MEMORANDUM DECISION
ON REHEARING
                                                                 Oct 06 2015, 8:43 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Stacy K. Newton                                            SOUTH SPENCER SCHOOL
Jackson Kelly PLLC                                         CORPORATION
Evansville, Indiana                                        Crystal G. Rowe
                                                           Kightlinger & Gray, LLP
                                                           New Albany, Indiana
                                                           Krystal Lechner
                                                           Kightlinger & Gray, LLP
                                                           Evansville, Indiana
                                                           ATTORNEYS FOR APPELLEE
                                                           CLIFF HAGAN’S BOYS’ CLUB
                                                           Danny E. Glass
                                                           John J. Kreighbaum
                                                           Fine & Hatfield
                                                           Evansville, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Grant Johnson, Minor Child, by                            October 6, 2015
his Mother and Father, Don                                Court of Appeals Case No.
Johnson and Janice Johnson,                               74A04-1501-PL-16
                                                          Appeal from the Spencer Circuit
Appellants-Plaintiffs,
                                                          Court
        v.                                                The Honorable Jonathan A. Dartt,
                                                          Judge

South Spencer School                                      Cause No. 74C01-1205-PL-284
Corporation and Cliff Hagan’s


Court of Appeals of Indiana | Memorandum Decision on Rehearing 74A04-1501-PL-16 | Oct. 6, 2015 Page 1 of 3
      Boys’ Club of Owensboro,
      Kentucky, Inc.,
      Appellees-Defendants




      Baker, Judge.

[1]   Appellee Cliff Hagan’s Boys’ Club (the Boys’ Club) has filed a petition for

      rehearing, raising multiple arguments regarding our decision in this matter. We

      grant the petition for the limited purpose of addressing the third argument

      raised by the Boys’ Club.


[2]   The Boys’ Club correctly points out that we erroneously relied on evidence

      regarding ongoing name-calling that stems from depositions that were taken

      when the Boys’ Club was not present. Moreover, the name-calling incidents

      were not part of the amended complaint.


[3]   In relevant part, Indiana Trial Rule 32(A) states that depositions “may be used

      against any party who was present or represented at the taking of the deposition

      . . . or against any party who had reasonable notice thereof . . . .” In this case,

      the Boys’ Club was not present or represented at the deposition in question, nor

      did it have reasonable notice thereof. As a result, the deposition testimony of

      Grant and Janet Johnson may not be used to create a genuine issue of material

      fact against the Boys’ Club. We therefore strike the portions of our decision

      that rely on such evidence with respect to the Boys’ Club.



      Court of Appeals of Indiana | Memorandum Decision on Rehearing 74A04-1501-PL-16 | Oct. 6, 2015 Page 2 of 3
[4]   Our conclusion herein does not change the outcome of the appeal, however,

      inasmuch as there was a wealth of other evidence creating issues of material

      fact with respect to the Boys’ Club. Specifically, the following incidents

      occurred during the Boys’ Club after school program: (1) in May 2011, Myah

      pulled a jump rope around Grant’s neck in a malicious manner; (2) during the

      2010-11 school year, Jarron broke Grant’s Nintendo DS; and (3) in September

      2011, Desmond pulled Grant’s legs while Grant was swinging, causing severe

      bruising to Grant’s legs. The Boys’ Club did not take any remedial action with

      respect to the student-to-teacher ratio as a result of these incidents. As we

      stated in our original decision, reasonable factfinders could differ as to whether

      the actions taken by the Boys’ Club went far enough to meet a standard of

      reasonable and ordinary care. It is for a factfinder to resolve this question;

      consequently, summary judgment was inappropriately granted and the

      judgment of the trial court is reversed and remanded.


[5]   In all respects aside from the limited discussion herein, we deny the Boys’ Club

      petition for rehearing.


[6]   Najam, J., and Robb, J., concur.




      Court of Appeals of Indiana | Memorandum Decision on Rehearing 74A04-1501-PL-16 | Oct. 6, 2015 Page 3 of 3
