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On June 30, 2015, the Court of Appeals issued opinions in two Tippecanoe County criminal cases. The first, State v. Anderson affirmed the decision of Tippecanoe County Superior Court 2 Judge (now Circuit Court Judge) Tom Busch. At issue was the “breaking” element of burglary. According to the definition in place when the crime was committed, “a person who breaks and enters the building or structure of another person, with intent to commit a felony in it, commits burglary.” Prior decisions had indicated that walking through an open door doesn’t satisfy the “breaking” element but opening an unlocked door does. The facts in Mr. Anderson’s case indicated that he rushed the victim to force his way in when the victim opened the door for an individual who was expected. Because this satisfied the “breaking” element, the Court of Appeals affirmed the decision of the trial court.

The second, Longer v. State, affirmed the decision of Tippecanoe County Superior Court 1 Judge, Randy Williams. At issue was the propriety of Longer’s sentence after he was convicted of robbing Village Pantry in Lafayette. Longer argued that he should have received a shorter sentence because the trial court should have included the fact that he had a young child as a mitigating circumstance. The Court of Appeals explained that trial courts are permitted to consider that as a mitigating circumstance but is not required to do so and, in any event, Longer did not develop that argument before the trial court and, therefore, cannot claim it was error for the trial court not to include that as a mitigating factor. And, finally, the Court of Appeals observed that the trial court did consider the argument but was not persuaded:

Moreover, we find it clear that the trial court did take Longer’s proffered mitigating circumstance under consideration, stating, “Okay so your baby is [already] born and you are out flashing guns at innocent people who are trying to earn a living. I don’t know how much you were concerned about your child every time that you were using, smoking crack and as I said flashing a gun.” (Tr. pp. 46-47). Thus, it is apparent that the trial court found that the effect of Longer’s incarceration on his child was not a mitigating circumstance.

The Court of Appeals was, furthermore, not persuaded by Mr. Longer’s contention that the nature of the offense and the character of the defendant did not justify his sentence of 26 years executed and 5 years suspended. As to his character, the Court observed:

[W]e would remind Longer that he was given a chance to reform himself following his first offense with a firearm. Instead, while on probation, he went out on two separate nights and pointed a gun at three different people so that he could further his drug habit. He not only put himself and the store clerks in danger, but he failed to consider the effect that his conduct would have on his then six-month-old child, who will now have to spend the majority of her childhood visiting her father in the Department of Correction. Accordingly, we cannot say that Longer’s sentence is inappropriate.


On June 29, 2015, the Court of Appeals issued a memorandum decision in the case of Chocklett v. Davison (pdf) concerning a breach of contract action brought by a homeowner against a contractor. The homeowner hired the contractor to do a remodel. The relationship deteriorated as the homeowner came to believe the work was untimely and of inadequate quality. She had paid $3,500 but initially sued for $5,000 she claimed that she had to pay another contractor “to clean up his mess and finish the job.” The small claims court entered a judgment for $5,000. Due to the procedural quirks in Marion County, the contractor got to ask for a new trial in the Superior Court. The homeowner upped her demand – initially to $6,000 and, at trial, for $17,375. The trial court entered a judgment this time for $14,453.37. The contractor appealed.

The Court of Appeals reversed the trial court’s decision, holding that the homeowner failed to present evidence of what damages were actually caused by the contractor’s breach of contract.

She explained that their contract was for $8,500.00 that it cost of her $13,578.37 to pay other people to do the work, and that she had already paid Chocklett $3,500.00 but he did not do $3,500.00 worth of work.
. . .
In support of her claim, several checks to various individuals and estimates from other contractors were admitted into evidence. During the hearing, the trial court attempted to clarify Davison’s damages and summarized her request as $3,500.00 plus $13,875.00. She agreed, indicating her contract with Chocklett was for $8,500.00.

