Clark v. Wiegand

617 N.E.2d 916, 1993 Ind. LEXIS 104, 1993 WL 272043
CourtIndiana Supreme Court
DecidedJuly 23, 1993
Docket77S01-9307-CV-802
StatusPublished
Cited by28 cases

This text of 617 N.E.2d 916 (Clark v. Wiegand) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. Wiegand, 617 N.E.2d 916, 1993 Ind. LEXIS 104, 1993 WL 272043 (Ind. 1993).

Opinions

DICKSON, Justice.

Plaintiff-appellee Carol Wiegand initiated this negligence action against defendants-appellants Rick Clark, Indiana State University, and the Indiana State University Board of Trustees (collectively "ISU") for knee injuries sustained when a fellow student in her college judo 1 class threw her to the mat. The ensuing jury trial resulted in a $50,000 verdict for the plaintiff. ISU appealed the trial court's denial of its two motions for judgment on the evidence. In an unpublished memorandum decision, the Court of Appeals reversed the trial court and ordered the entry of judgment on the evidence in favor of ISU, 606 N.E.2d 895.

The plaintiff's petition for transfer argues in part that the Court of Appeals misstated the record 2 and erroneously re[918]*918weighed and considered the evidence favorable to the appellant. We agree and grant transfer.

On appeal, the defendants contend that the trial court erred in denying their motions for judgment on the evidence and assert that the undisputed facts produce the single inference that the plaintiff incurred the risk of her injury as a matter of law. The plaintiff responds that the evidence was in conflict and that, when properly viewed as favorable to her, supports the judgment of the trial court.

Motions for judgment on the evidence are authorized by Indiana Trial Rule 50(A), which provides in relevant part:

Where all or some of the issues in a case tried before a jury or an advisory jury are not supported by sufficient evidence or a verdict thereon is clearly erroneous as contrary to the evidence because the evidence is insufficient to support it, the court shall withdraw such issues from the jury and enter judgment thereon or shall enter judgment thereon notwith standing a verdict.

In reviewing a trial court's ruling on a motion for judgment on the evidence, the appellate court must consider only the evidence and reasonable inferences most favorable to the non-moving party. Sipes v. Osmose Wood Preserving Co. (1989), Ind., 546 N.E.2d 1223, 1224; Jones v. Gleim (1984), Ind., 468 N.E.2d 205, 206. If there is any probative evidence or reasonable inferences that would allow reasonable persons to differ, then judgment on the evidence is improper. Wilson v. Redinbo (1988), Ind., 519 N.E.2d 568, 569; Jones, 468 N.E.2d at 207.

Urging that incurred risk was conclusively established, the defendants emphasize evidence that the plaintiff had experienced judo class injuries prior to the incident at issue in this action. The plaintiff argues that these prior occasions consisted solely of "a couple" of times when she had the wind knocked out of her, and that although she understood and appreciated the risk of having the wind knocked out of her, she did not understand and appreciate the risk of suffering a serious knee injury.

The doctrine of incurred risk consists of the following components:

It involves a mental state of venturousness on the part of the actor, and demands a subjective analysis into the actor's actual knowledge and voluntary acceptance of the risk. By definition ... the very essence of incurred risk is the conscious, deliberate and intentional embarkation upon the course of conduct with knowledge of the cireumstances. It requires much more than the general awareness of a potential for mishap. Incurred risk contemplates acceptance of a specific risk of which the plaintiff has actual knowledge.

Beckett v. Clinton Prairie Sch. Corp. (1987), Ind., 504 N.E.2d 552, 554, quoting Power v. Brodie (1984), Ind.App., 460 N.E.2d 1241, 1243 (emphasis in original, citations omitted). It is not enough that a plaintiff have merely a general awareness of a potential for mishap, but rather, the defense of incurred risk demands a subjective analysis focusing upon the plaintiff's actual knowledge and appreciation of the specific risk and voluntary acceptance of that risk. Get-N-Go, Inc., v. Markins (1989), Ind., 544 N.E.2d 484, 486, aff'd on reh'g (1990), Ind., 550 N.E.2d 748.

