                                                                          FILED
                                                                   May 29 2018, 7:55 am

                                                                          CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
Robert H. Ebbs                                            Michael R. Bain
Theresa L.D. Ebbs                                         Lauren M. Hardesty
Katherine M. Marshall                                     Hume Smith Geddes Green &
Glaser & Ebbs                                             Simmons, LLP
Indianapolis, Indiana                                     Indianapolis, Indiana


ATTORNEY FOR AMICUS CURIAE                                ATTORNEYS FOR AMICUS CURIAE
INDIANA TRIAL LAWYERS ASSOCIATION                         DEFENSE TRIAL COUNSEL OF
Scott A. Faultless                                        INDIANA
Craig Kelley & Faultless LLC                              Lucy R. Dollens
Indianapolis, Indiana                                     Jacob V. Bradley
                                                          Quarles & Brady LLP
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

D.H. a Minor, by Her Parent,                              May 29, 2018
A.M.J., and A.M.J. Individually,                          Court of Appeals Case No.
Appellants-Plaintiffs,                                    48A05-1706-CT-1345
       v.                                                 Appeal from the Madison Circuit
                                                          Court
Mary Whipple,                                             The Honorable Thomas Newman,
Appellee-Defendant,                                       Jr., Judge
      and                                                 Trial Court Cause No.
                                                          48C03-1306-CT-101
Robert Whipple (Deceased)
Defendant Below.



Robb, Judge.

Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018                     Page 1 of 28
                                Case Summary and Issue
[1]   D.H. (“Child”), through her mother and guardian, A.M.J. (“Mother”), and

      Mother individually (collectively, the “Appellants”), bring this interlocutory

      appeal from the trial court’s grant of summary judgment on the issue of

      negligence in favor of Mary Whipple, Mother’s mother and Child’s maternal

      grandmother. Appellants present only one question for our review, whether the

      trial court properly granted summary judgment. Concluding genuine issues of

      material fact remain, we reverse and remand.



                            Facts and Procedural History
[2]   Robert Whipple, Child’s step-grandfather and Mary’s husband until his death in

      2017, had a history of child molestation. Robert molested his seven-year-old

      daughter on multiple occasions in the 1960s and his six-year-old niece on

      multiple occasions in 1980. As a result of his 1980 conduct, Robert was

      charged with child molesting, a Class B felony. He confessed to the underlying

      conduct and accepted a plea agreement involving counseling in lieu of

      incarceration.


[3]   Mary met Robert sometime in 1990 and the two were married on December 6,

      1991. For medical reasons, Mary and Robert were unable to have sex during

      their twenty-six-year marriage. By the time of Mary and Robert’s marriage,

      Mother was an adult and living on her own. Sometime prior to 2009, Mother

      and Child moved from Indianapolis to Anderson to help with Mary’s and


      Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018   Page 2 of 28
      Robert’s many health issues. During this time, and often at Mary’s invitation,

      Child would visit and stay the night at the Whipples’ home.


[4]   These visits increased in December 2009, after Child turned thirteen, because

      she was no longer eligible to continue attending her daycare facility. Through

      phone calls with Mary, Mother arranged for Child to stay at the Whipples’

      home while Mother was at work. Mary, who was working in Indianapolis at

      the time, told Mother that she would be home shortly after Child was dropped

      off at the home. Mother would drop Child off around 4:30 p.m. and Mary

      would arrive home around 5:30 or 6:00 p.m. Mary told Mother that it was “all

      right” for Child to be with Robert until she returned home from work in

      Indianapolis. Appendix of Appellants, Volume III at 50. From December

      2009 through January 2010, Robert molested Child on some twelve occasions.

      Child did not initially report the molestations, however, because Robert

      threatened to kill Mother. Almost two years later, Child met with a detective

      and reported the molestations, resulting in Robert’s arrest. Following a jury

      trial in May 2013, Robert was found guilty of two counts of child molesting as

      Class A felonies, and one count of child molesting as a Class C felony. Robert

      was sentenced to thirty-five years in the Indiana Department of Correction.


[5]   In June 2013, Appellants commenced this action by filing a complaint for

      damages against Robert and Mary. Count I alleged that Robert committed

      assault, battery, invasion of privacy, intentional infliction of emotional distress,

      and negligent infliction of emotional distress. Count II alleged negligence on

      behalf of Mary. Specifically, Appellants allege in Count II:

      Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018    Page 3 of 28
                12. On said occasions when Plaintiff Child was in the custody,
               care and control of Defendant Mary Whipple, the Defendant had
               a special responsibility to supervise Plaintiff Child, to keep her
               from harm and out of danger, to make careful preparations to
               enable Defendant to be vigilant in ascertaining risks that may
               occur and to exercise reasonable care for Child’s safety and
               protection.


               13. Defendant Mary Whipple was, without limitation:


                        a) Negligent in her supervision of Child as she knew, or
                        should have known, that Defendant Robert Whipple was
                        sexually molesting and assaulting Child, and Defendant
                        Mary Whipple failed to warn Child and/or [Mother] of
                        the dangers, or otherwise protect Child from said wrongful
                        acts of her husband, Defendant Robert Whipple, and the
                        harm to result therefrom; and,


                        b) Negligent and careless in failing to provide a safe
                        environment and/or premises for Plaintiff Child, a child of
                        thirteen (13) years of age, when Defendant Mary Whipple
                        accepted the responsibility to care for Child and was
                        entrusted with her safety and well-being.


