Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018 Page 1 of 28

ATTORNEYS FOR APPELLANTS

Robert H. Ebbs

Theresa L.D. Ebbs

Katherine M. Marshall

Glaser & Ebbs

Indianapolis, Indiana

ATTORNEY FOR AMICUS CURIAE

INDIANA TRIAL LAWYERS ASSOCIATION

Scott A. Faultless

Craig Kelley & Faultless LLC

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Michael R. Bain

Lauren M. Hardesty

Hume Smith Geddes Green & 

Simmons, LLP

Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE

DEFENSE TRIAL COUNSEL OF 

INDIANA

Lucy R. Dollens

Jacob V. Bradley

Quarles & Brady LLP

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

D.H. a Minor, by Her Parent, 

A.M.J., and A.M.J. Individually,

Appellants-Plaintiffs,

v.

Mary Whipple,

Appellee-Defendant,

 and

Robert Whipple (Deceased)

Defendant Below.

May 29, 2018

Court of Appeals Case No.

48A05-1706-CT-1345

Appeal from the Madison Circuit 

Court

The Honorable Thomas Newman, 

Jr., Judge

Trial Court Cause No.

48C03-1306-CT-101

Robb, Judge.
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Case Summary and Issue

[1] D.H. (“Child”), through her mother and guardian, A.M.J. (“Mother”), and 

Mother individually (collectively, the “Appellants”), bring this interlocutory 

appeal from the trial court’s grant of summary judgment on the issue of 

negligence in favor of Mary Whipple, Mother’s mother and Child’s maternal 

grandmother. Appellants present only one question for our review, whether the 

trial court properly granted summary judgment. Concluding genuine issues of

material fact remain, we reverse and remand. 

Facts and Procedural History 

[2] Robert Whipple, Child’s step-grandfather and Mary’s husband until his death in 

2017, had a history of child molestation. Robert molested his seven-year-old 

daughter on multiple occasions in the 1960s and his six-year-old niece on 

multiple occasions in 1980. As a result of his 1980 conduct, Robert was 

charged with child molesting, a Class B felony. He confessed to the underlying 

conduct and accepted a plea agreement involving counseling in lieu of 

incarceration. 

[3] Mary met Robert sometime in 1990 and the two were married on December 6, 

1991. For medical reasons, Mary and Robert were unable to have sex during 

their twenty-six-year marriage. By the time of Mary and Robert’s marriage, 

Mother was an adult and living on her own. Sometime prior to 2009, Mother

and Child moved from Indianapolis to Anderson to help with Mary’s and 
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Robert’s many health issues. During this time, and often at Mary’s invitation, 

Child would visit and stay the night at the Whipples’ home. 

[4] These visits increased in December 2009, after Child turned thirteen, because 

she was no longer eligible to continue attending her daycare facility. Through 

phone calls with Mary, Mother arranged for Child to stay at the Whipples’

home while Mother was at work. Mary, who was working in Indianapolis at 

the time, told Mother that she would be home shortly after Child was dropped 

off at the home. Mother would drop Child off around 4:30 p.m. and Mary 

would arrive home around 5:30 or 6:00 p.m. Mary told Mother that it was “all 

right” for Child to be with Robert until she returned home from work in 

Indianapolis. Appendix of Appellants, Volume III at 50. From December 

2009 through January 2010, Robert molested Child on some twelve occasions.

Child did not initially report the molestations, however, because Robert 

threatened to kill Mother. Almost two years later, Child met with a detective 

and reported the molestations, resulting in Robert’s arrest. Following a jury 

trial in May 2013, Robert was found guilty of two counts of child molesting as

Class A felonies, and one count of child molesting as a Class C felony. Robert 

was sentenced to thirty-five years in the Indiana Department of Correction. 

[5] In June 2013, Appellants commenced this action by filing a complaint for 

damages against Robert and Mary. Count I alleged that Robert committed 

assault, battery, invasion of privacy, intentional infliction of emotional distress, 

and negligent infliction of emotional distress. Count II alleged negligence on 

behalf of Mary. Specifically, Appellants allege in Count II:
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12. On said occasions when Plaintiff Child was in the custody, 

care and control of Defendant Mary Whipple, the Defendant had 

a special responsibility to supervise Plaintiff Child, to keep her 

from harm and out of danger, to make careful preparations to 

enable Defendant to be vigilant in ascertaining risks that may 

occur and to exercise reasonable care for Child’s safety and 

protection.

13. Defendant Mary Whipple was, without limitation:

a) Negligent in her supervision of Child as she knew, or 

should have known, that Defendant Robert Whipple was 

sexually molesting and assaulting Child, and Defendant 

Mary Whipple failed to warn Child and/or [Mother] of 

the dangers, or otherwise protect Child from said wrongful 

acts of her husband, Defendant Robert Whipple, and the 

harm to result therefrom; and,

b) Negligent and careless in failing to provide a safe 

environment and/or premises for Plaintiff Child, a child of 

thirteen (13) years of age, when Defendant Mary Whipple 

accepted the responsibility to care for Child and was 

entrusted with her safety and well-being.

App. of Appellants, Vol. II at 18-19. 

