FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN D. ULMER WILLIAM P. HOYE
BODIE J. STEGELMANN JILL R. BODENSTEINER
Yoder, Ainlay, Ulmer & Buckingham, L.L.P. University of Notre Dame
Goshen, Indiana Notre Dame, Indiana
WILLIAM G. HAYDEN and )LETITIA J. HAYDEN, ) ) Appellants-Plaintiffs, ) ) vs. ) No. 71A03-9812-CV-519 )UNIVERSITY OF NOTRE DAME, ) ) Appellee-Defendant. )
KIRSCH, Judge
litigation about which there can be no material factual dispute and which can be resolved asa matter of law. Schrum v. Moskaluk, 655 N.E.2d 561, 563-64 (Ind. Ct. App. 1995).
When reviewing a motion for summary judgment, this court applies the same standardutilized by the trial court, and we resolve any doubt as to a fact, or an inference to be drawntherefrom, in favor of the party opposing summary judgment. Bamberger & Feibleman v.Indianapolis Power & Light Co., 665 N.E.2d 933 (Ind. Ct. App. 1996). We will affirm a trialcourt's grant of summary judgment if it is sustainable on any theory found in the evidencedesignated to the trial court. Id.
When the movant's affidavits and other evidence demonstrate the lack of a genuineissue, the burden shifts to the opposing party to demonstrate the existence of a genuine issuefor trial. Carroll v. Jagoe Homes, Inc., 677 N.E.2d 612, 614 (Ind. Ct. App. 1997). The non-moving party may not rest on the pleadings, but must set forth specific facts that show thereis a genuine issue of material fact for trial. Clark v. Estate of Slavens, 687 N.E.2d 246, 248(Ind. Ct. App. 1997).
A defendant in a negligence action may obtain summary judgment bydemonstrating that the undisputed material facts negate at least one element of the plaintiff'sclaim or that the claim is barred by an affirmative defense. Hapner v. State, 699 N.E.2d1200, 1203 (Ind. Ct. App. 1998).
The Haydens claim that Notre Dame was negligent in failing to protect LetitiaHayden. In order to prevail on a claim of negligence, a plaintiff must prove: (1) a duty owedto the plaintiff by the defendant; (2) a breach of that duty by the defendant; and (3) injuryto the plaintiff proximately caused by that breach. Wickey v. Sparks, 642 N.E.2d 262, 265
(Ind. Ct. App. 1994), trans. denied (1995).
The only element at issue here is whether NotreDame owed Letitia Hayden a duty under the circumstances.
Whether a duty exists isgenerally a question of law for the court to determine. Webb v. Jarvis, 575 N.E.2d 992, 995(Ind. 1991).
The Haydens argue that this case is governed by premises liability principles and thatthe relevant standard of care is determined by Letitia Hayden's status as an invitee. SeeBurrell v. Meads, 569 N.E.2d 637, 639 (Ind. 1991) (reaffirming reliance on common lawclassifications in premises liability cases). The parties do not dispute that Letitia Hayden wasa business invitee of Notre Dame.
Nonetheless, Notre Dame argues that it owed no duty toprotect Letitia Hayden from a third party's criminal act.See footnote
1
It contends that the third party'saction was unforeseeable, and that it therefore owed no duty to anticipate it and protectLetitia Hayden, a business invitee.
Our supreme court recently decided several cases which articulated the test fordetermining when a landowner's duty to its invitees extends to protecting them against thecriminal actions of third parties that occur on its land. In Delta Tau Delta v. Johnson, 712N.E.2d 968 (Ind. 1999), the court adopted a “totality of the circumstances” test fordetermining when such a duty arises. This test “requires landowners to take reasonableprecautions to prevent foreseeable criminal actions against invitees.” Id. at 973. The courtexplained that, “[u]nder the totality of the circumstances test, a court considers all of thecircumstances surrounding an event, including the nature, condition, and location of the land,
as well as prior similar incidents, to determine whether a criminal act was foreseeable.” Id.at 972. “A substantial factor in the determination is the number, nature, and location of priorsimilar incidents, but the lack of prior similar incidents will not preclude a claim where thelandowner knew or should have known that the criminal act was foreseeable.” Id. at 973. Applying the totality of the circumstances test in the case before it, the court held thatthe defendant-fraternity owed a duty to the plaintiff, a young woman who attended a partyat the fraternity house, to take reasonable precautions to protect her from sexual assault bythird parties on its premises. Id. at 973. The court looked at prior incidents of assault andforced alcohol consumption, as well as the fraternity's awareness of the prevalence of daterape (especially involving fraternity members) and of legal action taken against otherfraternities for sexual assault, and concluded that under these circumstances such a dutyexisted.