      App. of Appellants, Vol. II at 18-19.


[6]   Mary denied the allegations and eventually filed a motion for summary

      judgment.1 As evidence in opposition to the motion, Appellants designated the

      affidavit of Scott Sanderson, a detective with the Anderson Police Department,




      1
       Robert died in 2017 while serving his sentence and the allegations against Robert are not involved in this
      appeal.

      Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018                           Page 4 of 28
who had interviewed both Robert and Mary in the course of investigating the

molestations. Detective Sanderson’s affidavit included the following:


        10.      I interviewed Robert E. Whipple on February 24, 2012, at
                 the Anderson Police Department, in the course of my
                 investigation of the State of Indiana v. Robert E. Whipple,
                 Cause Number 48C06-1204-FA-000655 case; and,


                 a. During that interview, Robert E. Whipple admitted to
                 molesting two children, other than [Child], in the past; one
                 was his biological daughter, and the other was his niece by
                 marriage.


                 b. During that interview, Robert E. Whipple informed me
                 that he had told his wife Mary Whipple that he had
                 molested a girl in the past.


                 c. It was and is my impression that, prior to December 20,
                 2009, Robert E. Whipple informed Mary Whipple that he
                 molested a child.


                 d. A true and accurate copy of the Anderson Police
                 Department Advice of Rights and my hand written notes
                 which were contained on the back side of the Advice of
                 Rights are attached hereto as Exhibit B.


                 e. A true and accurate copy of my type written notes of my
                 February 24, 2012 interview with Robert E. Whipple are
                 attached hereto as Exhibit C.


        11. I spoke in person with Mary Whipple on February 24, 2012,
        while she was at the Anderson Police Department with Robert E.
        Whipple; and,


Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018     Page 5 of 28
                       a. During that conversation, Mary Whipple stated that a
                       long time ago Robert E. Whipple told her that he had
                       what she referred to as a “small or minor indiscretion” a
                       long time ago.


                       b. It was and is my impression that the “small or minor
                       indiscretion” that Mary Whipple was referring was child
                       molest.


                       c. It was and is also my impression that Mary Whipple
                       had knowledge prior to December 20, 2009 that Robert E.
                       Whipple molested at least one (l) child.


                       d. During that conversation, I spoke with Mary Whipple
                       about the allegations [Child] had made against Robert E.
                       Whipple; and, although she denied the allegations, she
                       advised basically that it was all her fault because she
                       worked all of the time, and Robert E. Whipple was home
                       alone with [Child].


                       e. A true and accurate copy of my hand written notes
                       which were contained on the back side of the Advice of
                       Rights are attached hereto as Exhibit B.


                       f. A true and accurate copy of my type written notes of my
                       February 24, 2012 conversation with Mary Whipple are
                       attached hereto as Exhibit C.


      App. of Appellants, Vol. III at 85-86.


[7]   Appellants’ designated evidence also included the following testimony from

      Mary’s deposition:



      Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018      Page 6 of 28
        [Question]: If Detective Sanderson indicated that you made a
                    statement to him that you were aware of
                    indiscretions that [Robert] had had, would you have
                    any reason to dispute that?


        [Mary]:          If I was aware of any indiscretions. I don’t know if
                         I – don’t know if I would have said that. I wouldn’t
                         dispute anything I would have said to him because
                         if I said to him, it’s on record, but you have to
                         remember that this is just such a blur, I can’t
                         remember specifics.


        [Question]: Do you recall using the words indiscretions – or
                    word indiscretion?


        [Mary]:          That would be a word I would use.


        [Question]: And what would you use that word for?


        [Mary]:          Well, these issues, these sexual issues are most
                         definitely indis- -- you know, it’s wrong.


        [Question]: When did you first learn about what you’re calling
                    indiscretions?


        [Mary]:          I would say when I was either with Child Protective
                         Services or Investigator Brooks. And I don’t know
                         what dates or years.


        [Question]: Detective Brooks would be after 2009. Would CPS
                    be before or after 2009?


        [Mary]:          It – it ran very close. I don’t know.

Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018     Page 7 of 28
      Id. at 33. After a hearing, the trial court granted Mary’s motion for summary

      judgment. Appellants now appeal.



                                 Discussion and Decision
                                      I. Standard of Review
[8]   When reviewing a grant or denial of a motion for summary judgment, our

      standard of review is the same as it was for the trial court in ruling on the

      motion initially. Knighten v. E. Chi. Hous. Auth., 45 N.E.3d 788, 791 (Ind. 2015).

      The moving party carries the burden of showing there are no genuine issues of

      material fact and it is entitled to judgment as a matter of law. Id. “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.” Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Unlike federal

      practice, the moving party must go beyond merely showing the party carrying

      the burden of proof lacks evidence on a necessary element and “affirmatively

      negate an opponent’s claim.” Id. If the moving party carries Indiana’s “more

      onerous burden,” then the non-moving party must present evidence establishing

      the existence of a genuine issue of material fact. Id; Knighten, 45 N.E.3d at 791.

