The First Baptist Church of Hammond v. Felipe Andrade, a minor, by his mother and custodial parent, Manuela Andrade

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be

regarded as precedent or cited before any

court except for the purpose of

establishing the defense of res judicata,

Mar 06 2013, 9:10 am

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:

CHRISTIAN W. BARTHOLOMEW ROBERT MONTGOMERY

Efron, Efron & Yahne, P.C. Munster, Indiana

Hammond, Indiana

IN THE

COURT OF APPEALS OF INDIANA

THE FIRST BAPTIST CHURCH )

OF HAMMOND, )

)

Appellant-Defendant, )

)

vs. ) No. 45A05-1207-CT-354

)

FELIPE ANDRADE, a minor, by his mother )

and custodial parent, MANUELA ANDRADE )

)

Appellee-Plaintiff. )

APPEAL FROM THE LAKE SUPERIOR COURT

The Honorable William E. Davis, Judge

Cause No. 45D05-0910-CT-161

March 6, 2013

MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge

Felipe Andrade (“Andrade”) was injured at an activity hosted by the First Baptist

Church of Hammond (“the Church”) and filed a complaint in Lake Superior Court. A

jury trial was held, and the jury entered a verdict in favor of Andrade, but also determined

that Andrade was 45% at fault for his injuries, and reduced his recovery accordingly.

The Church appeals and argues that the trial court abused its discretion when it admitted

testimony from Andrade’s park and recreation safety expert over the Church’s objection.

Andrade cross-appeals and argues that the trial court erred when it denied his motion for

judgment on the evidence on the issue of comparative fault.

We affirm.

Facts and Procedural History

The Church operates a ministry in Chicago and the surrounding area that provides

bus service to and from the Church and its activities. Church volunteers generally visit

homes on Saturdays to invite individuals to attend church services, Sunday school classes,

or church outings. The Church then sends buses to the neighborhoods on Sundays to

provide transportation for those activities.

On Saturday, November 17, 2007, a Church volunteer visited sixteen-year-old

Andrade’s home and spoke to his mother about a Frisbee toss activity planned for the

next day. Felipe and his brother signed up for the activity, and the next day, they were

transported via Church bus to Beaubien Woods, a forest preserve in Cook County,

Illinois. Approximately 400 children of all ages were transported on ten buses

accompanied by nearly 100 church volunteers.

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Children were divided by age for the Frisbee toss activity, which consisted of

church volunteers throwing numbered Frisbees to the children that they could later

exchange for prizes. During the Frisbee toss, a group of teenagers were roughhousing,

and were told to stop two or three times, but continued to do so.

Andrade did not participate in the Frisbee toss, but walked away from the activity

toward a fence bordering the property and adjacent to the nearby expressway. Andrade

stayed near the fence for twenty or thirty minutes before he was tackled from behind by

more than one individual attending the Frisbee toss. Andrade could not identify the

individuals that tackled him. Andrade’s leg was injured, and he was transported to Saint

Margaret Mercy Hospital in Hammond.

Andrade’s femur was fractured and required surgery to repair the bone. An

orthopedic surgeon placed a rod and screws in Andrade’s leg in order to bridge the

fracture. Andrade was hospitalized for nine days and spent much of that time with his leg

in traction.

On October 28, 2009, Andrade, by his mother Manuela Andrade, filed a complaint

in Lake Superior Court against the Church alleging negligent supervision. A three-day

jury trial commenced on June 11, 2012. At trial, and over the Church’s objection, Alan

Caskey (“Caskey”), was permitted to testify as an expert witness. Caskey has a Ph.D. in

recreation and parks management and is a safety consultant. He testified that the Frisbee

toss was an unsafe activity that can cause participants to become more competitive and

aggressive. Tr. pp. 250, 258. Also, during trial, Andrade moved for a judgment on the

evidence on the issue of comparative fault, but that motion was denied. Tr. pp. 383-87.

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The jury entered a verdict in favor of Andrade and awarded total damages of

$225,000. However, the jury also concluded that Andrade was 45% at fault for his

injuries, and therefore, the damage award was reduced to $123,750. The Church now

appeals, and Andrade cross-appeals. Additional facts will be provided as necessary.

I. Caskey’s Expert Testimony

The Church argues that the trial court abused its discretion when it admitted

Caskey’s expert testimony. We review a trial court’s decision to admit or exclude

evidence for an abuse of discretion. Franciose v. Jones, 907 N.E.2d 139, 144 (Ind. Ct.

