FOR PUBLICATION


ATTORNEYS FOR APPELLANT:                      ATTORNEY FOR APPELLEES:

RANDALL W. GRAFF                              JOSEF MUSSER
ORFEJ P. NAJDESKI                             Spitzer Herriman Stephenson
LESLIE B. POLLIE                               Holderead Musser & Conner, LLP
Kopka, Pinkus, Dolin & Eads, LLC              Marion, Indiana
Indianapolis, Indiana

                                                                        FILED
                                                                      Aug 31 2012, 8:42 am

                             IN THE
                                                                              CLERK
                   COURT OF APPEALS OF INDIANA                             of the supreme court,
                                                                           court of appeals and
                                                                                  tax court




WABASH COUNTY YOUNG MEN’S                     )
CHRISTIAN ASSOCIATION, INC. f/k/a             )
WABASH COMMUNITY SERVICE,                     )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )       No. 85A05-1203-CT-138
                                              )
TAYLOR M. THOMPSON, a minor,                  )
by next friends, BRIAN THOMPSON               )
and CHARLENE THOMPSON,                        )
                                              )
      Appellees-Plaintiffs.                   )


                    APPEAL FROM THE WABASH CIRCUIT COURT
                      The Honorable Robert R. McCallen, III, Judge
                            Cause No. 85C01-1110-CT-839



                                    August 31, 2012


                              OPINION - FOR PUBLICATION


BROWN, Judge
       Wabash County Young Men’s Christian Association, Inc., (“YMCA”) appeals the

trial court’s order denying its motion for summary judgment. The YMCA raises one

issue which we revise and restate as whether the trial court erred in denying the YMCA’s

motion for summary judgment. We reverse.

       The relevant facts follow. On October 13, 2011, Taylor Thompson, by next

friends Brian Thompson and Charlene Thompson, filed a complaint against the YMCA

alleging that she was at the premises known as the Field of Dreams which was owned by

the YMCA on May 28, 2009, and was injured when she slid into second base while

participating in the Wabash Metro Summer Baseball/Softball League.1 The complaint

alleged that the YMCA was negligent and violated its duty to protect Taylor by its failure

to inspect, warn, and implement preventive measures designed to eliminate or reduce

dangers posed by the condition of the second base “such that it was fixed as a rigid

obstacle for participants to encounter while sliding into the base and, thereby, posing a

clear safety hazard.” Appellant’s Appendix at 7. The complaint alleged that Taylor

suffered serious and permanent physical injury.

       On November 22, 2011, the YMCA filed a Motion to Dismiss And/Or Change of

Venue Pursuant to Trial Rule 12(B)(6). The YMCA alleged that Charlene, Taylor’s

mother, executed a contractual document for Taylor’s participation in the Wabash Metro

Summer Baseball/Softball League, and the YMCA attached the document to the motion.

The form contains the following statement:



       1
         The complaint indicated that Taylor was seventeen years old at the time of the filing of the
complaint.
                                                 2
      I (parent or guardian) Charlene Thompson hereby give permission for
      Taylor Thompson to participate in Metro League Baseball/Softball. I
      further understand that injuries can occur and will not hold the field,
      sponsor, coaching staff or league responsible for injury or medical expenses
      incurred while participating in practice or playing in a game. I also affirm
      that my child is physically fit to participate in athletic activities.

Id. at 12. The YMCA alleged that Taylor contractually agreed that there was an inherent

risk to her participation in the softball game that could result in injury and that she

contractually agreed that she would hold the YMCA, as alleged owner of the field,

harmless for any injuries or medical expenses resulting from such injuries.

      On December 22, 2011, Taylor filed a response to the YMCA’s motion to dismiss

and argued that “in the case of minors, a person claiming tort damages on behalf of the

minor against another person has power to execute a release on the minor’s behalf,

however, the release must be approved by the Court before being effective.” Appellant’s

Appendix at 14. Taylor also alleged that the document YMCA relies upon did not

contemplate an injury from the negligent maintenance of the property, rather, it

contemplates the foreseeable injuries which can inherently occur while playing baseball

or softball. Taylor argued that the YMCA was not a party to the understanding evidenced

by the document.

      On December 30, 2011, the court held a hearing on the YMCA’s motion. On

January 18, 2012, the court denied the YMCA’s motion to dismiss. On February 16,

2012, the YMCA filed a motion to certify the interlocutory order, which the court granted

on February 21, 2012. On April 16, 2012, this court accepted jurisdiction pursuant to

Ind. Appellate Rule 14(B).


                                            3
       The issue is whether the trial court erred by denying summary judgment to the

YMCA. Initially, we note that the YMCA’s motion to dismiss was filed pursuant to Ind.

Trial Rule 12(B)(6) and attached the form completed by Taylor’s mother. Therefore, we

will review the YMCA’s motion to dismiss as a motion for summary judgment. See Ind.

