                                                                               FILED
                                                                          May 24 2016, 8:49 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Kenneth G. Doane, Jr.                                    Richard T. Mullineaux
      Doane Law Office, LLC                                    Crystal G. Rowe
      Jeffersonville, Indiana                                  Whitney E. Wood
                                                               Kightlinger & Gray, LLP
                                                               New Albany, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Tresa Megenity,                                          May 24, 2016
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               22A04-1506-CT-722
              v.                                               Appeal from the Floyd Superior
                                                               Court
      David Dunn,                                              The Honorable Maria D. Granger,
      Appellee-Defendant.                                      Judge
                                                               Trial Court Cause No.
                                                               22D03-1309-CT-1354



      Najam, Judge.


                                       Statement of the Case
[1]   Tresa Megenity appeals the trial court’s entry of summary judgment in favor of

      David Dunn on Megenity’s complaint, in which she alleged that Dunn was

      negligent and reckless and proximately caused her serious bodily injury during

      a karate practice session. Megenity presents a single issue for our review,
      Court of Appeals of Indiana | Opinion 22A04-1506-CT-722 | May 24, 2016                       Page 1 of 16
      namely, whether there exists a genuine issue of material fact precluding

      summary judgment in favor of Dunn.


[2]   We reverse and remand for further proceedings.1


                               Facts and Procedural History
[3]   On December 1, 2012, Megenity and Dunn were students at Terry Middleton’s

      karate studio (“the studio”). Megenity had been taking classes there three or

      four times a week for approximately two years, and she had attained a black

      belt. Dunn was a newer student and had attained a green belt, which is five

      levels lower than a black belt.


[4]   On December 1, Megenity and Dunn were engaged in a drill called “kicking the

      bag.” Appellant’s App. at 68. Approximately sixty students of all levels were

      engaged in the drill that day, which involved the following: three people

      (students and/or instructors), forming a triangle with approximately thirty feet

      between them, holding rectangular bags in front of their bodies; and the

      students lining up and sprinting to each bag in succession to perform a kick

      against the bag. The first two bags were for side kicks, and the third bag was for

      a front kick. A front kick involves a student “balancing on one foot,” raising his

      knee, and kicking “with the heel and snap[ping] back.” Id. at 66-67. On that

      date, Megenity had volunteered, as she had “countless” times before, to hold




      1
          We heard oral argument in this case on March 2, 2016.


      Court of Appeals of Indiana | Opinion 22A04-1506-CT-722 | May 24, 2016   Page 2 of 16
      the third bag, for the front kick. Id. at 69. As a bag-holder, Megenity knew that

      she had to “brace [her]self to take an impact of the kick,” which meant placing

      her left foot behind her and her “right leg forward to brace for the kick.” Id.


[5]   When it was Dunn’s turn to perform the kicks, he performed the first two kicks

      “as hard as [he] could make them[,]” but without incident. Id. at 49. But

      before kicking the bag Megenity was holding, Terry Middleton “advised

      [Dunn] to hold back, which [he] did considerably.” Id. Nevertheless, when

      Dunn kicked the bag being held by Megenity, instead of keeping one foot on

      the ground as he kicked, he jumped as he kicked the bag. Megenity was

      holding the bag in front of her body, including her face, and she did not see the

      kick. As a result of the kick, Megenity “felt airborne and crashed on the

      floor[.]” Id. at 68. The force of the impact caused Megenity’s left knee to

      “double” and “sheared out” her anterior cruciate ligament (“ACL”) and

      “damaged [her] menisci.” Id. at 73. Dunn later apologized to her, saying, “I’m

      sorry. I didn’t mean to jump.” Id. at 72. Megenity underwent surgery and

      rehabilitation, and she missed several months of work as a result.


[6]   On September 11, 2013, Megenity filed a complaint against Dunn alleging that

      he had “negligently, recklessly, and unreasonably caused” her injuries. Id. at 6.

      Dunn filed an answer and, on November 19, 2014, Dunn filed a summary

      judgment motion alleging that, under our supreme court’s holding in Pfenning v.

      Lineman, 947 N.E.2d 392 (Ind. 2011), his conduct was reasonable as a matter of

      law and did not constitute a breach of duty. In her response to Dunn’s

      summary judgment motion, Megenity alleged that the designated evidence

      Court of Appeals of Indiana | Opinion 22A04-1506-CT-722 | May 24, 2016    Page 3 of 16
      established a genuine issue of material fact whether Dunn’s conduct was

      unreasonable and outside the range of ordinary behavior of participants in a

      karate class. Following a hearing, the trial court entered summary judgment in

      favor of Dunn. This appeal ensued.


