Smith v. AMLI Realty Co.

• Decision Date: 27 May 1993
• Docket Number: No. 41A04-9209-CV-318,41A04-9209-CV-318
• Parties: Elizabeth A. SMITH, next best friend of Lucas Christopher Smith, Appellants-Plaintiffs, v. AMLI REALTY CO., d/b/a The Sycamore Apartments, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 618

614 N.E.2d 618

Elizabeth A. SMITH, next best friend of Lucas Christopher

Smith, Appellants-Plaintiffs, v. AMLI REALTY CO., d/b/a The Sycamore Apartments, Appellee-Defendant.

No. 41A04-9209-CV-318.

Court of Appeals of Indiana,

Fourth District.

May 27, 1993.

Marvin E. Coffey and Ted D. Biggs, Indianapolis, for appellants-plaintiffs.

Thomas R. Schultz, Locke, Reynolds, Boyd & Weisell, Indianapolis, for appellee-defendant.

CONOVER, Judge.

Plaintiff-Appellant Elizabeth A. Smith, next friend of Lucas Christopher Smith (hereinafter, Lucas), appeals the trial court's grant of summary judgment in favor of Defendant-Appellee AMLI Realty Company, d/b/a The Sycamore Apartments.

We reverse.

Appellant raises the following restated issue for our review:

whether the trial court erred in finding Lucas incurred the risk of his injury as a matter of law.

On or about August 20, 1988, Lucas, age nine, visited the Sycamore Apartments where his father lived. While outside playing, he was approached by Dana Faulkenberg, a child who lived in the area. Dana asked him to go to the apartment complex weight room so she could show him a trick she had learned. After receiving permission from his father, Lucas accompanied Dana to the weight room.

In the weight room was a "Universal" weight machine which had a "lat" exercise function. In this exercise, the user of the machine could pull down a lat bar attached by a cable and pulley to the weights. Dana took the pin to the "lat" exercise and set the weights at seventy pounds. With Lucas' help, she pulled the lat bar down, thereby raising the seventy pounds of weights, and straddled the bar so that when it was released by Lucas the bar raised up in the air and she was hanging by her knees. After hanging on the bar for awhile, Dana asked Lucas to help her down. Lucas placed his hands under the suspended stack and lifted it up, thereby causing the lat bar to go down. While Lucas was doing this, Dana jumped off the bar, causing the full seventy pounds to exert downward force. Lucas was unable to hold up the weights and their rapid descent resulted in his left hand being pinned between the descending weights and the weights in the bottom stack.

Lucas' "pinkie" finger was broken and another finger was crushed by the descending weights. In extricating his hand from between the weights, Lucas also tore the skin off the bone on one finger. Appellant, who is Lucas' custodial parent, filed a complaint naming AMLI, the owner of the apartment complex, as the party responsible for Lucas' injuries. Appellant also filed a complaint sounding in strict product liability against the manufacturer of the weight machine.

AMLI filed a motion for summary judgment alleging it was entitled to judgment as a matter of law because 1) Lucas incurred the risk of the injury, and 2) the weight machine was not unreasonably dangerous. As evidence supporting its first contention, AMLI designated the following statements made by Lucas in a deposition:

Q. When you used this [machine] before August 20th, 1988, did you understand that when you let the bar go up these weights would come down?

A. Yes.

Q. When you used this before the day of the accident, did you understand that if you stuck your hand or your foot in between these weights when they were coming down you could possibly hurt yourself?

A. Yes.

(R. 372). (Emphasis supplied). As evidence supporting its second contention, AMLI designated an admission made by Appellant to the manufacturer of the machine that under product strict liability the weight machine was not "defective or unreasonably dangerous." (R. 380).

An evidentiary hearing was held on AMLI's motion on June 5, 1992. On June 16, 1992, the court granted AMLI's motion. ¹

Indiana Trial Rule 56(C) places the burden on the movant to establish the propriety of the entry of summary judgment. The moving party must make a prima facie showing that 1) there is no issue of material fact, and 2) the movant is entitled to judgment as a matter of law. If both requirements are met, the burden shifts to the nonmoving party to show specific facts indicating an issue of material fact. Babinchak v. Town of Chesterton (1992), Ind.App., 598 N.E.2d 1099, 1101, reh. denied. In ruling on a motion for summary judgment, the trial court may not rely on briefs submitted by the parties, but must instead rely on the pleadings, depositions, answers to interrogatories, admissions on file, affidavits and testimony submitted and designated by the parties for the court's consideration. Id.

In determining whether summary judgment is appropriate, all facts asserted by the nonmoving party are accepted as true and any doubts are to be resolved in favor of the nonmoving party. Northern Indiana Public Service Co. v. East Chicago Sanitary District (1992), Ind.App., 590 N.E.2d 1067, 1071. Even if the facts are not in dispute, summary judgment is inappropriate if conflicting inferences could be drawn from those facts. Newhouse v. Farmers National Bank (1989), Ind.App., 532 N.E.2d 26, 28. Summary judgment is rarely appropriate in a negligence action. Jump v. Bank of Versailles (1992), Ind.App., 586 N.E.2d 873, 875.

The first issue before us is whether the trial court erred in finding Lucas incurred the risk of injury as a matter of law. Incurred risk can be found as a matter of law only if the evidence is without conflict and reveals the plaintiff 1) had actual knowledge of the specific risk and, 2) understood and appreciated the risk. Mauller v. City of Columbus (1990), Ind.App., 552 N.E.2d 500, 502-503, trans. denied.

An issue similar to the one raised by AMLI was discussed by this court in Baller v. Corle (1986), Ind.App., 490 N.E.2d 382, reh. denied, trans. denied, wherein the plaintiff appealed a judgment by the trial court in favor of the defendant truck driver. The truck driven by the defendant had struck the plaintiff's seven year old boy after the boy ran into the road while at play. In reversing the judgment below, this court acknowledged that children seven or older may be found to have incurred the risk of a particular activity. 490 N.E.2d at 385. We went on to hold that in considering a child's contributory negligence, a child between seven and fourteen is required to exercise due care for his own safety under the circumstances and the care required is to be measured "by that ordinarily exercised under similar circumstances by children of the same age, knowledge, judgment, and experience." Id.

In the present case, the deposition testimony designated by AMLI shows only that Lucas understood he could be hurt by placing his hands between weights which were "coming down" and that letting go of the lat bar would cause the weights to descend. Nothing in the evidence relied on by AMLI indicates the weights were coming down when Lucas placed his hands under the suspended seventy pounds or that Lucas understood Dana was going to completely let go of the bar. A jury could infer a child of the same age, knowledge, judgment, and experience as Lucas would have thought he could hold the seventy pound stack up with or without Dana's assistance. From the circumstances, a jury could infer Lucas did not have sufficient knowledge and understanding to have incurred the risk of injury.

AMLI points us to language in Mauller, supra, indicating "knowledge of specific risk does not connote that the victim had prescience that the particular accident and injury which in fact occurred was going to occur." Mauller, 552 N.E.2d at 503 n. 3. This statement was made in holding an adult softball player, who knew the dirt around home plate was dug out, incurred the risk of injury from sliding into the plate even though she did not specifically contemplate catching her cleats on the underside of the plate. From this statement, AMLI posits Lucas incurred the risk by placing his hands under the suspended stack whether the stack was descending or not. AMLI's interpretation of Mauller fails to account for Lucas' age, knowledge, judgment, and experience. A child is not held to the same standard as an adult.

Because conflicting inferences can be made from the evidence designated by AMLI, it has failed to show the absence of a disputed material fact. Accordingly, the trial...