In Vernon v. Kroger Co., 712 N.E.2d 976 (Ind. 1999), the court applied the same test to the case of a plaintiff who was beaten on the defendant's store premises by a shoplifterattempting to flee. The plaintiff was attempting to exit the store's parking lot when heinadvertently blocked the vehicle of the fleeing shoplifter. The shoplifter pulled the plaintifffrom his vehicle and beat him. The court noted that shoplifting at the store was not anunusual occurrence, that many shoplifters attempted to flee in waiting cars, that someshoplifters used force to escape, that criminal occurrences had happened in the parking lot,and that in the two years prior to this event, the police had made numerous runs to the storefor crimes of violence and an increasing number of runs for battery and shoplifting. Based
on the totality of the circumstances, the court held that the defendant owed the plaintiff aduty to protect him from the criminal acts of the third party-shoplifter.
Finally, in L.W. v. Western Golf Ass'n, 712 N.E.2d 983 (Ind. 1999), the court facedthe issue of a landowner's duty for the criminal acts of a third party in the context of anothersexual assault. In L.W., a female student was raped by a male student in a co-educationalresidence hall owned by the defendant. Based on the totality of the circumstances, the courtheld that the defendant did not owe the plaintiff a duty. While the evidence showed a fewpranks or childish behavior, there was no evidence of prior violent acts or sexual assaults atthe residence hall. There was also no indication that the rapist would commit such a crime. Id. at 985.
Applying this test to the case before us, we find that the totality of the circumstancesestablishes that Notre Dame should have foreseen that injury would likely result from theactions of a third party in lunging for the football after it landed in the seating area. As aresult, it owed a duty to Letitia Hayden to protect her from such injury. The Haydens wereseated in Notre Dame's stadium to watch a football game. Notre Dame well understands andbenefits from the enthusiasm of the fans of its football team. It is just such enthusiasm thatdrives some spectators to attempt to retrieve a football to keep as a souvenir. There wasevidence that there were many prior incidents of people being jostled or injured by effortsof fans to retrieve the ball. Letitia Hayden testified that she and her husband had attendedNotre Dame football games for many years, and that she witnessed footballs land in theseating area around her many times. On numerous occasions, she saw people jump to get the
ball. She testified that she witnessed another woman injured a number of years earlier whenpeople in the crowd attempted to retrieve a football, and that she was knocked off her seatearlier in the game by crowd members attempting to retrieve the ball prior to the incident inwhich she was injured.
William Hayden testified that the net behind the goalpost caught the ball only aboutfifty percent of the time that it was kicked. The other half of the time, the ball would fall inthe seating area around his seat, and people would try desperately to retrieve the ball. Hestated that a few years prior to this incident, he had been knocked off his feet and thrown intothe next row by fans eager to retrieve a football, and that he had been jostled a number oftimes. He stated that Notre Dame ushers witnessed fans being jostled in scrambles for theball, but did not make aggressive attempts to recover the balls. He testified that in prioryears, student managers, who were Notre Dame employees, would aggressively attempt toretrieve balls from fans and were usually successful in returning the balls to the playing field. The managers, however, no longer tried to retrieve the balls and stayed on the playing field.
Based on the totality of the circumstances, we hold that Notre Dame owed LetitiaHayden a duty to take reasonable steps to protect her from injury due to the actions of otherfans in attempting to retrieve footballs which land in the seating area. The trial court erredin finding that no duty existed and entering summary judgment in favor of Notre Dame.
Reversed.
GARRARD, J., and NAJAM, J., concur.
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