[6] Mary denied the allegations and eventually filed a motion for summary 

judgment.1 As evidence in opposition to the motion, Appellants designated the 

affidavit of Scott Sanderson, a detective with the Anderson Police Department, 

 

1 Robert died in 2017 while serving his sentence and the allegations against Robert are not involved in this 

appeal. 
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who had interviewed both Robert and Mary in the course of investigating the 

molestations. Detective Sanderson’s affidavit included the following:

10. I interviewed Robert E. Whipple on February 24, 2012, at 

the Anderson Police Department, in the course of my 

investigation of the State of Indiana v. Robert E. Whipple, 

Cause Number 48C06-1204-FA-000655 case; and,

a. During that interview, Robert E. Whipple admitted to 

molesting two children, other than [Child], in the past; one 

was his biological daughter, and the other was his niece by 

marriage.

b. During that interview, Robert E. Whipple informed me 

that he had told his wife Mary Whipple that he had 

molested a girl in the past.

c. It was and is my impression that, prior to December 20, 

2009, Robert E. Whipple informed Mary Whipple that he 

molested a child.

d. A true and accurate copy of the Anderson Police 

Department Advice of Rights and my hand written notes 

which were contained on the back side of the Advice of 

Rights are attached hereto as Exhibit B.

e. A true and accurate copy of my type written notes of my 

February 24, 2012 interview with Robert E. Whipple are 

attached hereto as Exhibit C.

11. I spoke in person with Mary Whipple on February 24, 2012, 

while she was at the Anderson Police Department with Robert E. 

Whipple; and,
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a. During that conversation, Mary Whipple stated that a 

long time ago Robert E. Whipple told her that he had 

what she referred to as a “small or minor indiscretion” a 

long time ago.

b. It was and is my impression that the “small or minor 

indiscretion” that Mary Whipple was referring was child 

molest.

c. It was and is also my impression that Mary Whipple 

had knowledge prior to December 20, 2009 that Robert E. 

Whipple molested at least one (l) child.

d. During that conversation, I spoke with Mary Whipple 

about the allegations [Child] had made against Robert E. 

Whipple; and, although she denied the allegations, she 

advised basically that it was all her fault because she 

worked all of the time, and Robert E. Whipple was home 

alone with [Child].

e. A true and accurate copy of my hand written notes 

which were contained on the back side of the Advice of 

Rights are attached hereto as Exhibit B.

f. A true and accurate copy of my type written notes of my 

February 24, 2012 conversation with Mary Whipple are 

attached hereto as Exhibit C.

App. of Appellants, Vol. III at 85-86. 

[7] Appellants’ designated evidence also included the following testimony from 

Mary’s deposition:
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[Question]: If Detective Sanderson indicated that you made a 

statement to him that you were aware of 

indiscretions that [Robert] had had, would you have 

any reason to dispute that?

[Mary]: If I was aware of any indiscretions. I don’t know if 

I – don’t know if I would have said that. I wouldn’t 

dispute anything I would have said to him because 

if I said to him, it’s on record, but you have to 

remember that this is just such a blur, I can’t 

remember specifics. 

[Question]: Do you recall using the words indiscretions – or 

word indiscretion?

[Mary]: That would be a word I would use. 

[Question]: And what would you use that word for?

[Mary]: Well, these issues, these sexual issues are most 

definitely indis- -- you know, it’s wrong. 

[Question]: When did you first learn about what you’re calling 

indiscretions?

[Mary]: I would say when I was either with Child Protective 

Services or Investigator Brooks. And I don’t know 

what dates or years. 

[Question]: Detective Brooks would be after 2009. Would CPS 

be before or after 2009?

[Mary]: It – it ran very close. I don’t know. 
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Id. at 33. After a hearing, the trial court granted Mary’s motion for summary 

judgment. Appellants now appeal.

Discussion and Decision 

I. Standard of Review

[8] When reviewing a grant or denial of a motion for summary judgment, our 

standard of review is the same as it was for the trial court in ruling on the 

motion initially. Knighten v. E. Chi. Hous. Auth., 45 N.E.3d 788, 791 (Ind. 2015). 

The moving party carries the burden of showing there are no genuine issues of 

material fact and it is entitled to judgment as a matter of law. Id. “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.” Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Unlike federal 

practice, the moving party must go beyond merely showing the party carrying 

the burden of proof lacks evidence on a necessary element and “affirmatively 

negate an opponent’s claim.” Id. If the moving party carries Indiana’s “more 

onerous burden,” then the non-moving party must present evidence establishing 

the existence of a genuine issue of material fact. Id; Knighten, 45 N.E.3d at 791.

We consider only the evidence the parties designated to the trial court and we

construe all factual inferences in favor of the non-moving party, resolving all 

doubts regarding the existence of a material issue against the moving party. See

Ind. Trial Rule 56(C), (H); Knighten, 45 N.E.3d at 791. 
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[9] Indiana’s heightened summary judgment standard “consciously errs on the side 

of letting marginal cases proceed to trial on the merits, rather than risk shortcircuiting meritorious claims.” Hughley, 15 N.E.3d at 1004. Summary

judgment is rarely appropriate in negligence cases because they are “particularly 

fact sensitive and are governed by a standard of the objective reasonable 

person—one best applied by a jury after hearing all of the evidence.” Rhodes v. 

