Jennifer Pennington v. Memorial Hospital of South Bend, Inc.

FILED

Jan 09 2024, 9:18 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

IN THE

Indiana Supreme Court

Supreme Court Case No. 23S-CT-182

Jennifer Pennington and Joshua Pennington,

Appellants/Cross-Appellees (Plaintiffs below)

–v–

Memorial Hospital of South Bend, Inc., d/b/a Beacon

Health and Fitness,

Cross-Appellant (Defendant below),

Spear Corporation, and Panzica Building

Corporation,

Appellees (Defendants below).

Argued: October 10, 2023 | Decided: January 9, 2024

Appeal from the St. Joseph Superior Court

No. 71D04-1804-CT-160

The Honorable Cristal C. Brisco, Judge

On Petition to Transfer from the Indiana Court of Appeals

No. 22A-CT-1573

Opinion by Justice Goff

Chief Justice Rush and Justices Massa, Slaughter, and Molter concur.

Goff, Justice.

Landowners have a duty to exercise reasonable care for the protection

of invitees on their premises. This duty generally requires the landowner

to protect invitees against foreseeable risks of harm. Our foreseeability

analysis varies, however, depending on whether a case involves a

dangerous condition on the premises or whether it involves a dangerous

activity. Today’s case, arising from an injury suffered by a swimmer who

collided with the corner of a swimming-pool wall, implicates the pool’s

allegedly dangerous condition. Finding some evidence that the risk of

harm was foreseeable, we deem summary judgment for the pool operator

unwarranted. However, we affirm summary judgment for the pool’s

architects.

Facts and Procedural History

Memorial Hospital of South Bend, doing business as Beacon Health and

Fitness (or just Beacon), owns and operates a health and fitness center in

Granger, Indiana. The Panzica Building Corporation acted as the principal

architect and designer for the center. Panzica subcontracted with the Spear

Corporation to design the center’s swimming pool. This pool, rectangular

and seventy-five feet long, was built to serve multiple purposes, including

lap-swimming and aquatic fitness. We include the following image of the

pool, drawn from the record, for illustration.

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Along one side of the pool, a long ramp descends into the water,

enabling disabled users to enter the pool. A concrete “wing-wall,” built

within the pool itself, sets off the ramp from the main swimming area. At

the bottom of the ramp, a gap twenty-two feet, six inches long opens in

the wing-wall. Continuing on past this gap, one reaches a second, shorter

stretch of wing-wall flanking a set of entry steps at the end of the pool.

The pool was designed so that the tops of the wing-walls would sit at the

water level, which was maintained by an automatic mechanism. When the

pool was opened, the wing-wall ends lacked padding and no floating

lane-divider was laid across the gap. Pennants were, however, strung

above and across the width of the pool approximately fifteen feet from

each end.

During the first week of the pool’s operation in November 2016, Dr.

Jennifer Pennington visited and swam several laps of various strokes in

the lane adjacent to the wing-walls. After transitioning from freestyle to

backstroke, her head collided with the corner of the wing-wall by the

entry steps, causing her injury.

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Dr. Pennington and her husband, Joshua Pennington, subsequently

filed suit against Beacon, Panzica, and Spear (collectively, the Defendants),

alleging numerous claims. Counts I and II charged all three Defendants

with defective design and failure to warn. Count III accused Beacon of

negligent maintenance and operation, including allegations of

inappropriate water levels, lack of guidance aids and safety features, and

failure to warn or instruct. Count IV, in turn, subjected Panzica and Spear

to allegations of negligent construction. Finally, Count V charged all three

Defendants with depriving Joshua Pennington of his wife’s services and

companionship due to the injury.

Following discovery, the Defendants asked the trial court to bar the

opinion of the Penningtons’ expert, Dr. Thomas Sawyer; to strike other

items of evidence, including post-accident photographs of the pool and an

email sent by Panzica’s president; and to grant them summary judgment.

The trial court restricted Dr. Sawyer’s opinion in part—allowing his

testimony on matters related to swimming-pool management and

operations while excluding it insofar as it concerned design and

construction. The court then struck the email, photographs, and other

items of evidence and granted summary judgment to Panzica and Spear

on all counts and to Beacon on Counts I and II. (The Penningtons

conceded Count IV at the summary-judgment hearing.) On Count III,

negligent maintenance and operation, the trial court granted Beacon

partial summary judgment, finding no issues of fact related to the level of

the water or a duty to provide guidance aids and safety features.

However, the trial court partially denied summary judgment as to

Beacon’s failure to provide adequate warnings and instructions. Finally,

the court denied summary judgment to Beacon on Count V insofar as it

derived from the maintenance-and-operation claim.

Spear moved the trial court to enter final judgment in its favor under

Indiana Trial Rule 54(B). After the court granted this motion, the

Penningtons appealed the summary judgments entered in favor of both

Spear and Panzica. Beacon also sought certification of a discretionary

interlocutory appeal under Indiana Appellate Rule 14(B), which the trial

court granted and the Court of Appeals accepted. The Penningtons used

their brief in response to Beacon to raise cross-appeal issues of their own.

