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A trial court did not abuse its discretion in striking a portion of deposition testimony or in making evidentiary rulings, the Court of Appeals of Indiana ruled Wednesday in affirming a lower court ruling.
Jennifer and Joshua Pennington filed an amended complaint alleging that Jennifer sustained personal injuries in a swimming pool designed and constructed by Spear Corporation and Panzica Building Corporation, which was owned and operated by Memorial Hospital of South Bend, Inc. d/b/a Beacon Health and Fitness.
The trial court granted summary judgment to Spear and Panzica and partial summary judgment to Beacon.
The Court of Appeals of Indiana found the trial court did not abuse its discretion by striking a portion of the deposition testimony of the Penningtons’ designated expert witness nor did it abuse its discretion in its evidentiary rulings.
The Penningtons presented three issues for review in their appeal:
-Whether the trial court abused its discretion by striking deposition testimony from Dr. Thomas Sawyer regarding the applicable standard of care for swimming pool design;
-Whether the trial court abused its discretion by striking three exhibits from the Penningtons’ designated materials; and
-Whether summary judgment was improvidently granted to Spear on the negligent design count.
In January 2015, Beacon contracted with Panzica to design and build a health and fitness center in Granger, Ind.
Panzica served as the principal architect and project designer/builder. Panzica created project plans and subcontracted with Spear to create drawings and designs for the multipurpose pool to be used for lap swimming and water aerobics.
In November of 2016, Beacon opened its Beacon Health & Fitness facility for patrons.
On Nov. 16, Jennifer went to the facility to swim before commencing her work day as a family physician.
She entered the southernmost lane – that closest to the opening in the wing walls – and began her typical exercise routine which involved various swim strokes.
At some point, Jennifer was positioned on her back and using backstrokes when she apparently drifted into the gap between wing wall abutments.
The crown of her head collided with concrete, allegedly causing serious injury.
On April 10, 2018, the Penningtons filed a complaint for damages.
As amended, the complaint stated five counts.
Count I alleged that Beacon, Spear, and Panzica failed to exercise reasonable care in designing the lap pool
Count II alleged that Beacon, Spear, and Panzica failed to warn and instruct about dangers inherent in swimming in the lap pool as constructed
Count III stated a claim against Beacon, individually, for negligent maintenance and operation
Count IV alleged that Spear and Panzica were negligent in the construction of the project.
Count V stated a derivative claim for Joshua’s loss of Jennifer’s services and companionship.
In March of 2022, Beacon and Spear filed motions for summary judgment, in which Panzica later joined.
They contended that the pool construction had complied with the Indiana Administrative Code; no safety concerns had been raised during inspection and placement of the wing walls was open and obvious.
On June 30, the trial court entered judgment for Spear as a final and appealable order, and the Penningtons appealed that judgment.
Beacon initiated a separate interlocutory appeal, and the appellate court accepted jurisdiction and consolidated the two appeals.
The appellate court ruled the St. Joseph Superior Court did not abuse its discretion by striking a portion of the deposition testimony of the Penningtons’ designated expert witness; nor did the trial court abuse its discretion in its evidentiary rulings.
“Summary judgment was not improvidently granted to Spear on the design negligence claim. Summary judgment was properly denied to Beacon upon the premises liability claim” wrote Judge Mark Bailey for the court.
Chief Judge Robert Altice and Judge Patricia Riley concurred.
The case is 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, 22A-CT-1573.
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