Welch v. Young

• Decision Date: 04 August 2011
• Docket Number: No. 79A02–1012–CT–1407.,79A02–1012–CT–1407.
• Citation: 950 N.E.2d 1283
• Parties: Cynthia Ann WELCH, Appellant–Plaintiff,v.Shawn D. YOUNG, Jordan Young, McCutcheon Youth Baseball League, Inc., Wea Summer Recreation and Wea Summer Recreation Center, Appellees–Defendants.
• Court: Indiana Appellate Court

950 N.E.2d 1283

Cynthia Ann WELCH, Appellant–Plaintiff,

v.Shawn D. YOUNG, Jordan Young, McCutcheon Youth Baseball League, Inc., Wea Summer Recreation and Wea Summer Recreation Center, Appellees–Defendants.

No. 79A02–1012–CT–1407.

Court of Appeals of Indiana.

Aug. 4, 2011.

Frederick R. Hovde, Hovde Dassow & Deets, LLC, Indianapolis, IN, Attorney for Appellant.John T. Roy, Neha M. Matta, Travelers Staff Counsel Office, Indianapolis, IN, Attorneys for Appellees.

OPINION

MAY, Judge.

Cynthia Welch was injured when a little league player who was taking practice swings struck her knee with a bat. She sued the player, Jordan Young; the player's father and coach, Shawn Young; McCutcheon Youth Baseball League, Inc.; and Wea Township through Wea Summer Recreation and Wea Summer Recreation Center (“Wea defendants”).¹ The Wea defendants and Shawn Young moved for summary judgment, which the court granted.² Welch moved to correct error and her motion was denied.

Our Indiana Supreme Court has articulated a new rule for determining liability in cases like the one before us, and there are questions of fact as to where Jordan Young was when he was taking the practice swings and whether the game had started when Welch was injured. Thus, summary judgment was inappropriate under the new standard ³ and we accordingly affirm in part, reverse in part, and remand.⁴

FACTS AND PROCEDURAL HISTORY

The facts most favorable to Welch, the non-moving party, are that Welch's son played in the Wea Summer Recreation little league for a team coached by Shawn Young. Jordan Young, Shawn's eleven-year-old son, was on the same team as Welch's son. Welch described herself as the “team Mom.” ⁵ (App. at 101.)

On May 30, 2007, Welch dropped off her son at the baseball field, then went to a drugstore to buy gum for the team. She returned and began passing out gum to the players. Jordan Young was warming up with practice swings outside the dugout, when his bat hit Welch in the knee.

Welch filed a complaint alleging various theories of liability. Shawn Young and the Wea defendants moved for summary judgment. In an order dated August 10, 2010, the trial court granted summary judgment for all the defendants for various reasons. It noted Welch admitted (1) an action against the coach, Shawn Young, was barred by Ind.Code § 34–13–3–5(b) because his employer, Wea Township, is a governmental entity; and (2) defendants Wea Summer Recreation and Wea Summer Recreation Center were not liable for Jordan Young's negligence. The court also noted Welch had made no argument Shawn Young was liable in an individual capacity.

Welch moved to correct error, arguing she had not conceded the Wea defendants were not liable as a governmental entity or through their employee Shawn Young, and further arguing Shawn Young should remain a defendant in his capacity as coach for the little league team. In its order on the motion to correct error the trial court again granted summary judgment for the defendants, stating Welch was a participant in the event because she was the “Team Mom”: “Team Moms can be considered participants in the event. They have a title, a role to perform, and are expected to perform certain duties for the team and coaches when they volunteer to assume that role.” ( Id. at 17.) Welch also “incurred the risk of injury when she stood in the area between the dugout and the opening in the fence.” ( Id. at 19.) It found the Wea defendants were not liable because Welch's injury was “due to risks inherent in the sporting event, and [Welch] incurred the risk of such injury as a spectator at the event.” ( Id. at 16.)

On appeal, Welch makes no independent arguments concerning governmental immunity or premises liability. Instead, both parties address Welch's status as either a spectator at or participant in the baseball game, and the implications of her status to the determination whether she incurred the risk of her injury. As explained below, that distinction can no longer serve as a basis for determining negligence in situations such as this.

DISCUSSION AND DECISION

When reviewing a summary judgment, our standard is the same as it is for the trial court: we determine whether there is a genuine issue of material fact, and whether the moving party is entitled to judgment as a matter of law. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 973 (Ind.2005). Summary judgment should be granted only if the evidence sanctioned by Indiana Trial Rule 56(C) shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. 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. Id. If there is any doubt as to what conclusion a jury could reach, then summary judgment is improper. Beck v. City of Evansville, 842 N.E.2d 856, 860 (Ind.Ct.App.2006), reh'g denied, trans. denied. The party appealing a summary judgment, here Welch, has the burden of persuading us the summary judgment was erroneous. See Cortez v. Jo–Ann Stores, Inc., 827 N.E.2d 1223, 1230 (Ind.Ct.App.2005), reh'g denied.