The Court of Appeals consolidated the two appeals and affirmed the trial

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court in a published opinion. Pennington v. Mem’l Hosp. of South Bend, Inc.,

206 N.E.3d 473, 477 (Ind. Ct. App. 2023). In affirming the partial denial of

summary judgment to Beacon on Count III, the panel analyzed the

foreseeability of harm by applying the test appropriate for activities

conducted on the premises. Id. at 487–88.

Beacon sought transfer to this Court, which we granted, thus vacating

the Court of Appeals’ decision. See Ind. Appellate Rule 58(A).

Standards of Review

Summary judgment is appropriate “if the designated evidentiary

matter shows that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.” Ind. Trial

Rule 56(C). The movant has the “initial burden” of demonstrating “the

absence of any genuine issue of fact as to a determinative issue.” Hughley

v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (internal quotation marks and

citation omitted). It is not enough for the movant to show that “the party

carrying the burden of proof lacks evidence on a necessary element.” Id.

Rather, they must “affirmatively negate” the opponent’s claim. Id.

(internal quotation marks and citation omitted). Only then must the non-

movant “come forward with contrary evidence showing an issue for the

trier of fact.” Id. (internal quotation marks and citation omitted). We

review summary judgment de novo, drawing all reasonable inferences in

the non-movant’s favor. Id. (internal citation omitted). However, the trial

court’s decision to admit or strike evidence at the summary-judgment

stage is reviewed for an abuse of discretion. Williams v. Tharp, 914 N.E.2d

756, 769 (Ind. 2009).

Discussion and Decision

Our analysis begins in Part I by clarifying that all issues raised on

summary judgment are available for our review in this interlocutory

appeal. In Part II, we review the trial court’s exclusion of the Penningtons’

evidence and affirm the grant of summary judgment in favor of the

architects Spear and Panzica as to their roles in the pool’s design. In Part

III, we first explain why the Penningtons’ claim of negligent maintenance

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and operation against Beacon requires analysis of a condition—rather

than activities—on the premises. We then conclude that summary

judgment was unwarranted on the operational claim (except on one

specific issue within the claim). Finally, in Part IV, we address the design

claim against Beacon and reverse summary judgment.

I. All summary-judgment issues are available in this

interlocutory appeal.

The appeals in this case have become somewhat entangled, prompting

us to restate the proper appellate procedure under Trial Rule 54(B) and

Appellate Rule 14(B).

Appellate jurisdiction “‘is generally limited to appeals from final

judgments.’” Ramsey v. Moore, 959 N.E.2d 246, 251 (Ind. 2012) (quoting

Allstate Ins. Co. v. Fields, 842 N.E.2d 804, 806 (Ind. 2006)). A judgment

typically becomes final when it “dispose[s] of all issues as to all parties,

ending the particular case and leaving nothing for future determination.”

Id.; App. R. 2(H)(1). But there are other ways in which a judgment may

become final. See App. R. 2(H)(2)–(5).

An order is also a “final appealable judgment” when “‘the trial court in

writing expressly determines under Trial Rule 54(B) [that] there is no just

reason for delay and in writing expressly directs the entry of judgment …

under Trial Rule 54(B) as to fewer than all the claims or parties.’” Ramsey,

959 N.E.2d at 253 (quoting App. R. 2(H)(2)). Trial Rule 54(B) thus allows

for the immediate perfection of an appeal without the need for final

judgment as to all claims or parties. To obtain an appeal under Trial Rule

54(B), the trial court must certify its order using “‘the magic language of

the rule.’” Id. (quoting Georgos v. Jackson, 790 N.E.2d 448, 452 (Ind. 2003)).

Depending on how the trial court frames its certification, the “magic

language” may apply to “only one portion of the order.” See id.

Here, the trial court’s Trial Rule 54(B) certification order found “no just

reason for delay” and granted “Defendant Spear Corporation’s Motion for

Summary Judgment as a final and appealable Order.” App. Vol. II, p. 71.

The order thus applied the “magic language” to the judgment in favor of

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Spear alone, permitting the Penningtons to immediately appeal the

judgment for Spear—but not the judgment entered for Panzica.

That’s not all, however. This case also involves Beacon’s interlocutory

appeal pursuant to Appellate Rule 14(B). That rule allows for certification

of interlocutory orders (as opposed to judgments) for appeal. See App. R.

14(B). Appellate Rule 14(B), we’ve emphasized, “requires certification of

an interlocutory order,” not just “particular issues.” Harbour v. Arelco, Inc.,

678 N.E.2d 381, 386 (Ind. 1997). Thus, “[a]ny issues that were properly

raised in the trial court in ruling on the trial court’s summary-judgment

order are available on interlocutory appeal.” Id. 1

Here, Beacon moved the trial court for “an order certifying for

interlocutory appeal that part” of its summary-judgment order “denying

Beacon’s motion for summary judgment.” Motion To Certify Order For

Interlocutory Appeal, Pennington v. Mem’l Hosp., No. 71D04-1804-CT-

000160 (St. Joseph Sup. Ct. July 8, 2022). The Penningtons then filed a

notice that they had no objection. The trial court granted Beacon’s motion,

stating that it was certifying only that part of its order partially denying

summary judgment to Beacon. Beacon then moved the Court of Appeals

to accept jurisdiction of the same limited issue and that motion was

granted.