Wright, 805 N.E.2d 382, 387 (Ind. 2004) (internal citations and quotations 

omitted). 

II. Admissible Evidence 

[10] As an initial matter, Mary alleges that Appellants rely on “mere speculation in 

their statement of facts, argument, and appendix.” Appellee’s Brief at 10. 

Specifically, Mary’s argument focuses on Appellants’ reliance on Detective 

Sanderson’s affidavit in which he gives his “impressions” from his interviews 

with Robert and Mary. See App. of Appellants, Vol. III at 85-86.

[11] In ruling on a motion for summary judgment, a trial court may only consider 

material deemed appropriate by Indiana Trial Rule 56(E). Duncan v. Duncan, 

764 N.E.2d 763, 766 (Ind. Ct. App. 2002), trans. denied. That rule provides: 

Supporting and opposing affidavits shall be made on personal 

knowledge, shall set forth such facts as would be admissible in 

evidence, and shall show affirmatively that the affiant is 

competent to testify to the matters stated therein. Sworn or 

certified copies not previously self-authenticated of all papers or 

parts thereof referred to in an affidavit shall be attached thereto

or served therewith.
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The affidavit requirements of Trial Rule 56(E) are mandatory and a court 

considering a summary judgment motion should disregard inadmissible 

information contained in supporting or opposing affidavits. Id. The party 

offering the affidavit into evidence bears the burden of establishing its 

admissibility. Id. 

[12] At the summary judgment hearing, Mary alleged that Detective Sanderson’s 

speculations were based solely on inadmissible hearsay and violated the Indiana 

Dead Man’s Statute, arguing:

Just to add an additional wrinkle to this case. It’s hearsay. 

Whatever [Robert] told affidavit [sic] or told Detective Sanderson 

what is more it’s in violation of the dead man [sic] statutes. He 

passed away in February of two thousand seventeen. So you 

need to have more evidence then [sic] [Robert] telling an Officer 

two and a half years after the incident yeah I did molest someone 

in the past. There is if they can point to any evidence from Mary 

Whipple stated yes I knew that he had done this act prior to 

December of two thousand nine after fifty hours of depositions, I 

am still looking for it. It’s not there and that and I will leave it at 

that. 

Transcript, Volume I at 34-35. 

[13] However, on appeal, although Mary employs a subheading titled, “Appellants 

rely on hearsay and speculation as factual evidence,” Appellee’s Br. at 10, she 

never advances an argument regarding hearsay or the Indiana Dead Man’s 

Statute. Indiana Appellate Rule 46(A)(8) provides that the argument section of 

the appellant’s brief must “contain the contentions of the appellant on the issues 
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presented, supported by cogent reasoning,” along with citations to the 

authorities, statutes, and parts of the record relied upon, and a clear showing of 

how the issues and contentions in support thereof relate to the particular facts 

under review. Because Mary failed to do so, she has therefore waived these 

arguments.

2 See, e.g., Reed v. Reid, 980 N.E.2d 277, 297 (Ind. 2012) (“Failure to 

comply with this rule results in waiver of the argument on appeal.”).

[14] In place of those arguments, Mary alleges that Detective Sanderson’s use of the 

word “impression” constitutes improper opinion testimony by a lay witness. 

Appellee’s Br. at 10. “A mere general objection, or an objection on grounds 

other than those raised on appeal, is ineffective to preserve an issue for appellate 

review.” Raess v. Doescher, 883 N.E.2d 790, 797 (Ind. 2008). As such, we view 

Mary’s somewhat casual comments regarding hearsay and the Indiana Dead 

Man’s Statute as insufficient to preserve the error of improper opinion 

testimony. Mary has therefore waived any objection and Detective Sanderson’s 

affidavit may be considered. See Riggin v. Rea Riggin & Sons, Inc., 738 N.E.2d 

 

2 Even if Mary had not waived the issue of the Indiana Dead Man’s Statute by failing to advance an 

argument on appeal, the litigation involving Robert’s estate is not before us. See ¶ 5, supra; Ind. Code § 34-45-

2-4(a)(3) (the statute applies to suits or proceedings: “where a judgment or allowance may be made or 

rendered for or against the estate represented by the executor or administrator”). Moreover, rather than 

excluding evidence, the statute prevents a particular class of witnesses from testifying as to the claims against 

the estate, Paullus v. Yarnelle, 633 N.E.2d 304, 308 (Ind. Ct. App. 1994), and there is no evidence that 

Detective Sanderson is a “necessary party to the issue,” Ind. Code § 34-45-2-4(d) (providing that for a witness 

to be incompetent to testify, with minor exceptions, they must be both “a necessary party to the issue or 

record” and have an interest which is “adverse to the estate”). Because Detective Sanderson would neither 

gain, nor lose, by the direct legal operation of the judgment, he does not have an interest which renders him 

incompetent to testify. See Fisher v. Estate of Haley, 695 N.E.2d 1022, 1028 (Ind. Ct. App. 1998) (holding that 

although the plaintiff was not a direct party to the action, because he stood to gain from a judgment for 

retained corporate earnings, he was therefore a “party to the issue”). 
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292, 306 n.9 (Ind. Ct. App. 2000) (concluding that we may consider affidavits 

regardless of impropriety where party failed to adequately object to their 

admission). 

