 Pursuant to Ind.Appellate Rule 65(D), this
 Memorandum Decision shall not be
 regarded as precedent or cited before any
                                                                Jul 19 2013, 6:34 am
 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 APPELLEE:
DANIEL S. CHAMBERLAIN                               MARK D. GERTH
Doehrman Chamberlain                                JEFFREY D. HAWKINS
Indianapolis, Indiana                               MICHAEL WROBLEWSKI
                                                    Kightlinger & Gray, LLP
ATTORNEYS FOR AMICUS CURIAE:                        Indianapolis, Indiana
Indiana Trial Lawyer’s Association
DAVID W. STEWART
MICHAEL J. SOBIERAY
Stewart & Stewart
Carmel, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

A.M.D., a Minor, by his Parents and Guardians, )
JOHN DOE and JANE DOE, and JOHN DOE and )
JANE DOE, individually,
                                               )
      Appellants,                              )
                                               )
             vs.                               )           No. 49A04-1211-CT-551
                                               )
YOUNG MEN’S CHRISTIAN ASSOCIATION              )
OF GREATER INDIANAPOLIS,                       )
                                               )
      Appellee.                                )

                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Heather Welch, Judge
                            Cause No. 49D12-0805-CT-20350

                                           July 19, 2013
                MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
       A.M.D., a minor, by his parents and guardians, John Doe and Jane Doe, and John Doe

and Jane Doe individually, appeal from the trial court’s order granting summary judgment in

favor of Young Men’s Christian Association of Greater Indianapolis and YMCA of Greater

Indianapolis (collectively, the YMCA) in an action brought by the Does alleging negligence

against the YMCA. The following issue is presented in this appeal: Did the trial court err by

granting summary judgment in favor of the YMCA under the doctrine of superseding

causation?

       We reverse.

       The facts designated to the trial court for purposes of ruling on the motion for

summary judgment follow. When A.M.D. was eight years old, he participated in a summer

day camp through the YMCA’s Day Camp Program at Lions Park in Zionsville, Indiana.

The camp was offered to children in grades kindergarten through sixth grade. On June 27,

2006, YMCA camp counselors accompanied A.M.D. and the other camp participants to

Creekside Park, which is a park immediately adjacent to Lions Park. On that particular day

there were fifteen to twenty children, ranging in age from six years old to twelve years old,

and three camp counselors at the park.

       The purpose of the trip to Creekside Park was to give the children the opportunity to

enjoy rafting and playing in and around the water. The camp began that day at 7:00 a.m. and

the group walked over to Creekside Park at approximately 2:00 p.m. Until the time of the

incident giving rise to this appeal, there was nothing out of the ordinary at the park and there

were no activities or individuals that gave anyone at the YMCA cause for concern. In


                                               2
particular, there was no one at the park who was lingering around, looked out of place, or

generally looked suspicious.

      During the rafting excursion, the counselors were situated such that one counselor,

Megan Donaldson, was positioned where the rafting began, and two counselors, Melissa

Raab and Jay Binkert, were positioned where the rafting ended. Shortly after the rafting

began, A.M.D. told Raab that he needed to go to the bathroom. Since the public restroom

was a ten-to-fifteen minute walk away, Raab allowed A.M.D. to urinate by some bushes that

were within Raab’s direct and unobstructed view. Raab instructed A.M.D. to remain by the

bush and to return when he was finished. At the time Raab instructed A.M.D. to urinate in

the bushes, she knew that the YMCA’s bathroom policy required at least one counselor and

one buddy to go with a camper to the restroom. No campers were to go to the bathroom by

themselves.

      A.M.D. went to the bathroom by the bushes as instructed and was within Raab’s line

of sight. Raab momentarily turned her attention towards the creek to check on the other

children, and turned her attention away from A.M.D. for less than a minute. When Raab

looked back to check on A.M.D., he was gone. Unknown to A.M.D. and the YMCA

counselors, there was a sexual predator hiding in the woods near where A.M.D. was going to

the bathroom. It was later determined that Stephen Taylor was the person hiding in the

woods, and who attacked A.M.D. Taylor was so well hidden that A.M.D. did not see Taylor

approach him from the front until after he had finished going to the bathroom.




