                                                                  FILED
                                                             Apr 13 2017, 7:47 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE –
Kory T. Bell                                               NEW CASTLE COMMUNITY
Federico & Bell                                            SCHOOL CORPORATION
Hagerstown, Indiana                                        John C. Trimble
Richard Andrew Young                                       Neal Bowling
Greensburg, Indiana                                        Lewis Wagner, LLP
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Wyatt Severance,                                           April 13, 2017
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           33A01-1609-CT-2088
        v.                                                 Appeal from the Henry Circuit
                                                           Court
New Castle Community School                                The Honorable Kit C. Dean Crane,
Corporation a/k/a New Castle                               Judge
Career Center,                                             Trial Court Cause No.
  and                                                      33C02-1504-CT-23

Turner Melton,
Appellees-Defendants




Baker, Judge.




Court of Appeals of Indiana | Opinion 33A01-1609-CT-2088 | April 13, 2017              Page 1 of 13
[1]   In 2013, Wyatt Severance and Turner Melton were both enrolled in a

      vocational education program operated by the New Castle Career Center,

      which is administered through the New Castle Community School Corporation

      (the “School”). A physical altercation between the two students resulted in a

      serious leg injury to Severance, who filed a civil complaint against the School,

      alleging negligence. The School moved for summary judgment on two

      grounds: first, that Severance was contributorily negligent in bringing about his

      injuries, thereby barring any recovery, and second, that the School did not

      breach its duty to Severance. During the summary judgment stage, Severance

      designated an expert affidavit, which the School moved to strike. The trial

      court granted the School’s motion to strike and the School’s motion for

      summary judgment. Finding that the trial court erred in granting the School’s

      motion to strike and that there are genuine issues of material fact as to whether

      the School breached its duty and whether Severance was contributorily

      negligent precluding summary judgment, we reverse and remand.


                                                      Facts     1




[2]   In the fall of 2013, Severance and Melton were two of sixteen students in the

      School’s building trades program. Severance, who attended Hagerstown High

      School, was seventeen years old and a first year in the program; Melton, who




      1
        We held oral argument on March 23, 2017, at Indiana University East in Richmond. We thank counsel for
      their advocacy and extend our appreciation to the faculty, staff, and students for their hospitality and
      thoughtful post-argument questions.

      Court of Appeals of Indiana | Opinion 33A01-1609-CT-2088 | April 13, 2017                   Page 2 of 13
      attended Blue River Valley High School, was nineteen years old and a returning

      second year. The program took place at a residential home construction site;

      on school days, the students drove from their respective schools to the

      construction site and worked for three hours each afternoon. The teacher,

      Trevor Stout, who had taught in the program for ten years prior to this incident,

      would assign tasks, and the students would disperse throughout the site to work

      on them. John Edington was Stout’s aide. Stout created a structure where

      second-year students would give directions to first-year students.


[3]   Students described Melton as a “hothead” with anger issues, and they would

      avoid Melton because of his verbal abuse and harassment. Appellant’s App.

      Vol. II p. 89, 110-12, 114. The students believed that Melton enjoyed picking

      fights with other students. One student had asked Stout whether he could be

      kept separate from Melton because of Melton’s verbal abuse, personal

      interactions, physical size, and attitude; Stout granted the student’s request.

      Stout remembered Melton as a bossy and dominant person in the group. He

      recognized that Melton would become frustrated if Stout did not answer his

      questions to his satisfaction, and he saw Melton throw tools down and raise his

      voice on the job site.


[4]   Severance and Melton did not interact before their altercation. During the

      program, Severance observed Melton belittling his work partners and

      classmates in the presence of others, ordering other students to go to the tool

      shed to get his tools, and taking credit for other students’ work. Severance did

      not observe Melton make physical contact with anyone in the program; he did

      Court of Appeals of Indiana | Opinion 33A01-1609-CT-2088 | April 13, 2017   Page 3 of 13
      not know whether Melton had been involved in a physical altercation with

      another student in the program or at Blue River High School; and he was not

      aware of Melton making threats of physical harm to other students.


