                                                                 FILED
                                                            Mar 23 2017, 8:31 am

                                                                 CLERK
                                                             Indiana Supreme Court
                                                                Court of Appeals
                                                                  and Tax Court




ATTORNEYS FOR APPELLANTS                                     ATTORNEY FOR APPELLEE
Donald E. Morgan                                             John F. Townsend, III
Lynne D. Hammer                                              Townsend & Townsend, LLP
Kathryn M. Box                                               Indianapolis, Indiana
Office of Corporation Counsel
Indianapolis, Indiana



                                              IN THE
     COURT OF APPEALS OF INDIANA

Hoosier Mountain Bike                                        March 23, 2017
Association, Inc., City of                                   Court of Appeals Case No.
Indianapolis, and Indy Parks and                             49A04-1604-CT-865
Recreation,1                                                 Appeal from the Marion Superior
Appellants-Defendants,                                       Court
                                                             The Honorable Cynthia J. Ayers,
         v.                                                  Judge
                                                             Trial Court Cause No.
Richard Kaler,                                               49D04-1209-CT-35642
Appellee-Plaintiff.



Riley, Judge.




1
 On February 23, 2017, Hoosier Mountain Bike Association, Inc. filed a notice of settlement with Richard
Kaler and, as part of the settlement, dismissed this appeal. Accordingly, Hoosier Mountain Bike
Association, Inc. is no longer a party in this cause. We will still include facts with respect to the Hoosier
Mountain Bike Association, Inc. where necessary for our decision.

Court of Appeals of Indiana | Opinion 49A04-1604-CT-865 | March 23, 2017                           Page 1 of 14
                                 STATEMENT OF THE CASE 2
[1]   Appellants-Defendants, the City of Indianapolis and Indy Parks and Recreation

      (the City), 3 appeal the trial court’s denial of their motion for summary judgment

      with respect to Appellee-Plaintiff’s, Richard Kaler (Kaler), claims of negligence

      after Kaler sustained injuries in riding the City’s mountain bike trail at Town

      Run Trail Park.


[2]   We reverse.


                                                      ISSUES
[3]   The City presents us with four issues on appeal, which we consolidate and

      restate as follows:


          (1) Whether a genuine issue of material fact precluded the entry of summary

               judgment on Kaler’s claim of premises liability; and

          (2) Whether a genuine issue of material fact precluded the entry of summary

               judgment based on the City’s claim that Kaler was contributorily

               negligent.




      2
       We held oral argument in this cause on March 7, 2017, in the Indiana Court of Appeals Courtroom in
      Indianapolis, Indiana. We thank both counsel for their advocacy.
      3
       For all practical purposes, Appellant is the City of Indianapolis as the City’s Indy Parks and Recreation
      department cannot be sued outside the Access to Public Records Act context. See City of Perry v. Lewis, 950
      N.E.2d 1, 4 (Ind. Ct. App. 2011) (noting that units of local government, but not their individual departments,
      are suable under Indiana law), trans. denied.

      Court of Appeals of Indiana | Opinion 49A04-1604-CT-865 | March 23, 2017                          Page 2 of 14
                       FACTS AND PROCEDURAL HISTORY
[4]   The City of Indianapolis owns and operates the Town Run Trail Park through

      its Indy Parks and Recreation department. The Hoosier Mountain Bike

      Association, Inc. (HMBA) is responsible for maintaining the trails, which have

      a difficulty rating from beginner through intermediate. In the spring of 2011, an

      Eagle Scout, as part of his merit badge project, built a new technical trail feature

      along Town Run’s mountain bike trail. The feature can best be described as a

      banked wooden turn, also known as a berm. A rider, approaching the berm,

      has three options for completing the turn. First, riders can avoid the berm by

      staying on the dirt path on its left side. Second, riders can elect to enter the

      berm and ride it on the low grade, or third, riders can negotiate the turn by

      riding the berm’s more challenging high grade. The entrance onto the wooden

      turn is fully tapered with the ground, while the exit is only partially tapered. A

      rider choosing the low grade would exit the berm with a “little jump” off the

      end of the feature. (City’s App. Vol. II, pp. 100-01). A rider exiting on the high

      grade would have to make a two-foot jump back down to the trail.


[5]   By July 9, 2011, Kaler had been mountain biking for approximately four to five

      years. He described himself as an “experienced” and “better than average”

      bicyclist. (City’s App. Vol. II, pp. 90, 91). Although he was familiar with the

      trails at Town Run, he had not been on the mountain bike trail since the berm

      had been constructed several months earlier. “Oftentimes,” Kaler would “try to

      get an idea of the technical requirements of the trail” and would step off his

      bike, especially if he saw something within his view “as a danger.” (City’s App.

