John Doe v. K. M. W.

OPINION

IN THE

Court of Appeals of Indiana

John Doe and Jane Doe,

as parents and legal guardians of Jill Doe, a minor,

Appellants-Plaintiffs, FILED

Feb 12 2024, 8:39 am

v. CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

K.M.W. and K.J.W.,

Appellees-Defendants.

February 12, 2024

Court of Appeals Case No.

22A-CT-2922

Appeal from the

Johnson Superior Court

The Honorable

Marla K. Clark, Judge

Trial Court Cause No.

41D04-2012-CT-177

Court of Appeals of Indiana | Opinion 22A-CT-2922 | February 12, 2024 Page 1 of 31

Opinion by Senior Judge Shepard

Judges Riley and Tavitas concur.

Shepard, Senior Judge.

Statement of the Case 1

[1] K.M.W. and K.J.W., the mother and father respectively of K.D.W., a minor,

hosted a party at their home during which Jill Doe, a minor child of John Doe

and Jane Doe, was sexually molested by K.D.W. The Does filed a two-count

complaint against K.M.W. and K.J.W. alleging premises liability and negligent

parental supervision for the events leading up to and concluding with the sexual

molestation of their daughter.

[2] The trial court granted summary judgment in favor of K.M.W. and K.J.W.,

relying heavily on this Court’s decision in Wells v. Hickman, 657 N.E.2d 172

(Ind. Ct. App. 1995), trans. not sought, and concluded that the Does were not

entitled to relief as a matter of law under either theory of negligence.

[3] The critical inquiry in today’s case is whether this Court’s duty analysis in Wells

v. Hickman, a negligent parental supervision case, was implicitly overruled by a

pair of Supreme Court decisions. Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016)

1

We held oral argument on July 12, 2023, in the Indiana Court of Appeals Courtroom. We would like to

commend counsel for the quality of their presentations.

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and Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384 (Ind. 2016),

clarified the foreseeability in the context of duty analysis in negligence cases,

specifically in premises liability cases—which were subsequently

clarified/modified by the Supreme Court in Cavanaugh’s Sports Bar & Eatery, Ltd.

v. Porterfield, 140 N.E.3d 837 (Ind. 2020) and again most recently in Pennington

v. Memorial Hospital of South Bend, Inc., 223 N.E.3d 1086 (Ind. 2024). We

conclude that the duty analysis used in Wells has not been implicitly overruled.

[4] Thus, we reverse and remand to the trial court on the theory of negligent

parental supervision. However, as we explain below, our Supreme Court’s

decisions lead us to affirm the trial court’s decision as to premises liability.

[5] We also address whether the court erred by striking portions of a medical

expert’s affidavit for purposes of its summary judgment decision. Concluding

that those portions inappropriately express legal conclusions, we affirm the trial

court’s decision to strike them for purposes of summary judgment. We express

no opinion about their admissibility in further proceedings.

[6] Therefore, we affirm on premises liability and reverse and remand on negligent

parental supervision.

Facts and Procedural History

A. Background

[7] K.D.W. is not the biological son of K.M.W. and K.J.W. He was surrendered

to the Department of Child Services by his biological mother in 2011. On May

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29, 2013, when K.D.W. was eight years old, K.M.W. and K.J.W. began

fostering him, and they adopted him on December 4, 2014. They were aware

that K.D.W.’s biological mother was a prostitute and a drug addict and there

had been incidents of domestic violence between K.D.W.’s biological parents.

They also knew that K.D.W. was diagnosed with ADHD.

[8] K.M.W. arranged for K.D.W. to attend psychological therapy to address issues

with anxiety, attention deficit disorder, and past trauma. Over time, the parents

noticed that K.D.W. exhibited oppositional defiant behaviors such as lying,

stealing, and arguing.

[9] On June 10, 2017, K.D.W.’s parents sent him to a summer camp at Purdue

University. He was twelve. At Camp DASH he was housed on campus with

other program participants whose ages ranged from eleven to fifteen. Late in

the evening of June 20th, K.M.W. received a call that complaints had been

made against K.D.W. and that his parents needed to pick him up immediately.

[10] K.D.W. was dismissed from Camp DASH and later charged by the Tippecanoe

County Prosecutor with sexual battery after being accused of groping similarly-

aged female participants over their clothes. The probable cause affidavit

detailed K.D.W.’s unwanted groping or touching of female campers’ thighs,

buttocks, and breasts, along with aggressive hugging. Purdue University police

officers interviewed K.D.W. in his parents’ presence on August 8, 2017, and

K.D.W. made several admissions about his alleged behavior.

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[11] K.M.W. arranged for K.D.W. to see his long-time therapist who had

experience with sexual maladaptive behavior counseling and gave the therapist

a copy of the probable cause affidavit. In the course of these therapy sessions,

the parents learned that K.D.W.’s biological father had shown him

pornography when he was younger. And K.J.W. noticed after the Camp

DASH incident that K.D.W. had a preoccupation with sexual behaviors and

was trying to access electronics more frequently than he had in the past. For

example, K.D.W. accessed pornography on electronic devices and created a

profile on a dating website where he represented himself as a twenty-five-year-

old Romanian man.