      We consider only the evidence the parties designated to the trial court and we

      construe all factual inferences in favor of the non-moving party, resolving all

      doubts regarding the existence of a material issue against the moving party. See

      Ind. Trial Rule 56(C), (H); Knighten, 45 N.E.3d at 791.

      Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018      Page 8 of 28
[9]    Indiana’s heightened summary judgment standard “consciously errs on the side

       of letting marginal cases proceed to trial on the merits, rather than risk short-

       circuiting meritorious claims.” Hughley, 15 N.E.3d at 1004. 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—one best applied by a jury after hearing all of the evidence.” Rhodes v.

       Wright, 805 N.E.2d 382, 387 (Ind. 2004) (internal citations and quotations

       omitted).


                                     II. Admissible Evidence
[10]   As an initial matter, Mary alleges that Appellants rely on “mere speculation in

       their statement of facts, argument, and appendix.” Appellee’s Brief at 10.

       Specifically, Mary’s argument focuses on Appellants’ reliance on Detective

       Sanderson’s affidavit in which he gives his “impressions” from his interviews

       with Robert and Mary. See App. of Appellants, Vol. III at 85-86.


[11]   In ruling on a motion for summary judgment, a trial court may only consider

       material deemed appropriate by Indiana Trial Rule 56(E). Duncan v. Duncan,

       764 N.E.2d 763, 766 (Ind. Ct. App. 2002), trans. denied. That rule provides:


               Supporting and opposing affidavits shall be made on personal
               knowledge, shall set forth such facts as would be admissible in
               evidence, and shall show affirmatively that the affiant is
               competent to testify to the matters stated therein. Sworn or
               certified copies not previously self-authenticated of all papers or
               parts thereof referred to in an affidavit shall be attached thereto
               or served therewith.

       Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018       Page 9 of 28
       The affidavit requirements of Trial Rule 56(E) are mandatory and a court

       considering a summary judgment motion should disregard inadmissible

       information contained in supporting or opposing affidavits. Id. The party

       offering the affidavit into evidence bears the burden of establishing its

       admissibility. Id.


[12]   At the summary judgment hearing, Mary alleged that Detective Sanderson’s

       speculations were based solely on inadmissible hearsay and violated the Indiana

       Dead Man’s Statute, arguing:


               Just to add an additional wrinkle to this case. It’s hearsay.
               Whatever [Robert] told affidavit [sic] or told Detective Sanderson
               what is more it’s in violation of the dead man [sic] statutes. He
               passed away in February of two thousand seventeen. So you
               need to have more evidence then [sic] [Robert] telling an Officer
               two and a half years after the incident yeah I did molest someone
               in the past. There is if they can point to any evidence from Mary
               Whipple stated yes I knew that he had done this act prior to
               December of two thousand nine after fifty hours of depositions, I
               am still looking for it. It’s not there and that and I will leave it at
               that.


       Transcript, Volume I at 34-35.


[13]   However, on appeal, although Mary employs a subheading titled, “Appellants

       rely on hearsay and speculation as factual evidence,” Appellee’s Br. at 10, she

       never advances an argument regarding hearsay or the Indiana Dead Man’s

       Statute. Indiana Appellate Rule 46(A)(8) provides that the argument section of

       the appellant’s brief must “contain the contentions of the appellant on the issues


       Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018      Page 10 of 28
       presented, supported by cogent reasoning,” along with citations to the

       authorities, statutes, and parts of the record relied upon, and a clear showing of

       how the issues and contentions in support thereof relate to the particular facts

       under review. Because Mary failed to do so, she has therefore waived these

       arguments.2 See, e.g., Reed v. Reid, 980 N.E.2d 277, 297 (Ind. 2012) (“Failure to

       comply with this rule results in waiver of the argument on appeal.”).


[14]   In place of those arguments, Mary alleges that Detective Sanderson’s use of the

       word “impression” constitutes improper opinion testimony by a lay witness.

       Appellee’s Br. at 10. “A mere general objection, or an objection on grounds

       other than those raised on appeal, is ineffective to preserve an issue for appellate

       review.” Raess v. Doescher, 883 N.E.2d 790, 797 (Ind. 2008). As such, we view

       Mary’s somewhat casual comments regarding hearsay and the Indiana Dead

       Man’s Statute as insufficient to preserve the error of improper opinion

       testimony. Mary has therefore waived any objection and Detective Sanderson’s

       affidavit may be considered. See Riggin v. Rea Riggin & Sons, Inc., 738 N.E.2d




       2
         Even if Mary had not waived the issue of the Indiana Dead Man’s Statute by failing to advance an
       argument on appeal, the litigation involving Robert’s estate is not before us. See ¶ 5, supra; Ind. Code § 34-45-
       2-4(a)(3) (the statute applies to suits or proceedings: “where a judgment or allowance may be made or
       rendered for or against the estate represented by the executor or administrator”). Moreover, rather than
       excluding evidence, the statute prevents a particular class of witnesses from testifying as to the claims against
       the estate, Paullus v. Yarnelle, 633 N.E.2d 304, 308 (Ind. Ct. App. 1994), and there is no evidence that
       Detective Sanderson is a “necessary party to the issue,” Ind. Code § 34-45-2-4(d) (providing that for a witness
       to be incompetent to testify, with minor exceptions, they must be both “a necessary party to the issue or
       record” and have an interest which is “adverse to the estate”). Because Detective Sanderson would neither
       gain, nor lose, by the direct legal operation of the judgment, he does not have an interest which renders him
       incompetent to testify. See Fisher v. Estate of Haley, 695 N.E.2d 1022, 1028 (Ind. Ct. App. 1998) (holding that
       although the plaintiff was not a direct party to the action, because he stood to gain from a judgment for
       retained corporate earnings, he was therefore a “party to the issue”).

       Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018                            Page 11 of 28
       292, 306 n.9 (Ind. Ct. App. 2000) (concluding that we may consider affidavits

       regardless of impropriety where party failed to adequately object to their

       admission).


[15]   Waiver notwithstanding, we do not view Deputy Sanderson’s “impression”

       statement as improper opinion testimony. Appellee’s Br. at 10. Mary

       seemingly confines this argument to one instance: that it was Detective

       Sanderson’s “impression that, prior to December 20, 2009, Robert B. Whipple

       informed Mary Whipple that he that he molested a child.” App. of Appellants,

       Vol. III at 85. Opinion testimony by a lay witness is limited to those opinions

       rationally based on some combination of the witness’s own personal

       observation, knowledge, and past experience. Ackles v. Hartford Underwriters Ins.

       Corp., 699 N.E.2d 740, 743 (Ind. Ct. App. 1998), trans. denied. “Lay witness

       opinion testimony must not only be based on the personal perception of the

       witness, it also must be ‘rationally’ based on that perception. Thus, speculation

       or testimony based on improper inferences is inadmissible.” Id.


[16]   Here, Mary argues that Detective Sanderson does not have personal knowledge

       that “prior to December 20, 2009,” Robert informed Mary that he molested a

       child. Appellee’s Br. at 10. In context, immediately preceding that statement,

       Detective Sanderson stated that “Robert E. Whipple informed me that he had

       told his wife Mary Whipple that he had molested a girl in the past.” App. of

       Appellants, Vol. III at 85. Thus, the issue becomes only whether Robert told

       Mary that information prior to December 20, 2009—the date of the first

       molestation underlying Appellants’ cause of action.

       Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018   Page 12 of 28
[17]   In Satterfield v. State, our supreme court explained:


               Helpful opinions are not exclusive to experts or skilled witnesses.
               Any witness “not testifying as an expert”—whether an ordinary
               lay witness or a skilled witness—may testify “in the form of an
               opinion” if it is “(a) rationally based on the perception of the
               witness and (b) helpful to a clear understanding of the witness’s
               testimony or determination of a fact in issue.” Ind. Evidence
               Rule 701. “The requirement that the opinion be ‘rationally
               based’ on perception simply means that the opinion must be one
               that a reasonable person could normally form from the perceived
               facts,” Davis v. State, 791 N.E.2d 266, 268 (Ind. Ct. App. 2003),
               trans. denied, which are facts received “directly through any of the
               [witness’s own] senses,” Ashworth v. State, 901 N.E.2d 567, 572
               (Ind. Ct. App. 2009) (quoting Kubsch v. State, 784 N.E.2d 905,
               922 (Ind. 2003) (defining “perception” under Evidence Rule
               701)), trans. denied. And the witness’s opinion is “helpful” “if the
               testimony gives substance to facts, which were difficult to
               articulate.” McCutchan v. Blanck, 846 N.E.2d 256, 262 (Ind. Ct.
               App. 2006).


       33 N.E.3d 344, 352 (Ind. 2015).


[18]   Here, Detective Sanderson’s “impression” is both rationally based on his

       perception and helpful to a clear understanding of his testimony. Indeed, even

       absent an express statement, there are countless context clues in the course of a

       conversation from which the recipient of information can determine, or at least

       opine, the order in which events occurred. Mary argues, however, that this

       “impression” is not rational considering Mary’s and Robert’s subsequent

       testimony—referring to the fact that both Mary and Robert denied having any

       such conversation. But this is no matter. As noted above, a statement is


       Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018   Page 13 of 28
       rational if a reasonable person could form the opinion from the perceived facts

       and we need not look to other testimony to determine whether the opinion is

       consistent. Davis, 791 N.E.2d at 268. Therefore, even if Mary had not waived

       this issue for our review, Detective Sanderson’s “impression” would

       nevertheless be admissible evidence for the trial court’s evaluation on summary

       judgment.


                                   III. Negligent Supervision
[19]   Having concluded Appellants’ designated evidence was admissible, we turn to

       Appellants’ claim that the trial court improperly granted summary judgment to

       Mary on the issue of negligence. We agree.


[20]   Appellants advance two general theories of negligence against Mary: (1)

       negligent supervision; and (2) premises liability. See App. of Appellants, Vol. II

       at 18-19. For all claims of negligence, a plaintiff must show a duty owed to the

       plaintiff by the defendant, a breach of that duty, and a compensable injury

       proximately caused by the breach. Kroger Co. v. Plonski, 930 N.E.2d 1, 6 (Ind.

