FILED Jun 26 2020, 12:05 pm
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES Jack A. Tandy Peter J. Sacopulos Tandy Law Firm, LLC Sacopulos Johnson & Sacopulos Shelbyville, Indiana Terre Haute, Indiana R. Robert Yeager Scott E. Andres Yeager Good & Baldwin Christopher J. Appel Shelbyville, Indiana Due Doyle Fanning & Alderfer, LLP Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Civilo Cruz, June 26, 2020 Appellant-Plaintiff, Court of Appeals Case No. 19A-CT-3003 v. Appeal from the Shelby Superior Court New Centaur, LLC, Centaur The Honorable R. Kent Apsley, Acquisition, LLC d/b/a Indiana Judge Grand Racing & Casino, Trial Court Cause No. Michael E. Lauer, Michael E. 73D01-1806-CT-26 Lauer Racing Stables, Inc., Penny Lauer, and Marcelle Martins, Appellees-Defendants.
Riley, Judge.
Court of Appeals of Indiana | Opinion 19A-CT-3003 | June 26, 2020 Page 1 of 17 STATEMENT OF THE CASE [1] Appellant-Plaintiff, Civilo Cruz (Cruz), appeals the trial court’s grant of
summary judgment in favor of Appellees-Defendants, New Centaur, LLC, and
Centaur Acquisition, LLC, d/b/a Indiana Grand Racing & Casino
(collectively, Indiana Grand), and its award of partial summary judgment in
favor of Appellees-Defendants, Michael E. Lauer, Michael E. Lauer Racing
Stables, Inc., Penny Lauer (collectively, the Lauers). The Lauers cross-appeal
the trial court’s partial denial of summary judgment in favor of Cruz.
[2] We affirm in part, reverse in part, and enter full summary judgment for the
Lauers.
ISSUES [3] Cruz presents us with two issues, which we restate as:
(1) Whether a genuine issue of material fact precluded the entry of summary judgment on Cruz’s claims of negligence against Indiana Grand; and
(2) Whether a genuine issue of material fact precluded the entry of summary judgment on Cruz’s negligence claims against the Lauers.
On cross-appeal, the Lauers present us with one issue, which we restate as:
Whether a genuine issue of material fact precluded the entry of summary
judgment on the issue of Martins’ employment status.
Court of Appeals of Indiana | Opinion 19A-CT-3003 | June 26, 2020 Page 2 of 17 FACTS AND PROCEDURAL HISTORY [4] Indiana Grand owns and operates the Indiana Downs horse racing track (the
track) located in Shelby County, Indiana. When races are not being held at the
track, racehorses are exercised and trained there. It is not uncommon for
exercise riders to be thrown from horses and for horses to become loose during
training. Indiana Grand has mounted employees, called outriders, who are
tasked with monitoring safety on the track during training and assisting when
necessary. In the event that a horse gets loose, the outriders are present to
attempt to corral the horse and alert a clocker via radio so that a siren can be
activated to alert others using the track to the presence of the loose horse.
[5] Marcelle Martins (Martins) is an experienced jockey licensed by the Indiana
Horse Racing Commission. In 2017, Martins was looking for work as a jockey
and exercised racehorses at the track without compensation in hopes of being
hired for races, which is a standard practice in the jockey industry. In 2018,
Martins began exercising horses for Michael E. Lauer Racing Stables at the
track. As part of her work, Martins frequently exercised a horse named
Accessorizing which was owned by Penny Lauer and trained by Michael
Lauer.
[6] On May 7, 2018, Martins exercised Accessorizing at the track. Cruz, who is an
experienced exercise rider, was exercising a horse he owned named Glitter Cat.
As Martins finished a turn around the track on Accessorizing, the horse began
to run out of Martins’ control. Martins called for an outrider for assistance.
