Swanson v. Wabash College, 67A01-8606-CV-150

• Decision Date: 26 February 1987
• Docket Number: No. 67A01-8606-CV-150,67A01-8606-CV-150
• Citation: 504 N.E.2d 327
• Parties: 37 Ed. Law Rep. 916 Eric SWANSON, Plaintiff-Appellant, v. WABASH COLLEGE, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 327

504 N.E.2d 327

37 Ed. Law Rep. 916

Eric SWANSON, Plaintiff-Appellant, v. WABASH COLLEGE, Defendant-Appellee.

No. 67A01-8606-CV-150.

Court of Appeals of Indiana,

First District.

Feb. 26, 1987.

Thomas H. Singer, South Bend, for plaintiff-appellant.

Larry R. Fisher, Thomas J. Herr, Stuart & Branigin, Lafayette, for defendant-appellee.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Eric Swanson appeals the trial court's grant of summary judgment in the favor of Wabash College. We affirm.

FACTS

In August of 1982, Eric Swanson began his freshman year at Wabash College in Crawfordsville, Indiana. On September 29, 1982, Eric read an announcement in a daily college circular inviting anyone interested in playing baseball during the fall to attend an upcoming meeting. Eric had played baseball for many years and was interested in playing at Wabash, so he decided to attend the meeting.

The announcement was placed by Dan Taylor, an experienced varsity player for the Wabash baseball team. After Taylor conceived the idea, he and four others decided to organize fall baseball practice sessions. There had never been any type of fall baseball program at Wabash. Taylor and another experienced player discussed Taylor's idea with Mike Deal, the baseball coach. Deal had no objections but informed the boys he was unable to participate as he was busy coaching the fall football program and that, as far as he or the athletic department were concerned, the boys were "on their own." Record at 273. Deal also gave them approval to use some of the baseball team's equipment. Taylor then approached the Dean of Men with his idea and secured money from him to purchase baseballs for the practices.

Taylor basically took charge of the meeting, announcing he wanted to organize baseball workouts for anyone interested in participating. Taylor expressed his hope At the September 27, 1982, session, Taylor was conducting outfield practice. Taylor hit a ball to right field. Eric, playing shortstop, positioned himself between the right fielder and third baseman to act as a cut-off man. The outfielder threw the ball toward third base. Seeing that it was a good throw, the third baseman told Eric to let it go. During this play, Eric stood with his back to Taylor (the batter) with his head over his right shoulder to right field from where the ball was coming. As the third baseman called for the ball, Eric pivoted counter-clockwise toward third base so that he would be facing Taylor for the drive to left field. However, Taylor had already started the play so that, as he turned, Eric was struck in the eye by the ball.

that these practices might lead to an improved spring program. Taylor said that he would be taking charge of the practices and outlined his plan for these sessions, including the possibility of a few games with neighboring colleges. In addition, Taylor said that he planned to inform Coach Deal of any prospective players who were playing well. Practice began in early September in a city-owned park as the Wabash field was being used for football.

Eric then brought this action against Wabash for the eye injury he sustained. On January 3, 1986, Wabash filed a motion for summary judgment arguing that the school had no duty to provide supervision during these "practices", that Dan Taylor was not an agent of Wabash, and that Eric had incurred the risk of his injuries. The court granted this motion and, thereafter, Eric perfected this appeal.

ISSUES

Eric presents the following issues for review:

Whether the trial court erred in granting Wabash's motion for summary judgment on the grounds that:

1. The College had no duty to supervise the baseball practices.

2. Dan Taylor was not an agent of Wabash College.

3. Eric incurred the risk of his injury.

DISCUSSION AND DECISION

At the outset we note that the standard for review, on appeal, applicable to summary judgment is the same one used in the trial court. A motion for summary judgment may be sustained where the pleadings and other matters filed with the court reveal no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Indiana Rules of Procedure, Trial Rule 56(C); First Savings and Loan Association v. Treaster (1986), Ind.App., 490 N.E.2d 1149, 1151, trans. denied; Kidd v. Davis (1985), Ind.App., 485 N.E.2d 156, 158; Wingenroth v. American States Insurance (1983), Ind.App., 455 N.E.2d 968, 969; First Federal Savings and Loan Association of Gary v. Arena (1980), Ind.App., 406 N.E.2d 1279, 1282. In determining whether a genuine issue of material fact exists, the facts set forth by the opponent must be taken as true, and all doubts are resolved against the proponent of the motion. First Federal, at 1282. With this standard in mind, we turn to the issues raised by Eric.