[12] K.D.W.’s therapist determined that he needed a safety plan. That safety plan

recommended that K.D.W. not be alone with other children. During a

deposition in this matter, K.M.W. acknowledged that the safety plan did not

make a distinction between children and young children noting, “It was – just

said children.” Id. at 19. The therapist further recommended that the parents

limit his access to electronic devices or supervise his access.

[13] The parties dispute whether K.M.W. and K.J.W. informed other family

members about the specific allegations and K.D.W.’s expulsion from Camp

DASH. John Doe, who is K.M.W.’s brother, did not recall being told the

substance of the allegations against K.D.W. He recalled generally that there

were allegations resulting in his expulsion from Camp DASH. At best, the

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Does recalled being informed that K.D.W. was expelled for a lack of

supervision there and that K.D.W. should not be left alone with children. The

Does claimed that K.J.W. and K.M.W.’s attitude toward K.D.W., however,

remained unchanged.

[14] At the Tippecanoe County Prosecutor’s request, K.D.W. underwent a

psychosexual evaluation by Dr. Sean Samuels on May 14, 2018. K.D.W. was

determined to be at low risk of engaging in the charged behavior toward

younger children, similarly-aged peers, and older individuals. K.M.W. agreed

during his deposition, however, that low risk did not mean no risk and the

safety plan remained in place. Dr. Samuels recommended that K.D.W. see a

therapist who specializes in sexual maladaptive behaviors.

[15] K.D.W. did receive specialized therapy for such behaviors beginning in July

2018 at Reach for Youth. K.M.W. expressed several concerns to the therapist

in the initial joint session, including that: 1) K.D.W. will take flyers from the

newspaper, as well as lingerie, and/or cheerleader magazines; and 2) she has

found “naked barbie dolls in his room and hidden in various places in the

house.” Id. at 95.

B. The Incident

[16] On August 26, 2018, K.M.W. and K.J.W. hosted a birthday party at their

home. John, Jane, and Jill Doe were among the twenty-eight people there,

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including other family members. K.D.W.’s safety plan remained in place at

this time. K.M.W. and K.J.W. did not supervise K.D.W. because they were

hosting the party and did not ask other adults to help supervise. Additionally,

they did not tell the adults at the party about the allegations against K.D.W. for

his behavior at Camp DASH.

[17] At the party, several cousins ranging in age from two to twenty-two, played

games throughout the house. Some of the children, including K.D.W. and five-

year-old Jill Doe went upstairs to play hide and seek and ping pong. Adults,

including K.M.W., would go upstairs periodically to check on the children.

[18] According to the probable cause affidavit, on Monday, August 27, 2018, at

approximately 8:00 p.m., John Doe received a text message from his sister,

K.M.W., informing him that his daughter Jill Doe and K.D.W. were involved

in an incident during the family gathering the day before. John Doe learned

from K.M.W. and Jill Doe that during the game of hide and seek, when

K.D.W. and Jill Doe were alone in his room, K.D.W. locked the door and

pulled down his pants and Jill Doe’s pants. Jill later told her father that

K.D.W. instructed her to touch his penis, and when she said no, “grabbed her

hand and made her touch it (penis).” Id. at 133. She said K.D.W. then

“touched her on her vagina.” Id.

[19] On Friday, August 31, 2018, Greenwood Police Department Detective Doug

Wood conducted a Child’s First Finding Words interview with Jill Doe.

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During the interview, Jill Doe corroborated the information John Doe had

learned from his sister. The officer spoke with John Doe on Thursday,

September 13, 2018, confirming the fact that during the birthday party Jill Doe

and her sister and K.D.W. were observed playing hide and seek. John Doe also

informed the officer that Jill Doe disclosed the inappropriate touching to her

sister, who then disclosed the incident when she went to school the next day.

John further stated that he had received a call from his sister K.M.W. informing

him of the incident.

[20] During K.D.W.’s interview with police officers, he verified he was playing hide

and seek with Jill Doe at the party. However, K.D.W. explained that “his

pants were partially down and [Jill Doe] had her hand, under his, on his penis

for approximately 15 seconds.” Id. at 134. He said he told Jill Doe that “if she

didn’t stop trying to touch him he would stop playing with her.” Id. He then

stated, “he had made a mistake and was accountable for his actions.” Id. His

parents acknowledged that K.D.W. was in treatment for his sexual maladaptive

problems in part to prevent him from being a risk to others, and that it was their

responsibility to arrange for that treatment.

[21] On September 19, 2018, probable cause was found to support a charge of child

molesting, a Level 4 felony if committed by an adult, against K.D.W. Jill Doe

has had to undergo mental health therapy because of the molestation.

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C. The Lawsuit

[22] John and Jane Doe, as parents and legal guardians of Jill Doe, filed a complaint

for damages against K.M.W. and K.J.W. asserting claims for both premises

liability and negligent parental supervision. K.M.W. and K.J.W. filed a motion

for summary judgment arguing they owed no duty to Jill under either theory.

