Shepard, S.J.
Statement of the Case
K.M.W. and K.J.W., the mother and father respectively of K.D.W., a minor, hosted a party at their home during which Jill Doe, a minor child of John Doe and Jane Doe, was sexually molested by K.D.W. The Does filed a two-count complaint against K.M.W. and K.J.W. alleging premises liability and negligent parental supervision for the events leading up to and concluding with the sexual molestation of their daughter.
The trial court granted summary judgment in favor of K.M.W. and K.J.W., relying heavily on this Court’s decision in Wells v. Hickman, 657 N.E.2d 172 (Ind. Ct. App. 1995), trans. not sought, and concluded that the Does were not entitled to relief as a matter of law under either theory of negligence.
The critical inquiry in today’s case is whether this Court’s duty analysis in Wells v. Hickman, a negligent parental supervision case, was implicitly overruled by a pair of Supreme Court decisions. Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016) and Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384 (Ind. 2016), clarified the foreseeability in the context of duty analysis in negligence cases, specifically in premises liability cases—which were subsequently clarified/modified by the Supreme Court in Cavanaugh’s Sports Bar & Eatery, Ltd. v. Porterfield, 140 N.E.3d 837 (Ind. 2020) and again most recently in Pennington v. Memorial Hospital of South Bend, Inc., 223 N.E.3d 1086 (Ind. 2024). We conclude that the duty analysis used in Wells has not been implicitly overruled.
Thus, we reverse and remand to the trial court on the theory of negligent parental supervision. However, as we explain below, our Supreme Court’s decisions lead us to affirm the trial court’s decision as to premises liability.
We also address whether the court erred by striking portions of a medical expert’s affidavit for purposes of its summary judgment decision. Concluding that those portions inappropriately express legal conclusions, we affirm the trial court’s decision to strike them for purposes of summary judgment. We express no opinion about their admissibility in further proceedings.
Therefore, we affirm on premises liability and reverse and remand on negligent parental supervision.
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At issue here is whether the Supreme Court’s decisions in Goodwin, Rogers, and Cavanaugh’s, implicitly overrule the duty analysis in Wells. We conclude they do not. But prior to explaining why we reach that conclusion, we first demonstrate that even under the Wells analysis alone, the Does designated enough evidence to withstand the motion for summary judgment.
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K.D.W.’s behavior not only suggests a habit of engaging in unwanted touching in a sexual manner, but also a course of conduct of unwanted touching of females especially while unsupervised. Moreover, the record shows that K.D.W.’s parents were aware of his behavior at Camp DASH. Thus, regardless of the impact of the decisions in Goodwin, Rogers, Cavanaugh’s, and Pennington, under the Wells analysis, Jill Doe was a foreseeable victim of a foreseeable harm.
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Thus, when an exception such as negligent parental supervision is alleged, we turn not to the Webb analysis—(1) relationship between the parties; (2) foreseeability of harm; and (3) public policy concerns—but to the foreseeability in the context of duty analysis, first developed by Wells, and shaped by the subsequent cases of our Supreme Court. A more stringent foreseeability in the context of duty analysis, like the one announced in Wells, is required in order to preserve the general rule of non-liability of parents for the torts of their children.
Consequently, for the exception to apply and the claim to move forward, “the parent must know or should have known that the child had a habit of engaging in the particular act or course of conduct which led to the plaintiff’s injury.” Wells, 657 N.E.2d at 178. And we observe that there are two parts to this analysis: whether there is evidence that the parent knew or should have known that the child (1) had a habit of engaging in the particular act, or (2) had a habit of engaging in the course of conduct.
Turning to the facts of this case, we conclude that K.M.W. and K.J.W. owed a duty to Jill Doe. They were aware of K.D.W.’s difficulties at home and his behavior at Camp DASH. They were aware of the need for K.D.W.’s safety plan. And they were also aware of his sexual maladaptive behavior at home. Whether they breached that duty or acted reasonably under the circumstances are questions for a jury. However, as for the foreseeability in the context of duty analysis, based on what they knew prior to the incident, Jill Doe was a foreseeable victim of a foreseeable harm because K.M.W. and K.J.W. knew or should have known that K.D.W. had a habit of engaging in the conduct that resulted in Jill Doe’s injuries.
For all the reasons explained above, we conclude that the trial court erred by granting summary judgment in favor of K.J.W. and K.M.W. on this count of the Does’ complaint.
2. Premises Liability
The Does’ negligence claim requires them to establish that (1) K.M.W. and K.J.W. owed a duty to Jill Doe; (2) they breached that duty by allowing their conduct to fall below the applicable standard of care; and (3) their breach of duty proximately caused a compensable injury to Jill Doe. Rogers, 63 N.E.3d at 321. The Does allege that K.M.W. and K.J.W. owed a duty to protect Jill Doe from harm because she was a social guest upon their premises.
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In today’s case, using the Supreme Court’s analysis for premises claims involving harmful activities on the land, the broad type of plaintiff is a female child attending a family gathering. And the broad type of harm is sexual molestation of that child by another child attending the family gathering. Using the Goodwin query, which was embraced in Pennington, the general question we ask is whether hosts of family gatherings routinely contemplate that one family member/guest might sexually molest another. See Goodwin, 62 N.E.2d. at 393- 94; Pennington, 223 N.E.3d at 1097. We conclude that they do not and affirm the trial court’s decision to grant summary judgment in favor of K.M.W. and K.J.W. on the premises liability claim of the Does’ complaint.
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Conclusion
In light of the foregoing, we affirm the trial court’s grant of summary judgment on the premises liability claim. We also affirm the court’s decision to strike portions of the expert’s affidavit. However, we reverse the court’s grant of summary judgment on the negligent parental supervision claim and remand the matter to the trial court for further proceedings on the merits.
Affirmed in part, and reversed and remanded in part.
Riley, J., and Tavitas, J., concur.