[5]   Around 12 p.m. on November 26, 2013, Melton stole Severance’s bag of

      sunflower seeds out of Severance’s hands as Severance was waiting for class to

      begin. Stout assigned six students, including Severance and Melton, to clean

      the basement. Melton came down the steps to the basement giving orders to

      the other students; he told the other students that they were not working hard

      enough. Severance asked Melton, “What is your issue, man?” and said to him,

      “Hey, I just want you to stop.” Appellant’s App. Vol. II p. 80-81, 113. Melton

      approached and started threatening Severance, asking him, “What are you

      going to do about it?” Appellant’s App. Vol. II p. 80-81. Melton pushed

      Severance back about seven steps and pinned him against a wall while shoving

      a broom to Severance’s throat. Severance said, “I don’t know what I’m going

      to do about it.” Appellant’s App. Vol. II p. 81.


[6]   Melton then hit Severance with the broom. Severance managed to get the

      broom from Melton and swung the brush end of it at Melton from about six feet

      away. Melton then knocked the broom from Severance’s hands and ran toward

      Severance; Severance did not run toward Melton. Melton got behind

      Severance, blocked his vision, and wrapped his right leg around Severance’s left

      leg and pulled Severance over. Severance felt a “pop.” Appellant’s App. Vol.

      II p. 83. He collapsed on the ground and blacked out. Severance suffered a

      tibial plateau fracture that required surgery and resulted in a permanent injury.

      Court of Appeals of Indiana | Opinion 33A01-1609-CT-2088 | April 13, 2017   Page 4 of 13
      Melton walked away, left the basement, and left the job site. The altercation

      lasted no more than two and one-half minutes.


[7]   Severance filed a civil complaint against Melton and the School, alleging

      negligence.2 On April 19, 2016, the School moved for summary judgment on

      two grounds: first, that Severance was contributorily negligent in bringing

      about his injuries, thereby barring any recovery, and second, that the School did

      not breach its duty to Severance. On May 13, 2016, Severance opposed the

      School’s motion, requested a hearing, and designated evidence, including an

      expert affidavit of Dr. Jean Peterson. The trial court scheduled the summary

      judgment hearing for August 5, 2016.


[8]   On August 1, 2016, the School moved to strike Dr. Peterson’s affidavit, arguing

      that it contained conclusory opinions unsupported by facts or evidence, lacked

      explanation of the methodologies that she used to reach her conclusions, and

      included a conclusion of law that the School was negligent. On August 5, 2016,

      Severance opposed the School’s motion to strike; also on August 5, 2016, the

      trial court struck the affidavit without argument. During the summary

      judgment hearing, Severance requested the court to reconsider its strike, but the

      court did not grant his request. On August 8, 2016, the trial court entered

      summary judgment in favor of the School. Severance now appeals.




      2
          Melton is not a party to this appeal.


      Court of Appeals of Indiana | Opinion 33A01-1609-CT-2088 | April 13, 2017   Page 5 of 13
                                     Discussion and Decision
[9]    Severance presents two issues on appeal: first, that the trial court erred by

       striking Dr. Peterson’s affidavit, and second, that the trial court erred by

       granting summary judgment.


                                           I.       Motion to Strike
[10]   Severance argues that the trial court erred by striking Dr. Peterson’s affidavit

       because the School’s motion to strike was untimely and because striking it was

       against the logic and facts before the court.


[11]   The decision to admit or exclude evidence lies within the sound discretion of

       the trial court. E.g., Morse v. Davis, 965 N.E.2d 148, 155 (Ind. Ct. App. 2012).

       We will reverse only if the trial court’s decision “is clearly against the logic and

       effect of the facts and circumstances before the court or the reasonable,

       probable, and actual deductions to be drawn therefrom.” Id.


[12]   Severance designated Dr. Peterson’s affidavit as evidence in his opposition to

       summary judgment in order to help the trial court understand the nature and

       culture of bullying. In her affidavit, Dr. Peterson presented fifteen ways

       through which the altercation could have been prevented. She discussed

       bullying culture, how it was present in this school, and the appropriate level of

       supervision for this group of students. Her curriculum vitae, which outlines her

       experience, training, and education, was attached to her affidavit.




       Court of Appeals of Indiana | Opinion 33A01-1609-CT-2088 | April 13, 2017   Page 6 of 13
[13]   When the School filed its motion to strike the affidavit and argued in front of

       the trial court, it contended that Dr. Peterson lacked proper credibility as an

       expert. At oral argument, the School argued that Dr. Peterson’s affidavit was

       not relevant to this case because it did not address the dispositive issues, one of

       which, according to the School, is whether the School failed to adequately

       supervise the program in which the students were participating. We agree with

       the School that one of this case’s dispositive issues is whether the School

       provided an appropriate level of supervision to the students, but unlike the

       School, we find Dr. Peterson’s affidavit directly relevant to this question. Dr.

