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Friday, February 12, 2010

Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)

For publication opinions today (1):

In Cassie E. Pfenning v. Joseph E. Lineman, Whitey's 31 Club, Inc., et al. , a 25-page, 2-1 opinion, Judge Darden writes:

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”). We affirm. * * *

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. * * *

Here, Pfenning does not assert that a third party's criminal act caused her injury; that the act was foreseeable; or that there had been similar prior incidents. We therefore find no error in finding that the Elks and Whitey's did not have a duty to protect her from injury due to her being struck by an errant golf ball while she operated a beverage cart.

Finding no issues of material fact and that the Defendants are entitled to summary judgment as a matter of law, we conclude that the trial court properly granted summary judgment in favor of the Defendants. Affirmed.

MAY, J., concurs.
KIRSCH, J., concurs in part and dissents in part with separate opinion. [that begins, at p. 20] Hmmm. After being abandoned by her grandfather and his sister, in whose care she had been entrusted, a sixteen-year-old girl, without training or experience in golf course safety or etiquette, is injured at a golf outing sponsored by a bar, while she is driving a beverage cart loaded with beer dispensed by one of the bar's employees. Surely, there is a duty here someplace.

Unlike my colleagues, I do not characterize the issues presented by this case to be ones of duty. Rather, I think the duty issues can be easily and quickly resolved, and that this case does not turn upon a determination of duty, but whether the defendants breached the duties that they clearly owed to the plaintiff and whether any such breach was the proximate cause of the plaintiff's injuries. * * *

To me, there may be several levels of participation in a sporting event, and they should not all be treated the same. Although sporting events pose inherent risks, the risks are different for those at different levels of participation. Thus, a batter playing in a baseball game may well be said to have assumed the risk of getting hit with a wild pitch, and a shortstop may assume the risk of being spiked by a runner sliding into second base. A fan watching the game from the stands, however, would not have assumed such risks, but may have assumed the risk of being hit by a foul ball that goes into the stands. Pfenning was not playing golf at the Elks Club when she was injured and should not be said to have assumed the risks inherent to playing golf.

I would reverse the summary judgment in favor of the Elks Club, Whitey's Bar and the Estate of Jerry Jones and remand for further proceedings, and I respectfully dissent from the opinion of my colleagues holding that none of these entities owed a duty of due care to Cassie Pfenning.

NFP civil opinions today (2):

In Babyback's International Inc. v. Coca-Cola Company, et al. (NFP), a 13-page opinion, Judge Vaidik writes:

Approximately twelve years after first filing its complaint and several appeals later, Babyback's International, Inc. now appeals the trial court's entry of summary judgment in favor of Coca-Cola Enterprises, Inc. (“CCE”). Specifically, Babyback's contends that the trial court erred in determining that the measure of damages for the tort of constructive fraud is reliance damages and not the loss of its benefit of its bargain, consequential damages, and lost profits. However, because, in a recent appeal, this Court held, as a matter of law, that Babyback's has failed to establish constructive fraud, this is the law of the case. Since there is no constructive fraud, there can be no damages; therefore, the issue of the appropriate measure of damages is moot. Accordingly, we affirm the trial court.
In Kevin Walsh, et al. v. City of Valparaiso, Indiana (NFP), a 13-page opinion which includes a good rundown of prior COA decisions, Judge Vaidik writes:
The appellants' Valparaiso home was serviced by an antiquated sewage system. Their property experienced flooding and water damage following a sewer backup. The appellants filed this action against the City of Valparaiso alleging negligence in the maintenance, use, and repair of the sewer line serving their house. The trial court entered summary judgment in favor of Valparaiso. We conclude that the City is entitled to discretionary immunity under the Indiana Tort Claims Act. We affirm.

NFP criminal opinions today (3):

William Byers v. State of Indiana (NFP)

Brian L. Riker v. State of Indiana (NFP)

Taylor C. Hay v. State of Indiana (NFP)

Posted by Marcia Oddi on February 12, 2010 12:52 PM
Posted to Ind. App.Ct. Decisions