On July 22, 2022, the court granted the motion for summary judgment and also

struck portions of the Does’ medical expert affidavit. The Does now appeal.

Discussion and Decision

I. Negligence Claims

A. Summary Judgment Standard of Review

[23] When reviewing the grant of a motion for summary judgment, our standard of

review is similar to that of the trial court. Stabosz v. Friedman, 199 N.E.3d 800,

807 (Ind. Ct. App. 2022), trans. denied. “Summary judgment is appropriate only

where the moving party has shown that there is no genuine issue of material

fact and that it is entitled to judgment as a matter of law.” Id. (quoting Burris v.

Bottoms Up Scuba-Indy, LLC, 181 N.E.3d 998, 1003-04 (Ind. Ct. App. 2021)).

“All factual inferences must be construed in favor of the non-moving party, and

all doubts as to the existence of a material issue must be resolved against the

moving party.” Id. (quoting Burris, 181 N.E.3d at 1004).

[24] “We will not reweigh the evidence but will liberally construe all designated

evidentiary material in the light most favorable to the nonmoving party to

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determine whether there is a genuine issue of material fact for trial.” Id.

(quoting Perkins v. Fillio, 119 N.E.3d 1106, 1110-11 (Ind. Ct. App. 2019)). “A

trial court’s grant of summary judgment is clothed with a presumption of

validity.” Id. And “[a] grant of summary judgment may be affirmed by any

theory supported by the designated materials.” Id.

B. Analysis

1. Negligent Parental Supervision

[25] We begin by setting out the following passage from Wells v. Hickman:

Parents are in a unique position in society because they have a

special power to observe and control the conduct of their minor

children. See Prosser and Keeton on Torts § 123 at 914-15 (5th ed.

1984). The power held by a parent is unlike that held by a child’s

teachers or peers because a parent has the ability to influence a

child’s behavior from birth and can observe and modify [his or]

her child’s actions. A parent, unlike a teacher, is in the best

position to discover and act upon changes in [his or] her child’s

personality and behavior. Parents have a duty to exercise this

power reasonably, especially when they have notice of a child’s

dangerous tendencies. That is not to say that a parent should be

responsible for behavior that is not reasonably foreseeable, nor

should a parent be held responsible for general incorrigibility or a

nasty disposition.

657 N.E.2d 172, 178-79 (some citations omitted).

[26] The Does brought a claim of negligent parental supervision against K.D.W.

and K.M.W. As a general rule, the common law does not hold parents liable

for the tortious acts of their minor children. Wells, 657 N.E.2d at 176. But

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there are four common-law exceptions to this general rule. Id. And the

exception at issue here derives from Restatement (Second) of Torts, which

reads:

A parent is under a duty to exercise reasonable care so to control

his minor child as to prevent it from intentionally harming others

or from so conducting itself as to create an unreasonable risk of

bodily harm to them, if the parent

(a) knows or has reason to know that he has the ability to control

his child, and

(b) knows or should know of the necessity and opportunity for

exercising such control.

Restatement (Second) of Torts § 316, at 123-24 (1965). Under this exception,

2

foreseeability is an element of duty. This exception is applicable “where the

parent fails to exercise control over the minor child although the parent knows

or with due care should know that injury to another is possible.” Wells, 657

N.E.2d at 176 (quotation omitted).

2

The Supreme Court came to this conclusion in Rogers and in Pennington under the language of Restatement

(Second) of Torts, section 343. See Rogers, 63 N.E.3d at 324 (foreseeability component already explicit in the

Restatement); Pennington, 223 N.E.3d at 1097 (“an unreasonable risk of harm” defendant “should realize”

exists).

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[27] This exception is known as the tort of “parental failure to control” or “negligent

parental supervision.” Id. at 177; Shepard by Shepard v. Porter, 679 N.E.2d 1383,

1389 (Ind. Ct. App. 1997), reh’g denied. Under this tort,

a duty attaches when there has been a failure to control and the

parent knows or should have known that injury to another was

reasonably foreseeable. Specifically, the parent must know or

should have known that the child had a habit of engaging in the

particular act or course of conduct which led to the plaintiff’s

injury.

Wells, 657 N.E.2d at 178. The parent’s negligence “is a separate act of

negligence independent of the child’s wrongful act.” Id. at 177. Indiana

adopted this exception in Wells and recognizes parental failure to control as a

viable cause of action. Id.

[28] At issue here is whether the Supreme Court’s decisions in Goodwin, Rogers, and

Cavanaugh’s, implicitly overrule the duty analysis in Wells. We conclude they

do not. But prior to explaining why we reach that conclusion, we first

demonstrate that even under the Wells analysis alone, the Does designated

enough evidence to withstand the motion for summary judgment.

[29] In Wells, in the year preceding the behavior at issue, the child killed a pet dog

and a pet hamster. Id. at 175. The child also expressed a desire to commit

suicide, was often visibly angry, and once came home from school with a black

eye, cuts, and bruises. On October 15, 1991, the child invited a twelve-year-old

neighbor over to play video games at his house. Neither the child’s mother nor

his grandparents, with whom he lived, were aware that the two were together.

