                                                                  Aug 26 2015, 8:57 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
J. Kevin King                                             Marc T. Quigley
Peter Campbell King                                       Libby Y. Goodknight
Cline, King & King, P.C.                                  Catherine E. Sabatine
Columbus, Indiana                                         Krieg DeVault LLP
                                                          Indianapolis, Indiana

                                                          Edward F. Harney, Jr.
                                                          William D. Beyers
                                                          Hume Smith Geddes Green & Simmons,
                                                          LLP
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Lydia Lanni,                                              August 26, 2015

Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          49A02-1409-CT-649
        v.
                                                          Appeal from the Marion Superior
                                                          Court
National Collegiate Athletic
Association, University of Notre                          The Honorable Michael D. Keele,
Dame Du Lac, and United States                            Judge
Fencing Association, Inc.,                                Cause No. 49D07-1202-CT-5179
Appellees-Defendants.




Najam, Judge.




Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015                Page 1 of 30
                                        Statement of the Case
[1]   Lydia Lanni appeals from the trial court’s entry of summary judgment for the

      National Collegiate Athletic Association (“NCAA”) and the United States

      Fencing Association, Inc. (“USFA”). In her complaint, Lanni alleged that the

      NCAA and the USFA sponsored a fencing competition at the University of

      Notre Dame (“Notre Dame”)1 in South Bend, which Lanni attended as a

      student-athlete and at which she suffered a serious eye injury while standing

      near one of the competitions. She further alleged that her injury resulted from

      negligence on the part of the NCAA, the USFA, and Notre Dame.


[2]   We address the following issues in this appeal:


              1.       Whether the NCAA owed Lanni a duty of care.

              2.       Whether the USFA owes a duty of care to those who
                       participate in fencing matches that are played under the
                       USFA’s rules and that are refereed by USFA-trained
                       referees.

              3.       Whether the trial court erred when the court denied
                       Lanni’s motion for a change of judge on remand from this
                       court following our reversal of an earlier entry of summary
                       judgment.




      1
        Notre Dame is also a named defendant in Lanni’s action; Lanni’s claims against Notre Dame remain
      pending in the trial court.

      Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015                   Page 2 of 30
[3]   We affirm the court’s entry of summary judgment.2


                                   Facts and Procedural History3
[4]   The NCAA is an organization that oversees intercollegiate athletic

      competitions involving the student-athletes of its member institutions, and

      Notre Dame is an NCAA member institution. Pursuant to the NCAA’s

      constitution, NCAA competition rules “shall apply to all teams in sports

      recognized by the member institutions as varsity intercollegiate sports . . . .”

      Appellant’s App. at 308. The NCAA constitution further provides that “[i]t is

      the responsibility of each member institution to protect the health of and

      provide a safe environment for each of its participating student-athletes.” Id. at

      302. But, according to the NCAA’s website:

                The NCAA takes appropriate steps to modify safety guidelines,
                playing rules[,] and standards to minimize those risks and
                provide student[-]athletes with the best opportunity to enjoy a
                healthy career. The injury surveillance program collects,
                analyzes, interprets[,] and disseminates data on injuries in each
                sport, providing a wealth of information through which we can
                provide athletes with a safe[,] competitive environment.




      2
          We held oral argument on July 27, 2015, in the Indiana Supreme Court courtroom.
      3
        Throughout its brief on appeal the NCAA complains about Lanni’s assessment of the facts, saying they
      “are riddled with argument, mischaracterizations, and misleading inferences.” Appellee NCAA’s Br. at 14.
      This court is capable of “separating the wheat from the chaff inserted by both parties in their briefs.” Oxford
      Fin. Group, Ltd. v. Evans, 795 N.E.2d 1135, 1139 (Ind. Ct. App. 2003).

      Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015                           Page 3 of 30
      Id. at 100 (quoting the NCAA’s website). And Eric Breece, the NCAA’s

      Coordinator of Championships and Alliances since 2012, stated, while

      testifying on behalf of the NCAA, that “any serious injury” at an NCAA event

      “is unacceptable if reasonable safety measures could prevent” the injury. Id. at

      249.


[5]   The NCAA has established a Fencing Committee, which promulgates rules for

      the sport to member institutions. Id. at 250. If the Fencing Committee wished

      to alter or amend those rules, the Fencing Committee would first send the

      proposed revision to the NCAA’s Playing Rules Oversight Panel for review. Id.

      If an injury were to occur at an NCAA fencing competition, that injury would

      be reported to the NCAA Committee on Competitive Safeguards and Medical

      Aspects of Sports (“CSMAS”), which, in turn, would “probably share” that

      information with the Fencing Committee. Id. at 253.


[6]   According to the NCAA’s “Fencing Meet Procedures”:

              member institutions shall conduct all of their intercollegiate
              competition[s] in accordance with the playing rules of the
              [NCAA] in all sports for which the NCAA develops playing
              rules. For those sports in which the [NCAA] follows rules that
              are developed by other governing bodies and modified by the
              governing sports committee, the adopted playing rules shall be
              used. . . .


      Id. at 875. The Fencing Meet Procedures then state that the rules of the USFA

      “will be the applicable rules for intercollegiate competitions.” Id. The USFA is

      “the official governing body for amateur fencing activities in the United States[]

      Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015   Page 4 of 30
      and is so recognized by the United States Olympic Committee and the

      International Fencing Federation.” Id. at 966. The USFA’s “rules for

      fencing . . . apply to all USFA championships and nationally-rated

      competitions . . . .” Id. After stating that the USFA’s rules apply to NCAA

      events, the NCAA’s Fencing Meet Procedures then list numerous “Rules In

      Addition To USFA Rules.” Id. at 875.


