103 N.E.3d 1119
Ind. Ct. App.2018Background
- Child (D.H.), age 13 at the time, stayed at maternal grandparents’ home; during several visits between Dec. 2009–Jan. 2010, Robert Whipple (step-grandfather) molested Child multiple times. Robert was later criminally convicted and imprisoned.
- Mother arranged Child’s overnight stays by phone with Mary (maternal grandmother); Mary told Mother it was "all right" for Child to be with Robert until Mary returned from work.
- Appellants sued Robert and Mary; Count II alleged Mary was negligent in supervision and in providing a safe premises because she knew or should have known of Robert’s prior molestation history and failed to warn or protect Child.
- Mary moved for summary judgment. Appellants opposed with evidence including Detective Sanderson’s affidavit recounting interviews in which Robert said he had molested children and Sanderson’s impression Mary knew of prior molestation.
- The trial court granted summary judgment for Mary. On interlocutory appeal, the Court of Appeals held the affidavit admissible (Mary waived hearsay/Dead Man’s Statute objections and the affidavit’s statements were proper lay-opinion/impression) and concluded genuine issues of material fact remained as to duty, breach, and proximate cause, reversing and remanding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment for Mary on negligence (negligent supervision) was proper | Mary owed a duty as the person entrusted with Child’s care or because she assumed a duty; she breached by allowing/encouraging Child to be left with Robert despite knowledge of his past | No duty existed; even if duty existed, Robert’s intervening criminal acts break causation; summary judgment appropriate | Reversed: genuine issues of material fact exist on duty (entrustment/assumed duty), breach, and proximate cause — summary judgment improper |
| Admissibility of Detective Sanderson’s affidavit (statements about Robert’s admissions and Sanderson’s "impression" Mary knew) | Affidavit is admissible and shows Mary knew or should have known of risk | Affidavit contains inadmissible hearsay, speculation, violates Dead Man’s Statute, and offers improper lay opinion | Court found Mary waived hearsay/Dead Man’s arguments on appeal; Sanderson’s "impression" was rationally based and admissible for summary judgment purposes |
Key Cases Cited
- Knighten v. E. Chi. Hous. Auth., 45 N.E.3d 788 (Ind. 2015) (summary judgment standard; moving party must negate opponent’s claim under Indiana law)
- Hughley v. State, 15 N.E.3d 1000 (Ind. 2014) (definition of "material" and "genuine" issues; preference to let marginal negligence claims proceed)
- Rhodes v. Wright, 805 N.E.2d 382 (Ind. 2004) (negligence cases are fact-sensitive and summary judgment is rarely appropriate)
- Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011) (person entrusted with a child has a duty of reasonable care; question of breach often for jury)
- Yost v. Wabash College, 3 N.E.3d 509 (Ind. 2014) (assumption of duty creates a special relationship and corresponding duty of reasonable care)
- Frankenmuth Mut. Ins. Co. v. Williams by Stevens, 690 N.E.2d 675 (Ind. 1997) (negligence that creates an opportunity for third-party criminal acts can be proximate cause if defendant knew or should have known risk)
- Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991) (three-part duty-balancing test referenced for determining existence of duty)