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The boys did not play video games, however, and the child later informed his

mother he thought he had killed his young neighbor. The neighbor’s body was

later found lying beside a fallen tree on the grandparents’ property.

[30] Because Wells presented an issue of first impression, this Court turned to other

jurisdictions which had adopted the failure to control exception and relied on

K.C. v. A.P., 577 So.2d 669 (Fla. App. 1991) for guidance. K.C. provided that a

parent has a duty to exercise control over a minor child where “the parent

knows or with due care should know that injury to another is possible.” Id. at

671 (emphasis added). K.C. further provided that for a parent to be liable the

parent must know that the child “had a habit of engaging in the particular act or

course of conduct which led to the plaintiff’s injury.” Id. (quoting Snow v.

Nelson, 475 So 2d 225, 2226 (Fla. 1985)). Under that analytical framework, we

concluded that “[n]either the type of harm inflicted nor the victim in this case

was foreseeable and, thus, cannot support the imposition of a duty upon [the

mother].” Wells, 657 N.E.2d at 178.

[31] However, we rejected K.C.’s use of the term “possible” when analyzing parental

liability under this exception, instead embracing that part of the analysis

requiring the parent to have knowledge of the child’s habit of engaging in the

particular act or course of conduct which led to the injury. Id. at 178 n.3. Instead

of using the “possibility analysis” we used the analysis from Webb v. Jarvis, 575

N.E.2d 992, 997 (Ind. 1991), imposing a duty in negligence cases to

“circumstances where a reasonably foreseeable victim is injured by a reasonably

foreseeable harm.” Wells, 657 N.E.2d at 178. We concluded that “a duty

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attaches when there has been a failure to control and the parent knows or

should have known that injury to another was reasonably foreseeable.” Id.

“Specifically, the parent must know or should have known that the child had a

habit of engaging in the particular act or course of conduct which led to the

plaintiff’s injury.” Id.

[32] In the present case, the trial court concluded that “the particular harm to Jill

Doe was not foreseeable,” in part because “K.D.W.’s actions at a camp that

was away from home and with little supervision constitute[d] a single event”

such that it was not a habit. Appellants’ App. Conf. Vol. II, p. 30. The court

further concluded that the “victim, Jill Doe, was also not foreseeable” because

the “instance” of prior conduct at Camp DASH “occurred exclusively with

other females near K.D.W.’s age” and “took place outside the home with little

supervision.” Id. at 31. We disagree.

[33] The probable cause affidavit, which is part of the designated materials, detailed

unwanted groping or touching by K.D.W. of several different female campers’

thighs, buttocks, and breasts, along with aggressive hugging. Appellants’ App.

Conf. Vol. III, pp. 76-77. And Petition Alleging Delinquency set out that

“[b]etween June 10, 2017 and June 21, 2017, [K.D.W.] did touch FD, BL, DL,

DS and/or AT with the intent to arouse or satisfy the sexual desires of

[K.D.W.] . . . .” Appellants’ App. Conf. Vol. II, p. 71. D.L. reported that at

Camp DASH, K.D.W. engaged in “unwanted aggressive hugging” with her

“that necessitated physical force to get free.” Appellants’ App. Conf. Vol. III,

p. 76. D.S. was interviewed and told law enforcement that K.D.W. placed his

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arm around her lower waist along with other unwanted touching

“approximately 40 times” while at Camp DASH and that she had “observed

him touch other camper’s [sic] upper thighs and buttocks.” Id. A.T. told law

enforcement that K.D.W. “touched both her buttocks and breasts” in the

laundry room at Camp DASH. Id. In sum, this was more than a single

incident.

[34] K.D.W.’s behavior not only suggests a habit of engaging in unwanted touching

in a sexual manner, but also a course of conduct of unwanted touching of

females especially while unsupervised. Moreover, the record shows that

K.D.W.’s parents were aware of his behavior at Camp DASH. Thus,

regardless of the impact of the decisions in Goodwin, Rogers, Cavanaugh’s, and

Pennington, under the Wells analysis, Jill Doe was a foreseeable victim of a

foreseeable harm.

[35] Next, we examine whether subsequent cases issued by our Supreme Court –

which helped shape the foreseeability in the context of duty analysis – have

impact on our conclusion that Jill Doe was a foreseeable victim of a foreseeable

harm, a conclusion we reached under the Wells analysis.

[36] After Wells was decided, our Supreme Court issued a series of decisions which

helped shape foreseeability in the context of duty analysis. Although the

analysis was developed through premises liability cases, the Supreme Court has

not expressly limited the analysis to such cases. Setting out the evolution of the

analysis, the Rogers Court explained that in prior cases, appellate courts used the

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three-part balancing test announced in Webb v. Jarvis, 575 N.E.2d 992 (Ind.

1991). The plaintiff in Webb urged the Court “to find an affirmative duty on the

part of a physician to administer medical treatment to a patient in such a way

so as to take into account possible harm to unidentifiable third persons.” Id. at

995. In other words, the Court was asked to determine whether a cognizable

cause of action imposing a duty existed. The Webb Court articulated the three-

factor balancing test used to determine the existence of a duty, which includes

examining the: (1) relationship between the parties; (2) foreseeability of harm;

and (3) public policy concerns. Id. at 997.