This manner of proceeding improperly purported to certify a specific

issue rather than the interlocutory order as a whole. The question arises,

then, whether the entire order is now subject to our review or only the one

issue. In Budden v. Board of School Commissioners of the City of Indianapolis,

this Court faced a similar issue. See 698 N.E.2d 1157, 1165–66 & n.14 (Ind.

1998). In that case, the trial court certified its interlocutory order and five

specific questions. Id. at 1165. We held that the “net effect” was simply to

“identify the issue that constitutes a ‘substantial question of law’

1 We implied in Coca-Cola Co. v. Babyback’s International, Inc. that only “the issues certified for

interlocutory appeal” are available for review. 841 N.E.2d 557, 561 n.2 (Ind. 2006). However,

we returned to the Harbour rule in Curtis v. State, 948 N.E.2d 1143, 1147 (Ind. 2011). See

William A. Ramsey, Appealing Orders Before A Case Ends: Dos, Don’ts And Modest Proposals, 56

Res Gestae 13, 22 n.30 (Dec. 2012) (discussing these inconsistencies). For clarity, we now

disapprove the approach taken in the Coca-Cola footnote.

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presented by the order.” Id. at 1165–66 n.14 (quoting former App. R.

4(B)(6)). We reach the same result today and conclude that when a trial

court purports to certify an “issue,” it implicitly certifies the entire order

and merely identifies a “substantial question of law” that calls for “early

determination.” See App. R. 14(B)(1)(c)(ii). The error is “inconsequential”

so long as “it is clear what order is affected.” See Budden, 698 N.E.2d at

1166 n.14.

Applying this rule, we will address all the issues stemming from the

trial court’s summary-judgment order and raised in these appeals: the

Penningtons’ appeal from summary judgment for the pool’s architects,

Spear and Panzica; Beacon’s appeal from partial denial of summary

judgment as to their operation of the pool; and the Penningtons’ cross-

appeal from partial summary judgment for Beacon as to its role in both

operating and designing the pool.

II. The Penningtons designated no admissible

evidence that Spear or Panzica breached their

professional duty of care.

A plaintiff alleging negligence must prove (1) that the defendant owed

the plaintiff a duty of care, (2) that the defendant breached this duty by

allowing its conduct to “fall below the applicable standard of care,” and

(3) that the breach “proximately caused” a “compensable injury.” Goodwin

v. Yeakle’s Sports Bar & Grill, 62 N.E.3d 384, 386 (Ind. 2016) (internal

quotation marks and citations omitted).

Here, the Penningtons alleged that Spear and Panzica were negligent in

designing the swimming pool. In seeking summary judgment, Spear and

Panzica designated the opinion of an expert swimming-pool designer and

engineer, Matthew Reynolds, that it had met the standard of care in

designing the pool. The Penningtons, in response, designated the opinion

of Dr. Sawyer, a “Risk and Safety Management Consultant” with

experience managing “aquatic facilities.” App. Vol. XII, p. 51. When

questioned during a deposition, Dr. Sawyer affirmed that he had no

experience, education, or training in “how to engineer the design of a

swimming pool” and was “not qualified to give an opinion” on the

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“standard of care applicable to any architect” who may sign or stamp a

design. App. Vol. III, p. 65. Based on this testimony, the trial court

excluded Dr. Sawyer’s evidence to the extent that it bore on swimming-

pool design.

We find no abuse of discretion in this ruling as far as Spear and Panzica

are concerned. An architect or design professional has been negligent if

they “breached a duty to exercise the degree of competence ordinarily

exercised in like circumstances by reputable members of the profession.”

Smith v. Walsh Const. Co. II, LLC, 95 N.E.3d 78, 89 (Ind. Ct. App. 2018)

(internal quotation marks and citation omitted). A witness must have

“familiarity with the standard of care” applicable to such trained

professionals, otherwise they cannot “testify to the requisite standard of

care” or any departure from that standard. Troutwine Estates Dev. Co. v.

Comsub Design & Eng'g, Inc., 854 N.E.2d 890, 902 (Ind. Ct. App. 2006)

(concerning engineers). Generally, this means the witness must be an

expert. Id. Here, Dr. Sawyer admitted being unqualified to speak about an

architect’s standard of care. The trial court reasonably concluded that he

thereby excluded himself from rendering any opinion on Spear and

Panzica’s conduct in designing the pool.

The Penningtons also designated Exhibit 7, an email sent from the

president of Panzica to executives at Spear, stating that “a condition” of

the pool “expose[d]” all the Defendants to “liability for injury.” App. Vol.