                                            3
         Once Taylor emerged from the woods, he approached A.M.D., told him he was a

doctor, and offered to give A.M.D. a piggy-back ride, which A.M.D. accepted. Taylor

successfully lured A.M.D. farther into the woods where they were both alone and out of sight

from any of the YMCA camp counselors. While hidden in the woods, Taylor sexually

assaulted A.M.D. Once Raab noticed that A.M.D. was not by the bushes, she immediately

began looking for A.M.D. and screaming his name. Ultimately, A.M.D. was found, but the

perpetrator had run away. Approximately six months later, Taylor was arrested on an

unrelated charge and was subsequently identified as the person who had sexually assaulted

A.M.D. Taylor was convicted of a class A felony and was sentenced to fifty years in the

Department of Correction. See Taylor v. State, 891 N.E.2d 155 (Ind. Ct. App. 2008), trans.

denied, cert. denied, 555 U.S. 1142, 129 S.Ct. 1008 (2009), reh’g denied, 129 S.Ct. 1665;

Taylor v. State, No. 06A04-1009-PC-557, 951 N.E.2d 312 (July 29, 2011), trans. denied.

         Prior to June 27, 2006, the YMCA was not aware of any criminal incidents or crimes

that were committed at the Lions or Creekside Parks. Prior to June of 2006, there were no

other incidents of violent or sexual assaults reported at Creekside Park. There have been no

incidents of violent or sexual assaults reported at Lions Park for at least the past twenty-five

years.

         On May 7, 2008, the Does individually, and on behalf of A.M.D., filed a negligence

action against the YMCA. The YMCA filed a motion for summary judgment in the action

presenting the following two claims: 1) The YMCA was not the proximate cause of

A.M.D.’s injuries because Taylor’s criminal actions were not reasonably foreseeable; and 2)


                                               4
the exculpatory clause contained in the camper application signed by Jane Doe released the

YMCA from any and all claims. The Does filed their opposition to the YMCA’s motion for

summary judgment claiming that the following four theories precluded the entry of summary

judgment in the YMCA’s favor: 1) The YMCA negligently supervised A.M.D.; 2) the

YMCA failed to prevent foreseeable intentional conduct by a third-party; 3) the YMCA did

not have to be the sole cause of A.M.D.’s injuries; and 4) the YMCA is not released from its

responsibility to A.M.D. and his parents by virtue of the exculpatory clause contained in the

camper application form signed by Jane Doe.

       On September 17, 2012, the trial court held a hearing on the YMCA’s motion for

summary judgment. In part, the trial court’s order on summary judgment reads as follows:

       The Court hereby finds that the Defendant, YMCA, is entitled to summary
       judgment as a matter of law and the Court hereby GRANTS the Defendant,
       YMCA’s, Motion for Summary Judgment. The Court hereby DENIES the
       Plaintiffs’ Partial Motion for Summary Judgment regarding the exculpatory
       clause. The Court further notes that the Defendant never disputed that they
       had a duty to supervise A.M.D. Thus, the Court does not find this issue was
       before the Court and the Court declines to address the Plaintiffs[sic] Motion
       for Partial Summary Judgment on this issue as it is moot due to the Court’s
       ruling on the issue of proximate cause. There is no just reason for delay, and
       [the YMCA] is entitled to judgment in their favor and against A.M.D., a
       Minor, by His Parents and Guardians, JOHN DOE AND JANE DOE, and
       JOHN DOE AND JANE DOE, Individually on the Plaintiffs’ Complaint as a
       matter of law. This Judgment is a full, complete, and final Judgment on the
       Plaintiffs’ Complaint as to [the YMCA] in this case. The Clerk of this Court
       shall enter the Judgment in the Judgment Docket.

Appellant’s Appendix at 21. A.M.D. and the Does appeal. Additional facts will be supplied

where necessary.




                                             5
       A.M.D. and the Does contend that the trial court erred by granting the YMCA’s

motion for summary judgment and by denying their motion for partial summary judgment on

the issue of the impact of the exculpatory clause in the camper application signed by Jane

Doe. The trial court included in its summary judgment order specific findings of fact and

conclusions of law. A trial court’s specific findings and conclusions are not required, and,

while they offer insight into the trial court’s rationale for the judgment entered, and facilitate

our review, we are not limited to reviewing the trial court’s reasons for granting or denying

summary judgment. Trustcorp Mortg. Co. v. Metro Mortg. Co., Inc., 867 N.E.2d 203 (Ind.

