Drake by Drake v. Mitchell Community Schools, No. 47S01-9505-CV-534
| Docket Nº | No. 47S01-9505-CV-534 |
| Citation | 649 N.E.2d 1027 |
| Case Date | May 10, 1995 |
| Court | Supreme Court of Indiana |
Page 1027
DRAKE and Doris and Donald Drake, Individually,
Plaintiffs-Appellants,
v.
MITCHELL COMMUNITY SCHOOLS, Mitchell Community Schools Board
of Trustees, Kiwanis International, Inc., Mitchell Chapter
and its Board of Directors, and First National Bank of
Mitchell, Defendants-Appellees.
Page 1028
Jay D. Allen, Allen, Allen & Allen, Salem, for appellants.
Robert J. Doyle, Stewart Due Miller & Pugh, Indianapolis, for appellee Mitchell Community Schools, Mitchell Community Schools Bd. of Trustees.
Mark R. Smith, Smith & Bemenderfer, Indianapolis, for appellee First Nat. Bank of Mitchell.
DICKSON, Justice.
In this personal injury action brought by a high school student and her parents after the student allegedly contracted histoplasmosis 1 from the various defendants' use and control of a vacant grain elevator, the Court of Appeals reversed a summary judgment favoring the school and affirmed a summary judgment favoring the bank that owned the elevator. Drake v. Mitchell Community Sch. (1994), Ind.App., 628 N.E.2d 1231. The plaintiff-appellants seek transfer to question the interpretation and application given the Indiana Recreational Use Statute ("IRUS"), Indiana Code § 14-2-6-3. We grant transfer.
In 1981, the First National Bank of Mitchell ("the Bank") acquired ownership of a grain elevator located in downtown Mitchell, Indiana. Annually thereafter, the Bank donated the use of the elevator to the Mitchell Chapter of Kiwanis International, Inc. ("Kiwanis"), which conducted a Halloween fundraising event, a haunted house, in the structure. In 1990, Kiwanis again obtained use of the elevator and approached the Student Council of Mitchell High School about co-sponsoring the Halloween event. The Student Council agreed to participate, with proceeds to be divided equally between the two organizations.
Cassandra Wheatley, a teacher at the high school and faculty sponsor of the Student Council, made an initial inspection of the elevator, observed its dirty condition, and requested that it be cleaned to avoid, among other things, the risk of histoplasmosis, a disease she herself had previously contracted. Kiwanis indicated that the elevator would be cleaned before students entered to decorate. Several days prior to the staging of the haunted house, before Kiwanis undertook cleaning, plaintiff-appellant Holli Drake, a Student Council member who had volunteered to make decorations, obtained a key from the Bank to enter the elevator. Holli fashioned decorations in the elevator, in windy, dusty conditions, for two to three hours, during which a Kiwanis member arrived and began vacuuming. Holli assisted in the cleaning by sweeping the ramp to the elevator on the same occasion. The elevator was still quite dusty on the evening of the haunted house, in which Holli participated by leaping out of a plastic coffin in an effort to frighten patrons. Several days after the event, Holli contracted a severe case of histoplasmosis, which required hospitalization and resulted in substantial medical bills and other treatment-related expenses.
Holli and her parents brought suit, alleging negligence on the parts of Kiwanis, the Bank, and Mitchell Community Schools and its Board of Trustees (together, "the School"). Each of the defendants filed a motion for summary judgment. The trial court granted summary judgment in favor of the School under the governmental immunity provisions of the Indiana Tort Claims Act, Ind.Code § 34-4-16.5-3(11), and in favor of the Bank under the IRUS immunity provisions.
Page 1029
The summary judgment motion by Kiwanis was denied.In their appeal from the trial court, the plaintiffs have contested both the summary judgment granted the School and that granted the Bank. As to the former, the decision of the Court of Appeals reversing summary judgment is summarily affirmed. Ind.Appellate Rule 11(B)(3). 2 We now proceed to consider the summary judgment favoring the Bank.
Although a summary judgment on appellate review is clothed with a presumption of validity and the appealing party bears the burden of persuasion, we consider...
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Sallee v. Stewart, No. 11–0892.
...which included hunting, fishing, swimming, trapping, camping, hiking, and sightseeing. Drake ex rel. Drake v. Mitchell Cmty. Sch., 649 N.E.2d 1027, 1030 (Ind.1995). 4. Recreational use statutes that list recreational uses, but do not include expansive language. Unlike the statutes identifie......
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Van Den Biggelaar v. Wagner, No. 3:96 CV 00401 AS.
...44 L.Ed.2d 141 (1975); Board of Comm'rs v. Wyant, 672 N.E.2d 77 (Ind.Ct.App.1996), reh'g denied; Drake v. Mitchell Community Schools, 649 N.E.2d 1027...
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Roeder v. United States, No. CV–13–955.
...844 P.2d 623 (Ariz.Ct.App.1992); Conway v. Town of Wilton, 238 Conn. 653, 680 A.2d 242 (1996); Drake by Drake v. Mitchell Cmty. Schs., 649 N.E.2d 1027 (Ind.1995); Monteville v. Terrebonne Parish Consol. Gov't, 567 So.2d 1097 (La.1990); Seideman by Seideman v. Cnty. of Monroe, 185 A.D.2d 640......
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Joe v. Lebow, No. 49A02-9504-JV-189
...412 N.E.2d 1202, 1206; Drake v. Mitchell Community Sch. (1994) Ind.App., 628 N.E.2d 1231, 1235, aff'd in part and vacated in part (1995) 649 N.E.2d 1027. We find from these rules strong support for Father's argument that the legislature "deliberately lessened the [strict] standard" for modi......
-
Sallee v. Stewart, No. 11–0892.
...which included hunting, fishing, swimming, trapping, camping, hiking, and sightseeing. Drake ex rel. Drake v. Mitchell Cmty. Sch., 649 N.E.2d 1027, 1030 (Ind.1995). 4. Recreational use statutes that list recreational uses, but do not include expansive language. Unlike the statutes identifie......
-
Van Den Biggelaar v. Wagner, No. 3:96 CV 00401 AS.
...44 L.Ed.2d 141 (1975); Board of Comm'rs v. Wyant, 672 N.E.2d 77 (Ind.Ct.App.1996), reh'g denied; Drake v. Mitchell Community Schools, 649 N.E.2d 1027...
-
Roeder v. United States, No. CV–13–955.
...844 P.2d 623 (Ariz.Ct.App.1992); Conway v. Town of Wilton, 238 Conn. 653, 680 A.2d 242 (1996); Drake by Drake v. Mitchell Cmty. Schs., 649 N.E.2d 1027 (Ind.1995); Monteville v. Terrebonne Parish Consol. Gov't, 567 So.2d 1097 (La.1990); Seideman by Seideman v. Cnty. of Monroe, 185 A.D.2d 640......
-
Joe v. Lebow, No. 49A02-9504-JV-189
...412 N.E.2d 1202, 1206; Drake v. Mitchell Community Sch. (1994) Ind.App., 628 N.E.2d 1231, 1235, aff'd in part and vacated in part (1995) 649 N.E.2d 1027. We find from these rules strong support for Father's argument that the legislature "deliberately lessened the [strict] standard" for modi......