[37] The Rogers Court noted that in subsequent cases involving premises liability due

to activities on the land, such as Delta Tau Delta v. Johnson, 712 N.E.2d 968, 971

(Ind. 1991), it had found the Webb balancing test unnecessary. 63 N.E.3d at

323-24. In other words, because the duty to exercise reasonable care had

already been determined, “courts must look at one critical element before

extending that duty to cases where an invitee’s injury occurs . . . due to some

harmful activity on the premises. That element is foreseeability.” Id. at 324.

[38] Next, the Rogers Court announced “how the foreseeability analysis is actually

performed” with respect to duty and set out its “definitive path” as follows:

When foreseeability is part of the duty analysis, as in landowner-

invitee cases, it is evaluated in a different manner than

foreseeability in the context of proximate cause. Specifically, in

the duty arena, foreseeability is a general threshold determination

that involves an evaluation of (1) the broad type of plaintiff and

(2) the broad type of harm. In other words, this foreseeability

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analysis should focus on 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. We believe this analysis comports with

the idea that the courts will find a duty where, in general,

reasonable persons would recognize it and agree that it exists.

63 N.E.3d at 324-25 (internal citations and quotations omitted).

[39] And in Goodwin, decided the same day as Rogers, the Supreme Court observed

that prior appellate decisions had reshaped the Webb balancing test into a

consideration of the “totality of the circumstances,” “looking to all of the

circumstances surrounding an event, including the nature, condition, and

location of the land, as well as prior similar incidents.” 62 N.E.3d at 387

(internal quotations omitted). The Court further observed that in Northern

Indiana Public Service Co. v. Sharp, 790 N.E.2d 462 (Ind. 2003), it had found the

Webb balancing test “a useful tool in determining whether a duty exists . . . only

in those instances where the element of duty has not already been declared or

otherwise articulated.” 62 N.E.2d at 387 (internal quotations omitted).

Ultimately, the Court in Goodwin “recognize[d] that although the ‘totality of the

circumstances’ test is useful in determining foreseeability in the context of

proximate causation, it is inappropriate when analyzing foreseeability in the

context of duty.” Id. at 389.

[40] Like the Rogers decision, the Goodwin decision explained the path courts are to

take going forward when analyzing foreseeability as a component of duty. The

Court expressly rejected the Webb analysis and that of its own decision in Estate

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of Heck ex rel. Heck v. Stoffer, 786 N.E.2d 265 (Ind. 2003), in favor of the analysis

set out in this Court’s prior decision in Goldsberry v. Grubbs, 672 N.E.2d 475

(Ind. Ct. App. 1996). The Goldsberry analysis adopted in Goodwin follows:

[T]he foreseeability component of the duty analysis must be

something different than the foreseeability component of

proximate cause. More precisely, it must be a lesser inquiry; if it

was the same or a higher inquiry it would eviscerate the

proximate cause element of negligence altogether. If one were

required to meet the same or a higher burden of proving

foreseeability with respect to duty, then it would be unnecessary

to prove foreseeability a second time with respect to proximate

cause. Additionally, proximate cause is normally a factual

question for the jury, while duty is usually a legal question for the

court. As a result, the foreseeability component of proximate

cause requires an evaluation of the facts of the actual occurrence,

while the foreseeability component of duty requires a more

general analysis of the broad type of plaintiff and harm involved,

without regard to the facts of the actual occurrence.

Goodwin, 62 N.E.3d at 390 (quoting Goldsberry, 672 N.E.2d at 479). And the

rationale behind the analysis is as follows:

[A] court’s task—in determining “duty”—is not to decide

whether a particular plaintiff’s injury was reasonably foreseeable

in light of a particular defendant’s conduct, but rather to evaluate

more generally whether the category of negligent conduct at issue

is sufficiently likely to result in the kind of harm experienced that

liability may appropriately be imposed on the negligent party.

The jury, by contrast, considers “foreseeability” . . . [in] more

focused, fact-specific settings. . . .

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Id. at 391 (quoting Strahin v. Cleavenger, 216 W.Va. 175, 603 S.E.2d 197, 207

(2004)).

[41] Next, in Cavanaugh’s Sports Bar & Eatery, Ltd. v. Porterfield, a majority of the

Supreme Court added that,

[w]hen evaluating the broad class of plaintiff and broad type of

harm in these cases, we acknowledge a key factor is whether the

landowners knew or had reason to know about any present and

specific circumstances that would cause a reasonable person to

recognize the probability or likelihood of imminent harm. See

Goodwin, 62 N.E.3d at 385 (noting that, just before the barroom

shooting, all the parties were separately “socializing” at “the

small establishment”); Rogers, 63 N.E.3d at 319 (remarking that

the homeowner observed that her co-host was, before attacking a

house-party guest, “just ‘being normal,’ and it was not obvious to

her that he had ‘a buzz going’” from drinking alcohol); id.