       2010). We begin with negligent supervision.


[21]   At the core of this appeal is whether Mary owed Appellants a duty of care

       because, “[a]bsent a duty, there can be no breach and, therefore, no recovery in

       negligence.” Bowman ex rel. Bowman v. McNary, 853 N.E.2d 984, 990 (Ind. Ct.

       App. 2006) (citation and quotation omitted). Generally, the existence of a duty

       is a pure question of law appropriate for disposition by summary judgment.

       Ind. Dep’t of Transp. v. Howard, 879 N.E.2d 1119, 1122 (Ind. Ct. App. 2008).

       Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018   Page 14 of 28
       However, where factual questions are interwoven, the existence of a duty may

       be a mixed question of law and fact to be determined by the fact-finder. Id.


                                                  A. Waiver
[22]   As a preliminary matter, Mary alleges that the Appellants waived arguments

       regarding “in loco parentis, custodians, and assumed duty” pertaining to the

       claim of negligent supervision because they “were not properly raised at the

       trial court level.” Appellee’s Br. at 7.


[23]   It is well established that Appellants “may not change [their] theory on appeal

       and argue an issue that was not properly presented to the trial court.” Pardue v.

       Smith, 875 N.E.2d 285, 289-90 (Ind. Ct. App. 2007). “Nor may a party raise a

       new issue on appeal under the cloak of evidence relevant to a similar, yet

       distinct issue that was properly pled before the trial court.” Id. This is based on

       notions of fairness which require an opposing party have notice of an issue

       which was not previously pleaded at the trial court level. Id.


[24]   We have explained, however:


               The rule that parties will be held to trial court theories by the
               appellate tribunal does not mean that no new position may be
               taken, or that new arguments may not be adduced; all it means is
               that substantive questions independent in character and not
               within the issues or not presented to the trial court shall not be
               first made upon appeal. Questions within the issues and before
               the trial court are before the appellate court, and new arguments
               and authorities may with strict propriety be brought forward.




       Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018   Page 15 of 28
       Dedelow v. Pucalik, 801 N.E.2d 178, 183-84 (Ind. Ct. App. 2003) (quotation

       omitted) (agreement expressed by Wagner v. Yates, 912 N.E.2d 805, 811 n.3

       (Ind. 2009)).


[25]   With the exception of in loco parentis, which was not adequately developed until

       Appellants’ reply brief, we conclude that Appellants sufficiently raised the

       issues they now argue on appeal. See Felsher v. Univ. of Evansville, 755 N.E.2d

       589, 593 n.6 (Ind. 2001) (noting that appellants are not permitted to present

       new arguments in their reply briefs, and any argument an appellant fails to

       adequately raise in their initial brief is waived for appeal). Accordingly,

       Appellants have not waived the remaining arguments.


                                                    B. Duty
[26]   Returning to the core of this appeal—the element of duty—Mary argues that to

       determine whether a duty existed, we must look to the three-part balancing test

       originally outlined in Webb v. Jarvis: (1) the relationship between the parties; (2)

       the foreseeability of harm; and (3) public policy concerns. 575 N.E.2d 992, 995-

       97 (Ind. 1991). However, as our supreme court has long held and Appellants

       now argue, “a judicial determination of the existence of a duty is unnecessary

       where the element of duty has already been declared or otherwise articulated.”

       Rogers v. Martin, 63 N.E.3d 316, 321 (Ind. 2016) (quotation and citation

       omitted). Here, we conclude that genuine questions of material fact remain

       regarding (1) whether Mary possessed a duty of care as a person to whom the

       care of a child was entrusted; and/or (2) whether Mary assumed a duty a care.


       Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018   Page 16 of 28
                                  1. Entrusted with the Care of a Child

[27]   Appellants first allege, “The duty of a person who assumes custody of a child to

       exercise reasonable care for the safety of the child has already been declared

       and is well established in this state and throughout the country.” Br. of

       Appellants at 13. Indeed, Indiana law recognizes a duty of care on behalf of a

       person to whom the care of a child is entrusted. See, e.g., Vetor by Weesner v.

       Vetor, 634 N.E.2d 513, 515 (Ind. Ct. App. 1994) (noting that child’s grandfather

       “owed her a duty of reasonable care as the person to whom her care had been

       entrusted.”). “The duty exists whether or not the supervising party has agreed

       to watch over the child for some form of compensation.” Davis v. LeCuyer, 849

       N.E.2d 750, 757 (Ind. Ct. App. 2006), trans. denied.


[28]   In Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011), a sixteen-year-old

       accompanied her grandfather to a golf outing with the permission of her

       mother. Grandfather then volunteered granddaughter, who was unfamiliar

       with the sport of golf, to operate a beverage cart during the golf outing. After

       making several trips around the golf course, granddaughter was struck in the

       mouth with an errant tee-ball, injuring her mouth, jaw, and teeth.

       Granddaughter sued her grandfather alleging, inter alia, negligent supervision

       and, in turn, grandfather argued that he did not owe his granddaughter a duty

       of care. The trial court granted summary judgment in favor grandfather and we

       affirmed on appeal.


