IN Supreme Court rejects summary judgment for owner of fitness facility where swimmer suffered head injury

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The owner of a health and fitness center where a woman suffered a head injury while swimming must face the woman’s negligence-related claims, the Indiana Supreme Court ruled in finding the gym’s owner is not entitled to summary judgment.

But the justices affirmed summary judgment for the facility’s principal architect and subcontractor on similar claims.

Justice Christopher Goff wrote the unanimous decision in Jennifer Pennington and Joshua Pennington v. Memorial Hospital of South Bend, Inc., d/b/a Beacon Health and Fitness, Spear Corporation, and Panzica Building Corporation, 23S-CT-182.

The case involves a Beacon Health and Fitness facility that opened in November 2016. The Panzica Building Corporation was the principal architect and designer for the facility, and it subcontracted with the Spear Corporation to design the swimming pool.

During the first week the pool was open, Dr. Jennifer Pennington began using it to swim laps. While transitioning from a freestyle stroke to a backstroke, Pennington hit her head on a concrete “wing-wall,” causing her injury.

Pennington and her husband, Joshua, subsequently filed suit against Beacon, Panzica and Spear alleging negligence-related claims related to the design of the pool.

Following discovery, the defendants asked the St. Joseph Superior Court to bar the testimony of Dr. Thomas Sawyer, the Penningtons’ expert, and to strike various items of evidence, including post-accident photos of the pool and an email sent by Panzica’s president. They also moved for summary judgment.

The trial court partially restricted Sawyer’s testimony and struck the evidence.

It also granted summary judgment in full to Panzica and Spear, and to Beacon on counts of defective design and failure to warn.

Beacon was also awarded partial summary judgment on negligent maintenance and operation, but it was denied partial summary judgment as to its failure to provide adequate warnings and instruction. Also, the court denied summary judgment to Beacon on a count alleging it deprived Joshua of his wife’s services and companionship due to her injury, insofar as it derived from a maintenance-and-operation claim.

The trial court then entered final judgment on Spear’s motion under Indiana Trial Rule 54(B).

The Penningtons appealed the summary judgments in favor of Spear and Panzica while Beacon sought, and was granted, an interlocutory appeal under Appellate Rule 14(B). The Penningtons also raised cross-appeal issues as to Beacon.

The Court of Appeals of Indiana affirmed in full in a March decision.

The Indiana Supreme Court granted transfer in July, then affirmed and reversed in part in its Tuesday opinion.

As an initial matter, Goff clarified that all summary judgment issues are available to the court on interlocutory appeal.

He noted that the trial court’s Rule 54(B) certification entered final judgment as to Spear, while the trial court granted Beacon’s request for interlocutory appeal only as to the part of its order partially denying summary judgment to Beacon.

“This manner of proceeding improperly purported to certify a specific issue rather than the interlocutory order as a whole,” Goff wrote.

But looking to Budden v. Board of School Commissioners of the City of Indianapolis, 698 N.E.2d 1157 (Ind. 1998), the justices concluded that “when a trial court purports to certify an ‘issue,’ it implicitly certifies the entire order and merely identifies a ‘substantial question of law’ that calls for ‘early determination.’”

Turning to the merits, the justices first addressed — and affirmed — the Penningtons’ appeal of summary judgment in favor of Spear and Panzica.

First, the high court determined the trial court did not err in excluding part of Sawyer’s — the Penningtons’ expert — evidence because he admitted to being unqualified to speak about an architect’s standard of care.

Also, the email from the president of Panzica to Spear executives saying a “condition” of the pool “expose[d]” the defendants to “liability for injury” was properly excluded because the Penningtons did not contest the trial court’s conclusion that the statement was an inadmissible legal conclusion.

Further, the exclusion of post-accident photos of the pool was proper because “evidence of subsequent remedial measures cannot be used to prove negligence.”

Finally, a binder containing miscellaneous design materials was properly excluded because there was no foundation for that exhibit.

“The Penningtons’ evidence fails to create an issue of fact over whether Spear or Panzica’s work fell below their professional standard of care,” Goff wrote. “For this reason, we affirm summary judgment in favor of Spear and Panzica.”

However, the justices reversed the grant of summary judgment for Beacon on the maintenance-and-operation claim.

In reaching that conclusion, Goff noted that Pennington’s injury implicated the condition of the pool, not activities on the premises, meaning the court used the foreseeability test under the Restatement (Second) of Tort § 343.

“The unreasonable danger in which Dr. Pennington allegedly found herself was not merely swimming backstroke, but swimming backstroke next to the unpadded wing-wall,” he wrote. “It was the placement and condition of this wing-wall that formed the basis for alleging a duty to protect.”

Applying that test, the justices concluded that issues of fact exist as to whether Beacon owed a duty to protect invitees from striking the wing-wall.

While Beacon met its initial burden to show that Pennington’s injury was unforeseeable, the Penningtons succeeded in designating evidence that Beacon either did or should have foreseen the risk by offering Sawyer’s opinion.

“Dr. Sawyer stated that Beacon could have made the pool safer by providing signage warning against swimming backstroke alongside the wing-walls, lifeguards to ‘enforce the rules and assist’ swimmers, and functioning surveillance cameras. This evidence creates an issue of fact over whether Beacon should, in the exercise of reasonable care, have foreseen what happened as a matter of its operational and managerial responsibility,” Goff wrote.

He continued, “We thus agree for the most part with the Penningtons that summary judgment was unwarranted on Count III. However, we affirm the trial court’s entry of partial summary judgment on one specific issue within Count III” — specifically, the issue of whether the water level contributed to the pool’s allegedly dangerous condition.

Further, looking to Roumbos v. Samuel G. Vazanellis & Thiros and Stracci, PC, 95 N.E.3d 63 (Ind. 2018), the justices concluded there is an issue of fact as to whether the risk was known or obvious.

Finally, the court determined Beacon is not entitled to summary judgment on the design claim.

“In Dr. Sawyer’s view, Beacon acted ‘carelessly and negligently’ in failing to appoint a ‘design committee/team’ composed of professionals such as ‘an aquatic consultant/specialist (with aquatic safety expertise)’ to liaise with Spear and Panzica during the design process,” Goff wrote. “… This opinion creates an issue of fact concerning Beacon’s alleged breach of its standard of care.

“Still, Beacon repeatedly states that it ‘relied’ on Spear and Panzica to design and build a safe pool,” he continued. “… However, there is evidence indicating that Beacon itself played a role in the design process.

“… Therefore,” the justice concluded, “the evidence does not utterly foreclose the possibility that Beacon, in the exercise of reasonable care, should itself have discovered and remedied the allegedly dangerous condition during the design phase.”

The case was remanded for trial on all the Penningtons’ claims against Beacon.