                                 Discussion and Decision
[7]   Our standard of review for summary judgment appeals 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).

              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 22A04-1506-CT-722 | May 24, 2016     Page 4 of 16
      Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to

      Hughley).


[8]   The parties agree that, because Megenity’s injuries stem from a sporting

      activity, our supreme court’s decision in Pfenning governs the outcome of this

      appeal. In Pfenning, our supreme court “reject[ed] the concept that a participant

      in a sporting event owes no duty of care to protect others from inherent risks of

      the sport, but adopt[ed] instead the view that summary judgment is proper

      when the conduct of a sports participant is within the range of ordinary

      behavior of participants in the sport and therefore is reasonable as a matter of

      law.” 947 N.E.2d at 396. In particular, the court held as follows:

              Significant variations . . . can be seen among the decisions from
              our sister jurisdictions as they wrestle with the issue of liability
              for sports injuries. In resolving the issue for Indiana, a foremost
              consideration must be the Indiana General Assembly’s
              enactment of a comparative fault system and its explicit direction
              that “fault” includes assumption of risk and incurred risk. Ind.
              Code § 34-6-2-45(b). These concepts focus on a plaintiff’s
              venturousness and require a subjective determination. Smith[ v.
              Baxter], 796 N.E.2d [242,] 244[ (Ind. 2003)]. As noted above,
              decisions of this Court have established that such considerations
              of a plaintiff’s incurred risk, even if evaluated by an objective
              standard, cannot be used to support a finding of no duty in a
              negligence action. See Heck[ v. Robey], 659 N.E.2d [498,] 505
              [(Ind. 1995)]; Smith, 796 N.E.2d at 245. In contrast, the sports
              injury decisions of the Court of Appeals have employed
              consideration of the “inherent risks” of a sport to justify
              development of a no-duty rule. We view the evaluation of such
              inherent risks to be tantamount to an objective consideration of
              the risk of harm that a plaintiff undertakes and thus


      Court of Appeals of Indiana | Opinion 22A04-1506-CT-722 | May 24, 2016     Page 5 of 16
        unsatisfactory because it violates the Comparative Fault Act and
        the precedent of this Court.

        As to judicial policy, however, we are in agreement with our
        colleagues in the Court of Appeals and many of the courts of our
        fellow states that strong public policy considerations favor the
        encouragement of participation in athletic activities and the
        discouragement of excessive litigation of claims by persons who
        suffer injuries from participants’ conduct. See Bowman[ v.
        McNary], 853 N.E.2d [984,] 991-92 [(Ind. Ct. App. 2006)]; Mark
        [v. Moser], 746 N.E.2d [410,] 419 [(Ind. Ct. App. 2001)]. Sound
        policy reasons support “affording enhanced protection against
        liability to co-participants in sports events.” Bowman, 853 N.E.2d
        at 992. Athletic activity by its nature involves strenuous and
        often inexact and imprecise physical activity that may somewhat
        increase the normal risks attendant to the activities of ordinary
        life outside the sports arena, but this does not render
        unreasonable the ordinary conduct involved in such sporting
        activities.

        We conclude that sound judicial policy can be achieved within
        the framework of existing Indiana statutory law and
        jurisprudence. As noted previously, there are three principal
        elements in a claim for negligence: duty, breach of duty, and a
        proximately caused injury. When there is no genuine issue of
        material fact and any one of these elements is clearly absent,
        summary judgment is appropriate. Colen v. Pride Vending Serv.,
        654 N.E.2d 1159, 1162 (Ind. Ct. App. 1995), trans. denied. But
        rather than focusing upon the inherent risks of a sport as a basis
        for finding no duty, which violates Indiana statutory and
        decisional law, the same policy objectives can be achieved
        without inconsistency with statutory and case law by looking to
        the element of breach of duty, which is determined by the
        reasonableness under the circumstances of the actions of the
        alleged tortfeasor. Breach of duty usually involves an evaluation
        of reasonableness and thus is usually a question to be determined
        by the finder of fact in negligence cases. Kroger Co. v. Plonski, 930
Court of Appeals of Indiana | Opinion 22A04-1506-CT-722 | May 24, 2016      Page 6 of 16
              N.E.2d 1, 9 (Ind. 2010); [N. Ind. Pub. Serv. Co. v.] Sharp, 790
              N.E.2d [462,] 466 [(Ind. 2003)]. But in cases involving sports
              injuries, and in such cases only, we conclude that a limited new
              rule should apply acknowledging that reasonableness may be
              found by the court as a matter of law. As noted above, the sports
              participant engages in physical activity that is often inexact and
              imprecise and done in close proximity to others, thus creating an
              enhanced possibility of injury to others. The general nature of the
              conduct reasonable and appropriate for a participant in a particular
              sporting activity is usually commonly understood and subject to
              ascertainment as a matter of law. This approach is akin to that
              taken by the Arizona courts in Estes [v. Tripson, 932 P.2d 1364,
              1367 (Ariz. Ct. App. 1997),] when faced with the Arizona
              Constitution’s explicit declaration that assumption of risk is a
              question of fact that shall be left to the jury.[]