[15] Waiver notwithstanding, we do not view Deputy Sanderson’s “impression” 

statement as improper opinion testimony. Appellee’s Br. at 10. Mary 

seemingly confines this argument to one instance: that it was Detective 

Sanderson’s “impression that, prior to December 20, 2009, Robert B. Whipple 

informed Mary Whipple that he that he molested a child.” App. of Appellants,

Vol. III at 85. Opinion testimony by a lay witness is limited to those opinions 

rationally based on some combination of the witness’s own personal 

observation, knowledge, and past experience. Ackles v. Hartford Underwriters Ins. 

Corp., 699 N.E.2d 740, 743 (Ind. Ct. App. 1998), trans. denied. “Lay witness 

opinion testimony must not only be based on the personal perception of the 

witness, it also must be ‘rationally’ based on that perception. Thus, speculation 

or testimony based on improper inferences is inadmissible.” Id. 

[16] Here, Mary argues that Detective Sanderson does not have personal knowledge 

that “prior to December 20, 2009,” Robert informed Mary that he molested a 

child. Appellee’s Br. at 10. In context, immediately preceding that statement, 

Detective Sanderson stated that “Robert E. Whipple informed me that he had 

told his wife Mary Whipple that he had molested a girl in the past.” App. of 

Appellants, Vol. III at 85. Thus, the issue becomes only whether Robert told 

Mary that information prior to December 20, 2009—the date of the first 

molestation underlying Appellants’ cause of action.
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[17] In Satterfield v. State, our supreme court explained:

Helpful opinions are not exclusive to experts or skilled witnesses. 

Any witness “not testifying as an expert”—whether an ordinary 

lay witness or a skilled witness—may testify “in the form of an 

opinion” if it is “(a) rationally based on the perception of the 

witness and (b) helpful to a clear understanding of the witness’s 

testimony or determination of a fact in issue.” Ind. Evidence 

Rule 701. “The requirement that the opinion be ‘rationally 

based’ on perception simply means that the opinion must be one 

that a reasonable person could normally form from the perceived 

facts,” Davis v. State, 791 N.E.2d 266, 268 (Ind. Ct. App. 2003), 

trans. denied, which are facts received “directly through any of the 

[witness’s own] senses,” Ashworth v. State, 901 N.E.2d 567, 572 

(Ind. Ct. App. 2009) (quoting Kubsch v. State, 784 N.E.2d 905, 

922 (Ind. 2003) (defining “perception” under Evidence Rule 

701)), trans. denied. And the witness’s opinion is “helpful” “if the 

testimony gives substance to facts, which were difficult to 

articulate.” McCutchan v. Blanck, 846 N.E.2d 256, 262 (Ind. Ct.

App. 2006).

33 N.E.3d 344, 352 (Ind. 2015). 

[18] Here, Detective Sanderson’s “impression” is both rationally based on his 

perception and helpful to a clear understanding of his testimony. Indeed, even 

absent an express statement, there are countless context clues in the course of a 

conversation from which the recipient of information can determine, or at least 

opine, the order in which events occurred. Mary argues, however, that this 

“impression” is not rational considering Mary’s and Robert’s subsequent 

testimony—referring to the fact that both Mary and Robert denied having any 

such conversation. But this is no matter. As noted above, a statement is 
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rational if a reasonable person could form the opinion from the perceived facts 

and we need not look to other testimony to determine whether the opinion is 

consistent. Davis, 791 N.E.2d at 268. Therefore, even if Mary had not waived 

this issue for our review, Detective Sanderson’s “impression” would 

nevertheless be admissible evidence for the trial court’s evaluation on summary 

judgment. 

III. Negligent Supervision

[19] Having concluded Appellants’ designated evidence was admissible, we turn to 

Appellants’ claim that the trial court improperly granted summary judgment to 

Mary on the issue of negligence. We agree.

[20] Appellants advance two general theories of negligence against Mary: (1) 

negligent supervision; and (2) premises liability. See App. of Appellants, Vol. II 

at 18-19. For all claims of negligence, a plaintiff must show a duty owed to the 

plaintiff by the defendant, a breach of that duty, and a compensable injury 

proximately caused by the breach. Kroger Co. v. Plonski, 930 N.E.2d 1, 6 (Ind.

2010). We begin with negligent supervision.

[21] At the core of this appeal is whether Mary owed Appellants a duty of care 

because, “[a]bsent a duty, there can be no breach and, therefore, no recovery in 

negligence.” Bowman ex rel. Bowman v. McNary, 853 N.E.2d 984, 990 (Ind. Ct.

App. 2006) (citation and quotation omitted). Generally, the existence of a duty 

is a pure question of law appropriate for disposition by summary judgment. 

Ind. Dep’t of Transp. v. Howard, 879 N.E.2d 1119, 1122 (Ind. Ct. App. 2008). 
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However, where factual questions are interwoven, the existence of a duty may 

be a mixed question of law and fact to be determined by the fact-finder. Id.

