Heather N. Kesling v. Hubler Nissan, Inc.

danger, ham is latent i.e. the defen- was entitled to as a matter of negligence. dant’s own at 581-582. law and that the burden then shifted to Taylor any who did not designate signed by Taylor’s The form to show that an issue of material fact mother did not release the YMCA of liabil Accordingly, existed. we conclude that the ity negligent all for acts because the form trial court erred denying the YMCA’s specific did contain any explicit motion for judgment. negligence reference to the of the YMCA Stowers, reasons, or owner of For the field. See the foregoing we reverse (“The at 749 N.E.2d Stowers’ the trial proposed court’s denial of the YMCA’s mo- instruction set out that the for Release tion summary judgment. Forms absolve did not Clinton Central of liability Reversed. negligent they acts if did not contain language specifically referring negli FRIEDLANDER, J., PYLE, J., thus, gence; it was a correct statement of concur. law.”). Thus, we must determine Taylor’s injury whether was derived from in

a risk inherent the nature of the activi Anderson,

ty. See N.E.2d that an

(holding exculpatory clause not

referring to the negligence of the releasee

may liability act to bar for those damages incurred which are inherent in the nature KESLING, Heather N. Appellant- activity). Plaintiff, Sliding base, into seсond notwithstand- ing rigidity, activity its is an inherent in NISSAN, INC., the nature of playing baseball or softball HUBLER Taylor’s injury Appellee-Defendant. we conclude that from a risk derived inherent the nature No. 49A02-1111-CT-1031. (observ- activity. See id. at 584-585 ing Appeals Court of plaintiff injured when Indiana. attempting to mount her horse and con- Sept. cluding plaintiff’s damages were inherent in the activity nature of the riding

horse and that the trial court did by granting

not err summary judgment to defendants). The release attached to

the YMCA’s motion to dismiss indicated

that the owner of the field would not be

responsible any injury or ex- medical

penses “incurred while participating in

practice playing game.” Appel- Appendix

lant’s at 12. Based upon the release,

language we conclude that

the YMCA met its of making burden

prima showing there were no facie

genuine issues material fact AND

FACTS PROCEDURAL HISTORY1 The facts most favorable to Kesling are 20, 2007, as follows. On October Hubler inspected a 1996 Mitsubishi accepted it aas trade-in. The dealership then advertised the on the internet at www.autotrader.com. advertisement ‍​​‌​‌‌‌‌‌‌​‌‌​‌​‌​‌‌​‌​​​‌​​‌​​‌‌​‌‌‌‌‌‌‌​​‌​​‌​‍vehicle, contained pictures of the described it as a a Great Value Price,” Appellant’s 225, App. p. listed its features, a purchase price and asked for $2981.

Kesling saw the advertisement and went to the dealership with her boyfriend on 3, 2007,just November days fourteen after Duff, Robert E. Indiana Consumer Law Kesling trade-in. test drove the Duff, Group/The Law E. Office Robert and noticed that it did not seem tо be Lebanon, IN, Attorney Appellant. idling correctly. she When asked Hubler’s Sheeks, Julianne Nixon The Sheeks Law salesperson if there anything wrong Firm, LLC, Greenfield, IN, Attorney for vehicle, responded with he that it had Appellee. “sitting been for a while and probably just Id. at 222. Kesling tune-up.”

needed a purchased the Eclipse day OPINION $2822.88. SHARPNACK, Judge. Senior Kesling complaint against filed a 2009, January which she later amended. THE STATEMENT CASE OF complaint amended made Indiana De- Kesling Heather trial appeals the court’s Act, ceptive Consumer Salеs Indiana granting summary judgment order to Hu- Act, Crime Victims Relief and fraud Nissan, Inc., Deceptive bler on her Indiana claims. Act, Consumer Sales Indiana Crime Vic- April years over after two Kes- Act, tims Relief and fraud claims. We purchased ling Eclipse, had it she in- reverse and remand. spected by inspec- Chris Whitsitt. In the report, tion Whitsitt noted that the

