robert E. Stone and D.L. Stone, Appellants-Defendants, v. Michael LeCUYER and Linda LeCuyer, Individually and as parents and natural guardians of Benton LeCuyer, a minor, Appellees-Plaintiffs.

No. 49A02-0501-CV-33.¹

Court of Appeals of Indiana.

June 26, 2006.

Steve Groth, Bryan H. Babb, Marisol Sanchez, Bose McKinney & Evans LLP, Indianapolis, IN, Attorneys for Appellants.

D. Bruce Kehoe, Christopher G. Stevenson, Wilson Kehoe & Winingham, Indianapolis, IN, Attorneys for Appellees.

OPINION

MATHIAS, Judge.

Douglas Davis, Robert E. Stone, and D.L. Stone bring this interlocutory appeal from the Marion Circuit Court's denial of summary judgment on Michael LeCuyer, Linda LeCuyer, and Benton LeCuyer's complaint alleging negligence, negligent entrustment, and negligent supervision. Concluding that the trial court properly denied summary judgment, we affirm.

Facts and Procedural History

On the night of July 3, 2001, sixteen-year-old Benton LeCuyer ("Benton") spent the night with his friend Douglas Davis ("Doug") at the home of Doug's mother and stepfather, D.L. and Robert Stone (the "Stones"). At about noon on July 4th, Benton drove home, showered, and changed. He then asked his parents if he could join Doug and the Stones on their boat to watch fireworks that evening. Benton's parents gave their permission, and his father drove him back to the Stones' house. Once there, Doug suggested that he and Benton ride two jet skis owned by the Stones. Doug asked his mother's permission to take the jet skis out on Geist Reservoir and she agreed that the boys could go. Meanwhile, Doug's stepfather was busy working in the yard and did not participate in the decision to allow the boys to take out the jet skis, but he did notice the boys putting the jet skis in the water.

According to Benton, neither Doug nor the Stones gave him any instruction on how to operate a jet ski, but he did not consider such instruction necessary. Benton had operated other jet skis in the past. In addition, Benton had a driver's license, and both Doug and Benton had boater safety cards they received after completing a DNR-sponsored boating safety course in school.

After taking the jet skis out of the no wake zone, Benton showed Doug how to do a "power turn," which is "where you hold the throttle down and turn real sharply, kind of do a 180-degree or 360-degree turn." Appellant's App. p. 62. The two "took turns doing power turns to see who could do a power turn the best and spray each other with water." Id. They then "headed south on Geist Reservoir toward the dam area." Appellant's App. p. 71. At first they traveled side by side, but at some point Benton accelerated ahead. He then made a sharp left turn directly in Doug's path, and Doug's jet ski collided with Benton's. Benton suffered a serious leg injury and was taken to the hospital.

On March 27, 2003, the LeCuyers filed a complaint for damages in Marion Circuit Court. Count I of the complaint alleged that Doug operated a jet ski "negligently, carelessly, and recklessly" causing the accident and injury to Benton. In Count II, the LeCuyers alleged that the Stones negligently instructed and supervised both Doug and Benton on the use and operation of the jet skis on July 4, 2001.

The Stones filed a motion for summary judgment on April 23, 2004. The trial court conducted a hearing on July 13, 2004, and later denied the motion. The Stones then filed a "Motion to Reconsider, or in the Alternative, to Certify for Interlocutory Appeal []." On December 16, 2004, the trial court denied the motion to reconsider, `but certified the following questions for interlocutory appeal:

I. What standard of care controls the recreational operation of personal watercraft; and,

II. Is negligent supervision a separate tort in the State of Indiana as to which a person may be liable to a minor in his care?

We accepted jurisdiction pursuant to Indiana Appellate Rule 14(B).

Standard of Review

When reviewing a grant or denial of summary judgment our well-settled standard of review is the same as it is for the trial court: whether there is a genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Summary judgment should be granted only if the evidence sanctioned by Indiana Trial Rule 56(C) shows that there is no genuine issue of material fact and the moving party deserves judgment as a matter of law. All evidence must be construed in favor of the opposing party, and all doubts as to the existence of a material issue must be resolved against the moving party.

Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 973 (Ind.2005) (internal citations omitted). In determining whether the trial court erred in denying summary judgment, we give careful scrutiny to the pleadings and designated materials, construing them in a light most favorable to the non-movant, while also clothing the trial court's decision with a presumption of validity. Diversified Fin. Sys., Inc. v. Miner, 713 N.E.2d 293, 297 (Ind.Ct.App. 1999).

I. Standard of Care for Recreational Operation of Personal Watercraft

Citing three recent cases from this court, the Stones argue that the standard of care that applies "between voluntary co-participants in recreational and sporting activities" is recklessness, rather than negligence. They then argue that they are entitled to summary judgment on the LeCuyers' claims, as no evidence was presented to the trial court that Doug acted intentionally or recklessly while operating the jet ski.

In Mark v. Moser, 746 N.E.2d 410 (Ind. Ct.App.2001), this court addressed the standard of care to be applied between co-participants in a "sports activity." There, a participant in an organized triathlon competition claimed that a fellow triathlete acted negligently and recklessly by cutting in front of her during the bicycling portion of the event, causing a collision and seriously injuring her. The trial court entered summary judgment in favor of the defendant on the issue of negligence. We affirmed, holding that "voluntary participants in sports activities assume the inherent and foreseeable dangers of the activity and cannot recover for injury unless it can be established that the other participant either intentionally caused injury or engaged in conduct so reckless as to be totally outside the range of ordinary activity involved in the sport." Mark, 746 N.E.2d at 420.

In departing from the ordinary standard of care for co-participants in an organized sports activity, Mark relied upon authority from other jurisdictions, as well as the recognized public policy justifications for applying a recklessness standard. "The rationale behind a [recklessness] standard of care is the fear of a flood of litigation, the desire to encourage vigorous athletic competition and participation in sporting events, and the perception that risk of injury is a common and inherent aspect of sports and recreational activity." Id. at 421. Mark then noted that the adoption of a recklessness or intentional conduct standard "preserves the fundamental nature of sports by encouraging, rather than inhibiting, competitive spirit, drive, and strategy." Id. at 422.

Later, in Gyuriak v. Millice, 775 N.E.2d 391 (Ind.Ct.App.2004), trans. denied, a golfer who was struck in the head and injured by another player's errant tee shot during a charity golf outing claimed the other player's negligence and recklessness caused his injury. The trial court granted summary judgment for the other player. We affirmed, holding that the golfer assumed the risk of being struck by another golfer's ball, and therefore the other player did not owe a duty of care with regard to his tee shot. "This is because the primary assumption of risk occurs when an individual, by voluntarily engaging in an activity, consents to those risks that are inherent in and arise by virtue of the nature of the activity itself. In such cases, the participant is owed no duty with regard to such inherent and ordinary risks." Gyuriak, 775 N.E.2d at 394 (citations omitted). When a participant in a sporting activity sustains an injury as a result of risks "inherent" in the activity, comparative fault principles do not apply because there has been no breach of any duty of care. Id. at 394-95.

Finally, in Geiersbach v. Frieje, 807 N.E.2d 114 (Ind.Ct.App.2004), trans. denied, we applied the rationale of Mark and Gyuriak and affirmed the denial of summary judgment to a collegiate baseball player seeking damages for injuries he sustained during an infield practice drill. Geiersbach applied recklessness as the proper standard of care for organized sporting events and practices, and noted that the "reasonable care standard was developed to guide people in their day to day lives.... Athletes, on the other hand, choose to participate in sports [which] by their nature involve a certain amount of inherent danger." 807 N.E.2d at 118. Geiersbach then clarified that the "incurred risk" and "assumption of risk" language employed in Mark and Gyuriak was better understood as a determination of whether such risks were inherent in the sport at issue. Id. at 119. Thus, when a participant in an organized sporting activity sustains an injury as a result of risks inherent in the activity, incurred risk factors into the factual inquiry regarding the proper apportionment of fault under Indiana's Comparative Fault scheme. Id.; see also Gyuriak, 775 N.E.2d at 394-95.

The Stones argue that these cases establish recklessness as the standard of care applicable to co-participants in any sporting or recreational activity, whether organized or casual. The LeCuyers, in turn, argue that expanding the rationale of Mark, Gyuriak, and Geiersbach to include all sporting or recreational activities would create unnecessary ambiguity about what activities should be subject to the lower, recklessness standard. In addition, they argue that the policy...