IV, p. 217. The trial court excluded this evidence because it stated a “legal

conclusion” and discussed a “subsequent remedial measure.” App. Vol. II,

p. 65; see also Ind. Evidence Rules 407, 704(b). The portion of the email

discussing a remedial measure need not trouble us at this stage because it

can easily be separated from the liability statement and redacted. The

Penningtons argue that even if the Panzica president’s remark stated a

legal conclusion—which they do not contest—it was admissible under the

hearsay exception for an “opposing party’s statement.” Appellants’ Br. at

46. This exception concerns the admissibility against a party of a statement

“made by the party,” which here means Panzica (but not Spear). See Ind.

R. Evid. 801(d)(2)(A). However, while party-opponent statements are “not

hearsay,” Ind. R. Evid. 801(d), there are other reasons for which they may

not necessarily be admissible. We will not reverse the exclusion of the

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email because the Penningtons have not contested the trial court’s

conclusion that the statement was an inadmissible legal conclusion.

Likewise, we find no abuse of discretion in the trial court’s exclusion of

Exhibit 12. This exhibit consisted of a set of photographs of the pool, taken

more than a year and a half after Dr. Pennington’s injury, showing a

subsequently installed floating lane-divider and padding on the exposed

end of the wing-wall. A factfinder could infer that this apparatus was

added to prevent further injuries—an action that could be interpreted as

an implicit admission that the pool was previously unsafe. It was proper

to exclude these photographs because evidence of subsequent remedial

measures cannot be used to prove negligence. Ind. R. Evid. 407. Among

the policies underlying this rule is a concern that admitting such evidence

would “deter a party from taking action that will prevent future injuries.”

WESCO Distribution, Inc. v. ArcelorMittal Indiana Harbor LLC, 23 N.E.3d

682, 711 (Ind. Ct. App. 2014).

Finally, we have examined the excluded Exhibit 6 (a binder of

miscellaneous design materials) and the admitted evidence cited by the

Penningtons in this appeal. The only item we identified that potentially

created an issue of fact is Exhibit 19, containing photographs purportedly

showing the pool, before it opened, with the waterline above the level of

the wing-walls. Spear’s vice-president, Sam Blake, admitted that the

submersion of walls within swimming pools would be unsafe. However,

we can find no deposition testimony or affidavit in the record on appeal

establishing a foundation for Exhibit 19—only a statement by counsel for

the Penningtons that the photographs were taken “prior to Opening Day”

and produced by Beacon in discovery. App. Vol. XII, p. 131. As Spear and

Panzica argue, this statement is not enough to establish whether the

photographs truly and accurately reflect the state of the pool on the day of

Dr. Pennington’s injury. See Troutwine, 854 N.E.2d at 903.

The Penningtons’ evidence fails to create an issue of fact over whether

Spear or Panzica’s work fell below their professional standard of care. For

this reason, we affirm summary judgment in favor of Spear and Panzica.

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III. Beacon was not entitled to summary judgment

on the maintenance-and-operation claim.

We turn next to Beacon’s appeal from the partial denial of summary

judgment on Count III as to its failure to provide warnings or instructions

to swimmers. Resolution of this issue turns on whether undisputed

evidence showed that the harm Dr. Pennington suffered was

unforeseeable. To answer this question, we first clarify the distinction

between the two tests used in premises-liability cases for the foreseeability

of harm. Then, applying the test appropriate for analyzing conditions of

the premises, we affirm the trial court’s decision to partially deny

summary judgment. Furthermore, with the exception of one specific issue,

we deem Count III triable as a whole.

A. Dr. Pennington’s injury implicates the condition of the

swimming pool, not activities on the premises.

A duty of care is an indispensable element of a negligence claim.

Absent a duty, there can be no breach and, hence, no liability. Goodwin, 62

N.E.3d at 386. Whether the defendant owed the plaintiff a duty of care “is

a question of law for the court to decide.” Id. at 386–87. When

“foreseeability is an element of duty,” therefore, “the court must

determine the question of foreseeability as a matter of law.” Id. at 394. 2

The parties agree that Dr. Pennington was an invitee on Beacon’s

premises. It is well settled in Indiana that a landowner has a duty to an

invitee to “exercise reasonable care for the invitee’s protection while the

2We acknowledged in Goodwin that the Restatement (Third) of Torts, along with a minority of

states, exclude foreseeability from the court’s duty analysis. 62 N.E.3d at 389–90 & n.4. One of

our own pre-Goodwin decisions had adopted this approach, holding that the court need only

make a “general determination” whether a duty of reasonable care applied in the

circumstances, leaving the foreseeability of harm for the jury. See Paragon Family Rest. v.

Bartolini, 799 N.E.2d 1048, 1053 (Ind. 2003). We opined in Goodwin that this was a “much too

narrow” reading of the duty analysis. 62 N.E.3d at 388. And, in Rogers v. Martin, we explained

that “including foreseeability as an element of duty” for judicial determination promotes

consistency and prevents landowners becoming “the insurers of their invitees’ safety.” 63

N.E.3d 316, 324 (Ind. 2016) (internal quotation marks and citation omitted).

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invitee is on the premises.” Rogers v. Martin, 63 N.E.3d 316, 320 (Ind. 2016).

To fix the parameters of this duty as it relates to “dangerous conditions on

the land,” we have adopted section 343 of the Restatement (Second) of

Torts. See id. at 321–22, 323 (citing Burrell v. Meads, 569 N.E.2d 637 (Ind.