Trial Rule 12(B) (“If, on a motion, asserting the defense number (6), to dismiss for failure

of the pleading to state a claim upon which relief can be granted, matters outside the

pleading are presented to and not excluded by the court, the motion shall be treated as

one for summary judgment and disposed of as provided in Rule 56.”); New Albany-Floyd

Cnty. Educ. Ass’n v. Ammerman, 724 N.E.2d 251, 255 n.7 (Ind. Ct. App. 2000)

(“Although the trial court specifically granted Holman’s motion to dismiss and did not

rule on his motion for summary judgment, we must nevertheless treat the former as a

motion for summary judgment on review.”); Galbraith v. Planning Dep’t of City of

Anderson, 627 N.E.2d 850, 852 (Ind. Ct. App. 1994) (treating the trial court’s dismissal

of plaintiff’s complaint as a summary judgment for the defendant when plaintiff

submitted an affidavit and the trial court acknowledged that it considered matters outside

the pleadings).

       Summary judgment is appropriate only where there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule

56(C); Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind.

2001). All facts and reasonable inferences drawn from those facts are construed in favor

of the nonmovant. Mangold, 756 N.E.2d at 973. Our review of a summary judgment

motion is limited to those materials designated to the trial court. Id. We must carefully

                                             4
review a decision on summary judgment to ensure that a party was not improperly denied

its day in court. Id. at 974. “[A] motion for summary judgment that is unopposed should

be granted only if the designated materials, regardless of whether they stand unopposed

by materials designated by the nonmovant, warrant it.”            Starks v. Village Green

Apartments, 854 N.E.2d 411, 415 (Ind. Ct. App. 2006), abrogated on other grounds by

Klotz v. Hoyt, 900 N.E.2d 1 (Ind. 2009).

       In reviewing a grant of summary judgment we face the same issues as the trial

court and follow the same process. Klinker v. First Merchants Bank, N.A., 964 N.E.2d

190, 193 (Ind. 2012). Under Trial Rule 56(C), the moving party bears the burden of

making a prima facie showing that there are no genuine issues of material fact and that it

is entitled to judgment as a matter of law. Id. If it is successful, the burden shifts to the

nonmoving party to designate evidence establishing the existence of a genuine issue of

material fact. Id.

       “In order to prevail on a claim of negligence, a plaintiff is required to prove: (1) a

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

and (3) an injury to the plaintiff proximately caused by the breach.” Peters v. Forster,

804 N.E.2d 736, 738 (Ind. 2004). In negligence cases, summary judgment is “rarely

appropriate.” Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004). “This is because

negligence cases are particularly fact sensitive and are governed by a standard of the

objective reasonable person—one best applied by a jury after hearing all of the

evidence.” Id. Nevertheless, a defendant is entitled to judgment as a matter of law when



                                             5
the undisputed material facts negate at least one element of the plaintiff’s claim. Id. at

385.

       We initially address Taylor’s argument that while Indiana law requires that a

parent claiming tort damages on behalf of a minor against another person has power to

execute a release on the minor’s behalf, the release must be approved by the court to be

valid. Taylor cites Ind. Code § 29-3-9-7(b) which provides:

       Whenever a minor has a disputed claim against another person, whether
       arising in contract, tort, or otherwise, and a guardian for the minor and the
       minor’s property has not been appointed, the parents of the minor may
       compromise the claim. However, before the compromise is valid, it must
       be approved by the court upon filing of a petition requesting the court’s
       approval. If the court approves the compromise, it may direct that the
       settlement be paid in accordance with IC 29-3-3-1. If IC 29-3-3-1 is not
       applicable, the court shall require that a guardian be appointed and that the
       settlement be delivered to the guardian upon the terms that the court directs.

Taylor argues that “[n]o Indiana statute, rule, or decision authorizes a parent of a minor to

sign a pre-tort waiver.” Appellee’s Brief at 5. Taylor also argues that “the Indiana

statute requiring court approval of minor’s claim settlement arises out of a public policy

of favoring protection of minors with respect to contractual obligations” and “[t]he statute

guards minors against improvident compromises made by their parents.” Id.

       The YMCA argues that Taylor’s reliance on Ind. Code § 29-3-9-7(b) “is

misplaced and has no bearing on the subject matter at issue in this case, which involves a

vastly different legal scenario having nothing to do with probating a disputed claim a

minor has against another person.” Appellant’s Brief at 8. The YMCA also argues that if

Taylor’s argument is accepted, it would render all releases signed by parents to allow

their children to participate in school and sporting events ineffective and meaningless.

                                             6
The YMCA contends that “[i]t would be impossible for parents to obtain court approval

for every release or hold harmless agreement for every club, hobby, camp, and sporting

activity for each of their children.” Id. at 9.