Two Indiana Grand outriders were working the track that day, one of whom Court of Appeals of Indiana | Opinion 19A-CT-3003 | June 26, 2020 Page 3 of 17 attempted to gain control of Accessorizing’s reins, without success. Martins
was thrown from her mount, and Accessorizing ran toward a group of horses
which included Glitter Cat, ridden by Cruz. Accessorizing collided with Glitter
Cat, causing Cruz to be thrown to the ground and injured. After the collision,
the clocker sounded the alert of a loose horse on the track.
[7] On July 2, 2018, Cruz filed a complaint, which he amended on December 11,
2018, raising premises liability and negligence claims against Indiana Grand
and raising respondeat superior and negligent hiring claims against the Lauers. 1
On August 23, 2019, Indiana Grand filed its motion, brief, and designation of
evidence in support of summary judgment, arguing that it was entitled to
judgment as a matter of law because it owed no duty of care to Cruz, who had
assumed the risks of the inherently dangerous sport of horseracing. On August
26, 2019, the Lauers filed their motion, brief, and designation of evidence in
support of summary judgment, adopting Indiana Grand’s motion and
additionally arguing that they could not be held liable for Martins’ alleged
negligence under a theory of respondeat superior because she was an
independent contractor and not their employee. On September 23, 2019, Cruz
filed his motion, brief, and designation of evidence in opposition to summary
judgment, in which he argued, inter alia, that Indiana Grand had assumed a
1 Cruz also named Martins as a defendant and raised negligence claims against her. Martins did not appear in the litigation and does not participate in this appeal.
Court of Appeals of Indiana | Opinion 19A-CT-3003 | June 26, 2020 Page 4 of 17 duty of care toward him by employing outriders and using a loose horse alert
system.
[8] On October 23, 2019, the trial court held a hearing on Indiana Grand’s and the
Lauers’ motions for summary judgment. On November 21, 2019, the trial
court entered its Order granting summary judgment to Indiana Grand and the
Lauers on the issue of whether they could be found to have breached their duty
of care toward Cruz. The trial court ruled that, pursuant to Indiana’s sport
activity jurisprudence, in the context of the sport of horseracing, Cruz was
required to designate evidence supporting a finding that Appellees-Defendants
had intentionally caused Cruz’s injury or engaged in reckless conduct toward
him, which he had failed to do. The trial court further found that
[t]he injury suffered by Cruz, if any, was one that would be expected to occur in the sport generally. A [h]orse getting loose and running into other horses and riders is in the nature of what might be ordinarily expected in the sport of horse racing.
Based upon the designated evidence, neither [Indiana Grand], nor [the Lauers], would have had any objective reason to think that Cruz would be oblivious to the danger involved or would fail to protect himself from it. The defendants had an objectively reasonable expectation that Cruz would realize the risk and take appropriate precautions.
(Appellant’s App. Vol. II, p. 32). However, the trial court also partially denied
the Lauers’ motion because it found that genuine issues of material fact existed
on the issue of whether Martins was an independent contractor or an employee
of the Lauers. Court of Appeals of Indiana | Opinion 19A-CT-3003 | June 26, 2020 Page 5 of 17 [9] Cruz now appeals and the Lauers cross-appeal. Additional facts will be
provided as necessary.
DISCUSSION AND DECISION I. Standard of Review
[10] Summary judgment is appropriate if the designated evidence “shows that there
is no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Ind. Trial Rule 56(C). We review both the
grant or denial of summary judgment de novo and apply the same standard as
the trial court. Kerr v. City of South Bend, 48 N.E.3d 348, 352 (Ind. Ct. App.
2015). The party moving for summary judgment bears the initial burden of
making a prima facie showing that there are no genuine issues of material fact
and that it is entitled to judgment as a matter of law. Sargent v. State, 27 N.E.3d
729, 731 (Ind. 2015). “Summary judgment is improper if the movant fails to
carry its burden, but if it succeeds, then the nonmoving party must come
forward with evidence establishing the existence of a genuine issue of material
fact.” Id. at 731-32. “All disputed facts and doubts as to the existence of
material facts must be resolved in favor of the non-moving party.” Kerr, 48
N.E.3d at 352. The non-moving party has the burden on appeal to persuade us
that the trial court’s grant of summary judgment was erroneous, but we will
carefully assess the trial court’s decision to ensure that the non-moving party
was not improperly denied his day in court. Id. We will affirm the trial court’s
summary judgment ruling on any basis supported by the designated evidence.
