MEMORANDUM DECISION
                                                                  Jan 28 2015, 10:09 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 APPELLANTS                                   ATTORNEYS FOR APPELLEES
Brett E. Osborne                                          Edward D. D’Arcy, Jr.
Hocker & Associates, LLC                                  Michael M. Oberman
Indianapolis, Indiana                                     Doherty & Progar LLC
                                                          Merrillville, Indiana



              IN THE
    COURT OF APPEALS OF INDIANA

Steven DuPont and April                                  January 28, 2015
DuPont, on Behalf of Minor                               Court of Appeals Cause No.
Child M.D.,                                              29A02-1408-CT-602
                                                         Appeal from the Hamilton Superior
Appellants-Plaintiffs,
                                                         Court.
                                                         The Honorable William J. Hughes,
        v.                                               Judge.
                                                         Cause No. 29D03-1303-CT-2422
Kiddie Academy of Fishers and
Kiddie Academy Childcare
Learning Centers, Inc.,
Appellees-Defendants.




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 29A02-1408-CT-602 | January 28, 2015    Page 1 of 10
                                      Statement of the Case
[1]   Steven DuPont and April DuPont, on behalf of their minor child M.D., appeal

      the trial court’s denial of their motion to correct error following the court’s

      grant of summary judgment to Kiddie Academy of Fishers (Kiddie Academy

      Fishers) and Kiddie Academy Childcare Learning Centers, Inc. (Kiddie

      Academy Franchisor). We affirm in part, reverse in part, and remand.


                                                    Issues
[2]   The DuPonts raise two issues, which we restate as:

              I. Whether the trial court erred in denying their motion to correct
              error as to Kiddie Academy Fishers.


              II. Whether the trial court erred in denying their motion to correct
              error as to Kiddie Academy Franchisor.


                               Facts and Procedural History
[3]   Kiddie Academy Fishers operates a child care center. It is a franchisee of

      Kiddie Academy Franchisor, a limited liability corporation that is incorporated

      in Delaware and based in Maryland. The two companies executed a franchise

      agreement in 2009.


[4]   M.D.’s parents enrolled her at Kiddie Academy Fishers’ child care center. In

      October 2010, when M.D. was four years old, an employee of the center

      discovered M.D. and a four-year-old boy, unsupervised, in a bathroom. M.D.




      Court of Appeals of Indiana | Memorandum Decision 29A02-1408-CT-602 | January 28, 2015   Page 2 of 10
      was in a stall. Her pants were pulled down, and she was crouched down so that

      her buttocks were visible below the stall door.


[5]   The incident was reported to the Indiana Department of Child Services, and

      caseworker Rachel Parrett investigated. Parrett interviewed M.D., who told her

      that the boy had said he was going to “lick [her] butt.” Appellants’ App. p. 178.

      The boy had made a similar statement before, and April DuPont had e-mailed

      Kiddie Academy Fishers about it. Id.


[6]   Parrett visited the day care center and interviewed the boy. Kiddie Academy

      Fishers changed its procedures for monitoring children’s use of the bathroom.

      Parrett concluded that there was “inappropriate” conduct between the two

      children. Id. at 176. There was no evidence of sexual abuse by an adult. The

      DuPonts chose to withdraw M.D. from the center, and Parrett closed her

      investigation with no further action.


[7]   The DuPonts observed changes in M.D.’s emotional state after the incident.

      She exhibited “severe separation anxiety, [was] angry and having emotional

      outbursts, she . . . regressed in her potty training in that she [was] now wetting

      the bed at night, she [was] having relationship and trust issues and [was] acting

      out with other children.” Id. at 185. Furthermore, M.D. “is having a difficult

      time understanding what happened with [the boy]. She is very emotional when

      the topic of Kiddie Academy is discussed with her.” Id. at 188.


[8]   The DuPonts sued Kiddie Academy Fishers and Kiddie Academy Franchisor,

      alleging negligent supervision and gross negligence. Kiddie Academy Fishers

      Court of Appeals of Indiana | Memorandum Decision 29A02-1408-CT-602 | January 28, 2015   Page 3 of 10
       and Kiddie Academy Franchisor jointly filed a motion for summary judgment.

       The DuPonts filed a response, and Kiddie Academy Fishers and Kiddie

       Academy Franchisor filed a reply. After a hearing, the trial court granted the

       motion for summary judgment.


[9]    Next, the DuPonts filed a motion to correct error. The court denied the

       motion, and this appeal followed.


                                    Discussion and Decision
                                        I. Standard of Review
[10]   In general, we review a trial court’s ruling on a motion to correct error for an

       abuse of discretion. City of Indianapolis v. Hicks, 932 N.E.2d 227, 230 (Ind. Ct.

       App. 2010), trans. denied. However, the DuPonts’ motion to correct error

       sought to set aside the entry of summary judgment, so that standard of review is

       relevant to our discussion. See Old Utica Sch. Pres., Inc. v. Utica Twp., 7 N.E.3d

       327, 330 (Ind. Ct. App. 2014), trans. denied.


