APPEAL FROM THE SHELBY CIRCUIT COURT, The Honorable Charles D. O'Connor, Judge, Cause No. CC-86-9.
Neal, J., Ratliff, C.j., Concurs w/opinion. Sullivan, J. Dissents in part: Concurs in part w/opinion.
Pursuant to Indiana Rules of Procedure, Appellate Rule 4(B) (6), defendant-appellants, Gregory E. Gollnick (Gregory) and John and Margaret Gollnick (the Gollnicks), bring an interlocutory appeal from the Shelby Circuit Court's denials of their motions for summary judgment. The motions were filed in response to a claim for personal injuries brought by plaintiff-appellees, Karen R. Gollnick (Karen), who is Gregory's daughter and the Gollnicks' niece, and Verna Gollnick (Verna), Karen's mother and Gregory's former spouse.
We affirm in part and reverse in part.
Gregory and Verna were married in 1967. The marriage produced two children, Amy, born in 1971, and Karen, born in 1974. Pursuant to a written settlement agreement, Verna and Gregory agreed to joint legal custody of their daughters, but Verna was awarded physical custody, subject to Gregory's reasonable visitation.
In December 1983, Gregory, who, like Verna, is a resident of California, exercised his visitation rights and took his daughters to visit their aunt and uncle, the Gollnicks, in Indiana. Gregory and the girls arrived at the Gollnick home on December 26, and that evening Amy, Karen, and their cousins went sledding down the driveway of the vacant house next door. The driveway was curved and sloping, and it emptied into a cul-de-sac. The Gollnicks had cautioned their children to be aware of cars entering the cul-de-sac because embankments at the end of the driveway obscured the views of sledders and oncoming motorists. That night, the adults present stationed themselves as lookouts at the bottom of the driveway.
The morning of the next day, December 27, the children again went sledding. Gregory specifically gave Karen permission to go. No adults were present, and no one was positioned at the bottom of the driveway. As Karen sledded down the driveway, a cousin saw a car approaching. He yelled out a warning, but it was too late for Karen to take evasive action. She struck the car, and suffered a broken leg and a head injury, the latter requiring extensive rehabilitation.
Karen and Verna filed a complaint against Gregory and the Gollnicks, alleging the former negligently supervised Karen and the latter failed to warn Karen of a danger which they knew existed. Both Gregory and the Gollnicks filed motions for summary judgment. Gregory asserted Karen could not maintain an action against him because of the parental immunity doctrine. The Gollnicks argued that they owed no duty to Karen because they were not her custodians, they did not create the risk of danger, and the incident did not occur on their property. The trial court denied both motion, but did certify the issues for purposes of interlocutory appeal.
The issues, as certified by the trial court, are as follows:
I. Whether Indiana substantive as well as procedural law applies to the cause of action asserted by Verna and Karen against Gregory;
II. Whether an unemancipated child is barred by Indiana's parental immunity doctrine from bringing an action for negligent supervision against a parent who is a legal custodian of the minor child;
III. Whether a person who is not the parent, guardian or custodian of a nine-year-old child owes a duty to exercise reasonable care to safeguard such child or warn of dangers not created by such person;
IV. Whether landowners owe a duty to exercise reasonable care either to safeguard or to warn a child, who is visiting such landowners with the child's parent as a guest, of dangers relating to activities of the child occurring on property other than that of the landowners.
We will discuss Issues III and IV together.
Our standard of review in an appeal from a denial of a summary judgment is well established. We ascertain whether the pleadings, affidavits, answers to interrogatories, responses to requests for admission, and depositions, when read in the light most favorable to the non-moving party, reveal any genuine issues of material fact, and if not, whether the trial court correctly applied the law. Shallenberger v. Scorggins-Tomlinson, Inc. (1982), Ind. App., 439 N.E.2d 699. In performing our function of review we stand in the position of the trial court and consider the same matters as it does. Moll v. South Central Solar Systems, Inc. (1981), Ind. App., ...