Hoosier Mountain Bike Association, Inc., City of Indianapolis, and Indy Parks and Recreation, 1 Appellants-Defendants,
Richard Kaler, Appellee-Plaintiff.
from the Marion Superior Court The Honorable Cynthia J.
Ayers, Judge Trial Court Cause No. 49D04-1209-CT-35642
ATTORNEYS FOR APPELLANTS Donald E. Morgan Lynne D. Hammer
Kathryn M. Box Office of Corporation Counsel Indianapolis,
ATTORNEY FOR APPELLEE John F. Townsend, III Townsend &
Townsend, LLP Indianapolis, Indiana
OF THE CASE
Appellants-Defendants, the City of Indianapolis and Indy
Parks and Recreation (the City),  appeal the trial court's denial of
their motion for summary judgment with respect to
Appellee-Plaintiff's, Richard Kaler (Kaler), claims of
negligence after Kaler sustained injuries in riding the
City's mountain bike trail at Town Run Trail Park.
The City presents us with four issues on appeal, which we
consolidate and restate as follows:
(1) Whether a genuine issue of material fact precluded the
entry of summary judgment on Kaler's claim of premises
(2) Whether a genuine issue of material fact precluded the
entry of summary judgment based on the City's claim that
Kaler was contributorily negligent.
AND PROCEDURAL HISTORY
The City of Indianapolis owns and operates the Town Run Trail
Park through its Indy Parks and Recreation department. The
Hoosier Mountain Bike Association, Inc. (HMBA) is responsible
for maintaining the trails, which have a difficulty rating
from beginner through intermediate. In the spring of 2011, an
Eagle Scout, as part of his merit badge project, built a new
technical trail feature along Town Run's mountain bike
trail. The feature can best be described as a banked wooden
turn, also known as a berm. A rider, approaching the berm,
has three options for completing the turn. First, riders can
avoid the berm by staying on the dirt path on its left side.
Second, riders can elect to enter the berm and ride it on the
low grade, or third, riders can negotiate the turn by riding
the berm's more challenging high grade. The entrance onto
the wooden turn is fully tapered with the ground, while the
exit is only partially tapered. A rider choosing the low
grade would exit the berm with a "little jump" off
the end of the feature. (City's App. Vol. II, pp.
100-01). A rider exiting on the high grade would have to make
a two-foot jump back down to the trail.
By July 9, 2011, Kaler had been mountain biking for
approximately four to five years. He described himself as an
"experienced" and "better than average"
bicyclist. (City's App. Vol. II, pp. 90, 91). Although he
was familiar with the trails at Town Run, he had not been on
the mountain bike trail since the berm had been constructed
several months earlier. "Oftentimes, " Kaler would
"try to get an idea of the technical requirements of the
trail" and would step off his bike, especially if he saw
something within his view "as a danger."
(City's App. Vol. II, p. 89). He understood that "on
a mountain bike trail there's multiple paths that you can
take, one being more dangerous or less dangerous than
another." (City's App. Vol. II, p. 89). In fact,
Kaler had ridden a "fairly sophisticated" trail
before which had a "four or five foot drop."
(City's App. Vol. II, pp. 95, 96). While riding a
mountain bike, Kaler was "never  a casual rider. [He]
always enjoyed the obstacles[.]" (City's App. Vol.
II, p. 100). He "expected to get in a wreck at least
every other time [he] rode, and [he] would routinely fall off
the bike over obstacles." (City's App. Vol. II, p.
95). "[I]t was just a general consequence of the
sport." (City's App. Vol. II, p. 95).
On July 9, 2011, Kaler and his girlfriend took their first
trip on the trail. The mountain bike trail is shaped as a
"figure 8, " with an approximate length of 6 miles.
(City's App. Vol. II, p. 92). When he first approached
the berm, Kaler "took the low grade" on the
feature. (City's App. Vol. II, p. 95). As he approached
the end of the turn, Kaler could see "there was a
drop" so he "pull[ed] up on the fork and [did] a
little bunny hop[.]" (City's App. Vol II, pp. 102,
101). On their second trip around the course, Kaler's
girlfriend decided to take a shorter loop back to the
trailhead. She was not as "adventurous" as Kaler
and was concerned about getting back to the trailhead before
dusk. (City's App. Vol II, p. 92). Despite the
approaching darkness, Kaler "wanted to ride the higher
grade because [he] knew it was more challenging."
(City's App. Vol. II, p. 101). He reached the berm again
around 9:30 p.m. Feeling "capable of riding that high
line, " Kaler sped up and rode the berm "as high as
[he] could possibly ride it with [his] skill set."
(City's App. Vol. II, p. 101). As he was near the end of
the berm's high grade, he "just saw [him]self lose
control  and just knew he was dropping." (City's
App. Vol. II, p. 101). Kaler "didn't see the drop,
[nor] was he aware of the drop" at the end of the high
grade turn, instead he "thought it tapered off."
(City's App. Vol. II, p. 104). Due to the fall, Kaler
sustained lacerations to his spleen and kidney. After calling
his mother and girlfriend to inform them that he had crashed,
he rode his bicycle back to the trail head. That evening,
Kaler and his girlfriend went out for dinner.
Around 1:30 a.m. on the following morning, Kaler went to the
hospital where he was diagnosed with lacerations to his
spleen and kidney. On discharge, Kaler was offered physical
therapy but refused it because he "didn't feel it
was necessary." (City's App. Vol. II, p. 99).
Kaler's recovery ...