       We observe that the referenced statute governs a post-injury claim and falls under

Title 29, which governs probate law, and not the issue in this case. Further, Taylor does

not point to any other authority indicating that the release form was invalid. Under the

circumstances, we conclude that the release form is valid. See Bellew v. Byers, 272 Ind.

37, 38, 396 N.E.2d 335, 336 (1979) (addressing a minor’s compromise claim in which

the parent and natural guardian was paid an amount for the injuries to her three children

in return for a release), abrogated on other grounds by Huffman v. Monroe Cnty. Cmty.

Sch. Corp., 588 N.E.2d 1264 (Ind. 1992); Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d

201, 206-207 (Ohio 1998) (holding that it was not appropriate to equate a pre-injury

release with a post-injury release and that parents have the authority to bind their minor

children to exculpatory agreements in favor of volunteers and sponsors of nonprofit sport

activites where the cause of action sounds in negligence).

       We next turn to whether the release applies to Taylor’s injury. The YMCA argues

that the release form applies to Taylor’s action of sliding into second base during the

softball game. The YMCA also argues that “one can take almost any on-field mishap and

seek to couch it in terms of negligence by arguing for more padding, softer playing

surfaces, rule changes, etc., but the fact remains that the injury arose because of a risk

inherent in the game.” Appellant’s Reply Brief at 3. Taylor argues that the YMCA’s

repeated reference to her injury being the result of her sliding into second base without

                                                  7
referencing the accompanying allegations of the complaint that the injury was caused by

the negligent maintenance of the second base is a glaring omission throughout the

YMCA’s argument.

       “It is well established in Indiana that exculpatory agreements are not against

public policy.” Stowers v. Clinton Cent. Sch. Corp., 855 N.E.2d 739, 749 (Ind. Ct. App.

2006), trans. denied. “Generally, parties are permitted to agree that a party owes no

obligation of care for the benefit of another, and thus, shall not be liable for consequences

that would otherwise be considered negligent.” Marsh v. Dixon, 707 N.E.2d 998, 1000

(Ind. Ct. App. 1999), trans. denied. However, this court has held that an exculpatory

clause will not act to absolve a party from liability unless it “‘specifically and explicitly

refer[s] to the negligence of the party seeking release from liability.’” Id. (quoting

Powell v. Am. Health Fitness Ctr. of Fort Wayne, Inc., 694 N.E.2d 757, 761 (Ind. Ct.

App. 1998)). An exculpatory clause may be found sufficiently specific and explicit on

the issue of negligence even in the absence of the word itself. Anderson v. Four Seasons

Equestrian Ctr., Inc., 852 N.E.2d 576, 581 (Ind. Ct. App. 2006), trans. denied.

Furthermore, an exculpatory clause not referring to the negligence of the releasee may act

to bar liability for those damages incurred which are inherent in the nature of the activity.

Id. The requirement of specificity is only necessary when the risk of harm is a latent

danger, i.e. the defendant’s own negligence. Id. at 581-582.

       The form signed by Taylor’s mother did not release the YMCA of liability for all

negligent acts because the form did not contain any specific or explicit reference to the

negligence of the YMCA or owner of the field. See Stowers, 855 N.E.2d at 749 (“The

                                             8
Stowers’ proposed instruction set out that the Release Forms did not absolve Clinton

Central of liability for negligent acts if they did not contain language specifically

referring to negligence; thus, it was a correct statement of the law.”). Thus, we must

determine whether Taylor’s injury was derived from a risk inherent in the nature of the

activity. See Anderson, 852 N.E.2d at 581 (holding that an exculpatory clause not

referring to the negligence of the releasee may act to bar liability for those damages

incurred which are inherent in the nature of the activity).

       Sliding into second base, notwithstanding its rigidity, is an activity inherent in the

nature of playing baseball or softball and we conclude that Taylor’s injury was derived

from a risk inherent in the nature of the activity. See id. at 584-585 (observing that the

plaintiff was injured when attempting to mount her horse and concluding that the

plaintiff’s damages were inherent in the nature of the activity of horse riding and that the

trial court did not err by granting summary judgment to the defendants). The release

attached to the YMCA’s motion to dismiss indicated that the owner of the field would not

be responsible for any injury or medical expenses “incurred while participating in

practice or playing in a game.” Appellant’s Appendix at 12. Based upon the language in

the release, we conclude that the YMCA met its burden of making a prima facie showing

that there were no genuine issues of material fact and that it was entitled to judgment as a

matter of law and that the burden then shifted to Taylor who did not designate any

evidence to show that an issue of material fact existed. Accordingly, we conclude that

the trial court erred by denying the YMCA’s motion for summary judgment.



                                              9
      For the foregoing reasons, we reverse the trial court’s denial of the YMCA’s

motion for summary judgment.

      Reversed.

FRIEDLANDER, J., and PYLE, J., concur.




                                         10