Hussain v. Salin Bank & Trust Co., 143 N.E.3d 322, 328 (Ind. Ct. App. 2020).
Court of Appeals of Indiana | Opinion 19A-CT-3003 | June 26, 2020 Page 6 of 17 [11] In addition, we note that the trial court entered findings of fact and conclusions
of law in support of its judgment. Special findings are not required in summary
judgment proceedings and are not binding on appeal. AutoXchange.com. Inc. v.
Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct. App. 2004). However,
such findings offer this court valuable insight into the trial court’s rationale for
its review and facilitate appellate review. Id.
II. Indiana Sports-Injury Jurisprudence
[12] The parties each claim that Indiana’s sports-injury law favors their summary
judgment arguments, so we begin with an examination of how that body of law
has developed in our state. In 2011, our supreme court issued the seminal case
of Pfenning v. Lineman, 947 N.E.2d 392, 396 (Ind. 2011), in which it addressed
the issue of a sports participant’s liability to others for injury incurred during
sporting activity. Sixteen-year-old Pfenning accompanied her grandfather to a
golf scramble, where she, accompanied by an employee of the scramble’s
organizer, drove a beverage cart owned by the golf course. Id. at 397. While
driving the beverage cart around the course, Pfenning was struck in the mouth
by a golf ball, suffering injuries. Id. Neither Pfenning nor her companion heard
the golfer yell “fore.” Id.
[13] Pfenning brought suit against the owner of the golf course, the scramble
organizer, her grandfather, and the golfer who hit the shot that injured her,
raising claims of general negligence, negligent supervision, and premises
liability. Id. at 396. All the defendants sought, and were awarded, summary
judgment. Id. In affirming the grant of summary judgment on the claim of the
Court of Appeals of Indiana | Opinion 19A-CT-3003 | June 26, 2020 Page 7 of 17 golfer’s liability, the court noted that “strong public policy considerations favor
the encouragement of participation in athletic activities and the discouragement
of excessive litigation of claims by persons who suffer injuries from participants’
conduct” and, thus, that sound policy reasons supported enhanced protection
against liability to co-participants in sports events. Id. at 403. The court
observed that a plaintiff seeking damages based on negligence must establish
that the defendant owed him a duty, that duty was breached, and the plaintiff’s
injuries were proximately caused by the breach. Id. at 397. While the issue of
breach of duty of care towards others engaged in the sport usually entails an
evaluation of reasonableness by the fact-finder, the court adopted a new rule
limited to sports activity cases that, as a matter of law, when a sports participant
injures another while engaging in conduct ordinary to the sport, without intent
or recklessness, the participant breaches no duty for purposes of a negligence
claim. Id. at 404. The court held that the acts of hitting an errant golf shot and
not yelling “fore” were activities within the range of ordinary conduct for
golfers, and was, thus, reasonable as a matter of law, precluding a finding on
the element of breach necessary for a negligence action. Id. at 404-05.
[14] In affirming the trial court’s award of summary judgment for the golf course
owner, our supreme court first observed that its new rule extending enhanced
protection from liability to participants in sport did not extend to persons or
entities beyond the participant who allegedly caused the injury at the base of the
claim. Id. at 405. Some of Pfenning’s claims against the course owner were
framed as negligence allegations that the course owner had breached its duty of
Court of Appeals of Indiana | Opinion 19A-CT-3003 | June 26, 2020 Page 8 of 17 care towards her, it had failed to follow its own safety protocols for providing
safety instructions to beverage cart operators, and it was negligent for allowing
a minor to operate the cart. Id. at 405-06. The court rejected Pfenning’s
formulation of separate negligence claims and addressed all her claims as
sounding in premises liability due to the fact that it was the course owner being
sued, the course’s employees had controlled most of the details of the golf
outing, and Pfenning’s injuries had arisen from a condition on the premises. Id.
at 406. The court went to apply well-established premises liability principles
and found that there was no showing that the course owner should have
reasonably expected that Pfenning would fail to discover or realize the danger
of errant golf drives or the risk of being struck by an errant golf ball involved an
unreasonable risk of harm. Id. at 407.
