An Indiana state appeals court has reversed a lower court’s grant of summary judgment to the National Collegiate Athletic Association (NCAA), after finding that the lower court should have given plaintiff more time to oppose the NCAA’s motion for summary judgment on her negligence claim.
The plaintiff in the case was Lydia Lanni. Lanni suffered a severe injury when she was struck in the eye by a fencing saber while watching what she alleged was an NCAA-sanctioned fencing match at the University of Notre Dame.
On February 8, 2012, Lanni sued the NCAA, Notre Dame, and the United States Fencing Association (USFA). She specifically alleged that the NCAA was negligent by: 1) failing to undertake a hazard and risk analysis prior to commencing the fencing match; 2) failing to select and/or supervise qualified officials; and 3) failing to supervise the competition to insure hazards and risks were consistently monitored to prevent injuries.
The NCAA moved for summary judgment, denying any involvement in the match. Central to its argument was the affidavit of Kelly Whitaker Shaul, the NCAA’s Fencing Championships Manager.
The plaintiff filed a motion, asking the court to delay the summary judgment decision until more discovery could take place. However, on July 9, 2012, the trial court granted the NCAA’s motion for the summary judgment.
Lanni appealed, making the following arguments:
(1) the trial court erred when it converted the NCAA’s combined alternative motion to dismiss Lanni’s complaint and/or motion for summary judgment into a motion for summary judgment; and (2) the trial court abused its discretion by denying Lanni’s motion to strike an affidavit designated by the NCAA.
“Lanni’s main argument focuses on the trial court’s treatment of the NCAA’s Motion, which combined a motion based on T.R. 12(B)(6) with a motion based on T.R. 56,” wrote the court. “Specifically, she claims that pursuant to the language of T.R. 12(B)(6), the trial court was required to notify her prior to considering the NCAA’s Motion as a motion for summary judgment and the trial court was mandated to award her a reasonable time to conduct discovery.”
The appeals court agreed: “Due to this conversion from a T.R. 12(B)(6) motion to a T.R. 56 motion, the trial court was required to give ‘all parties reasonable opportunity’ to present all pertinent material.” Ayres v. Indiana Heights Volunteer Fire Department, 493 N.E.2d 1229, 1233 (Ind. 1986). “(B)ecause the trial court did not follow the directives for converting a T.R 12(B)(6) motion to a T.R. 56 motion, we reverse the trial court’s summary judgment in favor of the NCAA.”
The court next turned to Lanni’s contention that the trial court abused its discretion when it refused to strike Shaul’s affidavit.
“A trial court has broad discretion in ruling on a motion to strike,” wrote the court, citing Norfolk Southern Ry. Co. v. Estate of Wagers, 833 N.E.2d 93, 100 (Ind. Ct. App. 2005). “Generally, we review a trial court’s decision to admit or exclude evidence for an abuse of discretion. Id. We reverse a trial court’s decision to admit or exclude evidence only if that decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Id. at 101. Further, the trial court’s decision will not be reversed unless prejudicial error is shown. Id.”
Lanni asserted that Shaul’s affidavit was “self-serving” and should be stricken because it lacks foundation, is incomplete, and is based on speculation. She specifically focuses her attention on paragraphs four, six, eight, nine, and ten, which state as follows:
“4. I have read [Lanni’s] Complaint for Damages. In her Complaint, Lanni alleges that the NCAA, through its agents, including but not limited to the NCAA Men’s and Women’s Fencing Committee and Regional Advisory Committees, was responsible for operating the Midwest Regional Fencing Competition on March 7, 2010 at the University of Notre Dame Du Lac. These facts alleged by Lanni are incorrect.
“6. The NCAA did not have any involvement in any fencing competition that may have occurred on March 7, 2010, including any fencing competition at Notre Dame. To the extent a fencing competition was held at Notre Dame on March 7, 2010, the NCAA did not sanction any such event. The NCAA did not participate in any such event. The NCAA did not supervise any such event. The NCAA did not select the officials for any such event. The NCAA had no other involvement with any such event.
“8. The only other fencing competitions in which the NCAA has limited involvement in a given year are the NCAA Regional fencing competitions. There currently are four NCAA Regional fencing competitions (Midwest, Mid-Atlantic/South, Northeast, and West). The NCAA Regional fencing competitions take place two weeks before the National Collegiate Men’s and Women’s Fencing Championships. The NCAA’s involvement in the NCAA Regional fencing competitions is through its four Regional Advisory Committees, one for each region. The Regional Advisory Committees may serve on the bout committees at the NCAA Regional fencing competitions if the bout committees convene. The Regional Advisory Committees answer questions that the host institutions may have, work with the national head official to secure a regional head official, address protests that arise in bouts and tabulate the scores to determine which student athletes will move on to compete in the National Collegiate Men’s and Women’s Fencing Championships.
“9. The NCAA uses set rotations (as recommended [*20] by the institutions in each region) as to where the NCAA Regional fencing competitions will take place. The institutions hosting the NCAA Regional fencing competitions are responsible for organizing, running and supervising the events. In 2010, the NCAA’s Regional fencing competitions took place at the following institutions:
Midwest Region: Northwestern University on March 13-14, 2010;
Mid-Atlantic/South Region: Drew University on March 13, 2010;
Northeast Region: Brown University on March 14, 2010; and
West Region: University of California, San Diego on March 13, 2010.
“10. If a school, group of schools or conference put on competitions prior to the NCAA’s fencing Regional fencing competitions, the NCAA would have no involvement with such competitions.”
The appeals court disagreed with “Lanni’s portrayal.”
“In her affidavit, Shaul avers that she is the championships manager for fencing at the NCAA and verifies that her testimony is based upon personal knowledge. She attests to factual matters with respect to the NCAA’s involvement and participation in fencing competitions. The affidavit does not contain any internal inconsistencies or evasive language. While the affidavit might contain some generalized statements, these statements are nevertheless credible and clearly based on her personal knowledge due to the position she holds and as such, are admissible evidence.” Thus, it concluded that the trial court did not abuse its discretion when it admitted Shaul’s affidavit.
Lydia Lanni v. National Collegiate Athletic Association, et al.; Ct. App. Ind.;
No. 49A05-1208-CT-392, 2013 Ind. App. LEXIS 239; 5/22/13
Attorneys of Record: (for appellants) J. Kevin King, Peter Campbell King, Cline King & King, P.C., Columbus, Indiana. (for appellees) Marc T. Quigley, Libby Y. Goodknight, Catherine E. Sabatine, Krieg DeVault, LLP, Indianapolis, Indiana.
