Krueger v. Bailey, 3-579A128

• Decision Date: 30 June 1980
• Docket Number: No. 3-579A128,3-579A128
• Citation: 406 N.E.2d 665
• Parties: Catherine A. KRUEGER, by Joseph T. Krueger, her father and next friend, and Joseph T. Krueger, Appellant (Plaintiff Below), v. Max BAILEY, Steven R. Herald, Robert Dillon and Michigan City Area Schools School Corporation acting by and through its Board of Trustees, Robert G. Taub, Robert C. Frame, Leon Dargis, Sam Johns, James Fisher, Frances Kubik and Harold Werdine, Appellee (Defendants Below).
• Court: Indiana Appellate Court

Page 665

406 N.E.2d 665

Catherine A. KRUEGER, by Joseph T. Krueger, her father and next friend, and Joseph T. Krueger, Appellant (Plaintiff Below), v. Max BAILEY, Steven R. Herald, Robert Dillon and Michigan

City Area Schools School Corporation acting by and through

its Board of Trustees, Robert G. Taub, Robert C. Frame, Leon

Dargis, Sam Johns, James Fisher, Frances Kubik and Harold

Werdine, Appellee (Defendants Below).

No. 3-579A128.

Court of Appeals of Indiana, Third District.

June 30, 1980.

John H. Sweeney, Sweeney, Winski, Dabagia & Donoghue, Michigan City, for appellant.

David L. Abel, Jr., Spangler, Jennings, Spangler, & Dougherty, Gary, for Max Bailey.

Leon R. Kaminski, Newby, Lewis, Kaminski & Jones, LaPorte, for Steven R. Herald.

Merlyn C. Bartlett, Michigan City, and David H. McCain, Sallwasser & McCain, LaPorte, for Robert Dillon and Michigan City Area Schools School Corp.

Robert W. Rund, David J. Emmert, Indiana School Boards Ass'n, Indianapolis, for amicus curiae Indiana School Boards Ass'n.

STATON, Judge.

Catherine A. Krueger and her father, Joseph T. Krueger, filed a negligence action against Max Bailey (Bailey) and Steven R. Herald (Herald) for injuries sustained as the result of a frisbee accident occurring on a school playground. In their complaint they also alleged that Robert Dillon (Dillon, et al.), as the junior high school principal, had failed in his duty to provide adequate supervision of students on the playground during noon recess. In addition, they joined the Michigan City Area Schools School Corporation as a defendant for its failure to institute adequate rules and regulations which would insure adequate supervision of students during noon recess.

Each of the defendants filed a motion for summary judgment. The trial court granted the motions for summary judgment made by Herald and Dillon et al. It denied Bailey's motion for a summary judgment and concluded that the cause should continue as to the remaining defendant.

On appeal, the Kruegers raise three issues for our consideration:

(1) Was the trial court's granting of the summary judgment as to Herald contrary to law?

(2) Was the trial court's finding that Dillon et al. were immune from liability under the Indiana Tort Claims Act contrary to law?

(3) Did the trial court err in finding that Dillon et al. were entitled to a judgment as a matter of law in view of the common law duty to provide adequate supervision of students?

We affirm.

The relevant facts indicate that, on September 24, 1975, Miss Krueger, while walking on school property during her lunch hour, was struck in the forehead by a frisbee. She suffered a cerebral concussion. The frisbee was owned by Herald and had been thrown by Bailey, both of whom were high school students and classmates of Miss Krueger.

I. Motion to Dismiss

In the case at bar, the motions of summary judgment as to Herald and Dillon et al were granted; Bailey's motion for summary judgment was denied. Due to the failure of the trial court to resolve all of the issues as to all of the parties, we must determine, as a threshold question whether the judgments entered were "final judgments" from which an appeal may be taken. ¹

Based on Ind. Rules of Procedure, Trial Rule 54(B) and TR. 56(C), a summary judgment which disposes of less than all the claims or parties is interlocutory and not final. It is, therefore, not appealable unless the trial court, in writing, expressly determines that there is no just reason for delay and, in writing, expressly directs the entry of judgment thereon. TR. 56(C); Stanray Corporation v. Horizon Construction, Inc. (1976), Ind.App., 342 N.E.2d 645; Kasten v. Sims Motor Transport (1975), 166 Ind.App. 117, 333 N.E.2d 906. While the court here granted the motions for summary judgment on behalf of Herald and Dillon et al., it failed to expressly determine, in writing, that "there is no just reason for delay." TR. 56(C).

Even if we were to assume that these judgments were not "certified" ² for review, this Court is not prohibited from reviewing the issues decided by the court. Ind. Rules of Procedure, Appellate Rule 4(E) provides:

"No appeal will be dismissed as of right because the case was not finally disposed of in the court below as to all issues and parties, but upon suggestion or discovery of such a situation the appellate tribunal may, in its discretion, suspend consideration until disposition is made of such issues, or it may pass upon such adjudicated issues as are severable without prejudice to parties who may be aggrieved by subsequent proceedings in the court below."