However, she did not provide a copy of the contract, so the Court was not able to determine what the scope of the parties’ actual bargain was. Additionally, while the court could not determine the full scope of the bargain, it was convinced that the $13,578.37 the homeowner paid to other contractors included money for services that were not within the scope of the original bargain. The Court noted that “A party’s recovery for breach of contract is limited to the loss actually suffered, and the party may not be placed in a better position than he or she would have enjoyed if the breach had not occurred.” In effect, the trial court’s award – if paid by the contractor – would have had the effect of making the contractor pay for the entire remodel when the homeowner was entitled only to his or her loss if the breach had not occurred.

The take away for homeowners and contractors alike is to have a written agreement, to produce it to the court, and to focus on the loss caused by the breach of the agreement. Do not include as losses those amounts the homeowner would have had to pay even if the contract was honored.

Our firm has represented both homeowners and contractors in home improvement disputes. If you have a similar issue in the Tippecanoe County area, contact us to see if we can be of assistance.


On June 24, 2015, the Indiana Court of Appeals decided the case of City of Evansville v. Magenheimer. At issue was the interplay between a relatively new statute, IC 35-47-11.1 restricting the ability of local government to regulate possession of firearms on public property and an older statute, IC 34-13-3, the Indiana Tort Claims Act, which imposes certain procedural requirements on individuals seeking to bring tort claims against units of government.

The prohibition on local regulation of firearms went into effect in 2011. The Indiana Court of Appeals had decided in an earlier case that a unit of local government does not run afoul of the statute by merely having an old ordinance on the books but, rather, gets into trouble if it adopts a new ordinance or attempts to enforce an ordinance. However, the City of Evansville apparently did try to enforce its existing ordinance about three months after the new statute went into effect.

From the opinion:

On September 10, 2011, Magenheimer visited the Mesker Park Zoo and Botanical Garden, a city park, with his wife and son. While at the park, Magenheimer was openly carrying a firearm. Magenheimer was licensed to carry this firearm and had a copy of the license in his possession. At the time, the Evansville municipal code contained a provision prohibiting firearms in city parks. An employee of the park spotted Magenheimer carrying the firearm and called the police. The police arrived and ordered Magenheimer to leave the park.

Shortly thereafter, the plaintiff sued the city under IC 35-47-11.1-6 and 7 which allow a private citizen adversely affected by local attempts to regulate possession of firearms on public property to bring a civil action against the unit of local government. If the individual prevails he or she is entitled to the greater of either his or her actual damages or a statutory damage award in an amount equal to three times the individual’s attorney fees. (That’s on top of an award of attorney fees so that, as a practical matter, the local unit of government is likely to have to pay quadruple the amount of the attorney’s fees if it violates the statute.)

The Court of Appeals was addressing an interlocutory appeal from the trial court. An interlocutory appeal is one that takes place in the middle of the case – before a final judgment has been issued at the trial level. This requires both the trial court and the Court of Appeals to agree that such an appeal should take place. In particular, the Court of Appeals agreed to take a look at whether the Indiana Tort Claims Act (ITCA) applied to this cause of action. Generally speaking, a person who wishes to pursue a tort claim against a unit of local government has to file notice of the person’s intent to do so within 180 days of the loss. The notice can’t be in the form of a lawsuit. The notice has to be filed with the governing body of the political subdivision. If they fail to file the notice, they cannot bring the lawsuit and, if they try, the lawsuit has to be dismissed. The City in this case claimed that the suit could not move forward because no notice of tort claim had been filed. The Court of Appeals agreed with the trial court that ITCA was not a bar to this lawsuit, reasoning that: a) the Defendants had waived the issue; and b) a suit to enforce IC 35-47-11.1 was not a tort claim.