      Court of Appeals of Indiana | Opinion 49A04-1604-CT-865 | March 23, 2017   Page 3 of 14
      Vol. II, p. 89). He understood that “on a mountain bike trail there’s multiple

      paths that you can take, one being more dangerous or less dangerous than

      another.” (City’s App. Vol. II, p. 89). In fact, Kaler had ridden a “fairly

      sophisticated” trail before which had a “four or five foot drop.” (City’s App.

      Vol. II, pp. 95, 96). While riding a mountain bike, Kaler was “never [] a casual

      rider. [He] always enjoyed the obstacles[.]” (City’s App. Vol. II, p. 100). He

      “expected to get in a wreck at least every other time [he] rode, and [he] would

      routinely fall off the bike over obstacles.” (City’s App. Vol. II, p. 95). “[I]t was

      just a general consequence of the sport.” (City’s App. Vol. II, p. 95).


[6]   On July 9, 2011, Kaler and his girlfriend took their first trip on the trail. The

      mountain bike trail is shaped as a “figure 8,” with an approximate length of 6

      miles. (City’s App. Vol. II, p. 92). When he first approached the berm, Kaler

      “took the low grade” on the feature. (City’s App. Vol. II, p. 95). As he

      approached the end of the turn, Kaler could see “there was a drop” so he

      “pull[ed] up on the fork and [did] a little bunny hop[.]” (City’s App. Vol II, pp.

      102, 101). On their second trip around the course, Kaler’s girlfriend decided to

      take a shorter loop back to the trailhead. She was not as “adventurous” as

      Kaler and was concerned about getting back to the trailhead before dusk.

      (City’s App. Vol II, p. 92). Despite the approaching darkness, Kaler “wanted to

      ride the higher grade because [he] knew it was more challenging.” (City’s App.

      Vol. II, p. 101). He reached the berm again around 9:30 p.m. Feeling “capable

      of riding that high line,” Kaler sped up and rode the berm “as high as [he] could

      possibly ride it with [his] skill set.” (City’s App. Vol. II, p. 101). As he was


      Court of Appeals of Indiana | Opinion 49A04-1604-CT-865 | March 23, 2017   Page 4 of 14
      near the end of the berm’s high grade, he “just saw [him]self lose control [] and

      just knew he was dropping.” (City’s App. Vol. II, p. 101). Kaler “didn’t see the

      drop, [nor] was he aware of the drop” at the end of the high grade turn, instead

      he “thought it tapered off.” (City’s App. Vol. II, p. 104). Due to the fall, Kaler

      sustained lacerations to his spleen and kidney. After calling his mother and

      girlfriend to inform them that he had crashed, he rode his bicycle back to the

      trail head. That evening, Kaler and his girlfriend went out for dinner.


[7]   Around 1:30 a.m. on the following morning, Kaler went to the hospital where

      he was diagnosed with lacerations to his spleen and kidney. On discharge,

      Kaler was offered physical therapy but refused it because he “didn’t feel it was

      necessary.” (City’s App. Vol. II, p. 99). Kaler’s recovery did not last long and

      he participated in a 100-mile bicycle ride later that summer.


[8]   On September 7, 2012, Kaler filed his Complaint against the City, sounding in

      premises liability. On August 21, 2015, the City filed its motion for summary

      judgment. (City’s App. Vol II, p. 46). In turn, Kaler submitted his response to

      the City’s motion, as well as his designation of evidence. On January 6, 2016,

      the trial court conducted a hearing on the City’s motion for summary judgment.

      On February 2, 2016, the trial court issued its Order, summarily denying the

      motion. The trial court certified its Order for interlocutory appeal and the City

      sought this court’s permission to appeal. We granted the request and accepted

      the interlocutory appeal on May 19, 2016.


[9]   Additional facts will be provided as necessary.


      Court of Appeals of Indiana | Opinion 49A04-1604-CT-865 | March 23, 2017   Page 5 of 14
                                DISCUSSION AND DECISION
                                              I. Standard of Review


[10]   Summary judgment is appropriate only when there are no genuine issues of

       material fact and the moving party is entitled to judgment as a matter of law.

       Ind. Trial Rule 56(C). “A fact is material if its resolution would affect the

       outcome of the case, and an issue is genuine if a trier of fact is required to

       resolve the parties’ differing accounts of the truth . . . , or if the undisputed facts

       support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756,

       761 (Ind. 2009).


