Court of Appeals of Indiana | Opinion 22A04-1506-CT-722 | May 24, 2016 Page 1 of 16

ATTORNEY FOR APPELLANT

Kenneth G. Doane, Jr.

Doane Law Office, LLC

Jeffersonville, Indiana

ATTORNEYS FOR APPELLEE

Richard T. Mullineaux

Crystal G. Rowe

Whitney E. Wood

Kightlinger & Gray, LLP

New Albany, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Tresa Megenity,

Appellant-Plaintiff,

v.

David Dunn,

Appellee-Defendant.

May 24, 2016

Court of Appeals Case No.

22A04-1506-CT-722

Appeal from the Floyd Superior 

Court

The Honorable Maria D. Granger, 

Judge

Trial Court Cause No.

22D03-1309-CT-1354

Najam, Judge.

Statement of the Case

[1] Tresa Megenity appeals the trial court’s entry of summary judgment in favor of 

David Dunn on Megenity’s complaint, in which she alleged that Dunn was 

negligent and reckless and proximately caused her serious bodily injury during

a karate practice session. Megenity presents a single issue for our review, 
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namely, whether there exists a genuine issue of material fact precluding 

summary judgment in favor of Dunn.

[2] We reverse and remand for further proceedings.1

Facts and Procedural History

[3] On December 1, 2012, Megenity and Dunn were students at Terry Middleton’s 

karate studio (“the studio”). Megenity had been taking classes there three or 

four times a week for approximately two years, and she had attained a black 

belt. Dunn was a newer student and had attained a green belt, which is five 

levels lower than a black belt. 

[4] On December 1, Megenity and Dunn were engaged in a drill called “kicking the 

bag.” Appellant’s App. at 68. Approximately sixty students of all levels were 

engaged in the drill that day, which involved the following: three people 

(students and/or instructors), forming a triangle with approximately thirty feet 

between them, holding rectangular bags in front of their bodies; and the 

students lining up and sprinting to each bag in succession to perform a kick 

against the bag. The first two bags were for side kicks, and the third bag was for 

a front kick. A front kick involves a student “balancing on one foot,” raising his 

knee, and kicking “with the heel and snap[ping] back.” Id. at 66-67. On that 

date, Megenity had volunteered, as she had “countless” times before, to hold 

 

1

 We heard oral argument in this case on March 2, 2016.
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the third bag, for the front kick. Id. at 69. As a bag-holder, Megenity knew that 

she had to “brace [her]self to take an impact of the kick,” which meant placing 

her left foot behind her and her “right leg forward to brace for the kick.” Id.

[5] When it was Dunn’s turn to perform the kicks, he performed the first two kicks 

“as hard as [he] could make them[,]” but without incident. Id. at 49. But 

before kicking the bag Megenity was holding, Terry Middleton “advised 

[Dunn] to hold back, which [he] did considerably.” Id. Nevertheless, when 

Dunn kicked the bag being held by Megenity, instead of keeping one foot on 

the ground as he kicked, he jumped as he kicked the bag. Megenity was 

holding the bag in front of her body, including her face, and she did not see the 

kick. As a result of the kick, Megenity “felt airborne and crashed on the 

floor[.]” Id. at 68. The force of the impact caused Megenity’s left knee to 

“double” and “sheared out” her anterior cruciate ligament (“ACL”) and 

“damaged [her] menisci.” Id. at 73. Dunn later apologized to her, saying, “I’m 

sorry. I didn’t mean to jump.” Id. at 72. Megenity underwent surgery and 

rehabilitation, and she missed several months of work as a result.

[6] On September 11, 2013, Megenity filed a complaint against Dunn alleging that 

he had “negligently, recklessly, and unreasonably caused” her injuries. Id. at 6. 

Dunn filed an answer and, on November 19, 2014, Dunn filed a summary 

judgment motion alleging that, under our supreme court’s holding in Pfenning v. 

Lineman, 947 N.E.2d 392 (Ind. 2011), his conduct was reasonable as a matter of 

law and did not constitute a breach of duty. In her response to Dunn’s 

summary judgment motion, Megenity alleged that the designated evidence 
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established a genuine issue of material fact whether Dunn’s conduct was 

unreasonable and outside the range of ordinary behavior of participants in a 

karate class. Following a hearing, the trial court entered summary judgment in 

favor of Dunn. This appeal ensued.