1991)). The Restatement declares:

A possessor of land is subject to liability for physical harm

caused to his invitees by a condition on the land if, but only

if, he

(a) knows or by the exercise of reasonable care would

discover the condition, and should realize that it

involves an unreasonable risk of harm to such

invitees, and

(b) should expect that they will not discover or realize

the danger, or will fail to protect themselves against

it, and

(c) fails to exercise reasonable care to protect them

against the danger.

Restatement (Second) of Torts § 343 (Am. L. Inst. 1965).

Under this test, foreseeability is an element of duty. The duty to

exercise reasonable care extends to “an unreasonable risk of harm” that

the defendant “should realize” exists and “should expect” invitees to

overlook or fail to “protect themselves against.” Id.; see also Rogers, 63

N.E.3d at 324 (explaining that the “foreseeability component within the

landowner-invitee duty is already explicit” in Restatement section 343).

In cases involving conditions on the land or premises, section 343’s

foreseeability analysis focuses specifically on “the condition” that

allegedly resulted in injury. See Restatement (Second) of Torts § 343. In

Griffin v. Menard, Inc., for example, the plaintiff was injured when a sink

fell onto him out of a cardboard box. 175 N.E.3d 811, 812 (Ind. 2021). We

focused on whether Menard had any “actual or constructive knowledge

that the box was defective.” Id. at 814 (emphasis added).

A different test applies in cases stemming from “activities on a

landowner’s premises unrelated to the premises’ condition.” See Rogers, 63

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N.E.3d at 323. In the companion cases of Rogers and Goodwin, we

explained that, “in the duty arena,” foreseeability “involves an evaluation

of (1) the broad type of plaintiff and (2) the broad type of harm.” Id. at 325;

see Goodwin, 62 N.E.3d at 394 (restating the same). We consider the

“general class of persons of which the plaintiff was a member and

whether the harm suffered was of a kind normally to be expected—

without addressing the specific facts of the occurrence.” Rogers, 63

N.E.3d at 325 (citing Goodwin, 62 N.E.3d at 388–89) (emphasis added). In

Goodwin, for example, the plaintiffs alleged that the defendant bar should

have protected them against being shot by a patron. 62 N.E.3d at 385–86.

We asked the general question whether “bar owners routinely

contemplate that one bar patron might suddenly shoot another.” Id. at

393–94.

A critical difference thus exists between the foreseeability tests for

conditions and activities. The Restatement test that we use for conditions

looks at whether the danger posed by the specific condition involved was

foreseeable. Whereas, the Rogers/Goodwin test that we use for activities

looks at whether it was foreseeable that a general class of persons to which

the plaintiff belonged might suffer the general type of harm involved. This

distinction makes sense in that a landowner can know the precise physical

condition of their premises, but only generally foresee what conduct or

behavior will occur. In today’s case, it potentially makes a significant

difference whether courts will consider the general foreseeability of a

swimmer hitting a wall or the specific risk of injury posed by the

particular wing-wall involved.

The Court of Appeals indicated that it applied the activities standard

to the maintenance-and-operation claim here because “Beacon as

landowner made the decisions as to what activities could be conducted

within and in proximity to the gap and with what notifications,” such as

whether to allow backstroke in the lane with the wing-walls. Pennington,

206 N.E.3d at 488. We find the appellate court’s framing of the

Penningtons’ claims less convincing than the fact that Dr. Pennington

injured her head on a physical object, the wing-wall, while engaged in

what is ordinarily a reasonably safe activity. See Sturgis v. Silvers, 296 F.

Supp. 3d 981, 991 (S.D. Ind. 2017) (holding that, although the plaintiff was

attending a “social gathering” at the time she was injured, her injury

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stemmed from a “condition,” namely the “latent instability” of a “balcony

railing” that collapsed).

To distinguish between condition claims and activity claims, we focus

on the substance of the claims as reflected in the complaint, summary-

judgment briefs, and designated evidence. Here, Count III alleges that

Beacon failed to “remedy dangerous conditions” in the pool and

specifically mentions “water levels,” “guidance aids,” and “safety features

such as floating lines and adequate padding.” App. Vol. II, p. 194. The

Penningtons’ summary-judgment brief argues that Beacon “owed a duty

of care to protect a member of its fitness club from an injury resulting

from an exposed wall during normal use of its lap pool” and “failed to

take adequate measures to correct the dangerous condition.” App. Vol. III,

p. 111. Although we can imagine circumstances where it might be difficult

to disentangle conditions and activities on the land, 3 we have little trouble

identifying the Penningtons’ claim here as presupposing a duty to protect

invitees against a dangerous physical condition. The unreasonable danger

in which Dr. Pennington allegedly found herself was not merely

swimming backstroke, but swimming backstroke next to the unpadded

wing-wall. It was the placement and condition of this wing-wall that

formed the basis for alleging a duty to protect. As the substance of the

claim is that a condition of the premises caused an injury, the appropriate

foreseeability analysis follows Restatement section 343.