[11]   In reviewing a trial court’s ruling on summary judgment, this court stands in the

       shoes of the trial court, applying the same standards in deciding whether to

       affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,

       891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we

       must determine whether there is a genuine issue of material fact and whether

       the trial court has correctly applied the law. Id. at 607-08. In doing so, we

       consider all of the designated evidence in the light most favorable to the non-

       moving party. Id. at 608. The party appealing the grant of summary judgment

       has the burden of persuading this court that the trial court’s ruling was

       improper. Id. When the defendant is the moving party, the defendant must

       show that the undisputed facts negate at least one element of the plaintiff’s

       cause of action or that the defendant has a factually unchallenged affirmative

       defense that bars the plaintiff’s claim. Id. Accordingly, the grant of summary


       Court of Appeals of Indiana | Opinion 49A04-1604-CT-865 | March 23, 2017     Page 6 of 14
       judgment must be reversed if the record discloses an incorrect application of the

       law to the facts. Id.


[12]   We observe that in the present case, the trial court did not enter findings of fact

       and conclusions of law in support of its judgment. Special findings are not

       required in summary judgment proceedings and are not binding on appeal.

       AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct.

       App. 2004). However, such findings offer this court valuable insight unto the

       trial court’s rationale for its review and facilitate appellate review. Id.


                                                II. Premises Liability


[13]   In support of its argument that the trial court erred in denying its motion for

       summary judgment, the City relies on Burrell v. Meads, 569 N.E.2d 637 (Ind.

       1991), and Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011). In Burrell, 4

       Indiana’s seminal case for premises liability, our supreme court imposed a




       4
         We acknowledge that on October 26, 2016, our supreme court redrew the premises liability landscape with
       its decision in Rogers v. Martin, 63 N.E.3d 316, 321 (Ind. 2016), in which the court issued a new test with
       respect to the situation where an invitee’s injury occurs not due to a dangerous condition of the land but due
       to claims involving activities on the land. In Rogers, our supreme court distinguished Burrell as follows:
                When a physical injury occurs as a condition of the land, the three elements described in
                the Restatement (Second) of Torts Section 343 accurately describe the landowner-invitee
                duty. And because Burrell involved an injury due to a condition on the land, it accordingly
                framed the landowner-invitee duty broadly. [] [W]hile Section 343 limits the scope of the
                landowner-invitee duty in cases involving injuries due to conditions of the land, injuries
                could also befall invitees due to activities on a landowner’s premises unrelated to the
                premises’ condition—and that landowners owe their invites the general duty of reasonable
                care under those circumstances too.
       Rogers, 63 N.E.3d at 322-23. Because Kaler’s injury occurred when riding a mountain bike trail
       feature, we find the cause more properly analyzed pursuant to Burrell as it involved a condition of
       the land.

       Court of Appeals of Indiana | Opinion 49A04-1604-CT-865 | March 23, 2017                              Page 7 of 14
       three-part test to determine a landowner’s liability for harm caused to an

       invitee 5 by a condition of its land. Under the Burrell test, a landowner can be

       held responsible only if the landowner:

                   (a) Knows or by the exercise of reasonable care would discover
                       the condition, and should realize that it involves an
                       unreasonable risk of harm to such invitees, and


                   (b) Should expect that they will not discover or realize the
                       danger, or will fail to protect themselves against it, and


                  (c) Fails to exercise reasonable care to protect them against the
                      danger.


       Burrell, 569 N.E.2d at 639-40.


[14]   On May 18, 2011, our supreme court issued Pfenning v. Lineman, 947 N.E.2d

       392 (Ind. 2011), which applied the Burrell test in the realm of premises liability

       while participating in sports activities. In Pfenning, Cassie Pfenning was injured

       by a golf ball at a golf outing when she was sixteen years old. Id. at 396. At the

       time of the incident, Pfenning drove a beverage cart and after making several

       trips around the golf course “was suddenly struck in the mouth by a golf ball

       while driving the beverage cart on the cart path approaching the eighteenth

       hole’s tee pad from its green.” Id. at 397. The ball was a low drive from the

       sixteenth tee approximately eighty yards away. Id. The golfer’s drive traveled




       5
           All parties agree that Kaler is an invitee of the City.


       Court of Appeals of Indiana | Opinion 49A04-1604-CT-865 | March 23, 2017       Page 8 of 14
       straight for approximately sixty to seventy yards and then severely hooked to

       the left. Id. The golfer noticed the roof of another cart in the direction of the

       shot and shouted “fore.” Id. But neither the plaintiff nor her beverage-serving

       companion heard anyone shout “fore.” Id. After hearing a faint yelp, the

       golfer ran in the direction of the errant ball and discovered the plaintiff with

       injuries to her mouth, jaw, and teeth. Id.


