Pfenning v. Lineman

• Decision Date: 12 February 2010
• Docket Number: No. 27A02-0905-CV-444.,27A02-0905-CV-444.
• Citation: Pfenning v. Lineman, 922 N.E.2d 45 (Ind. App. 2010)
• Parties: Cassie E. PFENNING, Appellant-Plaintiff, v. Joseph E. LINEMAN, Whitey's 31 Club, Inc., Marion Elks Country Club Lodge # 195, and the Estate of Jerry A. Jones, Appellees-Defendants.
• Court: Indiana Appellate Court

922 N.E.2d 45

Cassie E. PFENNING, Appellant-Plaintiff, v.Joseph E. LINEMAN, Whitey's 31 Club, Inc., Marion Elks Country Club Lodge # 195, and the Estate of Jerry A. Jones, Appellees-Defendants.

No. 27A02-0905-CV-444.

Court of Appeals of Indiana.

February 12, 2010.

Christine M. Marcuccilli, Rothberg Logan & Warsco, LLP, Fort Wayne, IN, Attorney for Appellant.

Marie Anne Hendrie, The Law Offices of Hanover Ins. Group, Inc., South Bend, IN, Attorney for AppelleeJoseph E. Lineman.

James J. Shea, Sr., Linda A. Polley, Fort Wayne, IN, Attorneys for AppelleeWhitey's 31 Club, Inc.

Ryan L. Leitch, Laura S. Reed, James O. Griffin, Riley Bennett & Egloff, LLP, Indianapolis, IN, Attorneys for AppelleeMarion Elks Country Club Lodge # 195.

Kyle C. Persinger, Spitzer Herriman Stephenson Holderead Musser & Conner, LLP, Marion, IN, Attorney for Appellee The Estate of Jerry A. Jones.

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Cassie E. Pfenning appeals the trial court's entries of summary judgment in favor of Joseph E. Lineman; Whitey's 31 Club, Inc.("Whitey's"), an Indiana corporation; Marion Elks Country Club Lodge # 195 (the "Elks"), a fraternal organization; and the Estate of Jerry A. Jones(collectively, the "Defendants").¹

We affirm.

ISSUE

Whether the trial court erred in granting summary judgment to the Defendants.

FACTS

The facts most favorable to Pfenning as the non-moving party indicate that Whitey's, a bar, sponsored a golf scramble at the Elks' golf course in Marion on August 19, 2006.Whitey's enlisted golfers by posting sign-up sheets in the bar.It also provided sign-up sheets for volunteers to serve beverages from golf carts.The forty-five dollar entrance fee covered the costs of green fees, prizes, golf carts, and beverages.The Elks did not sponsor the event but merely supplied the golf carts and beverages, including beer, for the event.Jerry Jones, Pfenning's grandfather, signed up to drive a beverage cart.

The morning of the scramble, Jones invited the then-sixteen-year-old Pfenning to ride in a beverage cart with him during the tournament.With her mother's permission, Pfenning agreed to join Jones.

Upon arriving at the golf course, Jones retrieved a beverage cart for his and Pfenning's use and brought it to where Pfenning was waiting, in front of the clubhouse.The cart had a large cooler in the back for drinks but no roof or windshield.Pfenning received no instructions regarding how or where to operate the cart; she was unfamiliar with golf etiquette and had been to a golf course only once before in 1997.Pfenning initially did not assist in loading the cart's cooler with beverages and did not meet the other two beverage cart operators out on the course during the scramble.

Prior to the start of the scramble, Jones decided to join one of the teams playing in the scramble as it was short a player.He therefore left Pfenning with his sister, Lottie Kendall.Kendall and Pfenning drove the beverage cart together for a short period of time until Kendall also decided to play in a foursome.Christie Edwards, a Whitey's employee, therefore took Kendall's place in the beverage cart.Pfenning drove the cart, and Edwards dispensed the beverages to the scramble's participants.

Approximately three hours into the tournament, Lineman, a participant in the scramble, hit a drive from the 16th hole's tee.The ball traveled straight for approximately sixty to seventy yards before "turn[ing] directly left."(App. 69).²As Lineman followed the ball's trajectory, he observed the roof of a golf cart, belonging to another foursome, in the ball's path.Pfenning, who was driving the beverage cart on a cart path near the 18th hole, did not hear any warning regarding the ball's approach.After traveling more than two hundred feet, the ball struck Pfenning in the mouth, causing injuries to her mouth, jaw, and teeth.

On February 7, 2007, Pfenning filed a complaint against the Defendants.She alleged as follows:

22.The Defendants failed to exercise reasonable care for the safety of [Pfenning] by failing to provide her with a beverage cart that contained a canopy or a windshield to provide [her] with some measure of protection from the risks associated with being struck by a flying golf ball.