We now apply the test for the foreseeability of dangerous conditions

in reviewing the trial court’s decision to partially deny summary

judgment to Beacon on Count III.

B. Fact issues exist as to whether Beacon owed a duty to

protect invitees from striking the wing-wall.

Beacon offers two lines of argument that summary judgment on Count

III was proper under Restatement section 343. First, Beacon argues that it

had no actual or constructive knowledge of the wing-wall being

3For example, a person might be injured by slipping on liquid while fleeing a robbery on the

premises, or by dangerous driving at a defectively signposted cross-walk.

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dangerous. Indeed, it contends that, as there was no design flaw, there

could be no duty to warn of a dangerous condition. Second, Beacon

argues that it could have anticipated Dr. Pennington herself realizing any

danger the wing-wall posed and protecting herself against it. For the

reasons explained below, neither argument persuades us.

1. An issue of fact exists as to the foreseeability of the

harm.

Beacon argues that undisputed evidence showed it lacked any

knowledge, actual or constructive, that the wing-wall posed a danger to

its invitees. 4 It further asserts that, as there was no design defect, there was

no dangerous condition to warn Dr. Pennington about. We disagree.

In moving for summary judgment, Beacon designated two expert

opinions. Engineer Matthew Reynolds opined that the pool was

“reasonably safe for its intended use,” and aquatics safety consultant

Michael Oostman opined that there was “no reason for Beacon to warn

against” swimming alongside the wing-walls. Cross-Appellant’s App.

Vol. II, pp. 121, 155. Beacon’s experts discovered no other example of a

person suffering an injury from swimming into a wing-wall, leading

Beacon to characterize the likelihood of the accident occurring as

“remote.” Cross-Appellant’s Br. at 30. Beacon also designated evidence

that it relied on its architects to design a safe pool and had no awareness

that the wing-walls posed a danger.

This evidence met Beacon’s initial burden to show that Dr.

Pennington’s injury was unforeseeable. It then fell to the Penningtons to

designate evidence that Beacon either did or should have foreseen the

risk. In our opinion, the Penningtons carried their burden as non-movants

by offering the opinion of Dr. Sawyer.

Dr. Sawyer established his credentials as an expert in the management

and operation of swimming pools, having (among other things) managed

4This argument bears on Restatement section 343(a), relieving the landowner of a duty unless

they “should realize that [the condition] involves an unreasonable risk of harm” to invitees.

Indiana Supreme Court | Case No. 23S-CT-182 | January 9, 2024 Page 15 of 22

“aquatic facilities” for over twenty-five years and taught college courses

on “risk and safety management” in aquatics. See App. Vol. XII, p. 51. In

Dr. Sawyer’s opinion, Beacon understood that swimmers “would be

swimming a variety of swimming strokes including the backstroke.” Id. at

56–57. Backstroke swimmers are commonly taught, Dr. Sawyer explained,

“to watch the side wall, lane lines and over-head flags to guide them to

the end wall.” Id. at 56. In his opinion, Beacon “knew or should have

known that a swimmer swimming the backstroke could easily run into”

the wing-wall “since there was no floating lane line divider” strung across

the gap in the wall. Id. According to Dr. Sawyer, this is what happened to

Dr. Pennington when she “got confused” by the absence of a wall on one

side of her. Id. at 58. Dr. Sawyer stated that Beacon could have made the

pool safer by providing signage warning against swimming backstroke

alongside the wing-walls, lifeguards to “enforce the rules and assist”

swimmers, and functioning surveillance cameras. Id. at 57–58. This

evidence creates an issue of fact over whether Beacon should, in the

exercise of reasonable care, have foreseen what happened as a matter of its

operational and managerial responsibility.

Beacon attempts to avoid this conclusion by arguing that “the trial

court’s evidentiary ruling barring Sawyer from testifying about design

defects renders speculative and insubstantial his opinion as to what

Beacon could and should have done to address that condition.” Cross-

Appellants’ Br. at 35–36. In other words, if there were no design defect,

then Beacon had nothing to warn Dr. Pennington about.

Even if we were to accept Beacon’s premise that there was no

admissible evidence of a design flaw (which Part IV of this opinion,

below, disagrees with), this argument does not persuade us.

Commentary to the Restatement explains that invitees are “entitled to

expect reasonable care in the original construction of the premises,” in

their “present arrangement,” and in their “present use.” Restatement

(Second) of Torts app. § 343, reporter’s note to cmt. b. Even a safely

designed and constructed pool is not necessarily safe as actually set up to

operate in its “present arrangement” and “use.” It may, as Dr. Sawyer

believed, require warnings or instructions about how to use it safely. For

example, warnings against diving into shallow water are a familiar sight.

But we would not presume the necessity of such warnings only for

Indiana Supreme Court | Case No. 23S-CT-182 | January 9, 2024 Page 16 of 22

defectively constructed pools or swimming areas. See Benton v. City of

Oakland City, 721 N.E.2d 224, 234 (Ind. 1999) (recognizing the common-

law duty “to warn where diving is dangerous”). Beacon’s success before

the trial court on the plaintiffs’ design claim did not automatically defeat

the maintenance-and-operation claim.

