In a majority decision, the Supreme Court of Indiana has affirmed a trial court’s original grant of summary judgment to a defendant school district, which was sued after a fan fell backward from the top of a metal bleacher.
Specifically, the high court noted that “the plaintiff was negligent to some degree,” which absolves the governmental defendant of any liability in the case.
Plaintiff Howard Funston was watching his son participate in an Amateur Athletic Union (AAU) basketball game at the Munster High School gymnasium on the day of the accident. Under an agreement with the AAU, Munster High School provided six identical five-row portable aluminum bleacher sets. Each set of bleachers had no back support for the top row of seating, and none of the sets were pushed against a wall. After sitting on the lower rows of the bleachers for most of the day, Funston moved to the top row. There, he instinctively leaned back, thinking he had support. He fell and sustained injuries.
The plaintiff sued the School Town of Munster, Continental Leisure Sales, Inc. f/k/a Seavey Corp. and the AAU/Munster Basketball Club. The school subsequently moved for summary judgment, claiming that the plaintiff was contributorily negligent as a matter of law.
The appeals court reversed, spawning the Town’s appeal.
The high court began by noting that the Indiana Comparative Fault Act “expressly excludes application to governmental entities, Ind. Code § 34-51-2-2, and thus the common law defense of contributory negligence remains applicable for governmental defendants, such as the school in this case.
“Therefore, even a slight degree of negligence on the part of Mr. Funston, if proximately contributing to his claimed damages, will operate as a total bar to the Funstons’ action for damages against the school, even though, as against the other non-governmental defendants, any fault of Mr. Funston would only operate to reduce the damages he might obtain.”
The court summarized that “contributory negligence is generally a question of fact requiring trial by jury or court, but summary judgment may be proper where the undisputed facts and resulting inferences establish that the defendant is entitled to judgment as a matter of law.”
It further noted that the plaintiffs “primary argue is that a reasonable spectator could be distracted by the game and lean back inadvertently just as Mr. Funston did. They urge that the context of the event makes Mr. Funston’s conduct reasonable. It certainly is understandable that Mr. Funston would be distracted as he engaged his attention on his son’s basketball game. But being understandable does not equate with being completely free of all negligence. We find from the undisputed facts that only a single inference can reasonably be drawn: Mr. Funston was negligent to some degree, and this is enough to establish the common law defense of contributory negligence as a matter of law.”
The lone dissenting judge disagreed with the majority’s “factual inference” that the plaintiff “was negligent to some degree.
“Summary judgment is rarely appropriate in negligence actions. Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004). This is because ‘negligence cases are particularly fact sensitive and are governed by a standard of the objective reasonable person–one best applied by a jury after hearing all of the evidence.’ Id. at 387. To declare as an indisputable factual inference that ‘Mr. Funston was negligent to some degree’ without submitting the issue of negligence to a jury deprives Mr. Funston of the opportunity to demonstrate that he was not, in fact, a proximate cause of his injuries. See id. at 388
“(W)e have historically limited common law contributory negligence to instances where a plaintiff very clearly neglected to exercise ‘reasonable care that an ordinary person would exercise in like or similar circumstances.’
“This case is different. We know that Mr. Funston was watching a basketball game while sitting atop the uppermost row of bleachers. We further know that he crossed his legs and adjusted in his seat, whereupon he fell backward off the bleachers. What is not clear from these facts is whether a reasonable person would have exercised greater care than that shown by Mr. Funston. Because there is more than one factual inference to be drawn from the facts before us, this case is inappropriate for summary disposition.”
Howard and Merry Funston v. School Town of Munster et al; S.Ct.Ind.; No. 45S03-0506-CV-262; 849 N.E.2d 595; 2006 Ind. LEXIS 549; 6/28/06
Attorneys of Record: (for appellant) Kenneth J. Allen, Michael T. Terwilliger and William James Lazarus of Kenneth J. Allen & Associates, P.C., Valparaiso, Indiana. (for appellee) Michael D. Sears, Maryann Kusiak McCauley and Jill M. Grecco of Singleton, Crist, Austgen & Sears, LLP, Munster, Indiana.