A. Waiver

[22] As a preliminary matter, Mary alleges that the Appellants waived arguments 

regarding “in loco parentis, custodians, and assumed duty” pertaining to the 

claim of negligent supervision because they “were not properly raised at the 

trial court level.” Appellee’s Br. at 7. 

[23] It is well established that Appellants “may not change [their] theory on appeal 

and argue an issue that was not properly presented to the trial court.” Pardue v. 

Smith, 875 N.E.2d 285, 289-90 (Ind. Ct. App. 2007). “Nor may a party raise a 

new issue on appeal under the cloak of evidence relevant to a similar, yet 

distinct issue that was properly pled before the trial court.” Id. This is based on 

notions of fairness which require an opposing party have notice of an issue 

which was not previously pleaded at the trial court level. Id. 

[24] We have explained, however:

The rule that parties will be held to trial court theories by the 

appellate tribunal does not mean that no new position may be 

taken, or that new arguments may not be adduced; all it means is 

that substantive questions independent in character and not 

within the issues or not presented to the trial court shall not be 

first made upon appeal. Questions within the issues and before 

the trial court are before the appellate court, and new arguments 

and authorities may with strict propriety be brought forward.
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Dedelow v. Pucalik, 801 N.E.2d 178, 183-84 (Ind. Ct. App. 2003) (quotation 

omitted) (agreement expressed by Wagner v. Yates, 912 N.E.2d 805, 811 n.3 

(Ind. 2009)). 

[25] With the exception of in loco parentis, which was not adequately developed until 

Appellants’ reply brief, we conclude that Appellants sufficiently raised the 

issues they now argue on appeal. See Felsher v. Univ. of Evansville, 755 N.E.2d 

589, 593 n.6 (Ind. 2001) (noting that appellants are not permitted to present 

new arguments in their reply briefs, and any argument an appellant fails to 

adequately raise in their initial brief is waived for appeal). Accordingly, 

Appellants have not waived the remaining arguments. 

B. Duty 

[26] Returning to the core of this appeal—the element of duty—Mary argues that to 

determine whether a duty existed, we must look to the three-part balancing test 

originally outlined in Webb v. Jarvis: (1) the relationship between the parties; (2) 

the foreseeability of harm; and (3) public policy concerns. 575 N.E.2d 992, 995-

97 (Ind. 1991). However, as our supreme court has long held and Appellants 

now argue, “a judicial determination of the existence of a duty is unnecessary 

where the element of duty has already been declared or otherwise articulated.” 

Rogers v. Martin, 63 N.E.3d 316, 321 (Ind. 2016) (quotation and citation 

omitted). Here, we conclude that genuine questions of material fact remain 

regarding (1) whether Mary possessed a duty of care as a person to whom the 

care of a child was entrusted; and/or (2) whether Mary assumed a duty a care.
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1. Entrusted with the Care of a Child 

[27] Appellants first allege, “The duty of a person who assumes custody of a child to 

exercise reasonable care for the safety of the child has already been declared 

and is well established in this state and throughout the country.” Br. of 

Appellants at 13. Indeed, Indiana law recognizes a duty of care on behalf of a 

person to whom the care of a child is entrusted. See, e.g., Vetor by Weesner v. 

Vetor, 634 N.E.2d 513, 515 (Ind. Ct. App. 1994) (noting that child’s grandfather 

“owed her a duty of reasonable care as the person to whom her care had been 

entrusted.”). “The duty exists whether or not the supervising party has agreed 

to watch over the child for some form of compensation.” Davis v. LeCuyer, 849 

N.E.2d 750, 757 (Ind. Ct. App. 2006), trans. denied. 

[28] In Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011), a sixteen-year-old 

accompanied her grandfather to a golf outing with the permission of her 

mother. Grandfather then volunteered granddaughter, who was unfamiliar 

with the sport of golf, to operate a beverage cart during the golf outing. After 

making several trips around the golf course, granddaughter was struck in the 

mouth with an errant tee-ball, injuring her mouth, jaw, and teeth. 

Granddaughter sued her grandfather alleging, inter alia, negligent supervision 

and, in turn, grandfather argued that he did not owe his granddaughter a duty 

of care. The trial court granted summary judgment in favor grandfather and we 

affirmed on appeal. 

[29] On transfer, our supreme court declined grandfather’s invitation to apply 

Webb’s three-part balancing test and instead relied upon the “well recognized 
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duty in tort law that persons entrusted with children . . . have a special 

responsibility by the common law to supervise their charges.” Id. at 410. The 

court then concluded that a duty existed because granddaughter “was explicitly 

entrusted to her grandfather’s care and supervision by her mother.” Id. 

[30] Here, it remains a question of fact whether Mother entrusted Child to Mary’s 

care and supervision. See Ind. Dep't of Transp., 879 N.E.2d at 1122 (noting the 

existence of a duty may be a mixed question of law and fact). Mother made the 

arrangements for Child to stay at the Whipples’ home on the phone with Mary

and Mary repeatedly invited Child to stay at the home and went so far as to 

give Child her own room at the residence. Mary told Mother that it was “all 

right” for Child to be with Robert until she returned home from work and that 

she would be home shortly after Child was dropped off. App. of Appellants, 

Vol. III at 50. On these facts, a reasonable factfinder could conclude that 

Mother entrusted Child’s care and supervision to Mary, her own mother, and 

not to Robert. 