[15]   Pfenning brought, among others, a premises liability claim against the Elks, the

       fraternal lodge that owned and operated the golf course. Id. at 405. Finding

       that the injury arose from a condition on the premises, the supreme court

       turned to Burrell in its articulation of the contours of the Elks’ duty. Id. at 406.

       In applying the Burrell test, the court held that the two first aspects of premises

       liability were not established by the designated evidence. Id. at 407. First,

       turning to the second element—the discovery or realization of danger—the

       court concluded that “for the purpose of our premises liability jurisprudence,

       the issue here is [] whether the Elks objectively should have expected that

       [Pfenning] would be oblivious to the danger or fail to protect herself from it.”

       Id. at 406. In applying this principle the court found “no genuine issue of fact

       to contravene the objectively reasonable expectation by the Elks that persons

       present on its golf course would realize the risk of being struck with an errant

       golf ball and take appropriate precautions.” Id. Addressing Burrell’s first

       element—unreasonable risk of harm—the Pfenning court reasoned that “the risk

       of a person on a golf course being struck by a golf ball does not qualify as the




       Court of Appeals of Indiana | Opinion 49A04-1604-CT-865 | March 23, 2017    Page 9 of 14
       ‘unreasonable risk of harm’ referred to in the first two components of the Burrell

       three-factor test.” Id.


[16]   Likewise, here, we conclude that the designated evidence does not satisfy the

       Burrell requirements with respect to the duty component of premises liability.

       Initially, we find that it was objectively reasonable for the City under the facts

       of this case to expect Kaler to appreciate the risks of riding the trail and take

       suitable protections. The trail’s difficulty was advertised as appropriate for

       beginner through intermediate. Kaler’s own deposition characterized himself

       as an “experienced” bicyclist, who had ridden “a fairly sophisticated” trail

       before and who “always enjoyed the obstacles.” (City’s App. Vol. II, pp. 91,

       95, 100). He conceded that to “try to get an idea of the technical requirements

       of the trail,” he would get off his bike, especially if he noticed something “as a

       danger.” (City’s App. Vol. II, p. 89). He admitted that a fall “was just a

       general consequence of the sport.” (City’s App. Vol. II, p. 95). Although he

       had ridden the trail the first time without any problems, when Kaler decided to

       make a second run, it was getting dark but he was insistent that he “wanted to

       ride the higher grade because [he] knew it was more challenging.” (City’s App.

       Vol. II, p. 101). At no point did Kaler step off his bike and inspect the berm’s

       high grade prior to riding it in the approaching darkness. Accordingly,

       pursuant to Kaler’s own statements, the City could objectively and reasonably

       have expected an experienced bicyclist to realize the risks a beginner to

       intermediate trail would present and take appropriate precautions.




       Court of Appeals of Indiana | Opinion 49A04-1604-CT-865 | March 23, 2017   Page 10 of 14
[17]   We also conclude that the designated evidence fails to establish that the City

       had actual or constructive knowledge of a condition on the trail that involved

       an unreasonable risk of harm to Kaler. Kaler’s own deposition unequivocally

       affirms that being involved in a bicycle crash “was just a general consequence of

       the sport.” (City’s App. Vol. II, p. 95). In fact, Kaler “expected to get in a

       wreck at least every other time [he] rode, and [he] would routinely fall off the

       bike over obstacles.” (City’s App. Vol. II, p. 95). As the expectation of a

       bicycle crash is a risk inherent to riding trails, it cannot serve to establish the

       sort of unreasonable risk of harm contemplated in the first Burrell element. See

       Pfenning, 947 N.E.2d at 407.


[18]   Finding that the designated evidence conclusively established that two of the

       elements of the premises liability test are not satisfied, we conclude that the trial

       court erred by denying summary judgment to the City. We reverse the trial

       court’s decision and now find summary judgment for the City.


                                           II. Contributory Negligence


[19]   Next, the City maintains that Kaler is foreclosed from any recovery because of

       his failure to exercise the care a reasonable, prudent mountain biker should

       have exercised. It should be noted that Kaler brought his claim against the

       City, a governmental entity, and therefore, his claim falls under the common

       law defense of contributory negligence, as the Indiana Comparative Fault Act

       expressly excludes application to governmental entities. See I.C. § 34-51-2-2.