Issue One

Eric argues the trial court erred in granting Wabash's motion for summary judgment on the grounds that Wabash had no duty to supervise the baseball practices. Essentially, Eric asserts that these sessions amounted to a fall baseball program sanctioned by the college. Thus, Eric contends that Wabash had a duty to supervise the baseball practices and to exercise reasonable care and supervision for the safety of students under its care.

In Indiana, the tort of negligence is comprised of three elements: (1) a duty on the part of the defendant in relation to the plaintiff; (2) failure on the part of the defendant to conform its conduct to the requisite standard of care required by the relationship; and (3) an injury to the plaintiff resulting from that failure. Miller v. Griesel (1974), 261 Ind. 604, 611, 308 N.E.2d 701, 706; Ingram v. Hook's Drugs, Inc. (1985), Ind.App., 476 N.E.2d 881, 883, trans. denied. There are three questions of law to be decided by a trial court concerning these elements before it may submit a case to the jury. Miller, at 611, 308 N.E.2d at 706.

The first question is whether the law recognizes any obligation on the part of a particular defendant to conform his conduct to a certain standard for the benefit of the plaintiff.

"The duty to exercise care for the safety of another arises as a matter of law out of some relation existing between the parties, and it is the province of the court to determine whether such a relation gives rise to such duty."

Neal v. Home Builders, Inc. (1953), 232 Ind. 160, 169, 111 N.E.2d 280, 285. The second question of law concerns what standard of care the courts will impose on this relationship once a duty is recognized. Miller, at 611, 308 N.E.2d at 706. The traditional standard to be applied is whether the defendants exercised their duty with the level of care that an ordinary, prudent person would under the circumstances. Finally, the trial court must decide whether the evidence the plaintiff introduces at trial is sufficient, as a matter of law, to enable the jury to find that the plaintiff has established the elements of the cause of action. Id. at 612, 308 N.E.2d 707.

As Eric correctly points out, our supreme court has imposed a duty upon school authorities to exercise reasonable care and supervision for the safety of the children under their tutelage. Id., at 612, 308 N.E.2d at 706; Beckett v. Clinton Prairie School Corp. (1986), Ind.App., 494 N.E.2d 988, 989-90 (transfer pending); Dibortolo v. Metropolitan School Dist. of Washington Township (1982), Ind.App., 440 N.E.2d 506, 509. However, schools are not intended to be insurers of the safety of their pupils, neither are they strictly liable to them for any injuries they may incur. Miller, at 612, 308 N.E.2d at 706. To support his argument that Wabash owed him a duty to supervise the baseball practices, Eric cites several cases, from Indiana and other states, imposing such a duty on schools. However, these cases generally involve a school's duty to supervise young school children in the classroom, at recess, or in some other school-organized activity. Eric, on the other hand, was a college freshman at Wabash participating in recreational baseball practices.

As we noted in Campbell v. Board of Trustees of Wabash College (1986), Ind.App., 495 N.E.2d 227, 232, college students are not children. "Save for very few legal exceptions, they are adult citizens, ready, able, and willing to be responsible for their own actions. Colleges ... are not expected to assume a role anything akin to in loco parentis or a general insurer." Id. Nor did Wabash have a duty to control the conduct of Taylor under the present circumstances. Indiana courts, when addressing the duty to control the conduct of others, generally follow the Restatement (Second) of the Law of Torts. Campbell, at 231. The basic principle of this duty is stated as follows:

"There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless

(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or

(b) a special relation exists between the actor and the other which gives to the other a right to protection."

Restatement of the Law on Torts Section 315 (2d ed. 1965).

"The specific duties which make up the basic principle are:

(1) The duty of a parent to control the conduct of his child (Id., Sec. 316);

(2) The duty of a 'master' to control the conduct of his 'servants' (Id., Sec. 317);

(3) The duty of a possessor of land or chattels to control the conduct of his licensee (Id., Sec. 318);

(4) The duty of those in charge of persons having dangerous propensities to control such persons (Id., Sec. 319); and

(5) The duty of those having custody of another to control the conduct of others (Id., Sec. 320)."

Clearly, the circumstances of the present case do not fall under any of the above theories.

Eric cites Beckett v. Clinton Prairie School Corp. (1986), Ind.App., 494 N.E.2d 988 (transfer pending), to support his contention that Wabash had a duty to...