(observing that, before the guest was found dead outside her

home, the homeowner saw him “lying motionless on the

basement floor with his eyes closed”). If landowners had reason

to know of any imminent harm, that harm was, as a matter of

law, foreseeable in the duty context. See, e.g., id. at 327 (holding

that it was foreseeable “that a house-party guest who is injured

on the premises could suffer from an exacerbation of those

injuries”).

140 N.E.3d 837, 840-41 (Ind. 2020).

[42] Thus, although the Supreme Court in Goodwin and Rogers spoke about

foreseeability in terms of a broad type of plaintiff and a broad type of harm,

both decisions involved an analysis of the contemporaneous knowledge of the

landowner of the probability or likelihood of imminent harm—which by

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necessity involves addressing the specific facts of the occurrence to a certain

extent. See Singh v. Singh, 155 N.E.3d 1197, 1208 (Ind. Ct. App. 2020)

(“Accordingly, it appears that, in practice, an examination of particular facts is

necessary to fully resolve the question of duty at this stage and to properly apply

Cavanaugh’s required ‘foreseeability as a component of duty’ analysis.”).

[43] In Cavanaugh’s, the Supreme Court noted that several decisions of this Court,

post-Goodwin and Rogers, had similarly evaluated foreseeability in the context of

duty and found duty existed based on the contemporaneous knowledge of the

defendant. See Hamilton v. Steak ‘n Shake Operations, Inc., 92 N.E.3d 1166 (Ind.

Ct. App. 2018), trans. denied; Certa v. Steak ‘n Shake Operations Inc., 102 N.E.3d

336 (Ind. Ct. App. 2018), trans. denied; and Buddy & Pals III, Inc. v. Falaschetti,

118 N.E.3d 38 (Ind. Ct. App. 2019), trans. denied; see also Doe v. Delta Tau Delta

Beta Alpha Chapter, No. 1:16-cv-1480, 2018 WL 3375016 (S.D. Ind. July 11,

2018).

[44] In Pennington, our Supreme Court clarified that in premises cases, in the context

of duty, there are different foreseeability analyses depending on whether the

claim is based on the condition of the premises or the harmful activities

occurring thereon. 223 N.E.3d at 1097. Therefore, it is logical that in a

negligence case, alleging negligent parental supervision, a different

foreseeability analysis, such as that announced in Wells, would apply.

Moreover, premises liability cases begin by presuming that a landowner owes a

duty of care to invitees. See Burrell v. Meads, 569 N.E.2d 637, 639 (Ind. 1991)

(“[A] landowner owes the highest duty to an invitee: a duty to exercise

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reasonable care for his protection while he is on the landowner’s premises.”).

But in cases involving parents and the torts of their children, we begin with the

presumption that the parent owes no duty. See Wells, 657 N.E.2d at 176 (“As a

general rule, the common law does not hold a parent liable for the tortious acts

of her minor children.”).

[45] Thus, when an exception such as negligent parental supervision is alleged, we

turn not to the Webb analysis—(1) relationship between the parties; (2)

foreseeability of harm; and (3) public policy concerns—but to the foreseeability

in the context of duty analysis, first developed by Wells, and shaped by the

subsequent cases of our Supreme Court. A more stringent foreseeability in the

context of duty analysis, like the one announced in Wells, is required in order to

preserve the general rule of non-liability of parents for the torts of their children.

[46] Consequently, for the exception to apply and the claim to move forward, “the

parent must know or should have known that the child had a habit of engaging

in the particular act or course of conduct which led to the plaintiff’s injury.”

Wells, 657 N.E.2d at 178. And we observe that there are two parts to this

analysis: whether there is evidence that the parent knew or should have known

that the child (1) had a habit of engaging in the particular act, or (2) had a habit

of engaging in the course of conduct.

[47] Turning to the facts of this case, we conclude that K.M.W. and K.J.W. owed a

duty to Jill Doe. They were aware of K.D.W.’s difficulties at home and his

behavior at Camp DASH. They were aware of the need for K.D.W.’s safety

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plan. And they were also aware of his sexual maladaptive behavior at home.

Whether they breached that duty or acted reasonably under the circumstances

are questions for a jury. However, as for the foreseeability in the context of

duty analysis, based on what they knew prior to the incident, Jill Doe was a

foreseeable victim of a foreseeable harm because K.M.W. and K.J.W. knew or

should have known that K.D.W. had a habit of engaging in the conduct that

resulted in Jill Doe’s injuries.

[48] For all the reasons explained above, we conclude that the trial court erred by

granting summary judgment in favor of K.J.W. and K.M.W. on this count of

the Does’ complaint.

2. Premises Liability

[49] The Does’ negligence claim requires them to establish that (1) K.M.W. and

K.J.W. owed a duty to Jill Doe; (2) they breached that duty by allowing their

conduct to fall below the applicable standard of care; and (3) their breach of

duty proximately caused a compensable injury to Jill Doe. Rogers, 63 N.E.3d at

321. The Does allege that K.M.W. and K.J.W. owed a duty to protect Jill Doe

from harm because she was a social guest upon their premises.