[29]   On transfer, our supreme court declined grandfather’s invitation to apply

       Webb’s three-part balancing test and instead relied upon the “well recognized
       Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018   Page 17 of 28
       duty in tort law that persons entrusted with children . . . have a special

       responsibility by the common law to supervise their charges.” Id. at 410. The

       court then concluded that a duty existed because granddaughter “was explicitly

       entrusted to her grandfather’s care and supervision by her mother.” Id.


[30]   Here, it remains a question of fact whether Mother entrusted Child to Mary’s

       care and supervision. See Ind. Dep't of Transp., 879 N.E.2d at 1122 (noting the

       existence of a duty may be a mixed question of law and fact). Mother made the

       arrangements for Child to stay at the Whipples’ home on the phone with Mary

       and Mary repeatedly invited Child to stay at the home and went so far as to

       give Child her own room at the residence. Mary told Mother that it was “all

       right” for Child to be with Robert until she returned home from work and that

       she would be home shortly after Child was dropped off. App. of Appellants,

       Vol. III at 50. On these facts, a reasonable factfinder could conclude that

       Mother entrusted Child’s care and supervision to Mary, her own mother, and

       not to Robert.


                                               2. Assumed Duty

[31]   Alternatively, a factfinder could reasonably conclude that Mary assumed a duty

       of care. In Yost v. Wabash College, our supreme court explained:


               “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.” Delta Tau Delta, [Beta Alpha Chapter v. Johnson, 712
               N.E.2d 968, 975 (Ind. 1999)] (alteration in original) (quoting

       Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018      Page 18 of 28
        Plan–Tec, Inc. v. Wiggins, 443 N.E.2d 1212, 1219 (Ind. Ct. App.
        1983)), trans. not sought. 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.’” Lather v. Berg,
        519 N.E.2d 755, 766 (Ind. Ct. App. 1988) (quoting Blessing v.
        United States, 447 F.Supp. 1160, 1188-89 (E.D. Pa. 1978)), reh'g
        and trans. denied; see also King v. Northeast Sec., Inc., 790 N.E.2d
        474, 486-87 (Ind. 2003) (quoting Lather). Where “the record
        contains insufficient evidence to establish such a duty, the court
        will decide the issue as a matter of law.” Delta Tau Delta, 712
        N.E.2d at 975. The liability for the breach of assumed duty is
        expressed in the Restatement (Third) of Torts: Physical and
        Emotional Harm § 42 (2012), which states:


                 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.”

Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018        Page 19 of 28
       3 N.E.3d 509, 517 (Ind. 2014).


[32]   Mary argues the record contains insufficient evidence to establish a specific

       assumed duty, other than a “vague claim” of failure to provide care, and urges

       the application of our decision in Merchants Nat’l Bank v. Simrell’s Sports Bar &

       Grill, Inc., 741 N.E.2d 383 (Ind. Ct. App. 2000). Appellee’s Br. at 18. Although

       Mary’s argument is correct in the sense that we must “focus on the specific

       services undertaken,” Yost, 3 N.E.3d at 517, we nevertheless find the designated

       evidence sufficient to create a question of fact for the jury.


[33]   In Merchants National Bank, the plaintiff was shot and killed by another bar

       patron shortly after leaving a bar. After his death, his estate sued the bar

       alleging, inter alia, that the bar assumed a duty to protect its patrons from the

       criminal acts of third persons. In finding no assumed duty, we concluded:


               there is no designated evidence that [the bar], through affirmative
               conduct or agreement, gratuitously undertook a duty to protect
               [the plaintiff] from the unforeseeable criminal act of a third-party.
               The Administrator points to evidence that [the bar] provided
               security for its patrons on Thursday, Friday and Saturday nights
               when it featured a band. However, it is undisputed that [the
               plaintiff] was shot on a Tuesday night. The evidence is
               insufficient to establish, as a matter of law, that [the bar] assumed
               a duty to protect [the plaintiff] from [the] criminal act.


       741 N.E.2d at 388.


[34]   Here, we may generally categorize Mary’s assumed duty as one to protect Child

       from the foreseeable criminal attacks of third parties. The facts underlying


       Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018    Page 20 of 28
       Appellants’ assumed duty argument are essentially the same as those

       underlying whether Mary had a duty as a person to whom the care of a child

       was entrusted. Similarly, the designated facts are sufficient to create a question

       of fact as to whether Mary engaged in “affirmative, deliberate conduct” such

       that it was apparent that she specifically undertook to protect Child from a

       foreseeable criminal attack. Yost, 3 N.E.3d at 517; see also Merchants Nat’l Bank,

       741 N.E.2d at 388 (noting the “existence and extent” of an assumed duty “is

       ordinarily a question of fact for the trier of fact”). For, if a factfinder so

       concludes, this assumption of duty would create “a special relationship between

       the parties and a corresponding duty to act in the manner of a reasonably

       prudent person.” Yost, 3 N.E.3d at 517.


[35]   Underlying our decisions in many assumption of duty cases is our reluctance to

       impute broad definitions of duty that essentially render a party the guarantor of

       another’s safety. See Hous. Auth. of City of South Bend v. Grady, 815 N.E.2d 151,

       160 (Ind. Ct. App. 2004); Merchants Nat’l Bank, 741 N.E.2d at 389; Fast Eddie’s v.