ISSUE appeared was covered dust and to have Kesling presents period one issue for our re- been for an sitting extended By view: whether the trial court erred time. comparing the sales оrder to the odometer, granting summary judgment to Hubler on Whitsitt determined that the ve- only forty-four these claims. hicle had been driven miles Appellee’s rely any challenged 1. Hubler has filed an Motion do not on state- Strike, asking therefore, us to strike statements in Kes- resolving appeal; ments this we ling’s brief that Hubler asserts are based on deny by separate Hubler's motion moot specifically designated evidence not to the contemporaneously with order issued this Appellant’s trial court. has filed an opinion. Respоnse Appellee's Motion to Strike. We appropriate court: is it. Whitsitt dis- Kesling purchased since no genuine with the where there is issue problems only numerous covered (1) party enti- moving include: a material and the of which Eclipse, some line could cause as matter law. tled to fuel return plugged 56(C); Dreaded, driving; on fee while Trial Rule v. St. to catch Ind. Inc. vehicle Co., conditioning incorrectly routed air Ins. Paul Guardian N.E.2d an (Ind.2009). steering All loss of con- facts belt that could cause 1269-70 established to break or come оff evidence and trol if the belt were reasonable (3) a loose left tie rod that inferences drawn from those facts are con- pulleys; nonmoving the party. left front wheel to steer inde- strued favor of allowed the Sch., degree from the of pendently Naugle City to some rest v. Beech Grove (Ind.2007). to system the and lead total We there- steering would N.E.2d steering if it were to com- not on appeal; loss control fore do resolve issues of fact of opinion, rather, In if designated Whitsitt’s the ma- pletely discоnnect. we determine are problems the had and was terials establish that there issues serious fact. unsafe to drive. material summary judgment Hubler moved I. DECEPTIVE CONSUMER parties Both Kesling’s on all of claims. SALES ACT designations of filed evidence. briefs the provision Deceptive The Consum- Kesling’s designated Included er Act states: Sales at issue here "Whitsitt, in affidavit from which he an (a) following representa- The acts or stated, “Many problems of the mechanical subject as to matter con- tions the of a obvious, very including I found were transaction, orally, sumer made in writ- incorrectly fuel air plugged line and routed communication, ing, by by or electronic belt, they conditioner such that would have supplier, deceptive are acts: anyone been obvious to who would have (1) subject That of a consumer such inspected or serviced deal- sponsorship, has approval, transaction ership.” characteristics, performance, accesso- hearing, granted After a the trial court ries, uses, or benefits it does not have judgment to аll summary Hubler on claims supplier which the knows should except Deceptive one Consumer reasonably know not have. does motion, Kesling’s Act On Sales claims. (2007). § pur- 24-5-0.5-3 Ind.Code trial its court certified order for interlocu- poses Deceptive Consumer Sales Court, however, tory This denied appeal. “protect suppli- Act are to consumers from Kesling’s accept jurisdiction motion to deceptive ers who commit and unconscion- the appeal. parties apparently settled “enсourage able sales acts” to remaining claim. The trial court then development prac- of fair consumer sales summary its certified order as (3) 24-5-0.5-l(b)(2), § tices.” Ind.Code Kesling judgment. appeals. final now (2006); State, McKinney (Ind.1998). liberally The Act to be AND DISCUSSION DECISION applied promote pur- construed its that Kesling contends the trial court 24-5-0.5-l(a). poses. § summary judgment granting erred court, reviewing entry Kesling Hubler. When or de- trial nial judgment, representation our standard of claimed that Hubler made a performance, review is the same as that of the trial had the claims, characteristics, uses, Microsoft, typi- of a other or benefits its con- duct, implicitly represented that it passenger cal car and consumers prices competitive The trial court determined that its were fair and representation they monopolistic. Hubler made no such when were Al- though Berghausen brought to Hubler.2 his claim un- granted provision of the Deceptive der Consumer argues that the trial court now here, Act not at that provision Sales issue genuine there are issues оf erred because requires representation likewise an act or (1) to whether: material fact as orally made or in writing. This Court made a concluded that the trial properly court dis- characteristics, uses, performance, had the Berghausen missed claim because did (3) have, it did not benefits allege any representa- oral or written or should