[7]   The USFA’s rules, adopted by the NCAA, include a diagram of a fencing area.

      In particular, this diagram demonstrates a border around every four fencing

      strips. Id. at 880. According to Robert Dilworth, the Executive Director of the

      USFA in March of 2010, this border “[u]sually . . . represents a series of pipes

      that delineate where spectators may and may not go.” Id. at 912. At least

      through 2013 for the NCAA, id. at 257-58, but only through sometime in 2010

      for the USFA, id. at 912, the border also included hanging drapes. The NCAA,

      like the USFA, required the pipe-and-drape barrier at least in part because the

      barrier “provides space around the strip so that only the fencer[s] and the

      referee are in [the fencing] area.” Appellant’s App. at 258.


[8]   As part of his responsibilities with the NCAA, Breece worked as a staff liaison

      to the Fencing Committee, and he assisted that committee with, among other

      things, running the NCAA Fencing Championships. Id. at 246. Part of that

      responsibility, in turn, included “site inspection . . . walk through[s]” to “make

      sure the facility was set up the way . . . that [the NCAA had] instructed the host

      [member institution] to set it up.” Id. at 257. This inspection included verifying

      the placement of the pipe-and-drape barrier. Id. at 257-58.

      Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015   Page 5 of 30
[9]    On March 7, 2010, Lanni attended a fencing competition at Notre Dame (“the

       March 2010 competition”). A “Visiting Team/Club Guide” (“the Guide”)

       published by Notre Dame for the event described the competition as “the

       Midwest Fencing Conference Championship.” Id. at 241. The cover page for

       the Guide displayed Notre Dame’s school logo and mascot; the logo for the

       Midwest Fencing Conference; and the logo for the NCAA. Id.


[10]   The Midwest Fencing Conference is not an NCAA-affiliated conference. Id. at

       250-51. However, “[a]ll colleges and universities in the NCAA Midwest

       Region,” such as Notre Dame, “[that] sponsor a varsity or club intercollegiate

       fencing team” are eligible for membership in the Midwest Fencing Conference.

       Id. at 189. The Midwest Fencing Conference further requires “[a]ll matches

       hosted by Conference members [to] be conducted pursuant to USFA Rules, as

       modified by the NCAA . . . .” Id. at 210.


[11]   The March 2010 competition occurred the weekend before the start of the

       official NCAA Fencing Regional Championships, which lead into the NCAA

       Fencing National Championship. Id. at 1065. To be eligible to compete in the

       NCAA Regional Championships, a fencer must have previously competed “in

       a minimum of 18 bouts against varsity teams of four-year, degree-granting

       institutions” and also have “[a]chieved a 20 percent win-loss record in

       scheduled dual meets in the same weapon against varsity teams of four-year,

       degree-granting institutions.” Id. In determining eligibility for the NCAA

       Regional Championships, the Fencing Committee “will not consider any



       Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015   Page 6 of 30
       results for selection purposes that are not played in accordance with NCAA

       rules . . . .” Id. at 1072.


[12]   Dilworth testified on behalf of the USFA that the referees at the March 2010

       competition were USFA-trained referees. In particular, Dilworth stated that the

       referees at the March 2010 competition “were trained to work at USFA

       competitions by the USFA.” Id. at 920. However, there is no designated

       evidence to suggest that the USFA sponsored or knew of the March 2010

       competition.


[13]   The referees at the March 2010 competition kept scores on scoresheets that

       were marked with the NCAA logo. E.g., id. at 229. Competition rosters also

       carried the logo of the NCAA Fencing Committee. Id. at 240. The

       Northwestern University fencing team was a participant in the March 2010

       competition; Laurence Schiller, the team’s head coach, was likewise at that

       competition. Id. at 143. Schiller is also a member of the NCAA Fencing

       Committee. Id. at 1065.


[14]   Lanni was a student-athlete at Wayne State University and a participant in the

       March 2010 competition.4 Id. at 240. After one of her fencing bouts had ended,

       she stood in a “designated waiting area[]” that was “next to the fencing strip”

       where “[a] new bout between two different girls had started.” Id. at 77. While




       4
         The parties debate whether Lanni was a student-athlete or a mere spectator. Lanni’s designated evidence
       plainly shows that she was a student-athlete participating in the March 2010 competition, although, at the
       time of her injury, she was not actively engaged in a bout.

       Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015                       Page 7 of 30
       standing in the designated area near the bout, “one of the [fencer’s] sabres

       struck” Lanni “across the face in a diagonal manner, across the bridge of [her]

       nose,” and resulted in a severe injury to Lanni’s left eye. Id.


[15]   Shortly after the accident that resulted in Lanni’s injury, in May of 2010 the

       Fencing Committee “discussed the layout” at fencing competitions and

       “expressed concern that the strips were too close together and too close to the

       scoring system.” Id. at 882. The Committee “suggested that[,] whenever

       possible, . . . we limit spectators from walking between the corrals. Spectators

       could be allowed on the competition floor around the perimeter of the corrals[]

       but not allowed between the corrals.” Id. When asked if he knew “who

       brought that to the attention of the Fencing Committee” or “why it was brought

       to the attention of the Fencing Committee,” Breece testified that he did not

       know. Id. at 258-59.


