Opinion
NA 01-233-C-B/H
October 3, 2002
ENTRY GRANTING MOTION TO DISMISS AND DENYING MOTION FOR SUMMARY JUDGMENT
On August 15, 2000, Michael King, a 19-year-old college football player at the University of Indianapolis, tragically died shortly after becoming ill at the first scheduled practice of the fall season. His mother, Savannah King, filed a negligence action against the University and other named school officials, seeking both compensatory and punitive damages. Defendants have filed a Motion to Dismiss Plaintiff's request for punitive damages and a Motion for Summary Judgment on Plaintiff's negligence claim. For the reasons set out in detail below, we GRANT Defendants' Motion to Dismiss Plaintiff's claim for punitive damages and we DENY Defendants' Motion for Summary Judgment. In addition, we DENY AS MOOT Defendants' Motion to Strike.
Plaintiff offers a number of purportedly material facts, which Defendants move to strike, relating to specific acts and omissions preceding Michael King's death. These facts are not material to the arguments presented in this Motion for Summary Judgment, but instead relate to causation, an issue Defendants did not raise in this motion. Because we resolve this motion based on the arguments Defendants have properly put before the Court, we do not reach the question whether any of Plaintiff's additional facts must be stricken from consideration.
Factual Background
In August 2000, Michael King was enrolled as a nineteen-year-old sophomore at the University of Indianapolis, where he also participated as a member of the college football team. Def's Statement of Material Facts ¶ 1. On August 14, 2000, King signed the University of Indianapolis "Assumption of Risk" form ("Form") relating to liability for injuries resulting from his participation in football-related practices and competitions. Id. ¶ 5. The Form states, in relevant part:
I understand that the game and sport of football is an inherently dangerous activity and that there are genuine and serious risks to anyone who engages in this activity.
I also understand that football is one of the highest risk sports for injury at the collegiate level. Due to the nature of the physical violence and collisions that are a part of the game and sport of football, I understand that the risk of serious physical injury, including catastrophic injury resulting in permanent paralysis, brain injury or death does exist.
I knowingly assume responsibility for any and all such risks and any and all resulting injuries, including death. I promise to accept and assume responsibility and risk for injury, death, illness, or disease, or damage to property arising from my traveling to, participation in, or returning from this activity. And I do hereby voluntarily choose to participate in this event in spite of the risks.
Pl's Amended Compl. Ex. 5.
After executing the Form, on August 15, 2000, Michael King participated in the first scheduled football practice of the fall season. Def's Statement of Material Facts ¶ 3. That same day, King suffered heat stroke during his participation in football practice that day and died. Id. ¶ 4. Plaintiff filed suit, alleging that King exhibited signs of distress that were negligently treated by University of Indianapolis employees who were charged with a heightened duty of care toward student members of the football team.
Legal Issues 1. Motion to Dismiss claim for punitive damages
Defendants seek to dismiss Plaintiff's claim for punitive damages, arguing that Indiana law does not authorize the award of such damages for wrongful death actions brought by parents for the loss of children. A party moving for dismissal under 12(b)(6) must show that "the pleadings themselves fail to provide a basis for any claim for relief under any set of facts." Owner-Operator Independent Drivers Ass'n v. Mayflower Transit, Inc., 161 F. Supp.2d 948 (S.D.Ind. 2001), quoting Ed Miniat, Inc. v. Globe Life Ins. Group Inc., 805 F.2d 732, 733 (7th Cir. 1986). Under this analysis, we examine only the sufficiency of the complaint, not the merits of the lawsuit. Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998); Zoghlin v. Renaissance Worldwide, Inc., 1999 WL 1004624, at *3 (N.D.Ill. 1999). Dismissal is appropriate only if it appears to a certainty that the plaintiff cannot establish any set of facts that would entitle him to the relief sought. Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Mosley v. Klincar, 947 F.2d 1338, 1339 (7th Cir. 1991). In applying this standard, we treat all well-pleaded factual allegations as true and we construe all inferences that reasonably may be drawn from those facts in a light most favorable to the party opposing the motion. Szumny v. American Gen. Finance, 246 F.3d 1065, 1067 (7th Cir. 2001); Latuszkin v. City of Chicago, 250 F.3d 502, 504 (7th Cir. 2001).