[50] “Under Indiana premises liability law, the duty a landowner owes to an invitee

is well established: a landowner must exercise reasonable care for the invitee’s

protection while the invitee is on the premises.” Id. at 320. “Because this

general duty has been articulated, the Court need not judicially determine the

existence of a separate duty today.” Id. “Rather, we look to foreseeability as

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the critical inquiry in deciding whether the landowner-invitee ‘duty to protect’

extends to a particular scenario.” Id. And “[i]t is well settled that absent a

duty, there can be no breach.” Id. at 321.

[51] Reasonable care requires

a person to anticipate and guard against what usually happens or

is likely to happen and that a failure to do this is negligence; but

that reasonable care does not require him to foresee and guard

against that which is unusual and not likely to occur, and a

failure to do this is not negligence.

Vetor by Weesner v. Vetor, 634 N.E.2d 513, 517 (Ind. Ct. App. 1994) (quoting

Alfano v. Stutsman, 471 N.E.2d 1143, 1145 (Ind. Ct. App. 1984)). “Over the

years, the application of this broadly stated landowner-invitee duty to particular

situations has depended on one critical element: foreseeability.” Rogers, 63

N.E.3d at 321.

[52] In Rogers, the Court recognized that “[w]hen a physical injury occurs as a result

of a condition on the land, the three elements described in Restatement

3

(Second) of Torts section 343 accurately describe the landowner-invitee duty.”

3

Restatement (Second) of Torts section 343 provides:

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.

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Id. at 322-23. And “while section 343 limits the scope of landowner-invitee

duty in cases involving injuries due to conditions of the land, injuries could also

befall invitees due to activities on a landowner’s premises unrelated to the

premises’ condition—and that landowners owe their invitees the general duty of

reasonable care under those circumstances, too.” Id. at 323.

[53] And when there was no “notice of present and specific circumstances that

would cause a reasonable person to recognize the risk of an imminent criminal

act, [this Court] has consistently held since Goodwin and Rogers . . . that

landowners cannot foresee these sudden attacks.” Cavanaugh’s, 140 N.E.3d at

842-43. See Powell v. Stuber, 89 N.E.3d 430 (Ind. Ct. App. 2017), trans denied;

Jones v. Wilson, 81 N.E.3d 688 (Ind. Ct. App. 2017), trans. not sought; Cosgray v.

French Lick Resort & Casino, 102 N.E.3d 895 (Ind. Ct. App. 2018), trans not

sought; and Rose v. Martin’s Super Markets L.L.C., 120 N.E.3d 234 (Ind. Ct. App.

2019), trans. denied.

[54] Our Supreme Court recently addressed the foreseeability analysis in Pennington.

In that case, Jennifer Pennington, a patron of a health and fitness center, was

injured while swimming in the center’s swimming pool. 223 N.E.3d at 1092.

While transitioning between different swimming strokes, “her head collided

with the corner of the wing-wall by the entry steps, causing her injury.” Id.

Pennington and her husband filed a complaint alleging various theories of

negligence as the cause of her injuries.

[55] Our Supreme Court said,

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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 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

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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.

Id. at 1097-98. The Court concluded that the appropriate foreseeability analysis

followed Restatement section 343, and used the test for the foreseeability of

dangerous conditions. Id. at 1098. The Court concluded that genuine issues of

material fact existed such that granting summary judgment for the center was

erroneous. Id. at 1100. Therefore, the foreseeability analysis for premises

claims arising from harmful activities has been clearly articulated.

[56] Here, the trial court concluded that “[a] duty of reasonable care requires a

person to anticipate and guard against what usually happens or is likely to

happen, and a failure to do so is negligence.” Appellants’ App. Vol. II, p. 32.

The court also concluded that: (1) “[b]ecause K.D.W.’s molestation of Jill Doe

was not likely to occur, the Defendants were not negligent; and (2) “the

presence of a troubled child is not equivalent to a dangerous condition or

activity on the premises.” Id. The court granted summary judgment as a

matter of law in favor of K.M.W. and K.J.W.

[57] In today’s case, using the Supreme Court’s analysis for premises claims

involving harmful activities on the land, the broad type of plaintiff is a female

child attending a family gathering. And the broad type of harm is sexual

molestation of that child by another child attending the family gathering. Using

the Goodwin query, which was embraced in Pennington, the general question we

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ask is whether hosts of family gatherings routinely contemplate that one family

member/guest might sexually molest another. See Goodwin, 62 N.E.2d. at 393-

94; Pennington, 223 N.E.3d at 1097. We conclude that they do not and affirm

the trial court’s decision to grant summary judgment in favor of K.M.W. and

K.J.W. on the premises liability claim of the Does’ complaint.

II. Evidentiary Ruling

[58] Finally, we address whether the trial court correctly struck portions of the

affidavit of Dr. Julie Medlin for purposes of its summary judgment order.

A. Standard of Review

[59] “We review for an abuse of discretion a trial court’s decision on a motion to

strike.” Halterman v. Adams Cnty Bd. Of Comm’rs, 991 N.E.2d 987, 989 (Ind. Ct.

App. 2013). And we “will reverse only when the decision is clearly against the

logic and effect of the facts and circumstances.” Id.