[16]   On February 8, 2012, Lanni filed her complaint against the NCAA, the USFA,

       and Notre Dame. In particular, Lanni alleged that the NCAA had acted

       negligently as follows:

                 2.     Defendant NCAA acting through its agents, including, but
                 not limited to[,] the NCAA Men’s and Women’s Fencing
                 Committee and regional advisory committees, were responsible,
                 in part or total, for the operations of the Midwest Regional
                 Fencing Competition[5] at the time [Lanni] was injured.




       5
           The complaint misstates the title of the Midwest Fencing Championships.


       Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015     Page 8 of 30
               3.     On or before March 7, 2010, Defendant NCAA was
               negligent . . . by failing to undertake hazard and risk analys[e]s
               prior to the commencement of the Midwest Regional Fencing
               Competition to insure adequate safety of spectators watching an
               event.

               4.     On or before March 7, 2010, Defendant NCAA was
               negligent . . . by failing to select and/or supervise qualified
               officials for the Midwest Regional Fencing Competition.

               5.     On March 7, 2010, Defendant NCAA was
               negligent . . . by failing to supervise the Midwest Regional
               Fencing Competition to insure hazards and risks were
               consistently monitored to prevent [Lanni’s] injuries.


       Id. at 25-26. Lanni also alleged negligence on the part of the USFA and Notre

       Dame.


[17]   On April 3, the NCAA moved to dismiss the complaint and/or enter summary

       judgment for the NCAA. Attached to the NCAA’s motion was the affidavit of

       Kelly Whitaker Shaul, the Championships Manager for the sport of fencing at

       the NCAA. According to Shaul’s affidavit:

               6.     The NCAA did not have any involvement in any fencing
               competition that may have occurred on March 7, 2010, including
               any fencing competition at Notre Dame. To the extent a fencing
               competition was held at Notre Dame on March 7, 2010, the
               NCAA did not sanction any such event. The NCAA did not
               participate in any such event. The NCAA did not supervise any
               such event. The NCAA did not select the officials for any such
               event. The NCAA had no other involvement with any such
               event.

                                                        ***
       Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015    Page 9 of 30
               10. If a school, group of schools[,] or conference put on
               competitions prior to the NCAA’s Regional fencing
               competitions, the NCAA would have no involvement with such
               competitions.


       Id. at 39-40.


[18]   On July 9, while discovery was ongoing, the trial court granted the NCAA’s

       request for summary judgment. Lanni appealed, and we held that the trial

       court erred when it entered summary judgment “without awarding Lanni a

       reasonable opportunity to present relevant materials in opposition to the motion

       for summary judgment.” Lanni v. NCAA, 989 N.E.2d 791, 799 (Ind. Ct. App.

       2013) (Lanni I). Accordingly, we remanded for further proceedings. Id.


[19]   Our opinion in Lanni I was certified as final on July 10, 2013. The next day,

       Lanni moved for a change of judge pursuant to Indiana Trial Rule 76(C)(3) (the

       July 11 Motion). The court denied the July 11 Motion. Thereafter, the USFA

       filed its motion for summary judgment.


[20]   The trial court held a hearing on the motions for summary judgment. After the

       hearing, the court granted summary judgment to the NCAA and the USFA.

       This appeal ensued.




       Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015   Page 10 of 30
                                       Discussion and Decision
                            Issue One: Summary Judgment for the NCAA

                                                      Overview


[21]   We first address Lanni’s challenge to the trial court’s entry of summary

       judgment for the NCAA. Our supreme court has stated our standard of review

       as follows:


               We review summary judgment de novo, applying the same
               standard as the trial court: “Drawing all reasonable inferences in
               favor of . . . the non-moving parties, summary judgment is
               appropriate ‘if the designated evidentiary matter shows that there
               is no genuine issue as to any material fact and that the moving
               party is entitled to judgment as a matter of law.’” Williams v.
               Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 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 material facts support conflicting reasonable
               inferences.” Id. (internal citations omitted).

               The initial burden is on the summary-judgment movant to
               “demonstrate [ ] the absence of any genuine issue of fact as to a
               determinative issue,” at which point the burden shifts to the non-
               movant to “come forward with contrary evidence” showing an
               issue for the trier of fact. Id. at 761-62 (internal quotation marks
               and substitution omitted). And “[a]lthough the non-moving
               party has the burden on appeal of persuading us that the grant of
               summary judgment was erroneous, we carefully assess the trial
               court’s decision to ensure that he was not improperly denied his
               day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
               916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
               omitted).

       Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015   Page 11 of 30
       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to

       Hughley).


[22]   Summary judgment is a “high bar” for the moving party to clear in Indiana. Id.

       at 1004. “In particular, while federal practice permits the moving party to

       merely show that the party carrying the burden of proof [at trial] lacks evidence

       on a necessary element, we impose a more onerous burden: to affirmatively

       ‘negate an opponent's claim.’” Id. at 1003 (quoting Jarboe v. Landmark Cmty.

       Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994)). Further:


               Summary judgment is a desirable tool to allow the trial court to
               dispose of cases where only legal issues exist. But it is also a
               “blunt . . . instrument” by which the non-prevailing party is
               prevented from having his day in court. We have therefore
               cautioned that summary judgment is not a summary trial and the
               Court of Appeals has often rightly observed that it is not
               appropriate merely because the non-movant appears unlikely to
               prevail at trial. In essence, Indiana consciously errs on the side
               of letting marginal cases proceed to trial on the merits, rather
               than risk short-circuiting meritorious claims.