[11]   Summary judgment is appropriate when 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; State Farm Fire & Cas. Co. v. T.B. ex rel. Bruce, 762 N.E.2d 1227, 1230

       (Ind. 2002). We construe all facts and reasonable inferences drawn therefrom

       in a light most favorable to the non-moving party. State Farm, 762 N.E.2d at

       1230. Summary judgment is not a summary trial and may not be used as a

       substitute for trial in determining factual disputes. Hughley v. State, 15 N.E.3d

       1000, 1004-05 (Ind. 2014).

       Court of Appeals of Indiana | Memorandum Decision 29A02-1408-CT-602 | January 28, 2015   Page 4 of 10
[12]   Although the nonmovant has the burden of demonstrating the grant of

       summary judgment was erroneous, we carefully assess the trial court’s decision

       to ensure that the nonmovant was not improperly denied its day in court. Ind.

       Dep’t of Envtl. Mgmt. v. Med. Disposal Servs., Inc., 729 N.E.2d 577, 579 (Ind.

       2000). Summary judgment is generally inappropriate in negligence cases

       because issues of contributory negligence, causation, and reasonable care are

       more appropriately left for the trier of fact. Estate of Mintz v. Connecticut Gen. Life

       Ins. Co., 905 N.E.2d 994, 999 (Ind. 2009).


         II. Grant of Summary Judgment to Kiddie Academy Fishers
[13]   Before turning to the merits of the DuPonts’ negligence claim, we address the

       parties’ dispute over the deposition testimony of Rachel Parrett. The DuPonts

       claim that the trial court should not have considered Parrett to be an expert

       witness. In response, the Kiddie Academies claim that the DuPonts waived

       this claim for appellate review or, in the alternative, invited any error.


[14]   We conclude that this particular dispute is immaterial to this appeal. A trial

       court may admit expert witness testimony if certain conditions are met. See

       Indiana Evidence Rule 702. In the record before us, neither party moved the

       trial court to consider Parrett as an expert witness. In addition, the court never

       stated that it considered Parrett to be an expert. Thus, it appears that Parrett

       was not an expert witness, and we consider her deposition testimony

       accordingly.




       Court of Appeals of Indiana | Memorandum Decision 29A02-1408-CT-602 | January 28, 2015   Page 5 of 10
[15]   The DuPonts assert the trial court erred by denying their motion to correct error

       because the court should not have granted summary judgment to Kiddie

       Academy of Fishers on their negligent supervision claim. The tort of

       negligence has three elements: (1) a duty owed to the plaintiff by the defendant;

       (2) a breach of that duty; and (3) injury to the plaintiff proximately caused by

       the breach. Cincinnati Ins. Co. v. Davis, 860 N.E.2d 915, 923 (Ind. Ct. App.

       2007).


[16]   The parties’ arguments focus on the element of causation. An injurious act

       must be both the proximate cause and the cause in fact of an injury. Correll v.

       Ind. Dep’t of Transp., 783 N.E.2d 706, 707 (Ind. Ct. App. 2002), trans. denied. An

       act or omission is the proximate cause of an injury if the ultimate injury is one

       that was foreseen, or reasonably should have been foreseen, as the natural and

       probable consequence of the act or omission. Romero v. Brady, 5 N.E.3d 1166,

       1170 (Ind. Ct. App. 2014), trans. denied. In general, causation, and proximate

       cause in particular, are questions of fact to be resolved by the trier of fact.

       Correll, 783 N.E.2d at 707.


[17]   Here, in response to the motion for summary judgment, the DuPonts

       designated three of their responses to interrogatories. One interrogatory stated,

       “As a result of the occurrence alleged in the complaint, did the minor child

       M.D. suffer any physical, mental, or emotional injury? If so, describe in detail

       the physical, mental, or emotional injuries suffered.” Appellants’ App. p. 185.

       In response, the DuPonts stated, “M.D. is experiencing severe separation

       anxiety, is angry and having emotional outbursts, she has regressed in her potty

       Court of Appeals of Indiana | Memorandum Decision 29A02-1408-CT-602 | January 28, 2015   Page 6 of 10
       training in that she is now wetting the bed at night, she is having relationship

       and trust issues and is acting out with other children.” Id. Another

       interrogatory asked for a description of any ongoing “pain, problem, or

       disability” that M.D. “sustained as a result of the occurrence alleged in your

       complaint.” Id. at 188. In response, the DuPonts stated, “M.D. is suffering

       from emotional and cognitive confusion and is having a difficult time

       understanding what happened with [the boy]. She is very emotional when the

       topic of Kiddie Academy is discussed with her.” Id.


[18]   Viewing the facts in the light most favorable to the nonmovants, the DuPonts,

       they have presented evidence that M.D.’s interaction with the other child at

       Kiddie Academy Fishers, which they assert would not have happened but for

       Kiddie Academy Fishers’ negligent supervision, caused her to experience injury

       in the form of emotional trauma. Based on this evidence, some type of

       emotional injury resulting from unsupervised bathroom interactions was

       reasonably foreseeable.