[15] In South Shore Baseball, LLC v. DeJesus, 11 N.E.3d 903, 905 (Ind. 2014), a
spectator sued the operator of a baseball stadium where she was hit by a foul
ball during a game. DeJesus sat just beyond the protective netting South Shore
had erected behind home plate to protect spectators from foul balls, a danger
ticket holders were warned about on their tickets, signage erected in the
stadium, and through an announcement prior to the commencement of the
game. Id. DeJesus was injured when a pop-up foul ball hit her in the face. Id.
[16] DeJesus brought claims of premises liability and negligence against South
Shore, alleging, inter alia, that South Shore had breached its duty of care toward
her by failing to extend the protective netting adequately along the foul ball line
and that South Shore was negligent in the design, construction, and
Court of Appeals of Indiana | Opinion 19A-CT-3003 | June 26, 2020 Page 9 of 17 maintenance of the ballpark which did not have adequate protective netting. Id.
at 905-06. South Shore sought, and was denied, summary judgment. Id. at
906. We reversed the denial of summary judgment in light of Pfenning, and our
supreme court agreed, finding that, in light of its multiple warnings regarding
the dangers of foul balls, South Shore would have had no reason to believe that
DeJesus would not realize the danger or that she would not protect herself from
it. Id. at 910.
[17] As to DeJesus’s negligence claims, the court addressed her argument that, by
erecting the protective netting at its stadium, South Shore had assumed a duty
of care to protect her from foul balls entering the stands. Id. The court noted
that it had adopted the rule for assumption of duty from the Restatement
(Third) of Torts which provides that
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.
Id. at 911. The court found that summary judgment on DeJesus’s assumption
of duty claim was merited because she did not allege an increased risk of harm
and could not establish reliance, as her designated deposition testimony showed
Court of Appeals of Indiana | Opinion 19A-CT-3003 | June 26, 2020 Page 10 of 17 that she had seen foul balls enter the stands at the stadium before and she
admitted that she knew there was a chance she could be hit by a ball where she
had sat on the day she was injured. Id.
[18] In Megenity v. Dunn, 68 N.E.3d 1080, 1084 (Ind. 2017), the court clarified what
constituted “ordinary behavior” within a sport for purposes of the new rule set
out in Pfenning. Megenity was injured during a karate class when Dunn
performed a jump kick rather than the less powerful flying kick Megenity was
expecting. Id. at 1082. Megenity sued Dunn, alleging that he had negligently,
recklessly, and unreasonably injured her. Id. Dunn moved for summary
judgment pursuant to Pfenning, arguing that the jump kick was ordinary
behavior for karate, and, thus, that he breached no duty toward Megenity as a
matter of law. Id. In affirming the trial court’s grant of summary judgment to
Dunn, our supreme court cited Pfenning and clarified that, in order to determine
what is “ordinary behavior” for purposes of a Pfenning analysis, courts must
look to the sport generally and not the specific activity that was being engaged
in at the time of the injury. Id. at 1084. The court held that approach made
sense, because “sports are imprecise and physically intense. And when
Hoosiers play sports—performing activities ordinary in that context—they
should not fear that judges will later armchair-quarterback their every
movement.” Id.
[19] With these principles in hand, we turn to the issues raised by Cruz.
Court of Appeals of Indiana | Opinion 19A-CT-3003 | June 26, 2020 Page 11 of 17 III. Indiana Grand
[20] In his Complaint, Cruz raised premises liability and negligence claims against
Indiana Grand. In his appellate brief, Cruz acknowledges that if the facts
alleged by him in his Complaint are considered sports activity consistent with
Pfenning, South Shore, and Megenity, “the premises liability claim against Indiana
Grand is subject to summary judgment.” (Appellant’s Br. p. 13). The issue of
whether Martins and Cruz were engaged in a sports activity when Cruz was
injured was not litigated by the parties during the summary judgment
proceedings, and Cruz fails to develop any further argument on the issue.
