Mark v. Moser

• Decision Date: 19 April 2001
• Docket Number: No. 29A02-0010-CV-623.,29A02-0010-CV-623.
• Citation: 746 N.E.2d 410
• Parties: Rebecca J. MARK, Appellant-Plaintiff, v. Kyle MOSER, Appellee-Defendant.
• Court: Indiana Appellate Court

746 N.E.2d 410

Rebecca J. MARK, Appellant-Plaintiff, v. Kyle MOSER, Appellee-Defendant.

No. 29A02-0010-CV-623.

Court of Appeals of Indiana.

April 19, 2001.

Joseph A. Christoff, Konrad M.L. Urberg, Christoff & Christoff, Fort Wayne, IN, Attorneys for Appellant.

Steven K. Huffer, Derek L. Mandel, Huffer & Weathers, P.C., Indianapolis, IN, Attorneys for Appellee.

OPINION

BAKER, Judge

Today we are called upon to clearly define the standard of care one competitor owes another in a sporting event. Although this court may have tangentially addressed the issue in the past, there has been no case since the adoption of the Comparative Fault Act where an in-depth analysis was warranted. Thus, the precise issue we must decide is whether a participant in an athletic activity may recover in tort for injury as the result of another participant's negligent conduct.

FACTS

The uncontroverted facts are that on September 7, 1997, Rebecca Mark (Rebecca) and Kyle Moser (Kyle) were co-participants in a triathlon competition in Marion County, which consisted of three events, swimming, bicycling, and running. Before the competition, each triathlon participant agreed to abide by the rules adopted by USA Triathlon. In addition, all the participants signed an entry form, which included a waiver provision and release from liability.

During the bicycling leg of the triathlon, Kyle was riding on the left side of Rebecca and cut in front of her. As a result, the two bicycles collided and Rebecca was hospitalized with serious injuries. Kyle was subsequently disqualified for violating the USA Triathlon rule against endangerment. That rule provides: "No cyclist shall endanger himself or another participant. Any cyclist who intentionally presents a danger to any participant or who, in the judgment of the Head Referee, appears to present a danger to any participants shall be disqualified." Record at 115. The triathlon referee, Ardith Spence, stated that Kyle's conduct was not considered intentional; rather, he was disqualified for violating the rule "because, by moving over, an accident occurred." R. at 111.

On June 7, 1998, Rebecca filed a two-count complaint against Kyle. In Count I, Rebecca alleged that the collision was caused by Kyle's negligence and, in the alternative, in Count II, Rebecca alleged that Kyle acted intentionally, recklessly and willfully in causing her injuries. In response, on September 29, 2000, Kyle filed a motion for summary judgment as to both counts of Rebecca's complaint. Specifically, Kyle argued that Rebecca was barred from recovering on a negligence theory and, instead, asserted that she was required to establish that he intentionally, recklessly, willfully, or wantonly caused her injuries. In addition, Kyle argued that there was no evidence indicating that he had intentionally or recklessly caused the collision between the two bicycles.

The trial court held a hearing on Kyle's motion on June 7, 2000. Thereafter, on August 3, 2000, the trial court granted summary judgment as to Count I of Rebecca's complaint and denied it as to Count II. Rebecca now appeals the trial court's judgment regarding the negligence count.

DISCUSSION AND DECISION

I. Standard of Review

The standard of review of a summary judgment is well settled. This court applies the same standard as the trial court. USA Life One Ins. Co. v. Nuckolls, 682 N.E.2d 534, 537 (Ind.1997). We do not weigh the evidence designated by the parties. Instead, we liberally construe the evidence in the light most favorable to the non-moving party. Id. Summary judgment is appropriate only if the pleadings and the evidence show both the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Butler v. City of Indianapolis, 668 N.E.2d 1227, 1228 (Ind.1996). Where material facts conflict, or undisputed facts lead to conflicting material inferences, summary judgment is inappropriate. Id.