[19]   Kiddie Academy Fishers notes that Parrett testified in her deposition that she

       did not observe any signs that M.D. was harmed as a result of the incident. The

       DuPonts’ interrogatory responses and Parrett’s deposition testimony establish a

       dispute of material fact in regards to causation that must be resolved by a finder

       of fact.


[20]   Next, Kiddie Academy Fishers argues that the DuPonts, as laypersons, are

       unqualified to state whether the children’s bathroom interaction caused M.D. to


       Court of Appeals of Indiana | Memorandum Decision 29A02-1408-CT-602 | January 28, 2015   Page 7 of 10
       experience emotional harm and should have submitted evidence from an expert

       witness. The cases Kiddie Academy Fishers cites on this point address

       questions of pre-existing injuries or unusual medical conditions and are

       factually distinguishable. See Topp v. Leffers, 838 N.E.2d 1027, 1033 (Ind. Ct.

       App. 2005) (expert testimony needed to establish causation where plaintiff had

       preexisting injury and contended that auto accident exacerbated a prior injury),

       trans. denied; Turner v. Davis, 699 N.E.2d 1217, 1220 (Ind. Ct. App. 1998)

       (expert testimony needed to establish that an auto accident caused plaintiff to

       develop a sleeping condition), trans. denied; Daub v. Daub, 629 N.E.2d 873, 878

       (Ind. Ct. App. 1994) (plaintiff’s testimony, standing alone, is insufficient to

       establish causation where plaintiff suffered multiple injuries at different times;

       expert witness was required to address the issue of causation), trans. denied.


[21]   Causation in a negligence case need not always be proven by expert testimony.

       Smith v. Beaty, 639 N.E.2d 1029, 1034 (Ind. Ct. App. 1994). As the Daub court

       noted, evidence from an expert witness is necessary when the issue of cause is

       not within the understanding of a lay person. 629 N.E.2d at 878.


[22]   Here, the DuPonts claim that M.D. experienced emotional injury as a result of

       her interaction with another child in the bathroom. We cannot conclude that

       assessing the existence and extent of emotional harm is beyond the

       understanding of a lay person such that the DuPonts were required to submit

       evidence from an expert witness instead of, or in addition to, their interrogatory

       responses. See Smith, 639 N.E.2d at 1034 (plaintiff’s lay testimony was

       sufficient to provide proof that defendant caused plaintiff’s broken ribs).

       Court of Appeals of Indiana | Memorandum Decision 29A02-1408-CT-602 | January 28, 2015   Page 8 of 10
[23]   Kiddie Academy Fishers also argues that M.D. was not injured by the restroom

       incident. In order to establish liability, a plaintiff must demonstrate an injury.

       Without a connection between the breach of duty and an injury, causation fails.

       Robertson v. B.O., 977 N.E.2d 341, 344-345 (Ind. 2012). The DuPonts’

       interrogatory responses provide sufficient evidence of an injury to M.D. to

       create a dispute of material fact. We reverse the denial of the DuPonts’ motion

       to correct error with respect to the grant of summary judgment to Kiddie

       Academy Fishers.


               III. Grant of Summary Judgment to Kiddie Academy
                                  Franchisor
[24]   The DuPonts also challenge the denial of their motion to correct error with

       respect to the trial court’s grant of summary judgment in favor of Kiddie

       Academy Franchisor. They argue that they established a dispute of material

       fact as to whether Kiddie Academy Franchisor owed a duty of care to them.

       Specifically, they claim that as the franchisor for Kiddie Academy Fishers,

       Kiddie Academy Franchisor contractually exercised a high degree of control

       over the child care center and in so doing assumed a duty of care for the

       children at the center.


[25]   The DuPonts fail to cite to any legal authority on the issue of franchisor liability

       or any legal authority on contracts in general. Indeed, in their Appellants’ Brief

       and Reply Brief they do not cite to any cases or statutes in support of their claim

       against Kiddie Academy Franchisor. They have waived this claim for appellate

       review. See Scribner v. Gibbs, 953 N.E.2d 475, 485 (Ind. Ct. App. 2011) (claim of

       Court of Appeals of Indiana | Memorandum Decision 29A02-1408-CT-602 | January 28, 2015   Page 9 of 10
       mistake or fraud waived due to failure to cite any legal authority on those

       topics). We affirm the trial court’s denial of the DuPonts’ motion to correct

       error with respect to the grant of summary judgment to Kiddie Academy

       Franchisor.


                                                Conclusion
[26]   For the reasons stated above, we affirm the judgment of the trial court in part,

       reverse in part, and remand for further proceedings.


[27]   Affirmed in part, reversed in part, and remanded.


       Crone, J., concurs. Vaidik, C.J., concurs in result.




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