              We hold that, in negligence claims against a participant in a
              sports activity, if the conduct of such participant is within the
              range of ordinary behavior of participants in the sport, the
              conduct is reasonable as a matter of law and does not constitute a
              breach of duty.[]

              In any sporting activity, however, a participant’s particular
              conduct may exceed the ambit of such reasonableness as a matter
              of law if the “participant either intentionally caused injury or
              engaged in [reckless] conduct.” Bowman, 853 N.E.2d at 988
              (quoting Mark, 746 N.E.2d at 420). Such intentional or reckless
              infliction of injury may be found to be a breach of duty.


      Id. at 403-04 (footnotes omitted, emphasis added).


[9]   In Pfenning, plaintiff was driving a beverage cart around a golf course when she

      was suddenly struck in the mouth by a golf ball. Id. at 397. Lineman, who was

      golfing at the same course, hit “a low drive from the sixteenth tee


      Court of Appeals of Indiana | Opinion 22A04-1506-CT-722 | May 24, 2016     Page 7 of 16
       approximately eighty yards away [from Pfenning]. [Lineman]’s drive traveled

       straight for approximately sixty to seventy yards and then severely hooked to

       the left” before it struck Pfenning. Id. Pfenning sued Lineman and other

       defendants, and the trial court entered summary judgment in favor of the

       defendants. On transfer, our supreme court held that, “[a]s to [Lineman]’s

       hitting an errant drive which resulted in [Pfenning]’s injury, such conduct is

       clearly within the range of ordinary behavior of golfers and thus is reasonable as

       a matter of law and does not establish the element of breach required for a

       negligence action.” Id. at 404. The court further found that “whether and how

       a golfer yells ‘fore’ in a particular situation cannot be a basis for a claim of

       negligence, [and] it likewise cannot support a claim of liability based on

       recklessness.” Id. at 405.


[10]   This court has interpreted and applied the rule in Pfenning on two occasions,

       and we find those opinions instructive here. In Welch v. Young, 950 N.E.2d

       1283, 1292 (Ind. Ct. App. 2011), a baseball player warming up with a baseball

       bat struck the plaintiff with the bat, and we held that “factual issues about ‘the

       conduct of [the] participant’ . . . preclude[d] our determination whether, as a

       matter of law, [the defendant’s] conduct was ‘within the range of ordinary

       behavior of participants in the sport.’” (Quoting Pfenning, 947 N.E.2d at 404).

       In particular, we held as follows:

               there are fact issues as to whether the injury took place on the
               field or outside the playing area, and whether the game was
               underway or had not yet started. As we cannot be certain from
               the designated evidence before us whether Welch was injured

       Court of Appeals of Indiana | Opinion 22A04-1506-CT-722 | May 24, 2016      Page 8 of 16
               before or during the game and whether she and Jordan Young
               were inside the ball field or outside it in an area where spectators
               normally are present, we cannot determine as a matter of law
               whether Jordan Young’s behavior while taking warmup swings
               was within the range of ordinary behavior of participants in little
               league baseball.


       Id.


[11]   In Haire v. Parker, 957 N.E.2d 190, 192 (Ind. Ct. App. 2011), trans. denied, Haire

       was helping a friend with an all-terrain vehicle (“ATV”) at an “off road vehicle

       and motorcycle park” when Parker lost control of his ATV, which went

       airborne and landed on Haire. After Haire filed a complaint, Parker moved for

       summary judgment alleging in relevant part that he was entitled to summary

       judgment under the holding in Pfenning. The trial court granted the motion.