Accordingly, inasmuch as Cruz argues that he and Martins were not engaged in
a sports activity when they exercised horses on May 7, 2018, Cruz has waived
the issue. See Cavens v. Zaberdac, 849 N.E.2d 526, 533 (Ind. 2006) (“Issues
not raised at the trial court are waived on appeal.”); see also Ind. Appellate
Rule 46(A)(8)(a) (providing that arguments must be supported by cogent
reasoning, legal authority, and citations to the record).
[21] Cruz maintains that his “negligence claim based on the actions of Indiana
Grand employees is distinct from the premises liability claim and should
survive summary judgment.” (Appellant’s Br. p. 13). Cruz also maintains that
his claim should survive because genuine issues of material fact existed about
whether Indiana Grand had breached the duty of care it owed him after it
assumed that duty by employing outriders and the loose-horse siren system.
Cruz alleged negligence on Indiana Grand’s part as follows:
Court of Appeals of Indiana | Opinion 19A-CT-3003 | June 26, 2020 Page 12 of 17 14. On said date, [Indiana Grand] had a duty to maintain appropriate safety measures at the racetrack in conformity with rules of the racing profession and rules adopted by the Indiana Race Horse Commission. [Indiana Grand] failed in its duty to maintain appropriate safety measures at the racetrack on May 7, 2018, proximately causing the injuries to [Cruz].
(Appellant’s App. Vol. II, p. 65). We find Cruz’s argument to be unavailing for
at least two reasons. In Pfenning, our supreme court found that her claims,
including her claim that the golf course was negligent for failing to follow its
own safety protocols, were truly claims sounding in premises liability, in part
because she raised her claims against the property owner and her injuries were
the result of a condition on the land. Pfenning, 947 N.E.2d at 406. We find the
same to be true here: Although styled as a negligence claim, Cruz’s allegation
is truly in the nature of a premises liability claim because it is made against the
track’s owner and his injuries were caused by a condition at the track. As noted
above, Cruz has conceded and waived his premises liability claims.
[22] In addition, South Shore illustrates that, in order to survive summary judgment
on a claim of assumed duty, Cruz was required to allege and demonstrate fact
issues on increased risk of harm to him as a result of Indiana Grand’s alleged
negligence or that he relied upon Indiana Grand’s exercise of care with its
safety measures. See South Shore, 11 N.E.3d at 911. Cruz’s argument on appeal
consists entirely of outlining the facts he considers showed that Indiana Grand
breached its purported assumed duty of care toward him. Cruz does not direct
our attention to any allegation or evidence showing that Indiana Grand
Court of Appeals of Indiana | Opinion 19A-CT-3003 | June 26, 2020 Page 13 of 17 increased the risk of harm to him as a result of its alleged negligence or that he
relied upon Indiana Grand’s exercise of care with its safety measures.
Accordingly, we conclude that the trial court properly entered summary
judgment in favor of Indiana Grand on Cruz’s negligence claim. See id.
IV. The Lauers
[23] Cruz made two negligence allegations against the Lauers in his Complaint, one
of which he has abandoned on appeal, namely that they had breached their
duty of care toward him by allowing a horse ridden by Martins to become
unrestrained. Cruz’s other allegation of negligence was that
13. [The Lauers] breached [their] duty by employing an exercise rider who was unlicensed and/or incapable of maintaining control of her horse.
[24] (Appellant’s App. Vol. II, p. 65). Cruz argues that partial summary judgment
was precluded because the Lauers were not shielded from liability by the
holding of Pfenning and genuine issues of material fact existed regarding “the
Lauers’ belief of Martins’ horse riding abilities prior to allowing her to exercise
the horse Accessorizing on May 7, 2018.” (Appellant’s Br. p. 20).