Discussion and Decision 

[7] Our standard of review for summary judgment appeals is well established:

We review summary judgment de novo, applying the same 

standard as the trial court: “Drawing all reasonable inferences in 

favor of . . . the non-moving parties, summary judgment is 

appropriate ‘if the designated evidentiary matter shows that there 

is no genuine issue as to any material fact and that the moving 

party is entitled to judgment as a matter of law.’” Williams v. 

Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A 

fact is ‘material’ if its resolution would affect the outcome of the 

case, and an issue is ‘genuine’ if a trier of fact is required to 

resolve the parties’ differing accounts of the truth, or if the 

undisputed material facts support conflicting reasonable 

inferences.” Id. (internal citations omitted).

The initial burden is on the summary-judgment movant to 

“demonstrate[] the absence of any genuine issue of fact as to a 

determinative issue,” at which point the burden shifts to the nonmovant to “come forward with contrary evidence” showing an 

issue for the trier of fact. Id. at 761-62 (internal quotation marks 

and substitution omitted). And “[a]lthough the non-moving 

party has the burden on appeal of persuading us that the grant of 

summary judgment was erroneous, we carefully assess the trial 

court’s decision to ensure that he was not improperly denied his 

day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys., 

916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks 

omitted).
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Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to 

Hughley).

[8] The parties agree that, because Megenity’s injuries stem from a sporting 

activity, our supreme court’s decision in Pfenning governs the outcome of this 

appeal. In Pfenning, our supreme court “reject[ed] the concept that a participant 

in a sporting event owes no duty of care to protect others from inherent risks of 

the sport, but adopt[ed] instead the view that summary judgment is proper 

when the conduct of a sports participant is within the range of ordinary 

behavior of participants in the sport and therefore is reasonable as a matter of 

law.” 947 N.E.2d at 396. In particular, the court held as follows:

Significant variations . . . can be seen among the decisions from 

our sister jurisdictions as they wrestle with the issue of liability 

for sports injuries. In resolving the issue for Indiana, a foremost 

consideration must be the Indiana General Assembly’s 

enactment of a comparative fault system and its explicit direction 

that “fault” includes assumption of risk and incurred risk. Ind.

Code § 34-6-2-45(b). These concepts focus on a plaintiff’s 

venturousness and require a subjective determination. Smith[ v. 

Baxter], 796 N.E.2d [242,] 244[ (Ind. 2003)]. As noted above, 

decisions of this Court have established that such considerations 

of a plaintiff’s incurred risk, even if evaluated by an objective 

standard, cannot be used to support a finding of no duty in a 

negligence action. See Heck[ v. Robey], 659 N.E.2d [498,] 505

[(Ind. 1995)]; Smith, 796 N.E.2d at 245. In contrast, the sports 

injury decisions of the Court of Appeals have employed 

consideration of the “inherent risks” of a sport to justify 

development of a no-duty rule. We view the evaluation of such 

inherent risks to be tantamount to an objective consideration of 

the risk of harm that a plaintiff undertakes and thus 
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unsatisfactory because it violates the Comparative Fault Act and 

the precedent of this Court.

As to judicial policy, however, we are in agreement with our 

colleagues in the Court of Appeals and many of the courts of our 

fellow states that strong public policy considerations favor the 

encouragement of participation in athletic activities and the 

discouragement of excessive litigation of claims by persons who 

suffer injuries from participants’ conduct. See Bowman[ v. 

McNary], 853 N.E.2d [984,] 991-92 [(Ind. Ct. App. 2006)]; Mark

[v. Moser], 746 N.E.2d [410,] 419 [(Ind. Ct. App. 2001)]. Sound 

policy reasons support “affording enhanced protection against 

liability to co-participants in sports events.” Bowman, 853 N.E.2d 

at 992. Athletic activity by its nature involves strenuous and 

often inexact and imprecise physical activity that may somewhat 

increase the normal risks attendant to the activities of ordinary 

life outside the sports arena, but this does not render 

unreasonable the ordinary conduct involved in such sporting 

activities.