Because notice under ITCA is an affirmative defense, waiver was based on the City not raising the issue in its answer to the plaintiff’s complaint which – because the plaintiff had filed suit quickly after the incident – would have given the plaintiff time to correct the error. More interesting was the discussion about whether a civil suit under IC 35-47-11.1 amounts to a tort claim. The Court of Appeals reasoned that this was not a tort claim or a contract claim but rather a statutorily created “favored action.” Such actions are not meant to compensate a loss, which is the purpose of tort claims within the meaning of ITCA:

Rather, the private right of action in Indiana Code chapter 35-47-11.1 serves a different purpose. Indiana has several statutes with similar provisions, authorizing private citizens to bring suit to “redress wrongs that involve the public interest, and to recover attorney fees if they prevail.” Town of St. John, 751 N.E.2d at 661. These provisions are meant to “encourage[e] the private prosecution of certain favored actions, by requiring defendants who have violated plaintiffs’ rights to compensate plaintiffs for the costs they incurred to enforce those rights.” Florin v. Nationsbank of Georgia, N.A., 34 F.3d 560, 562-63 (7th Cir. 1994). In recent years, our legislature has seen fit to create, and to encourage the private prosecution of, several such favored actions relating to firearms.

Because the action was not barred by ITCA, the Court of Appeals remanded the case to the trial court, and the Plaintiff is allowed to proceed. Because the statutory damages are based on a multiplier of attorney’s fees, this trip up to the Court of Appeals might end up being particularly expensive for Evansville (assuming the alleged facts are accurate).


On June 23, 2015, the Indiana Court of Appeals decided two cases out of Tippecanoe County: Vazquez v. State of Indiana and In re: The Estate of Robert F. Darter.

The first, Vazquez, was a criminal case involving an individual with felony drug convictions serving a 45 year sentence. The General Assembly recently amended the sentence modification statute and Mr. Vazquez was seeking a modification under the new statute. The Court of Appeals determined that the amendment of the sentence modification statute applied to him but decided that he was not entitled to modification of the sentence. They found that Mr. Vazquez had not supported his claims that the trial court judge was biased against him and without jurisdiction to consider his petition. Additionally, they found that, even though the sentence modification statute applied to him, he was still barred from filing this particular petition since this petition was filed within a year of his most recent petition.

The second, Darter, was a probate matter involving a challenge by the son of an individual who had died without a will. A creditor of the decedent (the long term care facility where he died) petitioned to have an estate opened and someone connected to the creditor appointed as personal representative. Several of the notices to the son concerning the proceedings in the estate were returned as undeliverable. But, it appears that there was no contention about the fact that the son had received a notice of administration and appointment of personal representative as well as a notice concerning the sale of certain real estate belonging to the estate. Because the son had received these notices, the Court of Appeals did not regard the failures with respect to the other notices as problematic. The son also challenged the sale price received for the real estate. Initial documentation suggested that the market value for the real estate was about $120,000. The real estate was subsequently sold for $50,000. However, the $50,000 sale price was approved by the trial court judge and evidence had been submitted supporting the change in value. Based on that, the Court of Appeals determined that the trial court had acted within its discretion in approving the sale.


The June 18, 2015, Indiana Court of Appeals decision entitled I-465, LLC v. Metropolitan Board of Zoning Appeals (pdf) concerned a request for a variance granted by the Metropolitan Board of Zoning Appeals (BZA) serving Marion County. A variance is, generally speaking, relief from a zoning ordinance that permits a landowner to use the land in a manner not normally permitted by the zoning ordinance.

In this case, a business wanted to establish a pet boarding and day care service that would have an outdoor day care center. The adjacent property owner, a Hilton Homewood Suites hotel (owned by I-465, LLC), objected because, it reasoned, having a bunch of dogs next door would not be attractive to people looking for a good night’s sleep. The BZA granted the variance with the condition that the outside play was not permitted between 8 p.m. and 7 a.m. The hotel took it up with the trial court which affirmed the BZA’s decision.

The Court of Appeals said that the trial court and BZA got it right. Pursuant to IC 36-7-4-918.4, Zoning Boards are entrusted with the authority to grant variances if the following elements are present:

(1) [T]he approval will not be injurious to the public health, safety, morals, and general welfare of the community;

(2) the use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner;

(3) the need for the variance arises from some condition peculiar to the property involved;

(4) the strict application of the terms of the zoning ordinance will constitute an unnecessary hardship if applied to the property for which the variance is sought; and

(5) the approval does not interfere substantially with the comprehensive plan adopted under the 500 series of this chapter.

