from the Floyd Superior Court 3, No. 22D03-1309-CT-1354 The
Honorable Maria D. Granger, Judge
Petition to Transfer from the Indiana Court of Appeals, No.
Attorney for Appellant Kenneth G. Doane, Jr. Doane Law
Office, LLC Jeffersonville, Indiana Attorneys for Appellee
Richard T. Mullineaux Crystal G. Rowe Whitney E. Wood Alyssa
C.B. Cochran Kightlinger & Gray, LLP New Albany, Indiana
decision in Pfenning v. Lineman, 947 N.E.2d 392
(Ind. 2011), established a limited new rule: Indiana courts
do not referee disputes arising from ordinary sports
activity. Instead, as a matter of law, when a sports
participant injures someone while engaging in conduct
ordinary in the sport-and without intent or recklessness-the
participant does not breach a duty. Id. at 404.
Today we clarify that under Pfenning ordinary
conduct in the sport turns on the sport generally- not the
during a karate class drill, David Dunn jump-kicked a bag,
injuring Tresa Megenity, who was holding the bag. Since jump
kicks are ordinary in the sport of karate generally, and no
evidence supports intent or recklessness, Megenity cannot
show breach as a matter of law. We thus affirm summary
judgment for Dunn.
and Procedural History
years, Tresa Megenity faithfully attended karate classes at a
studio in southern Indiana, climbing the ranks until she
earned her black belt. One Saturday, she attended a
sixty-person class, open to all belt levels, that focused on
nunchucks, sticks, sparring, and kicking.
the class, the students gathered to do a drill called
"kicking-the-bag." Three volunteers, standing
thirty feet apart in a triangle, held the bags. The students
lined up and took turns sprinting to each bag and practicing
a certain kick. The first two bags were for side kicks, and
the last bag was for flying kicks.
volunteered, as she had "countless" times before,
to hold the flying-kick bag. To do a flying kick, one runs to
the bag and kicks it with one foot while keeping the other
foot grounded. Megenity later recounted that she would
"obviously" feel an impact-indeed, even before her
first class, she had acknowledged in a waiver that karate can
be a "contact sport" involving a variety of
physical strikes. So, she braced herself, gripping the bag
and planting one foot firmly behind her.
green-belt David Dunn-a lower-ranked classmate and stranger
to Megenity-made his rounds among the bags. He did proper
side kicks against the first two bags, then began sprinting
to Megenity's station. But instead of keeping one foot
grounded during his kick, Dunn allowed both feet to leave the
ground, executing what Megenity called a "jump
kick." And although the jump kick hit the padded bag-not
Megenity-the impact was "extreme, " sending
Megenity flying and crashing to the floor, injuring her knee.
Dunn promptly apologized, saying he "didn't mean to
jump." Megenity required surgery and months of physical
sued Dunn, alleging he "negligently, recklessly, and
unreasonably" injured her. Dunn moved for summary
judgment, arguing that under Pfenning, he breached
no duty as a matter of law because jump kicks are
"ordinary behavior" within the sport of karate
generally. In response, Megenity agreed that
Pfenning controlled but argued that a genuine issue
of material fact remained as to breach, since a jump kick is
"never done" within the specific drill being
performed. The trial court granted summary judgment for Dunn,
noting that the jump kick was "ordinary behavior of
participants in karate within the context of a 'kicking
the bag' drill."
appealed, and a divided panel of the Court of Appeals
reversed summary judgment because (1) the "'general
nature of the conduct reasonable and appropriate for a
participant' in a karate practice drill is not
'commonly understood and subject to ascertainment as a
matter of law'" and (2) questions of fact remained
as to whether Dunn's jump kick breached a duty.
Megenity v. Dunn, 55 N.E.3d 367, 373 (Ind.Ct.App.
2016) (emphasis added) (quoting Pfenning, 947 N.E.2d
at 403-04). ...