       Id. at 1003-04 (citations and some quotations omitted; omission original to

       Hughley). Thus, for the trial court to properly grant summary judgment, the

       movants must have made a prima facie showing that their designated evidence

       negated an element of the nonmovant’s claims, and, in response, the

       nonmovant must have failed to designate evidence to establish a genuine issue

       of material fact. See Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267,

       1270 (Ind. 2009).
       Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015   Page 12 of 30
[23]   The elements of a negligence claim are well known to this court. As we have

       stated, “[t]o recover on a negligence claim, a plaintiff must establish three

       elements: (1) a duty owed to the plaintiff by the defendant; (2) a breach of that

       duty; and (3) injury to the plaintiff resulting from the defendant’s breach.”

       Rodriguez v. U.S. Steel Corp., 24 N.E.3d 474, 477 (Ind. Ct. App. 2014), trans.

       denied. “Summary judgment is rarely appropriate in negligence cases because

       they are particularly fact-sensitive and are governed by a standard of the

       objective reasonable person, which is best applied by a jury after hearing all the

       evidence.” Kramer v. Catholic Charities of Diocese of Ft. Wayne-S. Bend, Inc., 32

       N.E.3d 227, 231 (Ind. 2015).


[24]   The trial court’s summary judgment for the NCAA turns on the element of

       duty. As such, we address the two theories of duty that Lanni attempts to

       invoke against the NCAA: whether the NCAA owed her a general duty of care

       under the factors articulated by the Indiana Supreme Court in Webb v. Jarvis,

       575 N.E.2d 992, 997 (Ind. 1991), and whether there is a genuine question of

       material fact regarding whether the NCAA assumed a duty of care over Lanni

       and other student-athletes.6




       6
         The parties raise numerous side-arguments on appeal. We assume for the sake of argument that Lanni’s
       summary judgment designations were timely filed and that the NCAA had clear notice from Lanni’s
       complaint of her theories of liability against it. Likewise, we reject Lanni’s argument on appeal that the
       NCAA did not preserve these arguments for our review because it did not present them in its initial brief in
       support of its motion for summary judgment. Aside from our de novo review on appeal, Lanni’s complaint,
       the NCAA’s brief in support of its motion for summary judgment, and Lanni’s response to the NCAA’s
       motion all put the other parties on fair notice as to what the theories alleged were. We also need not discuss
       the NCAA’s alternative argument that it had no duty to Lanni because Notre Dame had no duty to her.

       Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015                        Page 13 of 30
                                          Analysis of the Webb Factors


[25]   Under Webb:


               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 is a question of law. . . . [T]hree
               factors must be balanced, viz. (1) the relationship between the
               parties, (2) the reasonable foreseeability of harm to the person
               injured, and (3) public policy concerns.


       575 N.E.2d at 995. This analysis is a question of law. Kramer, 32 N.E.2d at

       233.


[26]   We believe the Indiana Supreme Court’s recent analysis in Yost v. Wabash

       College, 3 N.E.3d 509 (Ind. 2014), is controlling here. In Yost, a pledge at a local

       chapter of Phi Kappa Psi alleged he was injured in a hazing incident, and he

       sued the local chapter as well as the national fraternity. In considering whether

       the national fraternity owed the pledge a duty as a matter of law under Webb,

       our supreme court stated:

               Of these three factors, the parties’ relationship and public policy
               concerns undermine Yost’s claim of duty on the part of the
               national fraternity under the designated facts most favorable to
               Yost. The national fraternity lacked any direct oversight and
               control of the individual fraternity members. It did not have any
               employees present in the fraternity house, and the day-to-day
               management of the house was the responsibility of the local fraternity, not
               the national fraternity. Despite the national fraternity’s efforts to
               establish aspirational objectives and to promote their fulfillment, the
               relationship between the national fraternity and the individual student
               members was remote and tenuous. Public policy concerns likewise

       Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015       Page 14 of 30
               do not favor recognition of a specific duty of care toward Yost by
               the national fraternity. As we noted above with respect to
               Wabash [College], the national organization—with which local
               fraternities and sororities affiliate—should be encouraged, not
               disincentivized, to undertake programs to promote safe and positive
               behavior and to discourage hazing and other personally and
               socially undesirable conduct. In sum, we conclude that the
               national fraternity had no general duty to Yost upon which this
               negligence action may be based.


       Id. at 521 (emphases added).


[27]   Simply, we see no daylight between our supreme court’s analysis in Yost with

       respect to the relationship between a national fraternity and a student engaged

       with a local chapter and the relationship between the NCAA and a student-

       athlete participating at an event on the campus of a member institution. And,

       under Indiana law, where the case law analysis of a general duty under Webb

       involves facts and circumstances that are substantially similar to the instant

       case, then the holding of the case law controls and we will not revisit the Webb

       balancing test. See id. at 515; see also Goodwin v. Yeakle’s Sports Bar & Grill, Inc.,

       28 N.E.3d 310, 311 (Ind. Ct. App. 2015), not yet certified. As we hold that Yost

       controls here, we need not revisit the Webb analysis our supreme court

       undertook in Yost, and we hold, as a matter of law, that the NCAA did not owe

       Lanni a general duty of care.




       Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015    Page 15 of 30
                                                Assumption of Duty


[28]   Lanni also alleges that the NCAA has gratuitously assumed a duty of care over

       its student-athletes.7 We consider this question in light of the facts most

       favorable to Lanni as the summary judgment nonmovant. E.g., Yost, 3 N.E.3d

       at 517. Again, we believe recent supreme court analyses, including that in Yost,

       forecloses Lanni from reliance on this theory of liability.


