Indiana Court of Appeals Grants New Trial in Swimming Pool Injury Case: Trial Court Erred in Allowing Post-Summary Judgment Nonparty Defense

We previously wrote a blog on a swimming pool injury case that the Indiana Supreme Court allowed to proceed to trial finding a material issue of fact as to the pool operator’s negligence in maintaining and operating the pool and for its role in the design of the pool. In Pennington v. Memorial Hospital of South Bend, Inc., Jennifer Pennington (Pennington) struck her head on the corner of a concrete stairwell wing wall in a newly opened pool owned and operated by Memorial Hospital of South Bend, Inc. d/b/a Beacon Health and Fitness (Beacon). The pool featured steps and a concrete wall built into one end of the pool and a long ramp and concrete wall at the opposite end of the pool, separated by a 22-foot gap. The pool did not have a floating divider placed across the gap or any padding on the edges of the wing walls adjacent to the swimming lanes. As Pennington was swimming the backstroke she drifted out of her lane and into the concrete wall.

Pennington and her husband sued Beacon for her injuries. Beacon asserted a nonparty defense naming Spear Corporation (Spear) and Panzica Building Corporation (Panzica) as nonparties for their alleged fault in designing or building the pool. Under Indiana law in comparative fault cases, juries apportion the fault of any named defendants with the fault of any nonparties that caused or contributed to the cause of the claimed injuries. Defendants are only liable for their percentage of fault. After the Penningtons added Spear and Panzica as named defendants in the case, Spear and Panzica moved for summary judgment. The trial court granted summary judgment for Spear and Panzica, and the Indiana Supreme Court affirmed, finding the designated evidence failed “to create an issue of fact over whether Spear or Panzica’s work fell below their professional standard of care.” On remand, however, the trial court nonetheless allowed Beacon to reassert its nonparty defense again naming Spear and Panzica as nonparties at fault for Pennington’s injuries. 

During trial, Beacon presented evidence and argument “pointing the finger” at Spear and Panzica, with counsel for Beacon referencing Spear and Panzica over one hundred times. The jury instructions also included several references to Beacon’s nonparty defense regarding Spear and Panzica. After the jury returned a verdict in favor of Beacon, concluding Beacon was not at fault, the Penningtons appealed, arguing the trial court erred in allowing Beacon to reassert its nonparty defense naming Spear and Panzica, as their lack of fault had already been determined. 

On appeal, the Indiana Court of Appeals agreed with the Penningtons. The Court first found that the trial court erred in granting Beacon’s motion to amend to reassert its nonparty defense. The Court noted that the Indiana Supreme Court’s decision affirming summary judgment for Spear and Panzica “necessarily determined that Spear and Panzica were not negligent,” and “because there can be no fault without negligence,” the Indiana Supreme Court “necessarily rejected Beacon’s affirmative defense that Spear and Panzica were at fault.” Therefore, “the jury should not have been allowed to consider whether to apportion fault to Spear and Panzica.”

The Indiana Court of Appeals next had to decide whether the trial court’s error was harmless. A jury verdict will be upheld, even in the case of error, if the error was harmless, that is, “where its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.” Ind. R. App. P. 66. Parties seeking relief from a jury verdict for error in the proceedings must show “how, in light of all the evidence in the case, the error’s probable impact undermines confidence in the outcome of the proceeding below.” 

Here, the Indiana Court of Appeals found the trial court’s error was not harmless. Beacon’s nonparty defense was one of two central elements of its trial strategy. The Court rejected Beacon’s argument that the error was harmless because the jury ultimately found Beacon was not at fault. While Spear and Panzica’s lack of fault had already been adjudicated, the jury was nonetheless repeatedly asked to consider Spear and Panzica’s fault in deciding the case. The Court found the circumstances “fundamentally undermine[d] confidence in the jury’s verdict.” The Court also rejected Beacon’s argument that, even without the nonparty defense, the jury would still have heard all the same evidence as Beacon could still argue it relied on Spear and Panzica. While recognizing evidence of Beacon’s reliance could still be presented, the Court distinguished using such evidence to show Beacon was not at fault, as opposed to evidence that others, Spear and Panzica, were at fault. The Court noted that Beacon did not rely on Spear and Panzica in operating the pool and would not be able to argue that fault should be attributed to Spear and Panzica.

The Indiana Court of Appeals found the trial court’s decision allowing Beacon to reassert its nonparty defense was error and that error affected the Penningtons’ substantial rights. As a result, the Court reversed the judgment and remanded the case for a new trial. 

You can read the full opinion here.