II. The Current State of the Law

A. Indiana Law

Many people might think that Rebecca's claim would be barred because she in some way incurred, or assumed, the risk of injury by participating in the sporting event. However, under present Indiana law that would not necessarily be the case if the standard of care was negligence. On January 1, 1985, Indiana adopted the Comparative Fault Act (the Act). IND.CODE § 34-51-2-1 to -19. The Act was intended to ameliorate the harshness of the then prevailing common law doctrine of contributory negligence. Baker v. Osco Drug, Inc., 632 N.E.2d 794, 797 (Ind.Ct.App.1994). Under the common law rule, a slightly negligent plaintiff was precluded from recovery of any damages, even against a highly culpable tortfeasor. Id. In contrast, under the Act, if a plaintiff's conduct satisfies the statutory definition of "fault," he will be permitted to recover damages, but those damages will be reduced by his proportion of fault. Id. However, if the plaintiff's percentage of fault is assessed at greater than fifty percent, his recovery will still be completely barred. Id. For purposes of defining comparative fault, the term "fault" includes "any act or omission that is negligent, willful, wanton, reckless, or intentional towards the person or property of others. The term also includes unreasonable assumption of risk not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid an injury or to mitigate damages." I.C. § 34-6-2-45(b). This inclusion of "incurred risk" in the definition of fault abolishes incurred risk as a complete bar to recovery and establishes that the fault of each party should be apportioned. Baker, 632 N.E.2d at 797. Thus, under Indiana law, if we adopt negligence as the standard of care between co-participants in a sporting event, it would be a question of fact for the jury to decide whether the plaintiff in any way incurred the risk of harm but is, nevertheless, entitled to recover for his injury.

Our supreme court has not specifically addressed the standard of care between co-participants in athletic events. However, it has addressed the appropriate standard of care owed by an educational institution and its representatives to students for injuries sustained while playing campus sports. In this context, the court has adopted a negligence standard. See Beckett v. Clinton Prairie Sch. Corp., 504 N.E.2d 552, 554 (Ind.1987)

(holding that school personnel have a duty to exercise reasonable care over students participating in a school activity under school supervision, in a case involving a collision between two student baseball players). Our supreme court adopted this standard based on its recognition that there is a well-established "duty on the part of school personnel to exercise ordinary and reasonable care for the safety of children under their authority." Beckett, 504 N.E.2d at 553; c.f. Brewster v. Rankins, 600 N.E.2d 154, 158 (Ind.Ct.App.1992) (holding that while school authorities have a duty to exercise reasonable care for the safety of children under their tutelage, they have no duty to prevent a student from injuring other players while practicing his golf swing at home). According to the court, whether school personnel exercised their duty with the level of care of an ordinary prudent person under the same or similar circumstances is generally a factual question for the determination of the jury. Beckett, 504 N.E.2d at 554.

Our supreme court has also recognized, however, that if the student athlete can be shown to have incurred the risks inherent in the sports event, this acts as a potential bar to recovery. Id.; see also Clark v. Wiegand, 617 N.E.2d 916, 919 (Ind.1993)

(holding that the question of whether a student in a university judo class incurred the risk of injury from another student so as to bar recovery from the university was a question for the jury). According to the Beckett court, for the "doctrine of incurred risk" to affect the plaintiff's likelihood or percentage of recovery, it is not enough that the plaintiff merely has a general awareness of a potential for mishap in engaging in the particular sports activity. Id. Rather, the doctrine involves a subjective analysis focusing upon the plaintiff's actual knowledge and appreciation of the specific risk and voluntary acceptance of that risk. Clark, 617 N.E.2d at 919 (stating that whether the possibility of sustaining a knee ligament injury while participating in a judo class "was within the plaintiff's actual knowledge, appreciation, and voluntary acceptance, is a factual matter not easily susceptible to determination as a matter of law").¹

In Duke's GMC v. Erskine, 447 N.E.2d 1118, 1118 (Ind.Ct.App.1983), a panel of this court addressed the situation where a sports participant sued for injuries caused by another player. Duke's GMC involved a golfer, Erskine, who sued for loss of an eye from being struck by a golf ball at a country club. Id. In addition to being decided prior to Indiana's adoption of the Comparative Fault Act, Duke's GMC is distinguishable from the case at bar because the court was not confronted with the standard of care between sports co-participants and because Erskine sued the corporation that paid the dues of its president who hit the golf ball causing the injury, rather than suing the president himself. Id. Specifically, in Duke's GMC, this court was called upon to decide whether the trial court erred in admitting certain evidence and in the instructions it gave to the jury. In addressing whether the trial court's instruction regarding incurred risk was erroneous, this court approved the parties' assertion that a golfer could not incur the risk of another golfer's negligence as a matter of law. This court then discussed the instruction based on a negligence standard, but it never addressed the standard of care one competitor owes another in a sporting event. However, when discussing the appropriateness of the...