[25] We agree with Cruz’s contention that the Lauers are not protected by the rule
announced in Pfenning. See Pfenning, 947 N.E.2d at 405 (“The blanket
protection from liability embodied in the new formulation does not extend to
persons or entities other than the athlete whose conduct allegedly caused a
claimed injury.”). However, we disagree with him that the Lauers were not
Court of Appeals of Indiana | Opinion 19A-CT-3003 | June 26, 2020 Page 14 of 17 entitled to summary judgment. Cruz does not dispute that Martins is shielded
from liability pursuant to Pfenning and Megenity. If Martins cannot be held
liable, then there is no negligence to impute to the Lauers on a theory of
respondeat superior. See Bd. of Sch. Comm’rs of City of Indianapolis v. Pettigrew,
851 N.E.2d 326, 332 (Ind. Ct. App. 2006) (observing that once a servant is
released of liability, no negligence can be imputed to the principal for purposes
of creating respondeat superior liability), trans. denied.
[26] Cruz has also failed to demonstrate that summary judgment was precluded on
his negligent employment claim. Negligent retention and supervision is a
distinct tort from respondeat superior. Scott v. Retz, 916 N.E.2d 252, 257 (Ind.
Ct. App. 2009). Under a theory of negligent retention and supervision, liability
may be imposed on an employer when an employee “steps beyond the
recognized scope of his employment to commit a tortious injury upon a third
party.” Clark v. Aris, Inc., 890 N.E.2d 760, 765 (Ind. Ct. App. 2008) (quotation
omitted), trans. denied. The tort has the following relevant elements:
A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if (a) the servant . . .is using a chattel of the master, and (b) the master (i) knows or has reason to know that he has the ability to control his servant, and (ii) knows or should know of the necessity and opportunity for exercising such control.
Court of Appeals of Indiana | Opinion 19A-CT-3003 | June 26, 2020 Page 15 of 17 Hayden v. Franciscan Alliance, Inc., 131 N.E.3d 685, 693 (Ind. Ct. App. 2019),
trans. denied, (emphasis added). Cruz acknowledges in his appellate brief that
Martins “was instructed to gallop Accessorizing.” (Appellant’s Br. p. 8). Cruz
does not contend that there was any factual dispute that Martins galloped
Accessorizing on May 7, 2018. Therefore, even if we were to assume that
Martins was an employee of the Lauers, Cruz has failed to demonstrate that
there was a factual dispute to be resolved that Martins was acting outside of the
scope of her employment on May 7, 2018, and summary judgment was,
therefore, merited for the Lauers.
[27] Cruz also argues that the Lauers can be held liable for injuries caused by
Accessorizing because they either “knew the animal had dangerous
propensities, or [] the animal in question is part of a class of animals that are
known to have dangerous propensities.” (Appellant’s Reply Br. p. 6).
However, Cruz did not raise this argument in the trial court or his Appellant’s
Brief, and it is waived. See French v. State, 778 N.E.2d 816, 825-26 (Ind. 2002)
(holding that issues raised in a reply brief for the first time are waived).
Therefore, we do not address it.
CROSS-APPEAL [28] The Lauers argue on cross-appeal that there were no genuine issues of material
fact regarding their contention that Martins was an independent contractor, not
an employee as alleged by Cruz, and that they were entitled to full summary
judgment. Given our resolution of Cruz’s claims on appeal, we reverse the trial
court’s partial denial of summary judgment in favor of Cruz on the issue of Court of Appeals of Indiana | Opinion 19A-CT-3003 | June 26, 2020 Page 16 of 17 Martins’ employment status and enter summary judgment in favor of the
Lauers on this issue.
CONCLUSION [29] Based on the foregoing, we conclude that no genuine issue of material fact
precluded entry of summary judgment in favor of Indiana Grand and the
Lauers on Cruz’s negligence claims.
[30] Affirmed in part and reversed in part.
Mathias, J. and Tavitas, J. concur
Court of Appeals of Indiana | Opinion 19A-CT-3003 | June 26, 2020 Page 17 of 17