2. Assumed Duty 

[31] Alternatively, a factfinder could reasonably conclude that Mary assumed a duty 

of care. In Yost v. Wabash College, our supreme court explained:

“A duty of care may . . . arise where one party assumes such a 

duty, either gratuitously or voluntarily. The assumption of such 

a duty creates a special relationship between the parties and a 

corresponding duty to act in the manner of a reasonably prudent 

person.” Delta Tau Delta, [Beta Alpha Chapter v. Johnson, 712 

N.E.2d 968, 975 (Ind. 1999)] (alteration in original) (quoting 
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Plan–Tec, Inc. v. Wiggins, 443 N.E.2d 1212, 1219 (Ind. Ct. App.

1983)), trans. not sought. The assumption of such a duty requires 

affirmative, deliberate conduct such that it is “apparent that the 

actor . . . specifically [undertook] to perform the task that he is 

charged with having performed negligently, ‘for without the 

actual assumption of the undertaking there can be no correlative 

legal duty to perform that undertaking carefully.’” Lather v. Berg, 

519 N.E.2d 755, 766 (Ind. Ct. App. 1988) (quoting Blessing v. 

United States, 447 F.Supp. 1160, 1188-89 (E.D. Pa. 1978)), reh'g 

and trans. denied; see also King v. Northeast Sec., Inc., 790 N.E.2d 

474, 486-87 (Ind. 2003) (quoting Lather). Where “the record 

contains insufficient evidence to establish such a duty, the court 

will decide the issue as a matter of law.” Delta Tau Delta, 712 

N.E.2d at 975. The liability for the breach of assumed duty is 

expressed in the Restatement (Third) of Torts: Physical and 

Emotional Harm § 42 (2012), which states:

An actor who undertakes to render services to another and 

who knows or should know that the services will reduce 

the risk of physical harm to the other has a duty of 

reasonable care to the other in conducting the undertaking 

if:

(a) the failure to exercise such care increases the risk 

of harm beyond that which existed without the 

undertaking, or

(b) the person to whom the services are rendered or 

another relies on the actor’s exercising reasonable 

care in the undertaking.

Thus, to impose liability resulting from breach of assumed duty, 

it is essential to identify and focus on the specific services 

undertaken. Liability attaches only for the failure to exercise 

reasonable care in conducting the “undertaking.”
Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018 Page 20 of 28

3 N.E.3d 509, 517 (Ind. 2014).

[32] Mary argues the record contains insufficient evidence to establish a specific

assumed duty, other than a “vague claim” of failure to provide care, and urges 

the application of our decision in Merchants Nat’l Bank v. Simrell’s Sports Bar & 

Grill, Inc., 741 N.E.2d 383 (Ind. Ct. App. 2000). Appellee’s Br. at 18. Although 

Mary’s argument is correct in the sense that we must “focus on the specific 

services undertaken,” Yost, 3 N.E.3d at 517, we nevertheless find the designated 

evidence sufficient to create a question of fact for the jury. 

[33] In Merchants National Bank, the plaintiff was shot and killed by another bar 

patron shortly after leaving a bar. After his death, his estate sued the bar 

alleging, inter alia, that the bar assumed a duty to protect its patrons from the 

criminal acts of third persons. In finding no assumed duty, we concluded:

there is no designated evidence that [the bar], through affirmative 

conduct or agreement, gratuitously undertook a duty to protect 

[the plaintiff] from the unforeseeable criminal act of a third-party. 

The Administrator points to evidence that [the bar] provided 

security for its patrons on Thursday, Friday and Saturday nights 

when it featured a band. However, it is undisputed that [the

plaintiff] was shot on a Tuesday night. The evidence is 

insufficient to establish, as a matter of law, that [the bar] assumed 

a duty to protect [the plaintiff] from [the] criminal act.

741 N.E.2d at 388. 

[34] Here, we may generally categorize Mary’s assumed duty as one to protect Child 

from the foreseeable criminal attacks of third parties. The facts underlying 
Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018 Page 21 of 28

Appellants’ assumed duty argument are essentially the same as those 

underlying whether Mary had a duty as a person to whom the care of a child 

was entrusted. Similarly, the designated facts are sufficient to create a question 

of fact as to whether Mary engaged in “affirmative, deliberate conduct” such 

that it was apparent that she specifically undertook to protect Child from a 

foreseeable criminal attack. Yost, 3 N.E.3d at 517; see also Merchants Nat’l Bank, 

741 N.E.2d at 388 (noting the “existence and extent” of an assumed duty “is 

ordinarily a question of fact for the trier of fact”). For, if a factfinder so 

concludes, this assumption of duty would create “a special relationship between 

the parties and a corresponding duty to act in the manner of a reasonably 

prudent person.” Yost, 3 N.E.3d at 517. 

[35] Underlying our decisions in many assumption of duty cases is our reluctance to 

impute broad definitions of duty that essentially render a party the guarantor of 

another’s safety. See Hous. Auth. of City of South Bend v. Grady, 815 N.E.2d 151, 

160 (Ind. Ct. App. 2004); Merchants Nat’l Bank, 741 N.E.2d at 389; Fast Eddie’s v. 