[29]   In discussing whether the national fraternity had assumed a duty of care over

       local chapter pledges in Yost, our supreme court stated:


               “A duty of care may . . . arise where one party assumes such a
               duty, either gratuitously or voluntarily. The assumption of such
               a duty creates a special relationship between the parties and a
               corresponding duty to act in the manner of a reasonably prudent
               person.” The assumption of such a duty requires affirmative,
               deliberate conduct such that it is “apparent that the
               actor . . . specifically [undertook] to perform the task that he is
               charged with having performed negligently, ‘for without the
               actual assumption of the undertaking there can be no correlative
               legal duty to perform that undertaking carefully.’” Where “the
               record contains insufficient evidence to establish such a duty, the
               court will decide the issue as a matter of law.” The liability for
               the breach of assumed duty is expressed in the Restatement
               (Third) of Torts: Physical and Emotional Harm § 42 (2012),
               which states:




       7
         We assume for the sake of argument that Lanni’s designations demonstrate a genuine issue of material fact
       with respect to whether the March 2010 competition was an NCAA-sponsored event. But there is no dispute
       that the event was on the campus of Notre Dame, rather than at a neutral or nonmember-institution location,
       and that Notre Dame, rather than the NCAA, set up the event. We need not consider whether our holding
       regarding the NCAA’s alleged assumption of a duty would apply in other circumstances.

       Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015                     Page 16 of 30
                        An actor who undertakes to render services to
                        another and who knows or should know that the
                        services will reduce the risk of physical harm to the
                        other has a duty of reasonable care to the other in
                        conducting the undertaking if:

                        (a) the failure to exercise such care increases the risk
                        of harm beyond that which existed without the
                        undertaking, or

                        (b) the person to whom the services are rendered or
                        another relies on the actor’s exercising reasonable
                        care in the undertaking.

               Thus, to impose liability resulting from breach of assumed duty,
               it is essential to identify and focus on the specific services
               undertaken. Liability attaches only for the failure to exercise
               reasonable care in conducting the “undertaking.”


       Id.


[30]   In Yost, our supreme court held that the national fraternity did not assume a

       duty to protect local pledges from hazing. In particular, the court concluded

       that, although there was “evidence that the national fraternity engaged in

       educational outreach programs to enhance proper behavior and to discourage

       hazing[,] . . . the specific undertaking did not extend to actual oversight and

       control over the behavior of individual student members of the local fraternity.”

       Id. at 521 (emphasis added).


[31]   Shortly after Yost, the Indiana Supreme Court considered a similar case with

       similar issues. In Smith v. Delta Tau Delta, 9 N.E.3d 154 (Ind. 2014), a pledge at


       Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015   Page 17 of 30
a local chapter of Delta Tau Delta died of acute alcohol ingestion, and his

family sued, in relevant part, the local fraternity and the national fraternity. In

considering whether the national fraternity had assumed a duty of care to

protect local pledges from alcohol-related death, our supreme court considered

numerous facts favorable to the summary judgment nonmovants:


     The local fraternity “was an Indiana self-governing, unincorporated

        association of undergraduate students.”

     The national fraternity’s constitution, bylaws, and Membership

        Responsibility Guidelines (“MRGs”) show its disapproval of hazing and

        irresponsible and underage drinking.

     The national fraternity provided an online alcohol education program for

        all new local chapter members, to help them understand the “individual

        health problems, learning problems . . . relationship problems . . . and

        legal problems” associated with alcohol consumption.

     The national fraternity required all pledges to complete the program

        within the first semester of their pledgeship.

     The national fraternity recommended that local chapters have a house

        risk manager—a trained officer of the house who can help respond to

        emergency situations—who is elected by the local fraternity without the

        approval of the national fraternity. Like all elected officials in a local

        fraternity, the national fraternity provided educational materials to the

        house risk manager to assist him in his duties for the local chapter.



Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015   Page 18 of 30
     The national fraternity’s authority for enforcing its guidelines and

        policies on hazing and alcohol consumption allowed it to suspend

        charters, discipline or expel individual members, or even require

        “[a]dditional educational programming,” with decisions to sanction

        charters or individuals subject to appeal.

     Each local chapter had a chapter advisor appointed by the national

        fraternity’s Division President and subject to the approval of the Arch

        Chapter, which is the “executive body of the [national fraternity]” and is

        composed of eleven individual members.

     The advisor’s duties included being “deputy of the Arch Chapter” and a

        “custodian of the [local fraternity’s] charter, secret books, files, official

        documents, and Ritual.” He was tasked with complying with all requests

        and orders of the Division President.

     Local chapters were responsible for electing a treasurer to maintain the

        local chapter’s financial records and bookkeeping. Once per month, a

        local chapter would certify to the national fraternity that the record

        keeping is correct and accurate, especially in regard to accounts

        receivable. And, generally once per semester, a chapter consultant would

        check the account information and record keeping with the treasurer to

        promote accuracy and ensure the books were up to date.

     The national fraternity reserved the right to discipline local chapters and

        individuals for violations of its policies, including the suspension of an

        individual’s membership and the withdrawal of a local chapter’s charter.


Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015     Page 19 of 30
            The local chapter advisor, Doug Coy, was at the local fraternity the day

               before the incident and the morning of the incident helping the local

               fraternity to prepare for the house’s homecoming dedication.

            It was the duty of the chapter advisor to “see that the Guidelines are

               upheld, and equally importantly, that the spirit of the Guidelines is met.”

            Coy had previously reported prior alleged violations of the MRGs, which

               had resulted in a chapter consultant talking with the local fraternity after

               Coy and correcting the noncompliance.

            Coy “felt like [he] had a duty to take action” when acting as chapter

               advisor if he observed anything that could be considered hazing or

               underage drinking.