Ct. App. 2007). A trial court’s order granting summary judgment may be affirmed upon any

theory supported by the designated materials. Id. Additionally, the fact that the parties filed

cross-motions for summary judgment does not alter our standard of review. Id. In that

situation, we consider each motion separately in order to determine whether the moving party

is entitled to judgment as a matter of law. Id.

       A plaintiff seeking damages for negligence must establish (1) a duty owed to the

plaintiff by the defendant, (2) a breach of the duty, and (3) an injury proximately caused by

the breach of duty. Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011). “Absent a duty, there

can be no breach, and therefore, no recovery for the plaintiff in negligence.” Vaughn v.

Daniels Co. (West Virginia), Inc., 841 N.E.2d 1133, 1143 (Ind. 2006). Where the action

involves negligent supervision of a child, we have made the following observation:

       [T]here is a well-recognized duty in tort law that persons entrusted with
       children have a duty to supervise their charges. The duty is to exercise
       ordinary care on behalf of the child in custody. The duty exists whether or not
       the supervising party has agreed to watch over the child for some form of

                                                6
       compensation. However, the caretaker is not an insurer of the safety of the
       child and has no duty to foresee and guard against every possible hazard.

Davis v. LeCuyer, 849 N.E.2d 750, 757 (Ind. Ct. App. 2006). Our Supreme Court announced

the three-part test for determining whether to impose a duty at common law in Webb v.

Jarvis, 575 N.E.2d 992 (Ind. 1991), viz. (1) the relationship between the parties, (2) the

reasonable foreseeability of harm to the person injured, and (3) public policy concerns, but

that analysis is not necessary where the duty is well settled. Northern Ind. Pub. Serv. Co. v.

Sharp, 790 N.E.2d 462 (Ind. 2003). Furthermore, the trial court found and the parties do not

contest the finding that the YMCA owed a duty to supervise A.M.D.

       In this case, the question presented on appeal concerns the issue of causation. We

have held that causation is an essential element of a negligence claim. Bush v. N. Ind. Pub.

Serv. Co., 685 N.E.2d 174, 178 (Ind. Ct. App. 1997). “The injurious act must be both the

proximate cause and the cause in fact of an injury. Generally, causation, and proximate cause

in particular, is a question of fact for the jury’s determination.” Correll v. Ind. Dep’t of

Transp., 783 N.E.2d 706, 707 (Ind. Ct. App. 2002). In the present case, the trial court

entered summary judgment in favor of the YMCA after engaging in an analysis of causation,

which we reproduce in pertinent part as follows:

                              Summary Judgment Standard
       ....

       11. This Court notes the issue presented by YMCA’s Motion for Summary
       Judgment only addresses the element of causation. The Court does find under
       well-settled Indiana Law that the YMCA had a duty to supervise A.M.D.
       However, the issue for this Court is whether there is a material dispute of fact
       on the element of proximate cause.


                                              7
12. In order to prevail in a negligence action, the plaintiff must demonstrate
all the requisite elements of a cause of action: “(1) a duty owed by the
defendant to the plaintiff, (2) a breach of that duty by the defendant, and (3) an
injury to the plaintiff as a proximate result of the breach.” Ford Motor Co. v
Rushford, 868 N.E.2d 806, 810 (Ind. 2007). The question of whether the
defendant owes the plaintiff a legal duty is generally one of law for the court.
Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind. 1992).

....

17. Causation is an essential element of a negligence claim. Bush v. Northern
Indiana Pub. Serv. Co., 685 N.E.2d 174, 178 (Ind. Ct. App. 1997), trans.
denied (1999). “Proximate cause has two components: causation-in-fact and
scope of liability. City of Gary ex rel. King v. Smith & Wesson Corp., 801
N.E.2d 1222, 1243-44 (Ind. 2003). To establish factual causation, the plaintiff
must show that but for the defendant’s allegedly tortious act or omission, the
injury at issue would not have occurred. Id. The scope of liability doctrine
asks whether the injury was a “natural and probable consequence” of the
defendant’s conduct, which in the light of the circumstances, should have been
foreseen or anticipated. Id. at 1244. Liability is not imposed on the defendant
if the ultimate injury was not “reasonably foreseeable” as a consequence of the
act or omission. Id. Therefore, the fundamental test of proximate cause is
“reasonable foreseeability”. Lutheran Hospital of Indiana, Inc v. Blaser,634
N.E.2d 864, 871 (Ind. Ct. App. 1994).