B. Analysis

[60] The Does argue that the trial court erroneously excluded the following

paragraphs from the affidavit of expert witness Dr. Julie Medlin:

10. As I will explain in this affidavit, it is my opinion that

[K.M.W.] and [K.J.W.] knew or should have known that in

August 2018, their son, [K.D.W.] was at risk for engaging in

sexual abusive behaviors, including the inappropriate touching

and sexual abuse of a young child like [Jill Doe], if not properly

supervised by his parents.

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....

16. It is my opinion that [K.J.W.] and [K.M.W.] knew or

should have known that failure to follow the safety plan would

result in [K.D.W.] engaging in sexual maladaptive behaviors,

including but not limited to the inappropriate touching or sexual

molestation of a younger child like [Jill Doe].

17. It is my opinion that on the day of [the] incident that is the

subject of the above captioned cause, [K.J.W.] and [K.M.W.]’s

failure to adequately supervise [K.D.W.] made it foreseeable that

[K.D.W.] would engage in sexual maladaptive behaviors

including but not limited to the inappropriate touching or sexual

molestation of a younger child like [Jill Doe].

Appellants’ App. Conf. Vol. 2, pp. 130, 132-33. The trial court concluded that

the language used in those paragraphs tracked the Restatement’s language used

to determine the existence of a duty in claims alleging negligent parental

supervision. We agree.

[61] Indiana Rule of Evidence 702 provides for the admissibility of expert opinions.

The Rule provides:

Ind. Evidence Rule 702.

(a) A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an

opinion or otherwise if 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.

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(b) Expert scientific testimony is admissible only if the court is

satisfied that the expert testimony rests upon reliable scientific

principles.

[62] “In addition to asserting admissible facts upon which the opinion is based, an

expert opinion affidavit must also state the reasoning or methodologies upon

which it is based.” Thayer v. Vaughn, 798 N.E.2d 249, 254 (Ind. Ct. App. 2003),

trans. denied. “The trial court must be provided with enough information to

proceed with a reasonable amount of confidence that the principles used to

form the opinion are reliable.” Id.

[63] The parties do not dispute Dr. Medlin’s qualifications as an expert. The

question here is whether Dr. Medlin’s affidavit includes opinions concerning

legal conclusions. Evidence Rule 704 provides as follows:

(a) In General--Not Automatically Objectionable. Testimony in

the form of an opinion or inference otherwise admissible is not

objectionable just because it embraces an ultimate issue.

(b) Exception. Witnesses may not testify to opinions concerning intent,

guilt, or innocence in a criminal case; the truth or falsity of

allegations; whether a witness has testified truthfully; or legal

conclusions.

(emphasis added).

[64] “[E]xperts should not be permitted to offer legal conclusions as part of their

testimony because to do so would violate the spirit of Evidence Rule 704(b),

which provides that ‘[w]itnesses may not testify to opinions concerning . . .

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legal conclusions.’” Kelly v. Levandoski, 825 N.E.2d 850, 864 (Ind. Ct. App.

2005) (quoting Vaughn v. Daniels Co. (West Virginia), Inc., 777 N.E.2d 1110,

1122-123 (Ind. Ct. App. 2002) (overruled by Vaughn v. Daniels Co. (West

Virginia), Ind., 841 N.E.2d 1133, 1137 (Ind. 2006)) (“His opinions concerning

reasonable care or proximate cause in paragraph 17 embrace ultimate issues to

be decided by the trier of fact and therefore are admissible.”), trans. denied.

“The purpose of the rule is that legal conclusions from a witness are not helpful

to the trier of fact; the judge, not an expert witness, instructs on the law.” Id.

In today’s case, the statements contained in affidavit paragraphs numbered 10,

16, and 17 pertain to the legal conclusion the court should make about

foreseeability in the context of duty. The statements here violate the

evidentiary rules, particularly Rule 704(b), because they offer legal conclusions

not to be decided by the trier of fact, but by the trial court, and were properly

stricken.

[65] We affirm the trial court’s decision to strike those statements for purposes of its

summary judgment determination. However, we offer no opinion as to the

admissibility of the affidavit or any portions thereof in further proceedings.

Conclusion

[66] In light of the foregoing, we affirm the trial court’s grant of summary judgment

on the premises liability claim. We also affirm the court’s decision to strike

portions of the expert’s affidavit. However, we reverse the court’s grant of

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summary judgment on the negligent parental supervision claim and remand the

matter to the trial court for further proceedings on the merits.

[67] Affirmed in part, and reversed and remanded in part.

Riley, J., and Tavitas, J., concur.

ATTORNEYS FOR APPELLANTS

Amy M. Davis

Law Office of Amy M. Davis

Indianapolis, Indiana

Katherine A. Franke

Broadwing Legal

Indianapolis, Indiana

ATTORNEY FOR AMICUS CURIAE

INDIANA TRIAL LAWYERS ASSOCIATION

Todd C. Barnes

DOBS & Farinas, LLP

ATTORNEYS FOR APPELLEES

Dina M. Cox

Anthony J. Simonton, Jr.

J. Neal Bowling

Lewis Wagner, LLP

Indianapolis, Indiana

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