We conclude that sound judicial policy can be achieved within 

the framework of existing Indiana statutory law and 

jurisprudence. As noted previously, there are three principal 

elements in a claim for negligence: duty, breach of duty, and a 

proximately caused injury. When there is no genuine issue of 

material fact and any one of these elements is clearly absent, 

summary judgment is appropriate. Colen v. Pride Vending Serv., 

654 N.E.2d 1159, 1162 (Ind. Ct. App. 1995), trans. denied. But 

rather than focusing upon the inherent risks of a sport as a basis 

for finding no duty, which violates Indiana statutory and 

decisional law, the same policy objectives can be achieved 

without inconsistency with statutory and case law by looking to 

the element of breach of duty, which is determined by the 

reasonableness under the circumstances of the actions of the 

alleged tortfeasor. Breach of duty usually involves an evaluation 

of reasonableness and thus is usually a question to be determined 

by the finder of fact in negligence cases. Kroger Co. v. Plonski, 930 
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N.E.2d 1, 9 (Ind. 2010); [N. Ind. Pub. Serv. Co. v.] Sharp, 790 

N.E.2d [462,] 466 [(Ind. 2003)]. But in cases involving sports 

injuries, and in such cases only, we conclude that a limited new 

rule should apply acknowledging that reasonableness may be 

found by the court as a matter of law. As noted above, the sports 

participant engages in physical activity that is often inexact and 

imprecise and done in close proximity to others, thus creating an 

enhanced possibility of injury to others. The general nature of the 

conduct reasonable and appropriate for a participant in a particular 

sporting activity is usually commonly understood and subject to 

ascertainment as a matter of law. This approach is akin to that 

taken by the Arizona courts in Estes [v. Tripson, 932 P.2d 1364, 

1367 (Ariz. Ct. App. 1997),] when faced with the Arizona 

Constitution’s explicit declaration that assumption of risk is a 

question of fact that shall be left to the jury.[]

We hold that, in negligence claims against a participant in a 

sports activity, if the conduct of such participant is within the 

range of ordinary behavior of participants in the sport, the 

conduct is reasonable as a matter of law and does not constitute a 

breach of duty.[]

In any sporting activity, however, a participant’s particular 

conduct may exceed the ambit of such reasonableness as a matter 

of law if the “participant either intentionally caused injury or 

engaged in [reckless] conduct.” Bowman, 853 N.E.2d at 988 

(quoting Mark, 746 N.E.2d at 420). Such intentional or reckless 

infliction of injury may be found to be a breach of duty.

Id. at 403-04 (footnotes omitted, emphasis added).

[9] In Pfenning, plaintiff was driving a beverage cart around a golf course when she 

was suddenly struck in the mouth by a golf ball. Id. at 397. Lineman, who was 

golfing at the same course, hit “a low drive from the sixteenth tee 
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approximately eighty yards away [from Pfenning]. [Lineman]’s drive traveled 

straight for approximately sixty to seventy yards and then severely hooked to 

the left” before it struck Pfenning. Id. Pfenning sued Lineman and other 

defendants, and the trial court entered summary judgment in favor of the 

defendants. On transfer, our supreme court held that, “[a]s to [Lineman]’s

hitting an errant drive which resulted in [Pfenning]’s injury, such conduct is 

clearly within the range of ordinary behavior of golfers and thus is reasonable as 

a matter of law and does not establish the element of breach required for a 

negligence action.” Id. at 404. The court further found that “whether and how 

a golfer yells ‘fore’ in a particular situation cannot be a basis for a claim of 

negligence, [and] it likewise cannot support a claim of liability based on 

recklessness.” Id. at 405.

[10] This court has interpreted and applied the rule in Pfenning on two occasions, 

and we find those opinions instructive here. In Welch v. Young, 950 N.E.2d 

1283, 1292 (Ind. Ct. App. 2011), a baseball player warming up with a baseball 

bat struck the plaintiff with the bat, and we held that “factual issues about ‘the 

conduct of [the] participant’ . . . preclude[d] our determination whether, as a 

matter of law, [the defendant’s] conduct was ‘within the range of ordinary 

behavior of participants in the sport.’” (Quoting Pfenning, 947 N.E.2d at 404). 

In particular, we held as follows:

there are fact issues as to whether the injury took place on the 

field or outside the playing area, and whether the game was 

underway or had not yet started. As we cannot be certain from 

the designated evidence before us whether Welch was injured 
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before or during the game and whether she and Jordan Young 

were inside the ball field or outside it in an area where spectators 

normally are present, we cannot determine as a matter of law 

whether Jordan Young’s behavior while taking warmup swings 

was within the range of ordinary behavior of participants in little 

league baseball.