1. Governmental Immunity

A lawsuit alleging an employee of a governmental entity acted within the scope of his employment bars an action against the employee personally. Ind.Code § 34–13–3–5(b). For purposes of chapter 34–13–3, an employee is “a person presently or formerly acting on behalf of a governmental entity, whether temporarily or permanently or with or without compensation.” Ind.Code § 34–6–2–38.

Welch alleged in her complaint that Shawn Young was an agent of Wea Summer Recreation and was “acting within the scope of that agency.” (App. at 119.) In their motion for summary judgment the defendants alleged “Shawn Young is entitled to personal immunity,” ( id. at 92), and they argued in their memorandum in support of the summary judgment motion that an action against him was barred by Ind.Code § 34–13–3–5(b) because as a coach for a Wea Township program, he was an employee of Wea township.

In her response, Welch agreed that “as to [the Wea defendants] only, IC § 34–13–3–5(b) provides that an action against Shawn Young as an employee is barred.” ( Id. at 33.) Accordingly, Welch designated as “Material Issues of Fact” only whether she was a “participant” and whether she incurred the risk of being hit by the bat.

In its order on Welch's motion to correct error, the trial court said, “Shawn Young is dismissed from this part of the action” because he is immune from suit as a governmental employee. ( Id. at 16.) Later in the same order, the court said Shawn Young was granted summary judgment, presumably in connection with his relationship to the little league.

The defendants argued in their appellate brief that Shawn Young was entitled to personal immunity as an employee of the township. Welch did not address that matter in either her brief or reply brief. We cannot say the trial court erred in dismissing Shawn Young to the extent his potential liability was premised on his status as a Wea Township employee.

2. Breach of Duty

Both parties' remaining arguments are premised on whether Welch was a “participant” in the little league game when she was injured, or was merely a “spectator.” At the time of the briefing, that distinction had implications for the duty of care owed to Welch. But our Indiana Supreme Court's recent decision in Pfenning v. Lineman, 947 N.E.2d 392 (Ind.2011), has changed how we assess negligence in this context.

In Pfenning, a golf outing was sponsored by a tavern and held at the Elks Country Club. Pfenning, then sixteen years old, attended at the invitation of her grandfather. She was driving a beverage cart on the cart path near the 18th hole when she was struck in the mouth by a golf ball. The ball was a low drive from the sixteenth tee, which was approximately eighty yards from where Pfenning was when she was struck. The drive traveled straight for approximately sixty to seventy yards, then hooked to the left. The golfer sought summary judgment on the ground he could not be liable for negligence when Pfenning was a co-participant in the sporting event and her injuries resulted from an inherent risk of the sport.

The Pfenning Court summarized the “diverging approaches” this court had utilized in addressing “the concept of duty in golf liability cases.” Id. at 398. It addressed Parsons v. Arrowhead Golf, Inc., 874 N.E.2d 993 (Ind.Ct.App.2007) (plaintiff golfer injured when he stepped from cart path onto the green); Bowman v. McNary, 853 N.E.2d 984 (Ind.Ct.App.2006) (plaintiff golfer injured when struck by club of another golfer taking practice swing); and Gyuriak v. Millice, 775 N.E.2d 391 (Ind.Ct.App.2002) (golfer struck in head by another player's errant tee shot), trans. denied. All three opinions concluded that a sports participant has no duty to exercise care to protect a co-participant from inherent risks of the sport. Pfenning, 947 N.E.2d at 399.

The Pfenning Court noted we have employed

differing rationales to support a no-duty rule when analyzing sports injury claims but [have] consistently analyzed the issue of duty by focusing primarily on the injured plaintiff's actual or presumed venturousness in undertaking inherent risks of a sporting activity rather than on the actions of the athlete whose conduct causes the injury.

Id. at 400–01.

Similarly, the Court found “[s]ignificant variations” among decisions from other jurisdictions addressing liability for sports injuries. Id. at 403. In its survey of approaches from other jurisdictions, the Pfenning Court noted:

Two states, New Hampshire and Arizona, provide enhanced protection from liability for sports participants by focusing not on the element of duty but rather on breach of duty, finding that no breach of duty occurs from the ordinary activities of a sport. Allen v. Dover Co–Recreational Softball League, 148 N.H. 407, 419–20, 807 A.2d 1274,...