Hall, 688 N.E.2d 1270, 1274 (Ind. Ct. App. 1997), trans. denied. This concern, 

however, is not present where a party takes affirmative action in creating a 

foreseeable harm—as is alleged here. Accordingly, we conclude questions of 

fact remain regarding whether Mary assumed a duty to protect Child from the 

foreseeable criminal attacks of third parties. 
Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018 Page 22 of 28

C. Breach 

[36] Turning to the second element of negligence—breach—Appellants allege this 

too remains a question of fact. We agree. 

[37] “The question of the breach of a duty is usually one for the trier of fact.” Cox v. 

Paul, 828 N.E.2d 907, 911 (Ind. 2005). “However, if any reasonable jury would 

conclude that a specific standard of care was or was not breached, the question 

of breach becomes a question of law for the court.” Id. at 912. 

[38] First, in the context of a duty of care on behalf of a person to whom the care of 

a child is entrusted, we return to our discussion of Pfenning, where a sixteenyear-old accompanied her grandfather to a golf outing and was struck with an 

errant golf ball. 947 N.E.2d at 397. In reversing the trial court’s grant of 

summary judgment, our supreme court explained:

While the mechanism of her injury, being struck by an errant golf 

ball, is not an unusual risk to adults on a golf course, a possible 

viable claim for breach of duty is nevertheless shown by the 

particular circumstances of the present case. The grandfather 

does not challenge the facts and inferences indicating that he was 

aware of the plaintiff's age, her lack of familiarity with golf, and 

particularly her lack of awareness of the risk of injury from 

wayward golf balls. The designated evidence does not establish 

that the plaintiff's mother was aware of and agreed to her 

daughter’s exposure to such risks. As to the issue of breach of 

duty, whether it was reasonable for him to subject her to such 

risks depends upon genuine issues of fact for determination at 

trial.
Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018 Page 23 of 28

Id. at 410. Although the mechanism of injury here is quite different from that of 

Pfenning, we find its reasoning persuasive regarding negligent supervision of a 

child and its accompanying standard of care. 

[39] Taking the facts, as we must, in favor of Appellants, the designated evidence 

supports a finding that Mary breached her duty of care when she allowed Child 

to be left alone with an individual, indeed her husband, whom she knew to 

have previously molested a child. Perhaps more importantly, however,

knowing this past, Mary reassured Mother that it was “all right” for Child to be 

left alone with Robert until she returned home from work in Indianapolis. App. 

of Appellants, Vol. III at 50. And, like Pfenning, the evidence fails to establish 

that Mother was aware of and agreed to Child’s exposure to such risks and a 

determination of whether it was reasonable for Mary to subject Child to such 

risks “depends upon genuine issues of fact for determination at trial.” Id. at 

410. 

[40] As to breach of an assumed duty, Mary argues simply that “absent a duty, there 

can be no breach.” Appellee’s Br. at 20. However, in her motion for summary 

judgment, Mary relied on Restatement (Second) of Torts Section 3153for the 

proposition that generally a person has no duty to control the conduct of a third 

 

3 There is no duty to control the conduct of a third person as to prevent him from causing physical harm to 

another unless

(a) a special relation exists between the actor and the third person which imposes a duty upon 

the actor to control the third person’s conduct, or

(b) a special relation exists between the actor and the other which gives to the other a right to 

protection. 
Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018 Page 24 of 28

person, nor to warn those endangered by such conduct, in the absence of a 

“special relationship” either to the third person or to the victim. Appellants’ 

App., Vol. II at 216-17.

[41] Finding no Indiana precedent directly on point, we turn to Pamela L. v. Farmer, 

112 Cal. App. 3d 206 (1980), where the Second District (Division 5) of the 

California Courts of Appeal addressed an analogous factual situation and faced 

a similar argument on appeal. There, three minors sued a husband and wife 

alleging, inter alia, negligence arising from husband’s sexual molestation of the 

minors in their home. The minors alleged that wife already knew of husband’s 

prior history of molesting women and children but nevertheless encouraged and 

invited plaintiffs to use the swimming pool at her house and told plaintiffs’

parents that it was safe for their children to play at her house while she was at 

work and her husband was home. In holding that wife had assumed a “special 

relationship,” the court explained:

Respondent cites the principle that generally a person has no 

duty to control the conduct of a third person, nor to warn those 

endangered by such conduct, in the absence of a “special 

relationship” either to the third person or to the victim. 

However, this rule is based on the concept that a person should 

not be liable for “nonfeasance” in failing to act as a “good 

Samaritan.” It has no application where the defendant, through 

his or her own action (misfeasance) has made the plaintiff’s 

position worse and has created a foreseeable risk of harm from 

the third person. In such cases the question of duty is governed 

by the standards of ordinary care. 
Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018 Page 25 of 28

This latter principle is embodied in Restatement Second of Torts 

section 302B which provides: “An act or an omission may be 

negligent if the actor realizes or should realize that it involves an 

unreasonable risk of harm to another through the conduct of the 

other or a third person which is intended to cause harm, even 

though such conduct is criminal.” 