App. 2009), trans. denied. This standard also applies to a trial court’s decision to admit

or exclude expert testimony. Id. We will 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. A trial court’s decision to admit or exclude evidence will not be

reversed unless prejudicial error is clearly shown. Id.

The Church contends that Caskey’s testimony “should have been excluded

pursuant to Indiana Evidence Rule 702(a) because its subject matter fell distinctly within

the knowledge of the average layperson and it could not prove helpful to the jury.”

Appellant’s Br. at 13. The Church correctly observes that “[t]estimony that falls within

the trier of fact’s common sense should be excluded because it does not assist the trier of

fact.” See Whedon v. State, 900 N.E.2d 498, 506 (Ind. Ct. App. 2009), summarily

affirmed by 905 N.E.2d 408 (Ind. 2009).

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The trial court functions as the gatekeeper for expert opinion testimony. Norfolk S.

Ry. Co. v. Estate of Wagers, 833 N.E.2d 93, 101 (Ind. Ct. App. 2005), trans. denied.

Indiana Evidence Rule 702(a) provides:

(a) If scientific, technical, or other specialized knowledge will assist the

trier of fact to understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience, training, or

education, may testify thereto in the form of an opinion or otherwise.

For a witness to testify as an expert, certain requirements must be met. Norfolk S., 833

N.E.2d at 101. “First, the subject matter must be distinctly related to some scientific field,

business, or profession beyond the knowledge of the average layperson; and second, the

witness must be shown to have sufficient skill, knowledge, or experience in that area so

that the opinion will aid the trier of fact.” Id. See also Newbill v. State, 884 N.E.2d 383,

398 (Ind. Ct. App. 2008) (“Whether the witness has ‘specialized knowledge’ that is

‘beyond the knowledge generally held by lay’ persons and will be helpful to the jury is a

matter entrusted to the discretion of the trial court.”) (citation omitted), trans. denied.

In this case, Caskey’s testimony was based on his skill and/or experience rather

than the application of scientific principles. Therefore, Andrade was required to

demonstrate that “the subject matter is related to some field beyond the knowledge of lay

persons and [Caskey] possesse[d] sufficient skill, knowledge or experience in the field to

assist the trier of fact to understand the evidence or to determine a fact in issue.” See

F.A.C.E. Trading, Inc. v. Carter, 821 N.E.2d 38, 44 (Ind. Ct. App. 2005), trans. denied

(citation omitted). “[T]he specific knowledge of an expert witness is neither

determinative of the witness’ qualification as an expert nor the admissibility of his

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opinion into evidence.” McIntosh v. Cummins, 759 N.E.2d 1180, 1185 (Ind. Ct. App.

2001), trans. denied. “A witness’ competency is determined by his knowledge of the

subject matter generally, and his knowledge of the specific subject of inquiry goes to the

weight to be accorded his opinion, not its admissibility.” Id.

The Church does not dispute Caskey’s qualifications in the areas of parks and

recreation management and safety. Caskey has a bachelor’s degree, master’s degree, and

Ph.D. in recreation and park administration. He has authored several publications on the

subject of recreation and park administration, and is a safety consultant. Caskey has

served on multiple committees charged with finding ways to reduce injuries to persons

participating in various recreational activities and sports. Caskey testified that there is no

one safety standard in his field, but

there are safety standards and equipment standards for various parks and

recreation activities and youth sports. There are national standards through

various national organizations, such as Boy Scouts, YMCAs, baseball

organizations. And there are recognized standards of care in the provision

of parks and recreation programs for child or for adults.

Tr. pp. 237-38. Caskey also listed several reference materials that he had reviewed that

discuss “the standard of care for conducting a day camp type activity.” Tr. pp. 255-56.

Caskey testified that the Church’s activity, i.e. the Frisbee toss, with

approximately 400 children present, was an unreasonably dangerous activity. Tr. p. 258.

Caskey stated that the activity would have made the children more aggressive and

competitive. Id. He also testified that the Church should have had more than one activity

planned because of the number of children in attendance, and the Frisbee toss, which he

characterized as a free-for-all type of activity, was not appropriate. Caskey reviewed the

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Church’s policies and handbook and stated that the Church volunteers facilitating the

event violated those policies. Tr. p. 271. He observed that the Church’s manual did not

contain “any safety guidelines to [sic] how to conduct a recreation program for their

volunteers or for their workers.” Id. In addition, Caskey stated that given the size of the

area where the activity took place, the Church volunteers should have, but failed to, set

up perimeter supervision. Tr. pp. 300-02.