       Hall, 688 N.E.2d 1270, 1274 (Ind. Ct. App. 1997), trans. denied. This concern,

       however, is not present where a party takes affirmative action in creating a

       foreseeable harm—as is alleged here. Accordingly, we conclude questions of

       fact remain regarding whether Mary assumed a duty to protect Child from the

       foreseeable criminal attacks of third parties.




       Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018     Page 21 of 28
                                                   C. Breach
[36]   Turning to the second element of negligence—breach—Appellants allege this

       too remains a question of fact. We agree.


[37]   “The question of the breach of a duty is usually one for the trier of fact.” Cox v.

       Paul, 828 N.E.2d 907, 911 (Ind. 2005). “However, if any reasonable jury would

       conclude that a specific standard of care was or was not breached, the question

       of breach becomes a question of law for the court.” Id. at 912.


[38]   First, in the context of a duty of care on behalf of a person to whom the care of

       a child is entrusted, we return to our discussion of Pfenning, where a sixteen-

       year-old accompanied her grandfather to a golf outing and was struck with an

       errant golf ball. 947 N.E.2d at 397. In reversing the trial court’s grant of

       summary judgment, our supreme court explained:


               While the mechanism of her injury, being struck by an errant golf
               ball, is not an unusual risk to adults on a golf course, a possible
               viable claim for breach of duty is nevertheless shown by the
               particular circumstances of the present case. The grandfather
               does not challenge the facts and inferences indicating that he was
               aware of the plaintiff's age, her lack of familiarity with golf, and
               particularly her lack of awareness of the risk of injury from
               wayward golf balls. The designated evidence does not establish
               that the plaintiff's mother was aware of and agreed to her
               daughter’s exposure to such risks. As to the issue of breach of
               duty, whether it was reasonable for him to subject her to such
               risks depends upon genuine issues of fact for determination at
               trial.




       Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018   Page 22 of 28
       Id. at 410. Although the mechanism of injury here is quite different from that of

       Pfenning, we find its reasoning persuasive regarding negligent supervision of a

       child and its accompanying standard of care.


[39]   Taking the facts, as we must, in favor of Appellants, the designated evidence

       supports a finding that Mary breached her duty of care when she allowed Child

       to be left alone with an individual, indeed her husband, whom she knew to

       have previously molested a child. Perhaps more importantly, however,

       knowing this past, Mary reassured Mother that it was “all right” for Child to be

       left alone with Robert until she returned home from work in Indianapolis. App.

       of Appellants, Vol. III at 50. And, like Pfenning, the evidence fails to establish

       that Mother was aware of and agreed to Child’s exposure to such risks and a

       determination of whether it was reasonable for Mary to subject Child to such

       risks “depends upon genuine issues of fact for determination at trial.” Id. at

       410.


[40]   As to breach of an assumed duty, Mary argues simply that “absent a duty, there

       can be no breach.” Appellee’s Br. at 20. However, in her motion for summary

       judgment, Mary relied on Restatement (Second) of Torts Section 3153 for the

       proposition that generally a person has no duty to control the conduct of a third



       3
        There is no duty to control the conduct of a third person as to prevent him from causing physical harm to
       another unless
              (a) a special relation exists between the actor and the third person which imposes a duty upon
              the actor to control the third person’s conduct, or
              (b) a special relation exists between the actor and the other which gives to the other a right to
              protection.

       Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018                             Page 23 of 28
       person, nor to warn those endangered by such conduct, in the absence of a

       “special relationship” either to the third person or to the victim. Appellants’

       App., Vol. II at 216-17.


[41]   Finding no Indiana precedent directly on point, we turn to Pamela L. v. Farmer,

       112 Cal. App. 3d 206 (1980), where the Second District (Division 5) of the

       California Courts of Appeal addressed an analogous factual situation and faced

       a similar argument on appeal. There, three minors sued a husband and wife

       alleging, inter alia, negligence arising from husband’s sexual molestation of the

       minors in their home. The minors alleged that wife already knew of husband’s

       prior history of molesting women and children but nevertheless encouraged and

       invited plaintiffs to use the swimming pool at her house and told plaintiffs’

       parents that it was safe for their children to play at her house while she was at

       work and her husband was home. In holding that wife had assumed a “special

       relationship,” the court explained:


               Respondent cites the principle that generally a person has no
               duty to control the conduct of a third person, nor to warn those
               endangered by such conduct, in the absence of a “special
               relationship” either to the third person or to the victim.
               However, this rule is based on the concept that a person should
               not be liable for “nonfeasance” in failing to act as a “good
               Samaritan.” It has no application where the defendant, through
               his or her own action (misfeasance) has made the plaintiff’s
               position worse and has created a foreseeable risk of harm from
               the third person. In such cases the question of duty is governed
               by the standards of ordinary care.




       Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018   Page 24 of 28
               This latter principle is embodied in Restatement Second of Torts
               section 302B which provides: “An act or an omission may be
               negligent if the actor realizes or should realize that it involves an
               unreasonable risk of harm to another through the conduct of the
               other or a third person which is intended to cause harm, even
               though such conduct is criminal.”