Applying our standard of review, the facts favorable to the plaintiff as the non-moving party show that in 1987 she was a student at Indiana State University pursuing a degree in fitness management and had enrolled in a judo course. At the beginning of each class period, the instructor, Clark, explained and demonstrated various judo throws and techniques. The students were then instructed to practice with each other while Clark supervised. Although Clark would sometimes pair students at the [919]*919beginning of class period, he told the class to switch partners and practice with other class members. During one class in November, the plaintiff had the wind knocked out of her after a classmate, Tim Jordan, threw her while practicing a technique. The plaintiff testified that Jordan, a 260-pound member of the university football team, was "very aggressive" in practice. Record at 400-01. He had knocked the wind out of her during judo class more than once. Following the November incident, the plaintiff spoke to Clark after class, mentioning that she "was afraid" of Jordan. Clark responded that she "would have to learn how to deal with it." Record at 398-99. During class on December 2, 1987, Jordan, attempting to apply a newly-taught technique, threw the plaintiff, resulting in a disabling injury to the central ligament of her left knee. The plaintiff testified that by December, 1987, she was aware of the possibility that she could have the wind knocked out of her in judo class but that it had not occurred to her that she could have a serious injury. Record at 447-48, 456.

Citing Forrest v. Gilley (1991), Ind.App., 570 N.E.2d 934, and Mauller v. City of Columbus (1990), Ind.App., 552 N.E.2d 500, ISU contends that the plaintiff's experiences of getting the wind knocked out of her constitute conclusive proof that she understood and appreciated the risk of injury and thus incurred the risk of ISU's negligent supervision as a matter of law. In Forrest, the Court of Appeals reversed the denial of summary judgment and found incurred risk as a matter of law. It concluded that the plaintiff's prior fall from a horse provided conclusive proof that she "understood and appreciated that she could fall and be injured." Forrest, 570 N.E.2d at 9386. In Mauwller, a grant of summary judgment was upheld because the uncon-tradicted evidence established that the plaintiff voluntarily accepted the general risk of injury from sliding into home plate when displaced dirt created a depression near the plate.

ISU also contends that the plaintiff's incurred risk is established from discussions between Clark and the plaintiff at the beginning of the semester regarding risks associated with preexisting injuries. As to whether such warnings or statements occurred, however, there is conflicting evidence.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Pfenning v. Lineman
947 N.E.2d 392 (Indiana Supreme Court, 2011)
Spar v. Cha
907 N.E.2d 974 (Indiana Supreme Court, 2009)
Spar v. JIN S. CHA
881 N.E.2d 70 (Indiana Court of Appeals, 2008)
Williams v. Younginer
851 N.E.2d 351 (Indiana Court of Appeals, 2006)
Cavens v. Zaberdac
849 N.E.2d 526 (Indiana Supreme Court, 2006)
PSI Energy, Inc. v. Roberts
829 N.E.2d 943 (Indiana Supreme Court, 2005)
Geiersbach v. Frieje
807 N.E.2d 114 (Indiana Court of Appeals, 2004)
Paragon Family Restaurant v. Bartolini
799 N.E.2d 1048 (Indiana Supreme Court, 2003)
Smith v. Baxter
796 N.E.2d 242 (Indiana Supreme Court, 2003)
Wellington Green Homeowners' Ass'n v. Parsons
768 N.E.2d 923 (Indiana Court of Appeals, 2002)
Mark v. Moser
746 N.E.2d 410 (Indiana Court of Appeals, 2001)
Kirchoff v. Selby
703 N.E.2d 644 (Indiana Supreme Court, 1998)
Roberson v. Hicks
694 N.E.2d 1161 (Indiana Court of Appeals, 1998)
Ooms v. USX Corp.
661 N.E.2d 1250 (Indiana Court of Appeals, 1996)
Heck v. Robey
659 N.E.2d 498 (Indiana Supreme Court, 1995)
City of Portage v. Lindbloom
655 N.E.2d 84 (Indiana Court of Appeals, 1995)
Perdue Farms, Inc. v. Pryor
646 N.E.2d 715 (Indiana Court of Appeals, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
617 N.E.2d 916, 1993 Ind. LEXIS 104, 1993 WL 272043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-wiegand-ind-1993.