            Coy was responsible for attending at least one chapter meeting per

               month, for ensuring the alcohol education program was timely

               completed by the local fraternity members, and for reporting any

               violation of MRGs of which he became aware to the national fraternity.


       Id. at 161-63.


[32]   Our supreme court summarized the facts of the Smith case as “more robust and

       extensive than those described in” Yost and other cases but “not different in

       nature or character.” Id. at 163. Hence, the court held:


               the national fraternity’s involvement with the local
               fraternity . . . fails to establish any significant difference in the
               nature of the specific services undertaken—providing information
               to the local fraternity to discourage hazing and alcohol abuse and
               disciplining chapters and members for violations. There is no
       Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015   Page 20 of 30
                evidence that the national fraternity assumed any duty of
                preventative, direct supervision and control of the behaviors of its
                local chapter members. While it certainly was the commendable
                objective of the national fraternity to actively engage in programs
                to discourage hazing and alcohol abuse, we find that the specific
                services assumed by the national fraternity did not rise to the
                level of assuring protection of the freshman pledges from hazing
                and the dangers of excessive alcohol consumption—the assumed
                duty alleged by the plaintiffs. The national fraternity did have a
                duty of reasonable care in the performance of its assumed duty of
                providing information and guidance. But the national fraternity’s
                conduct did not demonstrate any assumption of a duty directly to
                supervise and control the actions of the local fraternity and its
                members. The national fraternity did not have a duty to insure
                the safety of the freshman pledges at the local fraternity.


       Id.


[33]   Here, the facts most favorable to Lanni demonstrate the following:


              The March 2010 competition occurred on the campus of Notre Dame, an

                NCAA member institution, and in accordance with the NCAA’s rules

                for the sport of fencing. Appellant’s App. at 875.

              Laurence Schiller, a member of the Fencing Committee and the head

                coach of the participating Northwestern University team, was present at

                the competition. Id. at 143, 1065.

              The competition occurred one week before the start of the NCAA

                Fencing Regional Championships, and to be eligible for the regional

                championships fencers were required to have, among other things, a




       Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015   Page 21 of 30
        minimum of eighteen bouts “played in accordance with NCAA rules.”

        Id. at 1065, 1072.

     The NCAA’s website states that the NCAA “takes appropriate steps to

        modify safety guidelines, playing rules[,] and standards to minimize

        those risks and provide student[-]athletes with the best opportunity to

        enjoy a healthy career.” Id. at 100.

     The USFA rules, adopted by the NCAA, define a fencing area to include

        a “Removable Area,” which “usually represents a series of pipes that

        delineate where spectators may and may not go.” Id. at 880, 912.

     Breece, on behalf of the NCAA, agreed that the pipe-and-drape barrier

        “provides space around the [fencing] strip so that only the fencer[s] and

        the referee are in [the fencing] area.” Id. at 258.

     Breece’s responsibilities included site inspections to ensure compliance

        by the member institution with NCAA mandates, and his site inspections

        including verifying the placement of the pipe-and-drape barrier. Id. at

        257-58.

     The NCAA “collects, analyzes, interprets[,] and disseminates data on

        injuries in each sport” in order to “provide athletes with a safe[,]

        competitive environment.” Id. at 100.

     If an injury were to occur at an NCAA fencing competition, that injury

        would be reported to the CSMAS, which, in turn, would share that

        information with the Fencing Committee. Id. at 253.




Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015   Page 22 of 30
            Shortly after Lanni’s injury, in May of 2010 the Fencing Committee

               “discussed the layout” at fencing competitions, “expressed concern that

               the [fencing] strips were too close together,” and “suggested that[,]

               whenever possible, . . . we limit spectators from walking between the

               corrals.” Id. at 882.


[34]   We conclude that the NCAA’s regulation of the field of play and other rules

       and policies with respect to safety issues are identical in their nature and

       character to the national fraternities’ guidance to their local chapters in Yost and

       Smith. Just as in Yost and Smith, the specific duties undertaken by the NCAA

       with respect to the safety of its student-athletes was simply to provide

       information and guidance to the NCAA’s member institutions and student-

       athletes. And Breece’s compliance checks are identical in their nature and

       character to Coy’s compliance checks with the local chapter in Smith. It is

       commendable for the NCAA to actively engage its member institutions and

       student-athletes in how to avoid unsafe practices, but those acts do not rise to

       the level of assuring protection of the student-athletes from injuries that may

       occur at sporting events. Actual oversight and control cannot be imputed

       merely from the fact that the NCAA has promulgated rules and regulations and

       required compliance with those rules and regulations. The NCAA’s conduct

       does not demonstrate that it undertook or assumed a duty to actually oversee or

       directly supervise the actions of the member institutions and the NCAA’s

       student-athletes. See Smith, 9 N.E.3d at 163. Accordingly, as Lanni cannot




       Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015   Page 23 of 30
       demonstrate the element of duty required for her negligence claim against the

       NCAA, we affirm the trial court’s entry of summary judgment for the NCAA.


                            Issue Two: Summary Judgment for the USFA

[35]   Lanni also appeals the trial court’s entry of summary judgment for the USFA.

       Specifically, Lanni asserts that the USFA assumed a duty to protect Lanni from

       injury because the March 2010 competition was played at least in part under

       USFA rules and with USFA-trained referees. But there is no dispute that the

       March 2010 competition was not a USFA-sponsored event, and there is no

       evidence to show even that the USFA had knowledge of the March 2010

       competition. Thus, if the NCAA did not owe Lanni a duty, neither did the

       USFA, whose relationship to Lanni was even more remote than the NCAA’s

       and whose control over the March 2010 competition was even more tenuous.