As a federal court exercising diversity jurisdiction, we must apply Indiana's choice-of-law rules to determine the state law that governs the claims in this case. Jean v. Dugan, 20 F.3d 255, 261 (7th Cir. 1994). The traditional choice-of-law rule for torts in Indiana was lex loci delicti, under which the substantive law of the place of the tort is applied. In Hubbard Mfg. Co. v. Greeson, 515 N.E.2d 1071 (Ind. 1987), the traditional rule was modified, resulting in a presumption that the law of the place of the tort applies unless that place "bears little connection" to the legal action. Matter of Estate of Bruck, 632 N.E.2d 745, 747 (Ind.App. 1994). Here, we note, and the parties do not dispute, that Indiana bears a strong connection to the present legal action, as the relationship between Michael King and all the named defendants centered on his participation in sports activities in Indiana, all the alleged acts or omissions preceding Michael King's death that gave rise to this action occurred there, and Michael King's death actually occurred there. Accordingly, we must analyze Plaintiff's claims under the principles of Indiana tort law.
Plaintiff seeks punitive damages for the wrongful death of Michael King, her son, allegedly due to Defendants' negligence. A parent bringing a claim for the loss of a child may pursue two routes under Indiana law. The parent may bring a cause of action either under Indiana's Child Wrongful Death Statute, see Indiana Code 34-23-2-1, or under a common law theory of loss of a child's services, long recognized by Indiana courts. Forte v. Connerwood Healthcare, Inc., 745 N.E.2d 796, 800-02 (Ind. 2001). However, in Forte, the Indiana Supreme Court rejected the availability of punitive damages for either cause of action. First, as to the statute, the Court noted:
[A]t least since [its] 1987 amendment, the Child Wrongful Death Statute has contained an exclusive list of damages recoverable by a child's parent or guardian. Absent in the list is any reference to punitive damages. "When certain items or words are specified or enumerated in a statute then, by implication, other items or words not so specified or enumerated are excluded." We conclude, therefore, that even if the common law allowed punitive damages in an action for the wrongful death of a child, our legislature has exercised its prerogative to change the common law by "unmistakable implication."
Id. at 800 (internal citations omitted). Then, in discussing the types of damages available to a parent suing under a common law theory, the Court concluded
that a parent's common law claim for loss of a child's services survives enactment of the Child Wrongful Death Statute. The question remains, however, whether punitive damages are recoverable under a common law claim. We conclude they are not.
Id. at 802-03. Plaintiff contends that "[a] close reading of Forte . . . leaves open the possibility [that] a different type of argument could be available to recover punitive damages under the common law claim for loss of services of a child." Pl's Response to Def's Motion to Dismiss at 2. However, Plaintiff provides no hint at what this alternative argument may be. Our close reading of Forte reveals no room for the possibility of some alternate argument to which Plaintiff refers. Therefore, Defendants' Motion to Dismiss Plaintiff's claims for punitive damages is GRANTED.
2. Motion for Summary Judgment — Assumption of risk
Defendants move for summary judgment on the basis that Michael King's signature on the Form constituted as assumption of risk, absolving Defendants from liability for his death, or, alternatively, that by participating in football-related activities, such as the August 15, 2000 practice, Michael King incurred the risk of serious injury or death. Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if there is sufficient evidence for a reasonable jury to return a verdict in favor of the non-moving party on the particular issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998). On a motion for summary judgment, the burden rests on the moving party to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). After the moving party demonstrates the absence of a genuine issue for trial, the responsibility shifts to the non-movant to "go beyond the pleadings" and point to evidence of a genuine factual dispute precluding summary judgment. Id. at 322-23. "If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in her favor on a material question, then the court must enter summary judgment against her." Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994), citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Celotex, 477 U.S. at 322-24; Anderson, 477 U.S. at 249-52. Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for resolving factual disputes. Waldridge, 24 F.3d at 290. Therefore, in considering a motion for summary judgment, we draw all reasonable inferences in favor of the non-movant. Venters v. City of Delphi, 123 F.3d 956, 962 (7th Cir. 1997). If genuine doubts remain, and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. Shields Enterprises, Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989).
Defendants make arguments about both assumption of risk and incurred risk. Neither theory supports a grant of summary judgment, however. As we did in considering the Motion to Dismiss, we must train our focus on Indiana law to determine whether Defendants are entitled to summary judgment.
In Persinger v. Marathon Petroleum Company, 699 F. Supp. 1353 (S.D.Ind. 1988), another judge of this court analyzed the interaction and distinctions between "incurred risk" and "assumption of risk":
In Indiana, the doctrine of assumption of risk is an affirmative defense in contract or tort. In contract situations, the Indiana courts speak of "assumed risk," whereas in tort cases such as this, the doctrine of "incurred risk" is applicable. Incurred risk differs from the defense of contributory negligence in that contributory negligence occurs when a plaintiff unreasonably fails to recognize an obvious risk or danger; incurred risk occurs when a plaintiff voluntarily accepts a known risk or danger. The former involves an objective, reasonable man test, the latter a mixed subjective and objective test. Where one voluntarily and knowingly places himself in an environment known by him to be dangerous his right to recover may be defeated by the doctrine of assumption of risk. . . .