Id.

[11] In Haire v. Parker, 957 N.E.2d 190, 192 (Ind. Ct. App. 2011), trans. denied, Haire 

was helping a friend with an all-terrain vehicle (“ATV”) at an “off road vehicle 

and motorcycle park” when Parker lost control of his ATV, which went 

airborne and landed on Haire. After Haire filed a complaint, Parker moved for 

summary judgment alleging in relevant part that he was entitled to summary 

judgment under the holding in Pfenning. The trial court granted the motion. 

On appeal, Haire argued that Pfenning did not apply because they had not been 

engaged in an organized sport, but only “recreational ATV usage[.]” Id. at 199. 

We reversed the trial court, holding as follows:

[E]ven assuming that this case is one “involving sports injuries,” 

we cannot say that the “general nature of the conduct reasonable 

and appropriate for a participant” in ATV riding “is usually 

commonly understood and subject to ascertainment as a matter 

of law.” [Pfenning, 947 N.E.2d] at 403-04. Specifically, we 

cannot say as a matter of law and Parker does not direct our 

attention to any designated evidence suggesting that his conduct 

of starting his ATV while standing beside it after the ATV had 

“tipped over” was conduct within the range of ordinary behavior 

of participants in the sport and reasonable as a matter of law. 

Appellants’ App[.] at 143. Accordingly, we conclude that an 

issue of fact exists as to whether Parker’s actions constituted a 
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breach of duty and that the trial court erred in granting Parker’s 

motion for summary judgment.

Id. at 201.

[12] Thus, this court has applied the rule in Pfenning to mean that a breach may not 

be found as a matter of law in every sporting activity-related summary 

judgment case. Rather, the designated evidence must support such a 

determination, as we held in Welch, and the ordinary behavior of participants in

a sport must be commonly understood, as we held in Haire. 

[13] Our analysis here turns on the issue of whether what constitutes reasonable and 

appropriate conduct in a karate class is “commonly understood” and can be 

determined as a matter of law. See Pfenning, 947 N.E.2d at 403-04. We observe 

that, unlike baseball, football, basketball, or golf, as likely examples, karate is 

not a sport with which most Americans are familiar, either through personal 

participation or through enjoyment as a spectator. While in Pfenning, the court 

held that a golfer’s errant drive was “clearly within the range of ordinary 

behavior of golfers and thus is reasonable as a matter of law,” 947 N.E.2d at 

404, we cannot say that the common understanding of karate includes detailed 

knowledge of the types of kicks that are within the range of ordinary behavior 

for a particular exercise.

[14] Dunn designated evidence in support of his contention that jump kicks are 

within the ordinary behavior of a karate student engaged in some types of 

practice drills. But Megenity presented designated evidence to show that this 
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particular kick in these particular circumstances was outside the range of 

ordinary behavior. In particular, Megenity testified that: Dunn was supposed 

to perform a front kick, which involves keeping one foot on the floor while the 

kicking foot strikes the bag; Megenity had held bags during kicking-the-bag 

drills “countless” times during her time at the studio without incident, and she 

knew how to brace herself for a front kick; Dunn apologized for jumping during 

the kick; she inferred from Dunn’s apology that he had performed a jump kick, 

which “is where you run and . . . spring off of your body before you do the kick 

into the bag”; the difference in impact between a running front kick and a jump 

kick is “[e]xponential”; “[j]ump kicks [had] nothing to do with [the kicking-thebag drill]”; jump kicks are “always done into the air,” not with another person; 

and jump kicks were “not done” in the course of normal conduct for the class. 

Appellant’s App. at 69, 78. In sum, Megenity, who holds a black belt, testified 

that Dunn had performed a jump kick and that a jump kick directed toward 

another person is unreasonable, inappropriate, and not within the range of a 

karate participant’s ordinary behavior, whether in practice or in competition.

[15] We hold that the “general nature of the conduct reasonable and appropriate for 

a participant” in a karate practice drill is not “commonly understood and 

subject to ascertainment as a matter of law.” See Pfenning, 947 N.E.2d at 403-

04. And Megenity has designated evidence to establish a genuine issue of 

material fact whether Dunn’s kick was a jump kick and, if so, whether such a 

kick was outside the range of ordinary behavior for a karate student engaged in 

a kicking-the-bag practice drill. Accordingly, we cannot say that Dunn did not 
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breach his duty of care to Megenity as a matter of law, and the trial court erred 

when it entered summary judgment in favor of Dunn.