18. Generally, causation, and proximate cause in particular, is a question of
fact for the jury’s determination. Adams Twp. Of Hamilton County v.
Sturdevant, 570 N.E.2d 87, 90 (Ind. Ct. App. 1991). However, “Where only a
single conclusion can be drawn from the set of facts, proximate cause is a
question of law for the court to decide.[”] Merchants National Bank v.
Simrell’s, 741 N.E.2d 383, 389 (Ind. Ct. App. 2000).

19. In this case, the facts are undisputed and only a single conclusion can be
drawn or inferred from the facts. Therefore, the Court finds that the issue of
proximate cause is a question of law not fact.




                                        8
Appellant’s Appendix at 13-16. The trial court then analyzed cases addressing the issue

whether intentional criminal acts of third parties break the chain of causation under the

doctrines of superseding and intervening causation. 1

         Our Supreme Court in Control Techniques examined whether Indiana’s Comparative

Fault Act 2 had subsumed or abrogated the doctrines of superseding and intervening

causation, and the impact of the viability of those doctrines, such that error could be

predicated upon the refusal to instruct the jury thereon. In concluding that no instruction on

the doctrine of superseding causation was warranted, the Supreme Court stated as follows:

         For the reasons expressed below, we agree with the Court of Appeals that no
         separate instruction is required. In capsule form, we conclude that the
         doctrines of causation and foreseeability impose the same limitations on
         liability as the “superseding cause” doctrine. Causation limits a negligent
         actor’s liability to foreseeable consequences. A superseding cause is, by
         definition, one that is not reasonably foreseeable. As a result, the doctrine in
         today’s world adds nothing to the requirement of foreseeability that is not
         already inherent in the requirement of causation.




1
    The Supreme Court described the doctrine as follows:

         The doctrine of superseding or intervening causation has long been part of Indiana common
         law. It provides that when a negligent act or omission is followed by a subsequent negligent
         act or omission so remote in time that it breaks the chain of causation, the original wrongdoer
         is relieved of liability. A subsequent act is “superseding” when the harm resulting from the
         original negligent act “could not have reasonably been foreseen by the original negligent
         actor.” Whether the resulting harm is “foreseeable” such that liability may be imposed on
         the original wrongdoer is a question of fact for a jury.

Control Techniques, Inc. v. Johnson, 762 N.E.2d 104 (Ind. 2002) (internal citations omitted)(emphasis
supplied).

2
  Ind. Code Ann. § 34-51-2-1 et seq. (West, Westlaw current through June 29 2013, excluding P.L. 205-
2013).


                                                       9
Control Techniques, Inc. v. Johnson, 762 N.E.2d at 108. The court went on to hold that the

adoption of the Comparative Fault Act did not affect the doctrine of superseding cause. Id.

       The YMCA argues that the trial court correctly found that Taylor’s criminal conduct

was a superseding or intervening cause of the harm to A.M.D. and cites Restatement

(Second) of Torts § 448 in support. The Restatement provides as follows:

       The act of a third person in committing an intentional tort or crime is a
       superseding cause of harm to another resulting therefrom, although the actor’s
       negligent conduct created a situation which afforded an opportunity to the third
       person to commit such a tort or crime, unless the actor at the time of his
       negligent conduct 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.

The YMCA claims that it was not foreseeable that a sexual predator would be lying in wait in

the woods in an attempt to sexually molest one of their campers, and in particular, A.M.D.

       Restatement (Second) of Torts §449, known as the very duty doctrine, provides as

follows: If the likelihood that a third person may act in a particular manner is the hazard or

one of the hazards which makes the actor negligent, such an act whether innocent, negligent,

intentionally tortious, or criminal does not prevent the actor from being liable for harm

caused thereby.    At the heart of these concepts is the necessity for an analysis of

foreseeability.

       The YMCA’s bathroom procedure for the camp, as set forth in the camp brochures

provides as follows:

       No camper is ever alone and no camper is ever alone with a staff member. All
       campers will take trips to the bathroom with entire camp and/or camp groups
       and camp staff. Campers will only use bathrooms inspected for safety by camp
       staff.