Caskey’s testimony was helpful to the jurors’ ultimate determination of whether

the Church negligently supervised the minors it gathered for the Church’s outing.

Planning an appropriate activity for a group of approximately 400 children of all ages and

the accompanying safety concerns is not within the knowledge of the average layperson.

Moreover, Caskey’s testimony aided the jurors’ evaluation of the Church’s policies and

procedures for organizing and managing the event, and the Church’s employees and

volunteers implementation of those policies. For these reasons, we conclude that the trial

court acted within its discretion when it admitted Caskey’s expert testimony over the

Church’s objection.

II. Motion for Judgment on the Evidence

In his cross-appeal, Andrade argues that the trial court erred when it denied his

motion for judgment on the evidence. The standard of review on a challenge to a motion

for judgment on the evidence is the same as the standard governing the trial court in

making its decision. State Farm Mut. Auto. Ins. Co. v. Noble, 854 N.E.2d 925, 931 (Ind.

Ct. App. 2006), trans. denied. Judgment on the evidence is proper where all or some of

the issues in a case tried before a jury are not supported by sufficient evidence. Id. A

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party may move for such judgment on the evidence after the plaintiff’s case in chief or

after all the evidence in the case has been presented and before judgment. Ind. Trial Rule

50(A). We will examine only the evidence and the reasonable inferences that may be

drawn therefrom that are most favorable to the non-movant, and the motion should be

granted only where there is no substantial evidence to support an essential issue in the

case. Noble, 854 N.E.2d at 931. If there is evidence that would allow reasonable people

to differ as to the result, judgment on the evidence is improper. Id.; see also T.R. 50(A).

Andrade argues that there was “no evidence of any comparative fault” on his part

because “[t]here was no testimony that he antagonized his perpetrators or in any way

contributed to cause his own injuries[.]” Cross-Appellant’s Br. at 8-9. Before we

address Andrade’s argument, we observe that “fault”, “for purposes of [the Indiana

Comparative Fault Act], includes any act or omission that is negligent, willful, wanton,

reckless, or intentional toward the person or property of others. The term also includes

unreasonable assumption of risk not constituting an enforceable express consent, incurred

risk, and unreasonable failure to avoid an injury or to mitigate damages.” Green v. Ford

Motor Co., 942 N.E.2d 791, 794 (Ind. 2011) (citing Ind. Code § 34-6-2-45). Moreover,

the allocation of fault remains an issue of fact for the jury to decide. Paragon Family

Rest. v. Bartolini, 799 N.E.2d 1048, 1056 (Ind. 2003). Finally, “[c]hildren over the age

of 14, absent special circumstances, are chargeable with exercising the standard of care of

an adult.” Penn Harris Madison Sch. Corp., v. Howard, 861 N.E.2d 1190, 1194 (Ind.

2007).

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In this case, the Church admitted its duty to provide safety and security to the

children attending the Church outing. Therefore, the question before the jury was

whether the Church breached that duty and whether that breach proximately caused

Andrade’s injury. See Kroger Co., v. Plonski, 930 N.E.2d 1, 6 (Ind. 2010). Further, the

church alleged that Andrade “unreasonably failed to avoid injury or to mitigate damages.”

See Appellant’s App. p. 18.

The jury was presented with evidence that Andrade isolated himself from the other

participants and church volunteers. Andrade left the area where the Frisbee toss was

occurring and proceeded over to a fence bordering the area adjacent to the expressway,

without any other person present, where he remained for several minutes before he was

injured. Even Andrade’s expert, Caskey, testified that Andrade should not have been in

that area. Tr. p. 300.

From this evidence, a reasonable inference can be made that Andrade bore some

responsibility for his injuries, and it was the jury’s task to determine to what degree

Andrade’s decision to isolate himself from the participants and Church volunteers was at

fault for the injury he sustained. For this reason, we conclude that the trial court properly

denied Andrade’s motion for judgment on the evidence.

Conclusion

The trial court did not abuse its discretion when it allowed Andrade to present

Caskey’s expert testimony to the jury, and also did not err when it denied his motion for

judgment on the evidence.

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Affirmed.

KIRSCH, J., and CRONE, J., concur.

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