[16] Reversed and remanded for further proceedings. 

May, J., concurs.

Riley, J., dissents with separate opinion.
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I N T H E

COURT OF APPEALS OF INDIANA

Tresa Megenity,

Appellant-Plaintiff,

v.

David Dunn,

Appellee-Defendant.

Court of Appeals Case No.

22A04-1506-CT-722

Riley, Judge dissenting

[17] I respectfully dissent from the majority’s decision reversing the trial court’s 

summary judgment and holding that a genuine issue of material fact exists as to 

whether Dunn’s kick “was outside the range of ordinary behavior for a karate 

student engaged in a kicking-the-bag practice drill.” (Slip op. p. 11). 
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[18] As noted by the majority, our supreme court’s seminal decision in Pfenning v. 

Lineman, 947 N.E.2d 392 (Ind. 2011), addressed the duty of care owed by 

participants in athletic events. Rejecting the concept that a participant in a 

sporting event owes no duty of care to protect others from inherent risks of the 

sport, our supreme court adopted the rule that “if the conduct of such 

participant is within the range of ordinary behavior of participants in the sport, 

the conduct is reasonable and does not constitute a breach of duty.” Id. at 404 

(emphasis added). “The general nature of the conduct reasonable and 

appropriate for a participant in a particular sporting activity is usually 

commonly understood and subject to ascertainment as a matter of law.” Id. at 

403-04. In the facts before it, the Pfenning court opined that hitting an “errant 

drive” represents conduct “clearly within the range of ordinary behavior of 

golfers[.]” Id. at 404. 

[19] Applying Pfenning and its progeny, the majority then analyses whether Dunn’s 

particular kick was outside the range of ordinary behavior under the particular 

circumstances before this court and concluded that “the general nature of the 

conduct reasonable and appropriate for a participant in a karate practice drill is 

not commonly understood and subject to ascertainment as a matter of law.” 

(Slip op. p. 11) (quoting Pfenning, 947 N.E.2d at 403-04) (emphasis added). I 

disagree with the majority’s analysis as it represents a more narrow rule than 

our supreme court proponed in Pfenning.

[20] As Pfenning noted, a “sports participant engages in physical activity that is often 

inexact and imprecise and done in close proximity to others[.]” Id. at 403. 
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Even though no Indiana case has addressed sport injuries as a result of 

participating in karate, the sport is generally commonly understood as a high 

contact sport, involving throws, strikes, and other techniques encouraging 

physical contact between the participants. Most sports acknowledge that 

mistakes will happen and Megenity and Dunn understood this when they

signed their application for membership in the studio by acknowledging that 

“[c]aution must be used while participating in this program.” (Appellant’s App. 

p. 99). As such, Megenity was instructed in the proper foot placement to safely 

absorb the impact of the kick during the kicking-the-bag practice drill, which 

was conducted with participants versed in different skill levels. 

[21] “Athletic activity by its nature involves strenuous and often inexact and 

imprecise physical activity that may somewhat increase the normal risks 

attendant to the activities of ordinary life outside the sports arena, but this does 

not render unreasonable the ordinary conduct involved in such sporting 

activities.” Id. at 403. By focusing on whether Dunn’s particular kick was 

“outside the range of ordinary behavior for a karate student engaged in a 

kicking-the-bag practice drill,” the majority limits its review to the particular 

exercise instead of the broader scope of the sport of karate, as instructed by 

Pfenning. (Slip op. p. 11) (emphasis added). Although Pfenning noted that 

“strong public policy considerations favor the encouragement of participation in 

athletic activities and the discouragement of excessive litigation of claims by 

persons who suffer injuries from participants’ conduct,” the majority opens the 

door again to a fact sensitive inquiry in every sports negligence case as to the 
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exactness and preciseness of a particular exercise within that broader sport. Id. 

at 403.

[22] Based on the facts before me, I would conclude that Dunn’s conduct was within 

the ordinary range of behavior of participants in karate and would affirm the 

trial court’s summary judgment in favor of Dunn.