National Association of Mutual Insurance Companies

Print | ShareThis

Indiana Supreme Court Addresses Premises Liability Issues

In an opinion handed down June 4, the Indiana Supreme Court addressed two issues of first impression. In Kopczynski v Barger, the court held: (1) that under some circumstances a minor’s invitation to enter the premises may bind the landowner for purposes of premises liability, and (2) that a trampoline may constitute an attractive nuisance.

The Kopczynski case involved a 12-year-old child, Alisha Palmer, at home after school with her two brothers, ages 9 and 10. Their mother was still at work. Next door, 6-year-old Bryan Barger was jumping on the Bargers’ trampoline in an unenclosed area behind the house. The Barger child was jumping without supervision, which was not unusual.

At some point, Barger asked Palmer’s 9-year-old brother to jump with him and another neighbor, Michael Spears. Palmer testified that she also started jumping a short time later after Barger asked her if she wanted to jump with him. Palmer had previously watched Barger jump but had never been on a trampoline before. While she was jumping, someone “stole” her jump (landed and changed the tension and height of the surface just before she landed) and she injured her knee.

Palmer and her mother filed a complaint for damages against the Bargers, alleging both premises liability and liability for an attractive nuisance. The Bargers filed for summary judgment, claiming that Palmer was a trespasser and that the attractive nuisance doctrine did not apply. The lower court granted the Bargers’ motion for summary judgment, and the Indiana Court of Appeals affirmed.

In reversing the Court of Appeals, the Supreme Court observed that the determination of one’s status – for purposes of determining the duty owed by a landowner – is ordinarily a question of law for the court to decide. However, in some cases the determination may turn on factual issues. In this case, the facts were important; Palmer’s status as trespasser or invitee depends on whether she was authorized to be on the Barger property.

The court further observed that an invitation to enter property does not have to come directly from the landowner and that whether Palmer had reason to know that Barger did not have actual authority is a factual question. Even though the boy was only 6 years old, his parents left him alone in an unfenced backyard and, while his age might suggest to an adult that he lacked authority, Palmer was also a minor and not an adult.

In reversing the Court of Appeals as to the issue of attractive nuisance, the Supreme Court agreed with the Court of Appeals that the risks associated with trampolines may be obvious, particularly to an adult. However, the particular risks associated with jumping on a trampoline are not necessarily open and obvious to children, particularly those who have never jumped before. Similarly, while agreeing with the Court of Appeals that the harm from falling down is obvious to most, the court found that the dangers of falling onto the ground are very different from the dangers of falling onto a trampoline, particularly one with other jumpers whose presence may unexpectedly change the tension of the trampoline’s surface.

Overall, the court found that the defendants had failed to establish a lack of disputed material facts as to the foreseeability of Palmer’s injury. The case was remanded to the trial court for further proceedings.

Direct questions to NAMIC’s Regulatory Affairs Counsel Marsha Brown.

Posted: Tuesday, June 17, 2008 12:00:00 AM. Modified: Friday, June 20, 2008 4:20:01 PM.

Salary Survey: Data by Size, Region, and More

(317) 875-5250 - Indianapolis | (202) 628-1558 - Washington, D.C.