The court of appeals and the trial court review the BZA’s decision with a deferential standard of review — reasoning that the BZA has experience that the courts do not. The hotel’s contention to the contrary, the BZA found that the proposed pet use would not have an adverse effect on the hotel’s property — it had plans to mitigate the noise, the pet business had a good reputation, and the planned use would spur economic activity. The courts were not prepared to substitute their judgment on this issue for that of the BZA.

The most hotly contested issue seems to be whether there had been enough evidence of “peculiarity” to justify the grant of a variance. The Court of Appeals decided that the “peculiarity” element was satisfied as described by findings of the BZA and the trial court:

[BZA]: The current C-6, thoroughfare commercial district, does not provide for a variety of specific service uses which are appropriate for interstate adjacent sites and which are permitted in preceding commercial zones (C-4 & C-5). The proposed use relies on visibility and accessibility offered by interstate adjacent sites. Proposed use is appropriate for an interstate adjacent site and the thoroughfare commercial district as communities seek to buffer neighborhood districts from the intensity of interstate activity.
. . .
[Trial court]: As depicted in the Indy GIFs Map included in the BZA staff report and the amended site plan, the Site is a dead-end site with limited access. There is no direct access from I–465 or Michigan Road to the Site. The Site is relatively small and is an unusual “flag-like” configuration. It is much narrower than the two adjacent hotel parcels and accommodates the limited parking. The Site’s small size and unusual shape limit the development that could occur on the Site. The Site’s restrictive zoning classification, location, size and configuration are conditions that support the BZA’s finding that the need for the variance arises from conditions peculiar to the Site.

As a dead-end site forming a buffer between Interstate and residential properties and given its unique shape, the site “is ideal for
travelers who wish to board their pets when leaving for a trip, thus making it uniquely appropriate for the proposed use.”

The Court of Appeals panel voted 3-0 to affirm the trial court.


Drainage might seem like a fairly dry topic to most people, but when water starts coming on to your property, people often develop a keen interest in the topic. As attorneys for the Tippecanoe County Drainage Board, we have accumulated some experience in the area.

On March 30, 2015, the Indiana Court of Appeals issued a memorandum decision in the case of Ridgeway v. Jacobs (pdf). It’s a “not for publication” decision, meaning that, in a legal case, it can’t be cited as precedent. However, I think it describes a somewhat common situation and provides some good background on Indiana’s legal framework concerning neighbors and drainage.

Ridgeway was a farmer who lived uphill from Jacobs. During heavy rains, water coming off of Ridgeway’s property would flow downhill and erode Jacobs’ driveway. Jacobs claimed that Ridgeway had negligently failed to take action that would prevent runoff onto Jacobs’ property. The trial court ruled in favor of Jacobs and awarded him money for damage to his property.

The Court of Appeals reversed the trial court because Indiana subscribes to the “common enemy” doctrine:

In its most simplistic and pure form the rule known as the “common enemy doctrine,” declares that surface water which does not flow in defined channels is a common enemy and that each landowner may deal with it in such manner as best suits his own convenience. Such sanctioned dealings include walling it out, walling it in[,] and diverting or accelerating its flow by any means whatever.
. . .
However, this rule does not allow a landowner to “collect or concentrate surface water and cast it, in a body, upon his neighbor.
. . .
Under the common-enemy doctrine, it is not unlawful for a landowner to accelerate or increase the flow of surface water by limiting or eliminating ground absorption or changing the grade of the land, even if it causes water to stand in unusual quantities on the adjacent land or to pass into or over the adjacent land in greater quantities or in other directions than the water did before. A landowner has the right to occupy and improve his land in such manner and for such purposes as he may see fit, including changing the surface or by erecting buildings thereon.