See also Parrett v. Lebamoff (1979), Ind.App., 383 N.E.2d 1107, 1109; First Equity Security Life Insurance Co. v. Keith (1975), 164 Ind.App. 412, 329 N.E.2d 45, 48.

In order to facilitate the speedy disposition of this case, we will exercise our discretion and consider the merits at this time. The issues as related to Herald and Dillon et al. are severable and no prejudice will result to the remaining party.

II. Summary Judgment as to Herald

On appeal, the Kruegers claim that the trial court's granting of the summary judgment as to Herald was contrary to law. They contend that "it was incumbent on the court in order to have granted the Motion for Summary Judgment in favor of Defendant Steven Herald to have found in the record before it that Defendant Steven Herald could not be liable even though he was a participant in the game."

The trial court's findings of fact and conclusions of law ³ are as follows:

"The Court, being duly advised in the premises, hereby finds no genuine issue as to any material fact as to the following:

"1. On September 24, 1975, plaintiff was struck in the right temple by a frisbee.

"2. On September 23, 1977, this personal injury suit was filed naming Steven Herald, among others, as defendant.

"3. Steven Herald was the owner of the frisbee at the time of the accident and has no other material connection with the events which occurred on September 24, 1975.

"4. The frisbee which struck the plaintiff was not thrown by Steven herald.

"5. There are no genuine issues as to any other material facts relevant to defendant Steven Herald.

"Given the foregoing material facts upon which the court finds there to be no dispute, the court hereby renders the following conclusions of law:

"1. The law is with the defendant, Steven Herald on the motion for summary judgment.

"2. Steven Herald had no connection with Plaintiff's injury and committed no negligent act regarding such injury.

"3. A frisbee is not a dangerous instrumentality, and therefore, defendant, Steven Herald, was under no duty to provide any special instructions regarding its use.

"4. The pleadings, disposition, and memoranda show that there is no genuine issue as to any material fact as to defendant, Steven Herald, and that the moving party is entitled to have judgment rendered forthwith."

When reviewing the granting of a summary judgment, we may only look to see whether the trial court correctly applied the law and whether there is any genuine issue of material fact. Tekulve v. Turner (1979), Ind.App., 391 N.E.2d 673. The movant has the burden of establishing that there are no material facts in controversy and any doubt must be resolved against the movant. Ang v. Hospital Corp. of America (1979), Ind.App., 395 N.E.2d 441. The evidentiary matters before the court are, therefore, construed in a light most favorable to the nonmoving party. Tekulve, supra.

Even if the facts are not in dispute, a summary judgment is inappropriate when the information before the court reveals a good faith dispute as to the inferences to be drawn from these facts. Hale v. Peabody Coal Company (1976), Ind.App., 343 N.E.2d 316. It must be remembered that a summary judgment is a procedure for applying the law to the facts, when no factual controversy exists. It is not a procedure for trying the facts and for determining the preponderance of the evidence. Ang, supra.

In the case at hand, the information before the court consisted of the pleadings and Miss Krueger's deposition. On the basis of certain portions of this deposition, the Kruegers claim that Herald was, clearly, a participant in a game of frisbee. Even when analyzed in a light most favorable to the Kruegers, the evidence does not support this interpretation.

They rely upon statements in the deposition which place Herald with a group of boys playing frisbee at the top of a hill. Miss Krueger explained that after she had been struck by the frisbee, the boys came down the hill and asked if she were all right. In pressing their claim, the Kruegers have ignored several portions of the deposition which indicate that the only participants in a frisbee game were Bailey and his brother:

"Q Okay. Did you see anyone else throwing the Frisby (sic ) other than Max at the fence; that is, before you got there?

"A I don't recall anyone else.

"Q Well, he'd thrown it at the fence and then come down and retrieve it himself, is that what you are saying, Kathy?

"A No, I seem to recall his brother standing down there to throw it back up at him, but I don't know if maybe that was like from a few days before that or if that was from that day that it happened.

"Q All right. But your best recollection is that maybe Mike Bailey was at the fence area throwing it back to his brother Max, is that correct?

"A Yes, that is correct."

Miss Krueger further testified:

"Q Now, Cathy, I want to just end by asking you this: Did you see Steve Herald do anything on September 24, 1975?

"A No."

Despite Miss Krueger's testimony placing Herald with a group of boys at the top of the hill, there was no evidence of his participation in a game of frisbee at the time of the injury. His presence on the hill is insufficient to demonstrate any participation on his part. There was no evidence as to his involvement in the game.

The Kruegers assert that the trial court erred when it failed to...