Funston v. SCHOOL TOWN OF MUNSTER
| Decision Date | 16 December 2004 |
| Docket Number | No. 45A03-0402-CV-63.,45A03-0402-CV-63. |
| Citation | 822 N.E.2d 985 |
| Court | Indiana Appellate Court |
| Parties | Howard FUNSTON and Merry Funston, Appellants, v. SCHOOL TOWN OF MUNSTER, Kay-Jay Construction, Inc., Continental Leisure Sales, Inc., f/k/a Seavay Corporation, and AAU/Munster Basketball Club, Appellees. |
Kenneth J. Allen, Michael T. Terwilliger, William James Lazarus, Kenneth J. Allen & Associates, P.C., Valparaiso, for Appellants.
Michael D. Sears, Maryann Kusiak McCauley, Singleton, Crist, Austgen & Sears, LLP, Munster, for Appellee School Town of Munster.
Howard Funston ("Howard") and his wife Merry Funston (collectively "the Funstons") appeal the trial court's summary judgment ruling in favor of the School Town of Munster ("the School") upon the Funstons' negligence claim, which ensued after Howard fell off the back of a set of portable aluminum bleachers while attending his minor son's basketball tournament at the School. We find the following issue dispositive: whether the trial court erred when it determined that Howard was contributorily negligent as a matter of law.
We reverse and remand for further proceedings.
The facts most favorable to the Funstons are that on March 28, 1999, Howard, a middle school assistant principal in Munster, was at the Munster High School watching his twelve-year-old son participate in an AAU basketball tournament. The School placed six identical sets of five-row aluminum bleachers in the facility. The School custodian arranged them, pursuant to the AAU's instruction, next to the three basketball courts in use that day. The bleachers had no form of back support behind the last tier of seats and were not positioned against a wall. The highest seat was approximately five feet off the ground, which was some type of all-purpose field house flooring. The bleachers did not display any type of warning.
Howard's son played in three games that day. Howard sat on one set of the bleachers for his son's 8:00 a.m. game and moved to another set of bleachers to view his son play in a second game at 10:00 a.m. For all or some part of each of those games, Howard sat on a lower tier of seats and reclined upon the row or bench behind him. Howard relocated to a third set of the bleachers to watch his son in a third game. This time Howard sat in the upper-most row of seats. During the warm-up period, and after Howard had been seated for ten minutes or so, he crossed his legs, leaned back, and fell to the floor, suffering injuries. No one witnessed the fall, but spectators, including a physician at the event, discovered him shortly afterward and assisted him with obtaining medical treatment.
After their tort claims notice was denied, the Funstons filed suit against, among others, the School for negligence, asserting that the School breached its duty by using bleachers that lacked any form of back support.1 Following discovery, the School filed a motion for summary judgment on the basis that Howard was contributorily negligent and that his conduct proximately caused his injuries; therefore, his claim and his wife's derivative claim were barred as a matter of law.2 The trial court granted the School's motion on the basis that Howard was contributorily negligent. The Funstons now appeal.
Our standard of review is the same as that used in the trial court: summary judgment is appropriate only where the evidence shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Mangold, 756 N.E.2d at 973. All facts and reasonable inferences from those facts are construed in favor of the non-moving party. Id. Summary judgment is inappropriate where the information before the court reveals a good faith dispute as to the inferences to be drawn from the evidence. Crossno v. State, 726 N.E.2d 375, 381 (Ind.Ct.App.2000). Although a trial court's grant of summary judgment is "clothed with a presumption of validity on appeal," we carefully review the court's decision to ensure that a party is not denied its day in court. Id. at 378 (). Indeed, summary judgment should not be used as an abbreviated trial. St. John Town Bd. v. Lambert, 725 N.E.2d 507, 512 (Ind.Ct.App.2000).
We further observe that summary judgment is rarely appropriate in negligence claims. Crossno, 726 N.E.2d at 381; Templeton v. City of Hammond, 679 N.E.2d 1368, 1370 (Ind.Ct.App.1997). Rather, issues of negligence, contributory negligence, causation, and reasonable care are most appropriately left for a determination by the trier of fact. Crossno, 726 N.E.2d at 381. The mere improbability of recovery by a plaintiff does not justify summary judgment against him. Id. at 382.
Because the Funstons' case is governed not by the Indiana Comparative Fault Act, but rather by common law contributory negligence, even the slightest negligence on their part bars any recovery, provided their negligence proximately contributed to their injuries. St. John Town Bd., 725 N.E.2d at 516. This is so, regardless of any negligence on the part of the defendant. Id. Contributory negligence is a person's failure to exercise for his own safety that degree of care and caution that an ordinarily reasonable and prudent person in a similar situation would exercise. Templeton, 679 N.E.2d at 1373. Because contributory negligence is an affirmative defense, the burden is on the defendant to prove it. Id.
Whether contributory negligence exists is generally a question of fact for the jury, unless the facts are undisputed and only a single inference can reasonably be drawn from those facts. Id. Contributory negligence is a question of law appropriate as a basis for summary judgment only when the court can say that no reasonable person would have acted as the plaintiff did under the circumstances. Id.
Here, the School maintains that there is no disputed issue of material fact that Howard was contributorily negligent, and, therefore, summary judgment in its favor was appropriate. In particular, the School asserts that Howard knew that he was seated at the top of the bleachers, that the bleachers did not include a back support, and that if he leaned back he could fall to the ground. In response, the Funstons contend that, first, it is not undisputed that Howard was aware that the bleachers lacked any form of back support, and, second, whether Howard's conduct fell within the boundaries of what a reasonably prudent person would do in the same or similar circumstances is a question of fact for the jury to decide. We agree with the Funstons.
Howard testified in his deposition that he sat on two other sets of bleachers that day as he watched his son's first two games and that he had leaned back to recline on the row of seats behind him. He estimated that he had been sitting on the third set for perhaps ten minutes before he fell, admitted that there were two or three rows in front of him, and acknowledged that there was nothing that prevented him from seeing that there was no back support to the bleachers. He also conceded that he knew, at that time, that if a set of bleachers did not have a back, a person could fall off if he or she leaned backward. However, Howard's testimony also included a statement that he leaned back on "what I thought would be a back." Appellants' Appendix at 139. He explained that he "thought there was something back there," although he was "not sure what I thought was back there at the time." Id. He later said, Id. at 153. He explained further that "when I...
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Funston v. School Town of Munster
...as a matter of law. The trial court agreed and granted the school's motion. The Court of Appeals reversed. Funston v. Sch. Town of Munster, 822 N.E.2d 985 (Ind.Ct.App.2004). We granted Summary judgment is proper "if the designated evidentiary matter shows that there is no genuine issue as t......