Incurred risk 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." The "essence of incurred risk is the conscious, deliberate, and intentional embarkation upon a course of conduct with knowledge of the circumstances." Incurred risk contemplates acceptance of a specific risk of which the plaintiff has actual knowledge. Because . . . the doctrine of incurred risk involves subjective elements, it is generally a question of fact for the jury.
Id. at 1364 (internal citations omitted).
First, as to assumed risk, Indiana case law recognizes this affirmative defense such that parties are "permitted to agree in advance that one is under no obligation of care for the benefit of the other, and shall not be liable for the consequences of conduct which would otherwise be negligent." U.S. Auto Club, Inc. v. Smith, 717 N.E.2d 919, 922 (Ind.Ct.App. 1999), citing Marsh v. Dixon, 707 N.E.2d 998, 1000 (Ind.Ct.App. 1999). Indiana courts have acknowledged that such agreements do not violate public policy. Id. In order for a contractual clause to shift the risk of negligence, however, such "exculpatory clause must both specifically and explicitly refer to the negligence of the party seeking release from liability." Indiana Dept. of Transp. v. Shelly Sands, Inc., 756 N.E.2d 1063, 1072 (Ind.Ct.App. 2001), quoting Powell v. Am. Health Fitness Ctr. of Fort Wayne, Inc., 694 N.E.2d 757, 761 (Ind.Ct.App. 1998). Here, the Form contains language expressly addressing the risks inherent in the sport of football and other vigorous physical activity, but nowhere mentions possible negligence on the part of University of Indianapolis or its agents. While this may seem a minor modification, under Indiana law it bears considerable legal significance. Therefore, as a matter of law, Michael King's signature on the Form did not lead him to assume the risk of negligence such as the type alleged in this suit.
Defendants alternatively contend, though without explicitly mentioning "incurred risk," that Michael King's participation in football-related activities "manifested consent to voluntarily expose himself to the risk of harm," thus "reliev[ing] them of a duty" of care. Def's Reply Br. in Support of Motion for Summ. J. at 6. In order to incur a risk, a person must have actual knowledge of the specific risk he has accepted. "It is not enough that a plaintiff have merely a general awareness of a potential for mishap, but, rather, the defense demands a subjective analysis focusing on the plaintiff's actual knowledge and appreciation of the specific risk involved and the voluntary acceptance of that risk. Ooms v. USX Corp., 661 N.E.2d 1250, 1255 (Ind.Ct.App. 1996), citing Clark v. Wiegand, 617 N.E.2d 916, 918 (Ind. 1993); Get-N-Go v. Markins, 544 N.E.2d 484, 486 (Ind. 1989). The defense does not operate as a complete bar to recovery in all cases, but instead, where a plaintiff alleges injury caused by forces other than those inherent in a particular game or activity engaged in by the injured party, incurred risk factors into the factual inquiry regarding the proper apportionment of fault under Indiana's Comparative Fault scheme. Gyuriak v. Millice, ___ N.E.2d ___, 2002 WL 31112004, at *8 (Ind.Ct.App. 2002); Mark v. Moser, 746 N.E.2d 410, 416 (Ind.Ct.App. 2001).
In support of their Motion for Summary Judgment, Defendants offer five numbered factual paragraphs relating only to the fact of Michael King's participation in football practice, his signature on the Form, and his eventual death following practice on August 15, 2000. This abbreviated Statement of Material Facts simply does not include any facts to suggest or even address whether Michael King's participation in football practice satisfied both the defense's objective and subjective elements, necessary prerequisites for a reasonable jury to conclude that Defendants are entitled to judgment as a matter of law. Moreover, because Plaintiff alleges that Michael King's death was caused by forces other than those inherent in the game of football, specifically Defendants negligence in failing to provide for King's safety and protection from potentially dangerous conditions, the incurred risk defense requires the resolution of factual questions regarding comparative fault, determinations not properly decided on summary judgment. Accordingly, Defendants' Motion for Summary Judgment is DENIED.
Conclusion
Defendants moved to dismiss Plaintiff's claims for punitive damages and also moved for summary judgment based on the affirmative defenses of assumption of risk and incurred risk. For the reasons explained in detail above, we find that 1) Plaintiff cannot obtain punitive damages for the death of a child by proceeding under either Indiana's Child Wrongful Death Statute or a common law theory of loss of a child's services, but 2) Defendants failed to demonstrate their entitlement to judgment as a matter of law based on the defenses of assumption of risk or incurred risk. Therefore, Defendants' Motion to Dismiss is GRANTED, but the Motion for Summary Judgment is DENIED.
It is so ORDERED this 3rd day of October, 2002.