Here respondent did not merely fail to prevent harm to plaintiffs 

from [her husband]. Respondent by her own acts increased the 

risk of such harm occurring. According to the allegations . . .,

respondent “encouraged and invited” the children to play in her 

swimming pool, prepared refreshments to “entice” the children, 

and “encouraged the parents . . . to permit” the children to come 

to her premises by telling them it would be perfectly safe for the 

girls to swim when respondent was not there, because her 

husband would be there. This was done, it is alleged, with 

knowledge that [her husband] had molested women and children 

in the past and that it was reasonably foreseeable he would do so 

again if left alone with the children on the premises. By 

encouraging and inviting the children to be alone with [her 

husband] under circumstances where he would have peculiar 

opportunity and temptation to commit such misconduct, 

respondent could be held to have unreasonably exposed the 

children to harm. 

Id. at 209-10 (citations and footnote omitted). 

[42] On these surprisingly similar facts, we find Pamela L.’s reasoning appropriate 

here, too. Accordingly, the designated facts are sufficient to create a question of 

fact as to whether Mary undertook a “special relationship” with Child and, 

more importantly, whether Mary breached a duty of care by permitting—or 

even encouraging—Child to be left alone with someone she may have known to 

have molested a child in the past. 
Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018 Page 26 of 28

D. Proximate Cause

[43] Finally, Appellants argue the trial court’s grant of summary judgment was 

inappropriate because proximate causation remains a question of fact. Again, 

we agree. 

[44] A negligent act is said to be the proximate cause of an injury “if the injury is a 

natural and probable consequence, which in the light of the circumstances, 

should have been foreseen or anticipated.” Bader v. Johnson, 732 N.E.2d 1212, 

1218 (Ind. 2000). 

Proximate cause in Indiana negligence law has two aspects. The 

first—causation in fact—is a factual inquiry for the jury. If the 

injury would not have occurred without the defendant’s negligent 

act or omission, there is causation in fact. A second component 

of proximate cause is the scope of liability. That issue, which is 

also for the trier of fact, turns largely on whether the injury “is a 

natural and probable consequence, which in the light of the 

circumstances, should have been foreseen or anticipated.” Under 

this doctrine, liability may not be imposed on an original 

negligent actor who sets into motion a chain of events if the 

ultimate injury was not reasonably foreseeable as the natural and 

probable consequence of the act or omission.

City of Gary v. Smith & Wesson, 801 N.E.2d 1222, 1243-44 (Ind. 2003) (citations 

omitted). 

[45] On appeal, Mary argues that Robert’s actions constituted “intervening criminal 

act[s] of a third party” which broke the causal chain of liability as it relates to 

Mary, Appellee’s Br. at 24, because the “willful, malicious, criminal act of a 

third party is an intervening act which breaks the causal chain between the 
Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018 Page 27 of 28

alleged negligence and the resulting harm.” Id. at 23-24 (quoting Fast Eddie’s, 

688 N.E.2d at 1274).

[46] On this point, we turn to our supreme court’s decision in Frankenmuth Mut. Ins. 

Co. v. Williams by Stevens, 690 N.E.2d 675 (Ind. 1997). There, a babysitter’s 

husband molested one of the children in her care and while examining the 

child’s claim of negligent supervision and the insurance company’s motion for 

summary judgment based on exclusions in its policy, our supreme court 

explained:

Where a person’s negligence creates a situation in which a third 

party might commit an intentional tort or criminal act, the 

negligence is not a proximate cause of any resulting injuries 

unless the negligent person “realized or should have realized the 

likelihood that such a situation might be created, and that a third 

person might avail himself of the opportunity to commit such a 

tort or crime.” Restatement (Second) of Torts § 448 (1965); cf. 

Hooks SuperX, Inc. v. McLaughlin, 642 N.E.2d 514, 520–21 (Ind.

1994) (holding as matter of law that voluntary and willful suicide 

constitutes intervening cause). A factfinder in White’s case 

would have had to decide (1) whether she was negligent and (2) 

whether she knew or should have known that her husband would 

molest [the child].

Id. at 678. Therefore, if it can be said that Mary realized or should have 

realized the likelihood that such a situation might be created, and that Robert 

might avail himself of the opportunity to commit such a tort or crime, then 

Mary may still be found liable for her negligence. Id. 
Court of Appeals of Indiana | Opinion 48A05-1706-CT-1345 | May 29, 2018 Page 28 of 28

[47] Here, we conclude that because the record contains conflicting evidence 

regarding Mary’s role in Child being left alone with Robert and whether Mary 

knew or should have known about Robert’s past, both components of 

proximate cause—causation in fact and scope of liability—remain questions of 

fact for the jury. Accordingly, the trial court’s grant of summary judgment was 

inappropriate.4 

Conclusion

[48] Because genuine questions of material fact remain regarding all three elements 

of negligence, the trial court erred by granting summary judgment. We 

therefore reverse the judgment of the trial court and remand for further 

proceedings consistent with this opinion. 

[49] Reversed and remanded. 

Crone, J., and Bradford, J., concur.

 

4 Because we conclude genuine questions of material fact on the issue of negligent supervision remain, we 

need not address the alternative negligence claim based on premises liability.