have Hubler knew any argument explaining why tion or offer have. it did not known alleged implicit representations Microsoft’s representation, As to the would fit within the deceptive definition of that Hubler advertised the evidence shows acts. Id. at 598. it as a Eclipse for described $2981 that, Hubler claims in Berghausen, at a Great Value Price.” Kes- “Sporty Car representation alleged by Kesling is ling claims that a trier of fact could rea- not upon based a statement made sonably infer from this evidence that Hu- supplier. disagree We and find Berghau- representing bler that the vehicle was distinguishable. sen ‍​​‌​‌‌‌‌‌‌​‌‌​‌​‌​‌‌​‌​​​‌​​‌​​‌‌​‌‌‌‌‌‌‌​​‌​​‌​‍Berghausen alleged operate. safe to no written or oral representаtion but in- responds Hubler that the advertisement pointed stead only to Microsoft’s conduct. is not actionable under the Act because it Here, Kesling points to Hubler’s advertise- never stated that the vehicle was safe to stating ment that the Eclipse “Sporty is a Berghausen operate. Hubler cites v. Mi Car at a Great Value Price.” Berghausen Corp., (Ind.Ct.App. 765 N.E.2d 592 crosoft simply apply. does not denied, 2002), In support. trans. case, Berghausen alleged that Microsoft argues Hubler nonetheless through computer distributed Windows “Sporty relies not on the words manufacturers who were Mi licensed at a Great Car Value Price” but on the copies operating sys crosoft to load of the repre inference she makes that Hubler computers they tem onto the manufac safely sented that could be tured, effect, bought and that he a computer operated. argues from Hubler that an inoperable implied a Micro Center store with an representation decep cannot be a copy provided by оf Windows 98 software act tive under Indiana Code section 24-5- Berghausen Microsoft. brought statute, a class nothing 0.5-3. There is in the how ever, against alleging, among action Microsoft to indicate that a representation can- er, Kesling points large part given heavy out that a caseloads of our trial courts, trial court’s order is taken verbatim from Hu- practice prohibited. such is not Pro questions bler’s brief and whether the court State, 704, (Ind.2001). well v. 741 N.E.2d independent judgment. own exercised its A Here, the trial court’s order was not а whole practice adopting party's trial court’s Further, adoption sale of Hubler's brief. findings proposed verbatim "weakens our court denied to Hubler on appellate confidence as an court that the find one of its claims. We therefore decline to ings judgment by are the result of considered question independence of the trial court's Whitsell-Sherman, v. trial court.” Cook judgment. 271, (Ind.2003). n. 1 796 N.E.2d Howev- Dictionary, http://www.merriam- orally, line long as it is made so implied, not be (last visited webster.com/dictionary/sporty communication, by electronic writing, 2012). 23, ordinary defi- Given these July representations implied to exclude “sporty,” we con- nitions of “value” and require- with the consistent not be would that a fact-finder could clude liberally construed be that the Act ment Hubler, making determine purposes. its See applied promote at a Great Value statement 24-5-0.5-l(a). For this rea- § Price,” good was a implied that the Hubler that son, agree with cannot we thus, minimum, price car for only if the adver- viable Kesling’s claim is could it have operаte. How else safe stated that explicitly tisement “sporty and be a ear”? “great value” goes Great Price” “Sporty Car at a Value akin to those here is The fact issue beyond a bare “1996 Mitsubishi jury deter- where cases defamation to mean more. and thus can be read $2981” used, see, e.g., meaning of words mines the fact-finder could de- Because a reasonable Fields, Newspapers, Inc. Indianapolis said more than the termine that Hubler 254 Ind. yet now wants to be bare (“It if a jury to determine was for the only representation, to the bare held in their using reader words reasonable jury. must be submitted to a issue read the sense would ordinary everyday next the Act does argues meanings alleged implying the articles as nondisclosures, apply citing Lawson jury ”), cases where the .... and contract Hale, (Ind.Ct.App.2009). 