23.The Defendants failed to exercise reasonable care for the safety of [Pfenning] by failing to provide her with any warnings, any information or any safety instructions prior to sending her onto a golf course that was full of golfers (most of which were drinking alcohol) to dispense beverages.

24.The Defendants negligently failed to exercise reasonable care for the safety of [Pfenning] while she was on the premises of the [Elks'] golf course.

25.As a direct and proximate result of the Defendants' negligent conduct, [Pfenning] suffered painful and permanent injuries and incurred significant medical and dental expenses.Several of [her] teeth were destroyed and her teeth remain missing and/or disfigured.[She] will incur significant dental expenses in the future.

26.As a direct and proximate result of the Defendants' negligent conduct, [Pfenning] suffered mental and emotional pain and anguish.

27.As a direct and proximate result of the Defendants' negligent conduct, [Pfenning]'s ability to function as a whole person has been impaired.The quality of [her] life has been significantly diminished as a result of the Defendants' negligent conduct.

(App. 54-55).

The Elks, Lineman, and Jones filed motions for summary judgment and memoranda in support thereof on February 4, 2009.Whitey's filed a motion for summary judgment on February 10, 2009.

Pfenning filed a memorandum in opposition to the Defendants' motions for summary judgment on March 4, 2009.The trial court held a hearing on the motions for summary judgment on March 12, 2009.During the hearing, Pfenning raised the issue of Jones' purported negligent supervision.On April 27, 2009, the trial court entered its orders, granting the Defendants' motions for summary judgment.

DECISION

Pfenning asserts that the trial court erred in granting summary judgment to the Defendants.Specifically, she contends that 1) the Defendants owed her a duty; and there exists genuine issues of material fact regarding whether 2) Lineman's conduct was reckless; 3) Jones, Whitey's, and the Elks were negligent in their supervision of her; and 4) the Elks and Whitey's breached a duty of reasonable care owed to her under the theory of premises liability.

When reviewing a grant or denial of summary judgment, our well-settled standard of review is the same as it was for the trial court: whether there is a genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law.Landmark Health Care Assocs., L.P. v. Bradbury,671 N.E.2d 113, 116(Ind.1996).Summary judgment should be granted only if the evidence sanctioned by Indiana TrialRule 56(C) shows that there is no genuine issue of material fact and the moving party deserves judgment as a matter of law.Ind. T.R. 56(C);Blake v. Calumet Const. Corp.,674 N.E.2d 167, 169(Ind.1996)."A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute or where the undisputed facts are capable of supporting conflicting inferences on such an issue."Scott v. Bodor, Inc.,571 N.E.2d 313, 318(Ind.Ct.App.1991).

All evidence must be construed in favor of the opposing party, and all doubts as to the existence of a material issue must be resolved against the moving party.Tibbs v. Huber, Hunt & Nichols, Inc.,668 N.E.2d 248, 249(Ind.1996).However, once the movant has carried his initial burden of going forward under TrialRule 56(C), the nonmovant must come forward with sufficient evidence demonstrating the existence of genuine factual issues, which should be resolved at trial.Otto v. Park Garden Assocs.,612 N.E.2d 135, 138(Ind. Ct.App.1993), trans. denied.If the nonmovant fails to meet his burden, and the law is with the movant, summary judgment should be granted.Id.

"Additionally, when material facts are not in dispute, our review is limited to determining whether the trial court correctly applied the law to the undisputed facts."Mills v. Berrios,851 N.E.2d 1066, 1069(Ind.Ct.App.2006)(quotingBennett v. CrownLife Ins. Co.,776 N.E.2d 1264, 1268(Ind.Ct.App.2002)).We review a question of law de novo.Id."Finally, if the trial court's grant of summary judgment can be sustained on any theory or basis in the record, we will affirm."Beck v. City of Evansville,842 N.E.2d 856, 860(Ind.Ct.App.2006), trans. denied.

1.Duty

Pfenning asserts that the trial court erred in granting summary judgment in favor of the Defendants.She argues that the Defendants owed her a duty to prevent her from being injured and were negligent in breaching that duty.

To recover on a theory of negligence, a plaintiff must establish three elements: (1)defendant's duty to conform his conduct to a standard of care arising from his relationship with the plaintiff, (2) a failure of the defendant to conform his conduct to that standard of care, and (3) an injury to the plaintiff proximately caused by the breach.

Whether the defendant must conform his conduct to a certain standard for the plaintiff's benefit is a question of law for the court to decide.Courts will generally find a duty where reasonable persons would recognize and agree that it exists.This analysis involves a balancing of three factors: (1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns.

Estate of Heck ex rel. Heck v. Stoffer,786 N.E.2d 265, 268(Ind.2003), reh'g denied."`Generally, whether a duty exists is a question of law for the court to decide, although sometimes the existence of a duty depends upon underlying facts that require resolution by a trier of fact.'"Parsons v. Arrowhead Golf, Inc.,874...