       As such, we affirm the court’s entry of summary judgment for the USFA.


                                  Issue Three: Change of Judge Motion

[36]   Finally, we address Lanni’s argument that the trial court erred when it denied

       the July 11 Motion for change of judge. Lanni’s argument on this issue requires

       this court to interpret our trial rules. “Because construction of the trial rules is a

       question of law, we review this issue de novo.” Higgason v. State, 789 N.E.2d

       22, 27 (Ind. Ct. App. 2003).


[37]   Indiana Trial Rule 76 provides as follows:

               (C) In any action except criminal no change of judge or change
               of venue from the county shall be granted except within the time

       Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015   Page 24 of 30
               herein provided. Any such application for change of judge (or
               change of venue) shall be filed not later than ten [10] days after
               the issues are first closed on the merits. Except:

                                                        ***

                        (3) if the trial court or a court on appeal orders a new trial,
                        or if a court on appeal otherwise remands a case such that a
                        further hearing and receipt of evidence are required to reconsider
                        all or some of the issues heard during the earlier trial, the parties
                        thereto shall have ten [10] days from the date the order of
                        the trial court is entered or the order of the court on appeal
                        is certified . . . .


       (Emphasis added.) Lanni asserts that our reversal in Lanni I of the trial court’s

       original entry of summary judgment and order on remand that the court allow

       Lanni time to present evidence in response to the summary judgment motions

       satisfies Rule 76(C)(3).


[38]   Lanni argues that a “trial” under Rule 76(C)(3) includes a summary judgment.

       This of course is not the traditional concept either of a trial or of a summary

       judgment; the whole point of summary judgment is to end cases where there is

       no “triable issue.” Williams, 914 N.E.2d at 761-62. And the risk that

       accompanies an incorrect entry of summary judgment is the risk of “short-

       circuiting meritorious claims” from a “trial on the merits.” Hughley, 15 N.E.3d

       at 1004. As our supreme court has succinctly stated, “summary judgment is not

       a summary trial.” Id. at 1003-04 (quotations omitted).


[39]   Lanni emphasizes that a “trial” can be on a question of fact or on a question of

       law. As such, she cites Harvey’s Indiana Practice for the proposition that,
       Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015           Page 25 of 30
       “[e]ven if there is no factual dispute, certainly a legal dispute is present. In that

       sense, a summary judgment is very much a ‘trial’ as the word is used in [Rule]

       76(C)(3) . . . .” William F. Harvey, 4A Ind. Prac. § 76.10, at 211 (3d ed. 2003)

       (hereinafter “Harvey”).


[40]   Harvey’s conclusion is based on two Indiana cases, both of which are 1984

       decisions. The first is a February 1984 decision of this court. In that case, this

       court stated:


               It is black letter law that a trial is an investigation under the
               direction and control of the state for the purpose of the discovery
               of the truth and establishing the facts on which the sentence of
               the law may be pronounced. 28 I.L.E. Trial, Sec. 1 (1960). We
               do not believe the label attached, be it hearing or trial, is
               determinative. It has been held in a mechanic’s lien foreclosure
               suit, that attorney fees are a severable issue.

               We conclude, therefore, that the determination of attorney fees is
               an issue in itself. Since T.R. 76(5) [now Trial Rule 76(C)(3)]
               does not by its terms limit a change of venue to a situation where
               a new trial is granted on all issues, and since [former Appellate
               Rule] 15(N) [now Appellate Rules 66(C)(3) and (D)] provides for
               a new trial on one or more of the issues, a party receiving a new
               trial or reversal is entitled to a change of venue from the county,
               if timely filed, even on one or more but less than all the issues.

               It is true that when a cause is remanded and no new trial is
               ordered the change of venue rule may not apply. Also, it may be
               true under some circumstances where judgment is rendered upon default,
               dismissal, or summary judgment, that no trial was conducted and thus a
               request for a new trial is inappropriate. Since the original ruling on
               attorney fees was on default, and it was upon that default that a



       Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015   Page 26 of 30
               retrial was ordered, it is arguable that such new proceeding was
               not a new trial. However, we need not decide that question. . . .


       Berkemeier v. Rushville Nat’l Bank, 459 N.E.2d 1194, 1198 (Ind. Ct. App. 1984)

       (emphases added; some citations omitted).


[41]   While Berkemeier reserved the issue Lanni now raises, in November of 1984—

       that is, after Berkemeier—the Indiana Supreme Court squarely rejected an

       argument identical to Lanni’s under the prior version of the Trial Rules. As

       that court stated:

               . . . [The Appellant’s] claim pertains to Ind. R. Tr. P. 76(5) [now
               Rule 76(C)(3)] . . . .

               [The Appellant] . . . contends that[,] inasmuch as a summary
               judgment hearing is a trial, the Court of Appeals ordered a new
               trial when it remanded [the] cause to the trial court. [Appellees]
               counter by claiming that a summary judgment decision is not a
               trial and the Court of Appeals therefore did not order a new trial
               but . . . affirmed the summary judgment entered . . . and merely
               ordered the trial court to continue its hearing to further consider
               certain specific matters . . . . [Appellees] are correct on both of
               these contentions.