       On appeal, Haire argued that Pfenning did not apply because they had not been

       engaged in an organized sport, but only “recreational ATV usage[.]” Id. at 199.

       We reversed the trial court, holding as follows:

               [E]ven assuming that this case is one “involving sports injuries,”
               we cannot say that the “general nature of the conduct reasonable
               and appropriate for a participant” in ATV riding “is usually
               commonly understood and subject to ascertainment as a matter
               of law.” [Pfenning, 947 N.E.2d] at 403-04. Specifically, we
               cannot say as a matter of law and Parker does not direct our
               attention to any designated evidence suggesting that his conduct
               of starting his ATV while standing beside it after the ATV had
               “tipped over” was conduct within the range of ordinary behavior
               of participants in the sport and reasonable as a matter of law.
               Appellants’ App[.] at 143. Accordingly, we conclude that an
               issue of fact exists as to whether Parker’s actions constituted a

       Court of Appeals of Indiana | Opinion 22A04-1506-CT-722 | May 24, 2016     Page 9 of 16
               breach of duty and that the trial court erred in granting Parker’s
               motion for summary judgment.


       Id. at 201.


[12]   Thus, this court has applied the rule in Pfenning to mean that a breach may not

       be found as a matter of law in every sporting activity-related summary

       judgment case. Rather, the designated evidence must support such a

       determination, as we held in Welch, and the ordinary behavior of participants in

       a sport must be commonly understood, as we held in Haire.


[13]   Our analysis here turns on the issue of whether what constitutes reasonable and

       appropriate conduct in a karate class is “commonly understood” and can be

       determined as a matter of law. See Pfenning, 947 N.E.2d at 403-04. We observe

       that, unlike baseball, football, basketball, or golf, as likely examples, karate is

       not a sport with which most Americans are familiar, either through personal

       participation or through enjoyment as a spectator. While in Pfenning, the court

       held that a golfer’s errant drive was “clearly within the range of ordinary

       behavior of golfers and thus is reasonable as a matter of law,” 947 N.E.2d at

       404, we cannot say that the common understanding of karate includes detailed

       knowledge of the types of kicks that are within the range of ordinary behavior

       for a particular exercise.


[14]   Dunn designated evidence in support of his contention that jump kicks are

       within the ordinary behavior of a karate student engaged in some types of

       practice drills. But Megenity presented designated evidence to show that this

       Court of Appeals of Indiana | Opinion 22A04-1506-CT-722 | May 24, 2016       Page 10 of 16
       particular kick in these particular circumstances was outside the range of

       ordinary behavior. In particular, Megenity testified that: Dunn was supposed

       to perform a front kick, which involves keeping one foot on the floor while the

       kicking foot strikes the bag; Megenity had held bags during kicking-the-bag

       drills “countless” times during her time at the studio without incident, and she

       knew how to brace herself for a front kick; Dunn apologized for jumping during

       the kick; she inferred from Dunn’s apology that he had performed a jump kick,

       which “is where you run and . . . spring off of your body before you do the kick

       into the bag”; the difference in impact between a running front kick and a jump

       kick is “[e]xponential”; “[j]ump kicks [had] nothing to do with [the kicking-the-

       bag drill]”; jump kicks are “always done into the air,” not with another person;

       and jump kicks were “not done” in the course of normal conduct for the class.

       Appellant’s App. at 69, 78. In sum, Megenity, who holds a black belt, testified

       that Dunn had performed a jump kick and that a jump kick directed toward

       another person is unreasonable, inappropriate, and not within the range of a

       karate participant’s ordinary behavior, whether in practice or in competition.


[15]   We hold that the “general nature of the conduct reasonable and appropriate for

       a participant” in a karate practice drill is not “commonly understood and

       subject to ascertainment as a matter of law.” See Pfenning, 947 N.E.2d at 403-

       04. And Megenity has designated evidence to establish a genuine issue of

       material fact whether Dunn’s kick was a jump kick and, if so, whether such a

       kick was outside the range of ordinary behavior for a karate student engaged in

       a kicking-the-bag practice drill. Accordingly, we cannot say that Dunn did not


       Court of Appeals of Indiana | Opinion 22A04-1506-CT-722 | May 24, 2016   Page 11 of 16
       breach his duty of care to Megenity as a matter of law, and the trial court erred

       when it entered summary judgment in favor of Dunn.


[16]   Reversed and remanded for further proceedings.


       May, J., concurs.