We thus agree for the most part with the Penningtons that summary

judgment was unwarranted on Count III. However, we affirm the trial

court’s entry of partial summary judgment on one specific issue within

Count III. See T.R. 56(C) (authorizing trial courts to enter summary

judgment “upon less than all the issues” and to designate the issues

“upon which it finds no genuine issue as to any material facts”). The

designated evidence does not show that Dr. Sawyer found fault with the

level of water in the pool. Indeed, he stated in a deposition that he did not

“know what the level of the water was” at the time of Dr. Pennington’s

injury. App. Vol. X, pp. 88–89. The Penningtons’ evidence does not,

therefore, create a triable issue over whether the level of the water

contributed to the allegedly dangerous condition of the pool.

In sum, issues of fact exist as to whether Beacon’s maintenance and

operation of the pool fell below the standard of reasonable care,

precluding summary judgment on Count III, except as to the issue of the

level of the water.

2. An issue of fact exists as to whether the risk was

known or obvious.

Beacon also argues that it owed no duty to protect Dr. Pennington

because any danger the wing-wall posed was either known or obvious to

her. We think that Beacon failed to carry its initial burden of establishing

these facts.

Restatement section 343 implicates the invitee’s own knowledge of the

risk, in that the landowner’s duty to protect does not arise unless they

“should expect that [invitees] will not discover or realize the danger, or

will fail to protect themselves against it.” Restatement (Second) of Torts §

343(b). The Restatement additionally “instructs that Section 343 should be

read together with Section 343A.” Roumbos v. Samuel G. Vazanellis & Thiros

and Stracci, PC, 95 N.E.3d 63, 66–67 (Ind. 2018) (citing Restatement

Indiana Supreme Court | Case No. 23S-CT-182 | January 9, 2024 Page 17 of 22

(Second) of Torts § 343 cmt. a). Section 343A(1) provides that a landowner

“is not liable to his invitees for physical harm caused to them by any

activity or condition on the land whose danger is known or obvious to

them, unless the possessor should anticipate the harm despite such

knowledge or obviousness.” Restatement (Second) of Torts § 343(A)(1).

In Roumbos, we explained the defendant’s burden in relying on Section

343A to divest themselves of any duty to protect. A landowner must

show, first, either that the plaintiff was “aware of the condition and

appreciate[d] its danger” or that “the condition and the risk [were]

apparent to, and would be recognized by, a reasonable person in the

position of the visitor exercising ordinary perception, intelligence, and

judgment.” 95 N.E.3d at 67 (citing Restatement (Second) of Torts § 343A

cmt. b). The landowner must then additionally prove that there was “no

reason to believe [the plaintiff] would fail to avoid” the danger despite it

being known or obvious. Id. at 66.

Here, Beacon designated evidence that the wing-walls were visible both

from the side of the pool and to a person swimming “freestyle or

breaststroke” in the adjacent lane. Cross-Appellant’s App., p. 127. This

falls short of what section 343A requires. Even assuming that Dr.

Pennington saw the wing-walls while swimming freestyle or breaststroke,

Beacon’s evidence failed to show that she appreciated the danger the

wing-walls posed or that a reasonable person swimming in the pool

would recognize the risk. Beacon likewise failed to show that it had no

reason to anticipate a backstroke swimmer becoming disorientated and

colliding with the wing-wall even after recognizing the danger. For these

reasons, Beacon failed to affirmatively negate Dr. Pennington’s

maintenance-and-operation claim.

IV. Beacon was not entitled to summary judgment

on the design claim.

Finally, the Penningtons argued on cross-appeal that Dr. Sawyer’s

opinion created a fact issue as to whether Beacon should have foreseen a

risk while participating alongside Spear and Panzica in the design process

itself. We agree that there is a triable issue of fact here.

Indiana Supreme Court | Case No. 23S-CT-182 | January 9, 2024 Page 18 of 22

Unlike Spear and Panzica, Beacon is not an architectural or engineering

firm. So, the professional design standard of care discussed in Part II,

above, is inapplicable. Rather, Beacon, as the landowner, was obligated to

exercise reasonable care under Restatement section 343 in the “original

construction of the premises.” See Restatement (Second) of Torts § 343 cmt.

b. 5 A landowner’s duty of care applies during the design phase. See City of

Bloomington v. Kuruzovich, 517 N.E.2d 408, 413 (Ind. Ct. App. 1987)

(holding that the city owed public-park invitees “a duty to design the park

safely”); Vazquez-Filippetti v. Banco Popular de Puerto Rico, 504 F.3d 43, 50–

51 (1st Cir. 2007) (citations omitted) (explaining that a premises-liability

claim based on negligent design arises when the defective property

“existed in the state intended by its owner,” e.g. “excessively steep

stairways,” “a balcony without a fence or guardrail,” or “a busy

intersection without stop signs or lights to direct traffic”).