902 N.E.2d 267 meaning ambiguous con- the determines case, Lawson was interested see, e.g., Shortridge v. Pla- language, tract Hale and asked him buying a tractor from ins, (Ind.Ct.App.1984) history. its Hale told Lawson that about (“[Wjhere ambiguous, contract is a written leaked oil and fuel but did not the tractor ambiguity should be selected particular the engine him that it had a cracked block. tell jury proper the under and submitted to tractor, buying After Lawson discover- instructions.”). here is question block and learned engine ed the cracked reasonably a fact-finder could de- whether it that Hale had known about at time Hubler, in state- making termine that Hale, alleging, among of sale. He sued Price,” ment Car at a Great Value claims, provision a other violation Eclipse oper- that the was safe to implied Act Deceptive prohib- Consumer Sales If that a fact-finder ate. we conclude subject of a iting representations that Hubler reasonably could determine that particular transaction “is of a consumer so, actually Hubler did so is a did whether standard, model, if quality, grade, style, or jury answer. question fact to supplier not and if the knows or is “a fair return or is defined as “Value” reasonably know that it is not.” should services, money (2002). or equivalent goods, 24-6-0.6-3(a)(2) § This worth, (a)(2) something exchanged” оr “relative requires noted that subsection Court value at the utility, importance good <a objective indepen- to an comparison Online Dictio- price>.” Merriam-Webster that Lawson dent standard and found nary, http://www.merriamwebster.com/ explain how Hale’s disclosure ‍​​‌​‌‌‌‌‌‌​‌‌​‌​‌​‌‌​‌​​​‌​​‌​​‌‌​‌‌‌‌‌‌‌​​‌​​‌​‍that failed 2012). (last dictionary/value July visited leaks oil constituted such a the tractor Lawson, 902 N.E.2d at 273. “sporty” comparison. A definition of is to “resembl[e] also added that the Act does sports styling performance car in <a The Court nondisclosures, and therefore apply On- not sporty sedan>.” Merriam-Webster failure to tell Lawson about the as to Eclipse Hale’s whether the was unsafe to block, engine constituting cracked while drive when Kesling purchased it.3 fraud, was not actionable under the Act. As to knowledge, designat- Hubler’s at 274. ed evidence many shows that of the vehi- Lawson, that, Hubler claims cle’s problems, including plugged fuel not because its failure apply Act does return incorrectly line and the routed air Kesling that the Eclipse inform belt, conditioning would have been obvious operate was a nondisclosure. How- to anyone inspected who had the vehicle at ever, concluded, already jury as we have a dealership. designated must determine whether Hubler made a inspected further shows that Hubler representation that the vehicle was safe to accepted at the time it was as a jury If a determines trade-in. This gen- evidence establishes a representation, made such a Hubler would uine issue of material fact toas whether merely havе not failed to disclose that the Hubler knew or reasonably should have operate was unsafe to affirma- but known that the was unsafe to drive tively represented oper- that it was safe to Kesling purchased the time it. distinguishable ate. Lawson is on this Kesling’s and therefore not bar basis does We thus conclude that are genuine there claim. issues of material fact as to whether Hu- We thus conclude that bler made a representation genuine evidence establishes a issue of ma- Eclipse performance, had the characteris- terial as to whether Hubler made a tics, uses, have, or benefits it did not that the was safe to Hubler knew or should have operate, and fact issue to be re- this known that it did not have. The trial by the trier solved of fact and not court therefore by granting erred sum- summary judgment. mary judgment to Hubler on this claim. Eclipse As to whether the was safe to operate at the time of the purchase, desig- II. CRIME VICTIMS RELIEF ACT nated evidence includes inspec- Whitsitt’s Under the Crime Victims Relief report, prob- tion which detailed numerous Act, person pecuniary a who suffers a loss the lems with vehicle and concluded that it as a result of certain property may crimes was unsafe to drive. Hubler notes that bring a civil against person action the who inspection Whitsitt’s over occurred two caused the up loss and recover to three years Kesling purchased after the vehicle damages times the actual and a reasonable and that there is no evidence that fee, attorney’s along with other expenses. vehicle wаs unsafe to at the drive time of (1998); § Ind.Code 34-24-8-1 Klinker v. However, purchase. inspection in the re- Bank, N.A., First Merchs. port, Whitsitt stated that the was (Ind.2012). A criminal conviction dust, is covered in appeared to have been time, precedent recovery not a condition un sitting period for an extended Klinker, der this statute. 964 N.E.2d at only forty-four had been driven miles since Rather, Kesling 193. purchased merely it. This evidence es- claimant must genuine tablishes a issue of material fact prove underlying each element of the Moreover, Kеsling purchased Eclipse, 3. we note that Hubler's judgment major repairs.” Appellant’s memorandum to the trial court list- was in need of undisputed App. p. ed an that "[a]t fact time at a “Sporty of the evidence. Great by preponderance