       Riley, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 22A04-1506-CT-722 | May 24, 2016   Page 12 of 16
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Tresa Megenity,                                          Court of Appeals Case No.
                                                                22A04-1506-CT-722
       Appellant-Plaintiff,

               v.

       David Dunn,
       Appellee-Defendant.




       Riley, Judge dissenting




[17]   I respectfully dissent from the majority’s decision reversing the trial court’s

       summary judgment and holding that a genuine issue of material fact exists as to

       whether Dunn’s kick “was outside the range of ordinary behavior for a karate

       student engaged in a kicking-the-bag practice drill.” (Slip op. p. 11).




       Court of Appeals of Indiana | Opinion 22A04-1506-CT-722 | May 24, 2016               Page 13 of 16
[18]   As noted by the majority, our supreme court’s seminal decision in Pfenning v.

       Lineman, 947 N.E.2d 392 (Ind. 2011), addressed the duty of care owed by

       participants in athletic events. Rejecting the concept that a participant in a

       sporting event owes no duty of care to protect others from inherent risks of the

       sport, our supreme court adopted the rule that “if the conduct of such

       participant is within the range of ordinary behavior of participants in the sport,

       the conduct is reasonable and does not constitute a breach of duty.” Id. at 404

       (emphasis added). “The general nature of the conduct reasonable and

       appropriate for a participant in a particular sporting activity is usually

       commonly understood and subject to ascertainment as a matter of law.” Id. at

       403-04. In the facts before it, the Pfenning court opined that hitting an “errant

       drive” represents conduct “clearly within the range of ordinary behavior of

       golfers[.]” Id. at 404.


[19]   Applying Pfenning and its progeny, the majority then analyses whether Dunn’s

       particular kick was outside the range of ordinary behavior under the particular

       circumstances before this court and concluded that “the general nature of the

       conduct reasonable and appropriate for a participant in a karate practice drill is

       not commonly understood and subject to ascertainment as a matter of law.”

       (Slip op. p. 11) (quoting Pfenning, 947 N.E.2d at 403-04) (emphasis added). I

       disagree with the majority’s analysis as it represents a more narrow rule than

       our supreme court proponed in Pfenning.


[20]   As Pfenning noted, a “sports participant engages in physical activity that is often

       inexact and imprecise and done in close proximity to others[.]” Id. at 403.
       Court of Appeals of Indiana | Opinion 22A04-1506-CT-722 | May 24, 2016       Page 14 of 16
       Even though no Indiana case has addressed sport injuries as a result of

       participating in karate, the sport is generally commonly understood as a high

       contact sport, involving throws, strikes, and other techniques encouraging

       physical contact between the participants. Most sports acknowledge that

       mistakes will happen and Megenity and Dunn understood this when they

       signed their application for membership in the studio by acknowledging that

       “[c]aution must be used while participating in this program.” (Appellant’s App.

       p. 99). As such, Megenity was instructed in the proper foot placement to safely

       absorb the impact of the kick during the kicking-the-bag practice drill, which

       was conducted with participants versed in different skill levels.


[21]   “Athletic activity by its nature involves strenuous and often inexact and

       imprecise physical activity that may somewhat increase the normal risks

       attendant to the activities of ordinary life outside the sports arena, but this does

       not render unreasonable the ordinary conduct involved in such sporting

       activities.” Id. at 403. By focusing on whether Dunn’s particular kick was

       “outside the range of ordinary behavior for a karate student engaged in a

       kicking-the-bag practice drill,” the majority limits its review to the particular

       exercise instead of the broader scope of the sport of karate, as instructed by

       Pfenning. (Slip op. p. 11) (emphasis added). Although Pfenning noted that

       “strong public policy considerations favor the encouragement of participation in

       athletic activities and the discouragement of excessive litigation of claims by

       persons who suffer injuries from participants’ conduct,” the majority opens the

       door again to a fact sensitive inquiry in every sports negligence case as to the


       Court of Appeals of Indiana | Opinion 22A04-1506-CT-722 | May 24, 2016       Page 15 of 16
       exactness and preciseness of a particular exercise within that broader sport. Id.

       at 403.


[22]   Based on the facts before me, I would conclude that Dunn’s conduct was within

       the ordinary range of behavior of participants in karate and would affirm the

       trial court’s summary judgment in favor of Dunn.




       Court of Appeals of Indiana | Opinion 22A04-1506-CT-722 | May 24, 2016   Page 16 of 16