                                             10
Appellant’s Appendix at 179. Additionally, day campers were to go to the bathroom in pairs,

with one counselor present. The YMCA’s Code of Conduct for Day Camp Counselors

provided as follows with respect to restroom supervision:

       3. Restroom supervision: Staff will make sure the restroom is not occupied by
       suspicious or unknown individuals before allowing children to use the
       facilities. Staff will stand in the doorway while children are using the
       restroom. This policy allows privacy for the children and protection for the
       staff (not being alone with a child). If staff are assisting younger children,
       doors to the facility must remain open. No child, regardless of age, should
       ever enter a restroom alone on a field trip. Always send children in pairs, and
       whenever possible, with staff.

Id. at 213.

       Further, the counselors were instructed that they shall never leave a child

unsupervised. In particular, a day camp counselor, the position Raab held with the YMCA at

the time of the molestation, has the general function of directly supervising approximately

twelve campers and taking responsibility for each child’s safety. Several of the major

responsibilities of the Camp Site Director involved the protection of the campers, such as

personally supervising the campers at all times, being directly responsible for the daily safety

and schedule of the campers, and maintaining a clean, neat, and safe campsite.

       Raab’s deposition testimony indicated her understanding that an eight-year-old child

should not be allowed to go to the restroom by himself or wander off because the YMCA did

not want the child to get lost, suffer any harm, or be attacked. She further attested to the fact

that under the YMCA’s rules campers are allowed to use only those bathrooms inspected by




                                               11
staff to make sure there was no one suspicious lurking around or lingering. Another YMCA

employee attested as follows:

       Q:     What are the bathroom procedures for the YMCA?
       A:     For one staff person to accompany two children to the restroom.
       Q:     And why do you have that procedure or policy?
       A:     To protect children and to protect the staff.
       Q:     Protect children from what?
       A:     Potential child-on-child abusers or any interaction of any kind that’s
              inappropriate, fighting.
       Q:     Well, you would also have that policy and procedure for the one staff
              and two children to prevent sexual molestation from third parties,
              correct?
       A:     Correct.
       Q:     And that’s exactly what happened here; Mr. Taylor came upon the
              scene, found this child and assaulted him?
       A:     I can’t . . . .

Id. at 181.

       Other designated evidence before the trial court suggested that until the time of the

incident giving rise to this appeal, there was nothing out of the ordinary at the park and there

were no activities or individuals that gave anyone at the YMCA cause for concern on the day

in question. In particular, there was no one at the park who was lingering around, looked out

of place, or generally looked suspicious. Furthermore, prior to June 27, 2006, the YMCA

was not aware of any criminal incidents or crimes that were committed at the Lions or

Creekside Parks. Additionally, prior to June of 2006, there were no other incidents of violent

or sexual assaults reported at Creekside Park. There have been no incidents of violent or

sexual assaults reported at Lions Park for at least the past twenty-five years.

       We disagree that only one conclusion can be drawn or inferred from the undisputed

facts. “[A]n actor need not foresee the exact manner in which harm occurs, but must, in a

                                              12
general way, foresee the injurious consequences of his act.” Rauck v. Hawn, 564 N.E.2d

334, 339 (Ind. Ct. App. 1990). Furthermore, a determination of whether Taylor’s act was a

superseding or intervening cause of A.M.D.’s harm such that the original chain of causation

has been broken depends on a determination of whether it was reasonably foreseeable under

the circumstances that an actor would intervene in such a way as to cause the resulting injury.

Scott v. Retz, 916 N.E.2d 252 (Ind. Ct. App. 2009).

        In order to make that determination, three factors are pertinent to the analysis. First,

courts on review have examined whether the intervening actor is independent from the

original actor. Id. Next, we examine whether the instrumentality of harm was under the

complete control of the intervening actor. Id. Third, we examine whether the intervening

actor as opposed to the original actor is in a better position to prevent the harm. Id. At a

minimum, the facts pertinent to the third factor are in dispute. Whether the criminal assault

on A.M.D. by a stranger, Taylor, was foreseeable by the YMCA such that the chain of

causation was broken, should be decided by a trier of fact and not as a matter of law. 3

        Judgment reversed.

ROBB, C.J., and KIRSCH, J., concur.




3
  The trial court did not resolve the issue of whether the exculpatory clause in the camper application signed by
Jane Doe released YMCA from liability because the issue was moot. We do not address the arguments
pertaining to the release of liability because there is no ruling on this issue subject to our review.


                                                      13