               Here respondent did not merely fail to prevent harm to plaintiffs
               from [her husband]. Respondent by her own acts increased the
               risk of such harm occurring. According to the allegations . . .,
               respondent “encouraged and invited” the children to play in her
               swimming pool, prepared refreshments to “entice” the children,
               and “encouraged the parents . . . to permit” the children to come
               to her premises by telling them it would be perfectly safe for the
               girls to swim when respondent was not there, because her
               husband would be there. This was done, it is alleged, with
               knowledge that [her husband] had molested women and children
               in the past and that it was reasonably foreseeable he would do so
               again if left alone with the children on the premises. By
               encouraging and inviting the children to be alone with [her
               husband] under circumstances where he would have peculiar
               opportunity and temptation to commit such misconduct,
               respondent could be held to have unreasonably exposed the
               children to harm.


       Id. at 209-10 (citations and footnote omitted).


[42]   On these surprisingly similar facts, we find Pamela L.’s reasoning appropriate

       here, too. Accordingly, the designated facts are sufficient to create a question of

       fact as to whether Mary undertook a “special relationship” with Child and,

       more importantly, whether Mary breached a duty of care by permitting—or

       even encouraging—Child to be left alone with someone she may have known to

       have molested a child in the past.

       Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018     Page 25 of 28
                                         D. Proximate Cause
[43]   Finally, Appellants argue the trial court’s grant of summary judgment was

       inappropriate because proximate causation remains a question of fact. Again,

       we agree.


[44]   A negligent act is said to be the proximate cause of an injury “if the injury is a

       natural and probable consequence, which in the light of the circumstances,

       should have been foreseen or anticipated.” Bader v. Johnson, 732 N.E.2d 1212,

       1218 (Ind. 2000).


               Proximate cause in Indiana negligence law has two aspects. The
               first—causation in fact—is a factual inquiry for the jury. If the
               injury would not have occurred without the defendant’s negligent
               act or omission, there is causation in fact. A second component
               of proximate cause is the scope of liability. That issue, which is
               also for the trier of fact, turns largely on whether the injury “is a
               natural and probable consequence, which in the light of the
               circumstances, should have been foreseen or anticipated.” Under
               this doctrine, liability may not be imposed on an original
               negligent actor who sets into motion a chain of events if the
               ultimate injury was not reasonably foreseeable as the natural and
               probable consequence of the act or omission.


       City of Gary v. Smith & Wesson, 801 N.E.2d 1222, 1243-44 (Ind. 2003) (citations

       omitted).


[45]   On appeal, Mary argues that Robert’s actions constituted “intervening criminal

       act[s] of a third party” which broke the causal chain of liability as it relates to

       Mary, Appellee’s Br. at 24, because the “willful, malicious, criminal act of a

       third party is an intervening act which breaks the causal chain between the
       Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018    Page 26 of 28
       alleged negligence and the resulting harm.” Id. at 23-24 (quoting Fast Eddie’s,

       688 N.E.2d at 1274).


[46]   On this point, we turn to our supreme court’s decision in Frankenmuth Mut. Ins.

       Co. v. Williams by Stevens, 690 N.E.2d 675 (Ind. 1997). There, a babysitter’s

       husband molested one of the children in her care and while examining the

       child’s claim of negligent supervision and the insurance company’s motion for

       summary judgment based on exclusions in its policy, our supreme court

       explained:


               Where a person’s negligence creates a situation in which a third
               party might commit an intentional tort or criminal act, the
               negligence is not a proximate cause of any resulting injuries
               unless the negligent person “realized or should have realized the
               likelihood that such a situation might be created, and that a third
               person might avail himself of the opportunity to commit such a
               tort or crime.” Restatement (Second) of Torts § 448 (1965); cf.
               Hooks SuperX, Inc. v. McLaughlin, 642 N.E.2d 514, 520–21 (Ind.
               1994) (holding as matter of law that voluntary and willful suicide
               constitutes intervening cause). A factfinder in White’s case
               would have had to decide (1) whether she was negligent and (2)
               whether she knew or should have known that her husband would
               molest [the child].


       Id. at 678. Therefore, if it can be said that Mary realized or should have

       realized the likelihood that such a situation might be created, and that Robert

       might avail himself of the opportunity to commit such a tort or crime, then

       Mary may still be found liable for her negligence. Id.




       Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018   Page 27 of 28
[47]   Here, we conclude that because the record contains conflicting evidence

       regarding Mary’s role in Child being left alone with Robert and whether Mary

       knew or should have known about Robert’s past, both components of

       proximate cause—causation in fact and scope of liability—remain questions of

       fact for the jury. Accordingly, the trial court’s grant of summary judgment was

       inappropriate.4



                                                 Conclusion
[48]   Because genuine questions of material fact remain regarding all three elements

       of negligence, the trial court erred by granting summary judgment. We

       therefore reverse the judgment of the trial court and remand for further

       proceedings consistent with this opinion.


[49]   Reversed and remanded.


       Crone, J., and Bradford, J., concur.




       4
        Because we conclude genuine questions of material fact on the issue of negligent supervision remain, we
       need not address the alternative negligence claim based on premises liability.

       Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018                       Page 28 of 28