Dr. Sawyer was clearly qualified to give an expert opinion on Beacon’s

standard of care as an operator involved in designing the pool. Among

other things, he has managed aquatic facilities; taught college courses at

Indiana State University concerning the design and planning of sports

facilities, including aquatic facilities; and participated in the design

process for other pools, including one with wing-walls. He also

familiarized himself with national and state safety standards.

Granted, Dr. Sawyer is not an architect or engineer. But Evidence Rule

702(a) doesn’t require him to be. The question is whether “the expert’s

scientific, technical, or other specialized knowledge will help the trier of

fact to understand the evidence or to determine a fact in issue.” Evid. R.

702(a). We have said that this standard “is a liberal one.” Escamilla v. Shiel

Sexton Co., Inc., 73 N.E.3d 663, 677 (Ind. 2017). Here, it is evident that Dr.

Sawyer’s specialized knowledge and experience will assist the factfinder’s

evaluation of whether Beacon met its standard of care during the pool’s

design process. His opinion should therefore have been admitted on the

design count against Beacon. Any remaining issue as to his credibility as

5The Penningtons frame Beacon’s duty in the design phase only with respect to its status as

landowner, without positing any independent duty arising from its alleged role as a co-

designer of the pool.

Indiana Supreme Court | Case No. 23S-CT-182 | January 9, 2024 Page 19 of 22

an expert “may properly be left to vigorous cross-examination,

presentation of contrary evidence, argument of counsel, and resolution by

the trier of fact.” Tunstall v. Manning, 124 N.E.3d 1193, 1196–97 (Ind. 2019)

(internal quotation marks and citation omitted).

In Dr. Sawyer’s view, Beacon acted “carelessly and negligently” in

failing to appoint a “design committee/team” composed of professionals

such as “an aquatic consultant/specialist (with aquatic safety expertise)” to

liaise with Spear and Panzica during the design process. App. Vol. XII, pp.

54–55. An aquatic specialist, he says, would have recognized the

dangerous condition, and then “the design could have been modified.” Id.

at 54. Dr. Sawyer accepts that the pool satisfied Indiana and industry

standards, but in his opinion its design still constituted an unsafe “error.”

Id. at 59. This opinion creates an issue of fact concerning Beacon’s alleged

breach of its standard of care.

Still, Beacon repeatedly states that it “relied” on Spear and Panzica to

design and build a safe pool. Cross-Appellant’s Br. at 9, 21. Generally, “a

principal is not liable for the negligence of an independent contractor,”

including a contractor who designs a facility. See Vaughn v. Daniels Co.

(West Virginia), Inc., 841 N.E.2d 1133, 1143 (Ind. 2006). However, there is

evidence indicating that Beacon itself played a role in the design process.

See Steel v. Rust, 830 N.E.2d 62, 69–70 (Ind. Ct. App. 2005) (distinguishing a

principal’s vicarious liability for the negligence of an independent

contractor from liability for the principal’s “own negligence”). According

to the deposition of Sam Blake, Spear’s vice-president, it was Beacon who

“wanted the ramp and the steps.” App. Vol. III, p. 178. And Alan Loyd, a

Beacon representative, was “part of the discussions” about how the pool

would be designed, which included discussion of the wing-wall. Id.

Therefore, the evidence does not utterly foreclose the possibility that

Beacon, in the exercise of reasonable care, should itself have discovered

and remedied the allegedly dangerous condition during the design phase.

Conclusion

The trial court correctly entered summary judgment for Spear and

Panzica. However, Beacon was not entitled to summary judgment on any

count, except as to the single issue of the level of the water within Count

Indiana Supreme Court | Case No. 23S-CT-182 | January 9, 2024 Page 20 of 22

III. Accordingly, we affirm in part, reverse in part, and remand for trial of

all the Penningtons’ claims against Beacon.

Rush, C.J., and Massa, Slaughter, and Molter, JJ., concur.

ATTORNEYS FOR APPELLANTS/CROSS-APPELLEES JENNIFER

PENNINGTON AND JOSHUA PENNINGTON

James P. Barth

Daniel H. Pfeifer

Peter D. Hamann

Ryan G. Milligan

Jeffrey J. Stesiak

Pfeifer Morgan & Stesiak LLP

South Bend, Indiana

ATTORNEYS FOR CROSS-APPELLANT MEMORIAL HOSPITAL OF

SOUTH BEND

Louis W. Voelker

Kyle G. Grothoff

Eichhorn & Eichhorn, LLP

Hammond, Indiana

ATTORNEYS FOR APPELLEE SPEAR CORPORATION

Beverly J. Mack

Huelat & Mack, P.C.

LaPorte, Indiana

Lyle R. Hardman

Hunt Suedhoff Kearney LLP

South Bend, Indiana

Scott A. Ruksakiati

Tyson & Mendes

Chicago, Illinois

ATTORNEYS FOR APPELLEE PANZICA BUILDING CORPORATION

Martin J. Gardner

Andria M. Oaks

Christopher J. Uyhelji

Indiana Supreme Court | Case No. 23S-CT-182 | January 9, 2024 Page 21 of 22

Gardner & Rans, P.C.

Granger, Indiana

Indiana Supreme Court | Case No. 23S-CT-182 | January 9, 2024 Page 22 of 22