       Peterson presented fifteen ways or actions that the School could have taken to

       provide adequate supervision and possibly prevent the altercation and injury.

       She also discussed what the teachers should have been aware of—such as the

       group’s interpersonal interactions and Melton’s behavior—in order to provide

       that supervision. Therefore, Dr. Peterson’s expertise could assist the trial court

       in addressing the dispositive issues of the case. We conclude that the trial court

       erred in striking Dr. Peterson’s affidavit.


[14]   Because we conclude, based on the substantive merits of the issue, that the trial

       court erred in striking the affidavit, we need not discuss Severance’s other

       argument that the School’s motion to strike was untimely.




       Court of Appeals of Indiana | Opinion 33A01-1609-CT-2088 | April 13, 2017   Page 7 of 13
                                      II. Summary Judgment
[15]   Severance argues that summary judgment should not have been granted

       because the School did not negate any element of Severance’s claims and

       because Severance was not contributorily negligent as a matter of law.


[16]   Our standard for summary judgment is well established:

               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).


       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Summary judgment is

       rarely appropriate in negligence actions because negligence cases are

       particularly fact sensitive and are governed by a standard of the objective

       reasonable person. M.S.D. of Martinsville v. Jackson, 9 N.E.3d 230, 235 (Ind. Ct.

       App. 2014), abrogated on other grounds. This standard is best applied by a jury

       after hearing all of the evidence. Id.




       Court of Appeals of Indiana | Opinion 33A01-1609-CT-2088 | April 13, 2017   Page 8 of 13
                                               A. Negligence
[17]   The tort of negligence is comprised of the following three elements: (1) a duty

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

       defendant; and (3) an injury to the plaintiff proximately caused by that breach.

       Ashcraft v. Ne. Sullivan Cty. Sch. Corp., 706 N.E.2d 1101, 1103 (Ind. Ct. App.

       1999). To prevail on a motion for summary judgment in a negligence action,

       the defendant must demonstrate that the undisputed material facts negate at

       least one of the elements essential to plaintiff's claim or that the claim is barred

       by an affirmative defense. Id.


[18]   Indiana schools’ duty to protect their students “has been necessarily defined by

       the specific circumstances of each case.” McClyde v. Archdiocese of Indianapolis,

       752 N.E.2d 229, 233 (Ind. Ct. App. 2001). “[S]ummary judgment is especially

       inappropriate where the critical question for resolution is whether the defendant

       exercised the requisite degree of care under the factual circumstances.” Id.

       (citation and quotation marks omitted). To show that the School breached its

       duty to him, Severance is required to show that (1) Melton had a propensity

       toward violence; (2) the School was aware of Melton’s propensity; (3) the

       School failed to adequately supervise the students; and (4) the School’s

       inadequate supervision resulted in Severance’s injuries. Id.


[19]   In Miller v. Griesel, 261 Ind. 604, 613, 308 N.E.2d 701, 707 (1974), a case

       involving a child’s injuries sustained during recess at school, our Supreme




       Court of Appeals of Indiana | Opinion 33A01-1609-CT-2088 | April 13, 2017   Page 9 of 13
       Court recognized a duty for school authorities to exercise reasonable care for

       the safety of their children. Our Supreme Court wrote:


               Of course what constitutes due care and adequate supervision
               depends largely upon the circumstances surrounding the incident
               such as the number and age of the students left in the classroom,
               the activity in which they were engaged, the duration of the
               period in which they were left without supervision, the case of
               providing some alternative means of supervision and the extent
               to which the school board has provided and implemented
               guidelines and resources to insure adequate supervision.


       Id. The court held that the trial court’s grant of judgment on the evidence at the

       end of plaintiff’s case was proper due to the plaintiff’s failure to present a prima

       facie showing of the school’s breach of duty. Id.


[20]   In McClyde, a student made a comment to his classmate, who then physically

       attacked the student. 752 N.E.2d at 231. The student filed a civil complaint

       against the school, and when he opposed summary judgment, he filed affidavits

       from his parents. Id. The school filed a motion to strike the mother’s affidavit,

       alleging that it was based on hearsay, inadmissible opinion testimony, and

       testimony lacking a proper foundation for personal knowledge. Id. at 234. The

       trial court did not strike any of the statements in question, which resulted in

       conflicting designated evidence. Id. at 235. This Court found that the affidavit

       created genuine issues of material fact, and we reversed the trial court’s grant of

       summary judgment in favor of the school. Id.