               [Appellees] are correct to assert that a summary judgment decision is
               not a trial. This Court has held that the hearing on a motion for
               summary judgment is not a trial within the meaning of [another
               trial rule]. McAllister v. State, (1972) 258 Ind. 238, 280 N.E.2d
               311. With regard to what constitutes a trial, McAllister provided:
               “A ‘trial’ normally embraces a controversy and a hearing of evidence to
               determine issues of fact.” Of course, the determination of a motion for
               summary judgment is based upon the proposition that there is no issue of
               fact to be determined and a trial is unnecessary. The Court of Appeals

       Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015     Page 27 of 30
                also has held that a summary judgment proceeding is not a trial.
                Brames v. Crates, (1980) Ind. App., 399 N.E.2d 437.


       State ex rel. Sink & Edwards, Inc. v. Hancock Superior Ct., 470 N.E.2d 1320, 1321-

       22 (Ind. 1984) (emphases added).


[42]   Harvey acknowledges that Hancock Superior Court “squarely addressed” whether

       “a disposition on a summary judgment [is] a ‘trial’ so that a ‘new trial’ occurs

       under [Rule] 76(C)(3) if the judgment is set aside and a trial is ordered.” 8

       Harvey, supra, at 210-11. Harvey further acknowledges that “[t]he opinion in

       Hancock Superior Court is well-supported by earlier cases.” Id. at 211.

       Nonetheless, Harvey asserts that the parties in the Hancock Superior Court case

       “did not raise Appellate Rule 15’s [now Appellate Rule 66(C)(3) and (D)’s]

       flexibility and diversification” to the supreme court, and, if raised, “the

       Supreme Court might be guided by the Berkemeier rationale . . . . Berkemeier is

       recommended for that reason.” Id.


[43]   We have two concerns with the Harvey analysis. First, Berkemeier did not hold

       that a summary judgment was a trial under the prior version of Trial Rule

       76(C)(3). 459 N.E.2d at 1198. Rather, the Berkemeier court expressly did not

       decide that question. Id. Second, insofar as Berkemeier left that question open,

       our supreme court’s subsequent decision in Hancock Superior Court expressly




       8
         Conspicuously absent from both Lanni’s initial brief and her reply brief is any mention of the Hancock
       Superior Court case even though Harvey, the authority Lanni does rely on, and the NCAA discuss it (the
       USFA cites McAllister, cited in Hancock Superior Court, which Lanni also disregards).

       Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015                       Page 28 of 30
       closed it. 470 N.E.2d at 1321-22. This court is in no position to ignore express

       holdings of the Indiana Supreme Court. Horn v. Hendrickson, 824 N.E.2d 690,

       695 (Ind. Ct. App. 2005).


[44]   Moreover, the Indiana Supreme Court’s holding in Hancock Superior Court is a

       sound rule. Once a trial court has assessed the weight or credibility that should

       attach to certain facts, that assessment is not subject to review. E.g., Hughes v.

       City of Gary, 741 N.E.2d 1168, 1172 (Ind. 2001) (holding that, when reviewing a

       trial court’s findings of fact, we “do not reweigh the evidence or determine the

       credibility of witnesses”). Thus, if a trial court that has made such an

       assessment has its judgment reversed on appeal with the matter remanded, Rule

       76(C)(3) allows the parties to move for a new trial judge to have the weight

       and/or credibility of the evidence newly assessed. E.g., Diehl v. Clemons, 12

       N.E.3d 285, 298 (Ind. Ct. App. 2014) (holding that the trial court erred when it

       ordered a new trial on the basis of juror misconduct and stating that, “[o]n

       remand, the trial court should consider recusing itself since it has already

       determined that the juror was biased”) (quotation and ellipses omitted), trans.

       denied. But these concerns are not present for questions of law, which are

       reviewed on appeal de novo. E.g., Hughley, 15 N.E.3d at 1003. And the entry

       of summary judgment necessarily precludes an assessment of the weight of the

       evidence or the credibility of the witnesses and is, instead, judgment as a matter

       of law. Id.


[45]   Accordingly, Hancock Superior Court requires a new trial judge on remand and

       upon motion by a party only when the trial court’s earlier judgment included an

       Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015   Page 29 of 30
       assessment of the weight of the evidence or the credibility of the witnesses. 470

       N.E.2d at 1321-22. As the entry of summary judgment reversed in Lanni I did

       not include, and could not have included, any such factual determination,

       Hancock Superior Court precluded the application of Rule 76(C)(3) on remand.

       Thus, we reject Lanni’s argument on this issue.9


                                                       Conclusion

[46]   In sum, the evidence most favorable to Lanni fails to demonstrate that either

       the NCAA or the USFA owed her a duty of care. Lanni also was not entitled

       to a new judge following this court’s remand in Lanni I. Thus, we affirm the

       trial court’s entry of summary judgment for the NCAA and the USFA.


[47]   Affirmed.


       Baker, J., and Friedlander, J., concur.




       9
         Aside from arguing that it should win on the merits of this argument, in its brief the NCAA also asserts that
       the court’s denial of the July 11 Motion was an interlocutory order that is not within this court’s jurisdiction
       in this appeal. This argument is plainly incorrect. The trial court’s summary judgment orders were final,
       appealable orders. See Appellant’s App. at 20, 22 (certifying the summary judgment orders as final,
       appealable order under Trial Rule 54(B)). And it is well-established law that interlocutory orders need not be
       separately appealed; they are within the final judgment. See, e.g., Keith v. Mendus, 661 N.E.2d 26, 35 (Ind. Ct.
       App. 1996) (“a party who fails to bring an interlocutory appeal . . . may nevertheless pursue appellate review
       after the entry of final judgment.”), trans. denied.

       Court of Appeals of Indiana | Opinion 49A02-1409-CT-649 | August 26, 2015                         Page 30 of 30