The common-enemy doctrine applies only to surface water, and not to a natural watercourse. Surface water is defined as water that is diffused over the natural slope of the ground, not following a defined course or channel. Surface water generally originates in rains and melting snows.

(internal citations omitted).

In other words, a landowner has a lot authority when it comes to getting surface water off his or her property — even to the detriment of downhill landowners. However, this authority has limits — the landowner cannot collect the water in a body before casting it off onto neighboring properties, and the landowner can’t divert a natural watercourse under the common-enemy doctrine. (At times, the distinction between water flowing through a natural watercourse — in a defined course or channel — from water flowing over the natural slope of the ground can get a little tricky).

Because the evidence was that the water eroding Jacobs’ driveway was over previously (before the erosion) flat land and at several locations and there was not evidence that Ridgeway collected the water before casting it off, the Court of Appeals determined that the common enemy doctrine was a work, that Ridgeway was entitled to remove the water from his property in the way he did, and that he was not liable to Jacobs for any damage caused by that runoff.


On August 27, 2014, the Indiana Court of Appeals issued a Not-for-Publication Memorandum Decision in the case of Dellamuth v. Ken’s Carpet Unlimited. As an NFP decision, the case cannot be cited as precedent, but it does offer some discussion as to the “account stated” contract theory as it pertains to collecting debts in Indiana. The Court explained the “account stated” as follows:

An account stated is “an agreement between the parties that all items of an account and balance are correct, together with a promise, expressed or implied, to pay the balance.” The account stated operates as a new contract without the need for renewed consideration, and the plaintiff does not need to plead and prove the creation and performance of each contract underlying the account. An agreement that the balance is correct may be inferred from delivery of the statement and the account debtor’s failure to object to the amount of the statement within a reasonable amount of time. The amount indicated on a statement is prima facie evidence of the amount owed on the account, and once a prima facie case is made, the burden of proof shifts to the account debtor to prove that the amount claimed is incorrect.

(internal citations and quotations omitted.)

The advantage of the “account stated” is that, if a creditor has provided goods or services and sent a statement of account to the debtor, but the debtor fails to object to the statement in a reasonable time, the statement of account serves to make a prima facie case of the amount due. The debtor can still rebut that presumption, but the burden is on the debtor which makes it quite a bit easier for the creditor to prove its case.

This case involved an agreement between homeowners and a carpet company for the installation of carpet for a certain amount of money. The debtor-defendants made an initial payment and the plaintiff subcontracted the work. The work was apparently defective, and the debtors refused to pay the subcontractor. The plaintiff corrected the work and sent an invoice for the agreed amount less the initial payment. The defendants never objected. At trial, the defendants objected that the carpet company did not prove that there had been “prior dealings between the parties” which is a required element of proving an “account statement.” The court found that the original agreement to perform the work and the actual performance of that work satisfied the “prior dealings” requirement. The upshot of the “prior dealings” requirement seems to be that one can’t merely send a statement of account to random people and expect that a court will enter a judgment on an account stated if those strangers fail to object.

The lesson is that a creditor’s ability to prove and collect on an account becomes easier if it sends statements of accounts and keeps records of those statements and any subsequent responses (or lack of responses).

Need help collecting on an account in the Lafayette area? Contact us.


Medical billing and collections can be complicated. Often, what looks like one service to the patient can result in bills from multiple entities and a variety of collection efforts. The obligations from debtor to creditor can be similarly variable.

In the case of Deca Financial Services, LLC v. Gray (pdf), the Indiana Court of Appeals was asked to decide whether a trial court was correct to deny the plaintiff an award of attorney fees. Deca was an assignee of Emergency Medicine of Indiana PC whose emergency room doctors performed services at Dupont Hospital. The patient-debtor signed a contract with Dupont agreeing to pay attorney fees in the event the account went to collection. The trial court declined to award attorney fees to Deca on the basis of that provision, reasoning that Emergency Medicine and Dupont Hospital were different entities and the agreement by the patient did not extend to Emergency Medicine. The Court of Appeals agreed.

