Steven DuPont and April DuPont, on Behalf of Minor Child M.D. v. Kiddie Academy of Fishers and Kiddie Academy Childcare Learning Centers, Inc. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 28, 2015
• Docket: 29A02-1408-CT-602
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 29A02-1408-CT-602 | January 28, 2015 Page 10 of 10