crime Price.” A could reason- Value fact-finder an that ably conclude that this is indication crimes cov is one of the Deception that, good price it is a car for the Relief Act. Victims by ered the Crime minimum, A fact- it is safe to trial court erred claims that the could also conclude that finder on to Hubler granting being vehicle advertised for a used $2981 deception Act Relief her Crime Victims mechanical issues that with numerous to the person A who “disseminates claim. steering result in total loss of control could person that public an advertisement or it to burst into flames while driv- cause false, deceptive, misleading, knows is or ing good price. is not a car for the purchase or promote with intent em property acceptance or the sale of the trial cоurt We conclude erred deception. commits ployment” by granting summary judgment to Hubler (1996). 43—5—3(a)(9) determining § “In 35— claim. on this false, mis whether an advertisement leading, deceptive under subsection III. FRAUD (a)(9), considered, ‍​​‌​‌‌‌‌‌‌​‌‌​‌​‌​‌‌​‌​​​‌​​‌​​‌‌​‌‌‌‌‌‌‌​​‌​​‌​‍among there shall be Kesling finally contends that the only representations things, other con by granting summary trial court erred advertisement, in the suggested tained or her to Hubler on fraud claim. means, including whatever device or Fraud occurs when there is a material sound, but also the extent misrepresentation past existing advеrtisement fails to reveal material facts knowledge made with of or reckless disre light representations.” in the of the Ind. statement, falsity 35-43-5-3(b). gard for the § Code misrepresentation upon is relied to the shows relying party. detriment Colonial when it inspected Guzorek, Penn Ins. Co. N.E.2d trade-in, accepted as a should have (Ind.1997). mechanical noticed had serious yet it on the problems, advertised internet Lawson, Kesling cites the tractor case it as a described $2981 above, for the proposition discussed Car at a Grеat Value Price.” This evi buyer inquiries makes about the “[w]hen genuine dence establishes of materi issues condition, qualities, or characteristics al fact as to whether Hubler disseminated upon ‘it becomes incumbent the property public to the an that it advertisement knew fully any problems seller to declare and all misleading with the in deceptive subject inqui with the associated ” promote Eclipse. tent the sale of the ry.’ (quoting 902 N.E.2d at 275 Fimbel DeClark, (Ind.Ct. v. argues Hubler nonetheless that to re- denied). App.1998), trans. She then grant summary vеrse the trial court’s of points designated showing to the evidence judgment on this claim is to hold that that she if salesperson asked Hubler’s implied every used car advertisement anything wrong there was with the a that the vehicle is safe to responded he that it Eclipse, “proba and holding Our is not so broad. bly just tune-up.” needed a merely Appellant’s Had Hubler listed the vehicle’s features, App. p. Kesling 222. that because specifications Kesling likely and reasons However, designated not the evidence shows that Hubler would hаve a viable case. inspected accepted Hubler’s advertisement also stated that the vehicle when it was Schuyler as a trade-in and should have noticed the the that bank misled him into believing mechanical with the vehi- the problems serious that broken water heater was cle, the purposes only problem involving because for and water that the building ever may experienced. we infer that had Hubler’s Id. Instead, 1374. salesperson Schuyler specifically thus also knew of these de- asked the fects, еmployee bank the Hubler committed fraud when the about cause the damp floors, carpets and salesperson prob- warped failed to disclose these and the bank employee accurately responded that lems. the a cause was broken water heater. does not Hubler contest that when a at 1373. buyer condition, makes inquiries about the in Schuyler facts are distinguish- qualities, or characteristics property, There, able. buyer specifically the asked prob- the seller must disclosе all known about the cause of damp carpets and subject lems associated with floors, warped seller accurately Rather, that inquiry. argues there responded that was a cause broken showing is no that contrast, water heater. In the designated operate unsafe on date evidence here Kesling general- shows that sale, and Kesling thus cannot show that ly asked if anything there was wrong with Hubler had a duty disclose. As dis- the Eclipse, and the salesperson responded above, however, cussed a fact-finder could that it “just” needed tune-up. a This is reasonably conclude from in- Whitsitt’s evidence that Hubler Kesling told that the report spection was un- necessity of a tune-up only was the prob- operate on the date of sale. lem with Schuyler the vehicle. does argues salesper- Hubler also support argument. Hubler’s response son’s did not indicate The designated evidence most favorable only with issue was that it to Kesling inspected shows that Hubler a tune-up needed and cites First Bank of the Eclipse, knew that it was unsafe to Whiting Schuyler, N.E.2d 1370 operate, advertised it as a (Ind.Ct.App.1998), denied, trans. for sup- Price,” Great Value Kesling told port. That case involved bank’s sale of a “just” a tune-up, needed and sold the vehi- building that experienced prob- had water cle to her. This genu- evidence establishes from through lems ine material issues of fact as to whether Schuyler was in buying interested misrepresentation Hubler made material building arranged tour. Before of fact with knowledge of or reckless disre- visit, Schuyler’s a bank employee nоticed gard falsity for the of the statement and carpets wet warped floors and discov- whether relied on the misrepre- ered that the was a cause broken water sentation to her detriment. trial court Schuyler building heater. toured the therefore erred granting summary damp carpets noticed and warped floors. judgment Hubler to on this claim. cause, When he asked about the bank employee explained that there was a bro- CONCLUSION ken Schuyler purchased water heater. stated, For the reasons we reverse the and building later sued the for bank fraud trial grant court’s to failing to the building’s history disclose Hubler on these claims remand problems. of water A jury found in proceedings. further Schuyler’s favor. This Court vacated the for Schuyler, disagreeing with Reversed remanded. to mean resem- DARDEN, Sr.J., commonly understood is concurs. (2) car; after a bling styled sports or FRIEDLANDER, J., dissents with price low to purchase is relative that separate opinion. aside Leaving vehicle’s market value. very generic advertising fact this that FRIEDLANDER, Judge, dissenting. regarded typical widely is used- phrase question in I believe advertisement conveys virtually puffery car-sales that Decep- of the Indiana does not run afoul particular nothing vehicle about Act and therefore tive Sales Consumer attached, phrase it is is devoid of which a disagree question respectfully to the vehicle’s operating content relative cause Kesling’s fact that renders remains view, my Majority’s conclu- status. viable. of action on basis interpreted phrase may be sion in states: provision quеstion The safely may operat- infer that the vehicle be (a) acts, following and the following simply in its is unrea- ed current condition subject to the matter representations as summary judg- affirm sonable. I would transaction, orally, made a consumer in of Hubler ment favor Nissan. communica- writing, electronic tion, supplier, deceptive a are acts:

(1) subject of a consumer That such sponsorship, approval,

transaction has characteristics,

performance, accesso-

ries, uses, have it does not benefits knows or should supplier it does not have. ‍​​‌​‌‌‌‌‌‌​‌‌​‌​‌​‌‌​‌​​​‌​​‌​​‌‌​‌‌‌‌‌‌‌​​‌​​‌​‍know Wayne BRANT, Appellant-Defendant, (West, §Ann. West- 24-5-0.5-3 legislation).

law with current all (1) at Majority “Sporty concludes that Car INDIANAPOLIS, CITY OF conveys arguably Price” Great Value Appellee-Plaintiff. that the car was safe (2) operate, fact remains question No. 49A05-1201-OV-12. not, question as to whether the car in Appeals Court of of Indiana. fact, operate, question remains as Nis- to whether Hubler Sept. unsafe, san it was but nonetheless knew (see (1) above). implied that To Kesling was judgment,

survive

required all three of these to establish

propositions. I case fails Kesling’s believe (1). Majority, agree

Unlike the I cannot says Value Price” Great drivability—

anything at all the car’s about

much that it that the vehicle less warrants safely it may a condition such that be Rather,

operated. merely says what it i.e.,

says, “sporty,” the car

Case Details

Case Name: Heather N. Kesling v. Hubler Nissan, Inc.

Court Name: Indiana Court of Appeals

Date Published: Sep 4, 2012

Citation: 975 N.E.2d 367

Docket Number: 49A02-1111-CT-1031

Court Abbreviation: Ind. Ct. App.