       Consequently, even a slight degree of negligence on Kaler’s part, if proximately


       Court of Appeals of Indiana | Opinion 49A04-1604-CT-865 | March 23, 2017    Page 11 of 14
       contributing to his claimed damages, will operate as a total bar to his action for

       damages against the City, even though, as against non-governmental

       defendants, any fault of Kaler would only operate to reduce the damages he

       might obtain.


[20]   A plaintiff is contributorily negligent when the plaintiff’s conduct “falls below

       the standard to which he should conform for his own protection and safety.”

       Funston v. School Town of Munster, 849 N.E.2d 595, 598 (Ind. 2006). Lack of

       reasonable care that an ordinary person would exercise in like or similar

       circumstances is the factor upon which the presence or absence of negligence

       depends. Id. Expressed another way, “[c]ontributory negligence is the failure

       of a person to exercise for his own safety that degree of care and caution which

       an ordinary, reasonable, and prudent person in a similar situation would

       exercise.” Id. at 599. Contributory negligence is generally a question of fact

       and is not an appropriate matter for summary judgment “if there are conflicting

       factual inferences.” Id. “However, where the facts are undisputed and only a

       single inference can reasonably be drawn therefrom, the question of

       contributory negligence becomes one of law.” Id.


[21]   In Funston, the plaintiff sued the school after incurring injuries caused by a fall

       when he leaned backwards while sitting on the top row of a set of bleachers. Id.

       at 599. Funston had been at the gym for about four hours, watching two

       basketball games while sitting on lower rows on other sets of identical

       bleachers. Id. For the third game, he moved to the top row of one of the

       bleachers. Id. It was clearly visible that there was no back railing for spectators

       Court of Appeals of Indiana | Opinion 49A04-1604-CT-865 | March 23, 2017   Page 12 of 14
       sitting on the top row, but Funston leaned back anyway because he “thought

       there was something back there[.]” Id. Our supreme court concluded that

       Funston was contributorily negligent as a matter of law, finding that:

                 It certainly is understandable that [Funston] would be distracted
                 as he engaged his attention on his son’s basketball game. But
                 being understandable does not equate with being completely free
                 of all negligence.


       Id. at 600.


[22]   In his deposition, Kaler affirmed that in trying to build a skill, it would not be

       unusual for him “to get off [his] bike and look at the [] obstacles.” (City’s App.

       Vol. II, p. 89). He also acknowledged that he knew the berm’s high grade

       would be challenging because he had just started riding high berms and had

       never ridden a berm as steep as the one at Town Run. As he approached the

       end of the turn during his first ride on the berm, Kaler could see “there was a

       drop[.]” (City’s App. Vol. II, p. 103). After a successful first run on the berm’s

       low grade, Kaler decided to ride the feature again. Despite the approaching

       darkness, he planned to ride the berm’s high grade as high as he possibly could

       because it would be “really cool to ride it and get that speed[.]” (City’s App.

       Vol. II, p. 101). Notwithstanding the coolness factor, Kaler conceded that

       riding obstacles posed a risk of bodily injury as crashes were a general

       consequence of the sport. Typically, to get an idea of the technical

       requirements of a trail, the biker “would get off his bike.” (City’s App. Vol. II,

       p. 89).


       Court of Appeals of Indiana | Opinion 49A04-1604-CT-865 | March 23, 2017   Page 13 of 14
[23]   Based on the designated evidence, we cannot conclude that Kaler was

       “completely free of all negligence.” See id. Kaler knew and understood the

       precautions a reasonably prudent mountain biker should take—inspect the

       feature prior to riding it—but chose not to follow them. There is no evidence

       that the jump from the high grade was obscured from view and Kaler conceded

       that he could have anticipated the drop from the high grade had he taken the

       precaution a reasonable bicyclist riding an unfamiliar trail would take.

       Accordingly, we find Kaler contributorily negligent.


                                              CONCLUSION
[24]   Based on the foregoing, we hold that there is no genuine issue of material fact

       that precludes the entry of summary judgment in the City’s favor on Kaler’s

       claim of premises liability; and Kaler was contributorily negligent when riding

       the City’s mountain bike trail at Town Run.


[25]   Reversed.


[26]   Crone, J. and Altice, J. concur




       Court of Appeals of Indiana | Opinion 49A04-1604-CT-865 | March 23, 2017   Page 14 of 14