If a creditor wants to be entitled to attorney fees in the event of a contract dispute or collection efforts, the creditor should do what it can to ensure that there is a contract between the creditor and the debtor with a clear attorney’s fee provision.

Need help collecting a medical debt in the Tippecanoe County area? Contact us.


Where a creditor has an agreement with two or more debtors that make them jointly and severally liable for the same debt, the creditor is permitted to enter into an agreed judgment with one debtor without that agreement barring the creditor’s recovery against the other debtor(s). That was the issue in the case of Lori Nicklas v. Von Tobel Corporation (pdf) decided by the Indiana Court of Appeals.

Lori and her then-husband, Shawn, had entered into a promissory note with Von Tobel whereby they agreed to repay $35,000. They apparently defaulted on the promissory note with about $30,000 still owing and Von Tobel sued them both. By the time of the lawsuit the couple had separated and defended themselves separately. Shawn entered into an agreed judgment. Lori argued that the effect of that agreed judgment was to preclude Von Tobel from recovering against her. Her argument seems to be that the settlement with Shawn fully compensated Von Tobel, that the underlying debt merged into the judgment against Shawn and was no longer available to pursue Lori.

Citing Indiana Trial Rule 19(E)(1) concerning joint obligors and 20(A)(2) concerning permissive joinder, the Court of Appeals observed that the agreed judgment with Shawn did not impair Lori’s obligations to Von Tobel. The Court said that Von Tobel was able to obtain judgment against one or both of the debtors even if it was only entitled to collect once.

In other words, the creditor can get a judgment against Debtor 1 for $30,000 and against Debtor 2 for $30,000, but when Debtors 1 and 2 combined pay that $30,000 (e.g. Debtor 1 pays $10,000 and Debtor 2 pays $20,000), they are entitled to a release of judgment.

I don’t know any details of the Von Tobel case beyond what is mentioned by the Court of Appeals. However, I will observe that in collection matters it is not uncommon for a married couple to incur a debt jointly, get divorced, and then resist the idea that they are jointly responsible for the full amount. After all, it’s unpleasant to have to pay money to a third party for something you believe benefited only your ex-spouse or where you believe you are paying more than your fair share. Often, however, the fairness of the post-divorce financial situation is not a legal concern of the third party creditor. Rather, if one former spouse ends up paying more than his or her fair share to a creditor, it’s up to the “overpaying” spouse to collect the difference from the “underpaying” spouse.

Of course, when confronted with this reality, the “overpaying” spouse will not infrequently complain that the ex-spouse is a deadbeat. Which is exactly why the creditor often required a joint obligation in the first place.


On March 28, 2014, the Indiana Court of Appeals issued a decision in the matter of Kramer v. Catholic Charities of the Diocese of Fort Wayne-South Bend (pdf) which, in my mind, further confuses the application of “inherent risk” analysis versus “latent defect” analysis when determining the effectiveness in exculpatory clauses.These are both concepts used by the Indiana courts when attempting to determine whether a release will be effective against a claim of negligence when the release language does not specifically mention “negligence.”

This particular case involved an organization that facilitated adoptions. The agreement between the organization and the adopting parents said, in pertinent part:

We further acknowledge our understanding and agreement that Catholic Charities has made no promise or representations to us regarding the permanency of this placement. We understand that the placement is at-risk and subject to termination. . . .

In addition, we understand that the father/putative father of the child may possess and/or exercise certain legal rights concerning the child, which could adversely affect the placement of the child with us and/or our ability to adopt the child. We understand that the placement of the child with us will remain at-risk until the successful completion of the timely filed adoption proceedings and all rights of the father/putative father are fully and finally terminated or waived in accordance with the law. . . .

We also understand that[,] if the father/putative father claims or chooses to exercise his legal rights within the limits of the law, we will immediately return the child to the custody of Catholic Charities at the request of Catholic Charities without recourse against Catholic Charities.

