Pentony v. Valparaiso Dep't of Parks & Recreation
| Decision Date | 29 March 2012 |
| Docket Number | Civil Action No. 2:09–CV–363 JVB. |
| Citation | 866 F.Supp.2d 1002 |
| Parties | Mary PENTONY, Plaintiff, v. VALPARAISO DEPARTMENT OF PARKS AND RECREATION and Leathers and Associates Inc., formerly operating as ROBERT S. Leathers and Associates, Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
OPINION TEXT STARTS HERE
Daniel G. Suber, Lizabeth R. Nadzan, Daniel G. Suber & Associates, Chicago, IL, for Plaintiff.
Brian J. Hurley, Douglas Koeppen & Hurley, Valparaiso, IN, Mark A. Lienhoop, Martin W. Kus, Sean Joseph Quinn, Newby Lewis Kaminski & Jones LLP, Laporte, IN, Geoffrey A. Bryce, Stephen R. Niemeyer, Storrs W. Downey, Bryce Downey & Lenkov LLC, Chicago, IL, for Defendants.
This matter is before the Court on the motion of Defendant Valparaiso Department of Parks and Recreation for summary judgment (DE 51). After reviewing the parties' summary judgment submissions the Court set the motions for oral argument and gave the parties notice under Federal Rule of Civil Procedure 56(f) that they should discuss the applicability of the statute of repose found in Indiana Code § 32–30–1–5 at oral argument. Defendants both filed supplemental memoranda and Plaintiff filed a response to Valparaiso's supplemental memorandum. The Court heard oral argument on March 6, 2012.
Plaintiff Mary Pentony was injured while playing on a slide with her two-year-old grandson at a Valparaiso city park play area called Valplayso. Pentony then sued Defendants Valparaiso Department of Parks and Recreation and Leathers and Associates Inc. for damages resulting from the alleged negligent design, construction, and maintenance of the play area. In Count I of the complaint Pentony alleges a premises liability claim against Valparaiso, stating that it allowed dangerous conditions to exist at the premises, failed to establish and enforce safe rules for the play area, and that it failed to warn invitees of dangerous conditions there. In Count II Pentony alleges that Valparaiso, as the builder and installer of the slide, breached its duty to properly construct, maintain and repair the slide. In Count III she alleges that Valparaiso breached its duty to design a playground that was fit for use, to make design improvements, to discover and correct defects, and to warn users of the playground.
A motion for summary judgment must be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Rule 56 further requires the entry of summary judgment, after adequate time for discovery, against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
A party seeking summary judgment bears the initial responsibility of informing a court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. If the moving party supports its motion for summary judgment with affidavits or other materials, it thereby shifts to the non-moving party the burden of showing that an issue of material fact exists. Keri v. Bd. of Trust. of Purdue Univ., 458 F.3d 620, 628 (7th Cir.2006).
In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences and resolve all doubts in favor of that party. Keri, 458 F.3d at 628. A court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson v. Liberty Lobby, 477 U.S. 242, 249–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The relevant facts assumed to be true for the purpose of ruling on Defendants' motion for summary judgement are:
Defendant Valparaiso began the process of building a play area in Glenrose park in October 1993. In February 1994 it retained Leathers to design the play area. In April 1994 it accepted Leathers' proposal for architect's services with respect to the project. Leathers agreed to prepare schematic design studies, consult with the playground committee to incorporate design changes requested by the committee, prepare working drawings and specifications, provide organizing and coordinating assistance, and recommend construction consultants. Actual construction of the play area, which was performed by volunteers, occurred from October 5 through October 9, 1994. Leathers issued a certificate of substantial completion for the project on October 10, 1994.
On June 23, 2008, Pentony was playing on the slide that is part of the play area when her hand became lodged between a pole and the wooden slats on the slide, causing the injuries for which she seeks damages in this suit. She filed her complaint on October 29, 2009.
Valparaiso routinely conducts maintenance inspections at the Valplayso playground, including visual walk-throughs. It uses incident report forms to address equipment problems. It maintains logs of all repairs that are made to the equipment.
According to Pentony's expert, Scott Burton, the play area was designed for children ages five through twelve, and a sign should have been placed on the playground equipment warning that the equipment was suitable only for persons within that age range. He states that the failure to have a warning sign in place is a violation of specified national safety standards.
Valparaiso initially claimed that the ten-year statute of repose under Indiana's Product Liability Act, Indiana Code § 34–20–3–1, bars Pentony's duty-to-warn claim in Count I as well as her claims in Counts II and III of the complaint. A product liability action is an action that is brought against a manufacturer or seller of a product on account of physical harm, regardless of the substantive theory on which the action is brought. Ind.Code § 34–6–2–115. Indiana Code § 34–20–3–1 provides that a product liability action must be commenced within two years after the cause of action accrues or within ten years after the delivery of the product to the initial user or consumer. 1 Pentony filed suit on October 29, 2009, more than fifteen years after the play area was completed. Thus this action is time-barred if Indiana Code § 34–20–3–1 applies.
The Court determines that Indiana Code § 34–20–3–1 is not applicable to this action, because Valparaiso is not a manufacturer as defined in Indiana Code § 34–6–2–77 or a seller as defined in Indiana Code § 34–6–2–114.
Indiana Code § 34–6–2–77 defines manufacturer:
(a) “Manufacturer,” for purposes of IC 34–20, means a person or an entity who designs, assembles, fabricates, produces, constructs or otherwise prepares a product or a component part of a product before the sale of the product to a user or consumer.
Valparaiso may have had a hand in the design of the play area and did construct it. However, these activities did not precede the sale of the play area to anyone.
Indiana Code § 34–6–2–136 defines seller:
“Seller,” for purposes of IC 34–20, means a person engaged in the business of selling or leasing a product for resale, use, or consumption.
Nothing in the record suggests that Valparaiso is in the business of selling play areas.
As Valparaiso conceded at oral argument, because Valparaiso is neither the manufacturer nor the seller of a product, the statute of repose found in Indiana Code § 34–20–3–1 does not apply to Pentony's claims against Valparaiso.
Indiana Code § 32–30–1–5(d) provides:
An action to recover damages, whether based upon contract, tort, nuisance, or another legal remedy, for:
(1) a deficiency or an alleged deficiency in the design, planning, supervision, construction, or observation of construction of an improvement to real property;
(2) an injury to real or personal property arising out of a deficiency; or
(3) an injury or wrongful death of a person arising out of a deficiency;
may not be brought against a designer or possessor unless the action is commenced within the earlier of ten (10) years after the date of substantial completion of the improvement or twelve (12) years after the completion and submission of plans and specification to the owner if the action is for a deficiency in the design of the improvement.
Indiana Code § 32–30–1–5(b) defines “possessor” as one having “ownership, possession, or control of real property at the time an alleged deficiency in an...
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