       Court of Appeals of Indiana | Opinion 33A01-1609-CT-2088 | April 13, 2017   Page 10 of 13
[21]   Under Miller, the requisite degree of due care in this case is dictated by the

       specific circumstances—the number and age of the students in the program, the

       work in which they were engaged, the duration of the period in which they

       were left without supervision, and the guidelines and resources provided to

       insure adequate supervision. We recognize that this vocational program

       provides its students with the opportunity to work independently in a

       professional setting. Nonetheless, a question of fact remains as to whether the

       degree of supervision in the School was adequate.


[22]   Designated evidence exists as to what Stout knew about Melton’s behavior and

       the culture that pervaded the vocational program, making it possible for Stout

       or the School to be unaware of what an adequate level of supervision would

       even be for this program. Brad Gregory, one of the other students who was

       working in the basement, stated that he “never said anything to Mr. Stout,” that

       he could tell that Stout “was very busy and this led me to try most things

       without bothering him,” and that “[a] lot went on behind Mr. Stout’s back that

       we did not tell him about, for example, e-cigarettes, smokeless tobacco, and

       cigarettes.” Appellant’s App. Vol. II p. 111. Gregory also stated that “[i]f at all

       possible, everyone in the class, including myself[,] would avoid Turner Melton

       because he would be so verbally abusive . . . .” Id. at 110. Stout stated that

       Melton would sometimes become frustrated and “throw tools down,” id. at

       132; he also stated that he “never had any notice that Turner Melton posed as a

       physical threat to the safety of others in the program.” Appellee’s App. Vol. II

       p. 39. Accordingly, we find that a genuine issue of material fact exists as to


       Court of Appeals of Indiana | Opinion 33A01-1609-CT-2088 | April 13, 2017   Page 11 of 13
       whether the School provided adequate supervision. This issue should be

       addressed by the trier of fact.


                                  B. Contributory Negligence
[23]   Finally, we address the School’s argument that because it is a government

       entity, and the common law defense of contributory negligence remains

       applicable for governmental defendants, even a slight degree of negligence on

       the part of Severance operates as a total bar to his action for damages against

       the School. We disagree.


[24]   Contributory 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. Whitmore v. S. Bend Pub. Transp.

       Corp., 7 N.E.3d 994, 997 (Ind. Ct. App. 2014). Generally, it is a question of fact

       for the jury to decide. Id. It will only be a question of law appropriate for

       summary judgment if the facts are undisputed and only a single inference can

       be drawn therefrom. Id.


[25]   This Court has recently discussed whether contributory negligence applies to

       cases such as this one. In M.S.D. of Martinsville, we noted that


               in a society where bullying is a pervasive and confusing problem,
               especially among young, school-aged children, we question
               whether the issue of contributory negligence can be properly
               resolved as a matter of law, especially when, as here, a victim is
               not the initial aggressor in an altercation, but merely fails to
               meekly walk away from an attacker who is violently disposed,


       Court of Appeals of Indiana | Opinion 33A01-1609-CT-2088 | April 13, 2017   Page 12 of 13
               and especially where the victim appears to have been unaware
               that the attacker was armed.


       9 N.E.3d at 248. This Court found that because the facts were subject to more

       than one reasonable inference, the trial court did not err in finding that the issue

       of the victim’s contributory negligence is most appropriately a matter for the

       jury. Similarly, here, Severance cannot be found as a matter of law

       contributorily negligent based on the actions that he took. A factfinder might

       reasonably determine that a reasonably prudent person might have acted as

       Severance did during this incident; a factfinder might also reasonably determine

       that Severance was not an initial aggressor in the altercation, but a person who

       merely failed to meekly walk away from Melton. Accordingly, we find that

       there are genuine issues of material fact as to whether Severance was

       contributorily negligent, and that the determination is better left to the jury.


[26]   For these reasons, we conclude that the trial court erred when it granted the

       School’s motion to strike Dr. Peterson’s affidavit and the School’s motion for

       summary judgment. Dr. Peterson’s affidavit relates to a dispositive issue in this

       case. Further, genuine issues of material fact exist as to whether the School

       breached its duty to protect Severance and whether Severance was

       contributorily negligent in a manner which proximately caused his injuries.


[27]   The judgment of the trial court is reversed and remanded for further

       proceedings.


       Robb, J., and Altice, J., concur.

       Court of Appeals of Indiana | Opinion 33A01-1609-CT-2088 | April 13, 2017   Page 13 of 13