The allegations were that Catholic Charities had a policy of checking the putative father registry before a child is placed with adoptive parents. The adoptive parents further alleged that Catholic Charities failed to do so, the result being that the child was placed with them then taken back.

Catholic Charities requested dismissal of the lawsuit because, among other things, it argued that the release meant that the adoptive parents could not bring the lawsuit even if, for the sake of argument, Catholic Charities was negligent. The trial court agreed but the Court of Appeals in this case has reversed.

The issue is that Indiana has taken what I like to call a “magic word” approach to releases that arguably excuse someone from liability for damages caused by their allegedly negligent behavior. Indiana courts really don’t favor such releases but still recognize them as legally permissible. The result has been that past case law has indicated that “an exculpatory clause will not act to absolve a party from liability from negligence unless it ‘specifically and explicitly refers to the negligence of the party seeking release from liability.'” In other words, to be effective, the release should contain something like, “I release you from liability for any damage that I may suffer, even if that damage is caused by your negligent acts or omissions.”

However, from time to time, the Court of Appeals has softened that stance and reasoned that maybe the release doesn’t have to be “explicit” on the subject of negligence if the injury caused by the alleged negligence is the result of a risk inherent in the activity. (Note: this “inherent risk” discussion sounds confusingly similar to “incurred risk” which is a related but distinct concept.)

In Anderson v. Four Seasons Equestrian Center, Inc., 852 N.E.2d 576 (Ind. Ct. App. 2006), the plaintiff’s complaint alleged that Four Seasons was negligent in caring for, conditioning, and training the Plaintiff’s horse such that, when she mounted it, the horse moved causing her to fall and injure herself. The release signed by the Andersons did not explicitly mention negligence. However, the court still found the release sufficient to bar the case because “an exculpatory clause not referring to the negligence of the releasee may act to bar liability for those damages incurred which are inherent in the nature of the activity.” Because being thrown from a horse while riding is a risk inherent in equine activities, the court held that even though the injury was allegedly caused by the defendant’s negligence and even though the waiver did not specifically mention “negligence,” the claim was still barred.

Similarly, in  Wabash County Young Men’s Christian Ass’n v. Thompson, 975 N.E.2d 362 (Ind. Ct. App. 2012), the Court of Appeals enforced a waiver that didn’t mention negligence in the context of youth baseball. The allegation was that the YMCA was negligent in their choice of bases, that it used bases that were too rigid and when the player slid into second, he was injured due to that negligence. The release signed by the player or his parents did not mention negligence but did contain an acknowledgment of risk that injuries can occur while playing baseball. The court reasoned that getting hurt while sliding into a base is an inherent risk of playing baseball and enforced the waiver. It rejected the plaintiff’s argument that the player’s injury was the result of the “latent defect” of the defendant’s negligent failure “to inspect, warn, and implement preventive measures designed to eliminate or reduce dangers posed by the condition of the second base ‘such that it was fixed as a rigid obstacle for participants to encounter while sliding into the base.'” The Court in that case observed “one can take almost any on-field mishap and seek to couch it in terms of negligence by arguing for more padding, softer playing surfaces, rule changes, etc., but the fact remains that the injury arose because of a risk inherent in the game.”

In the present case, the Court discusses Anderson but not YMCA. The Catholic Charities Court said that the Catholic Charities waiver did not apply in the absence of a specific mention of negligence because:

[T]he inherent nature of the activity exception does not apply, and a specific release from negligence is required, where “‘the risk of harm is a latent danger’” such as “‘the defendant’s own negligence.’”

One is left to wonder when the defendant’s negligence is going to be regarded as a “latent danger” and when it is going to, instead, be encompassed as an “inherent risk” in the activity. If it’s the former, the release will not be effective; if it’s the latter, the release will be effective.

The safest bet is to simply use the magic words and include a release for negligent behavior in the exculpatory clause of your waivers.

Have a question about a waiver or release? Contact us.