A divided Indiana Supreme Court has found that a lawsuit filed by a son after his father hit him with his car while the son tried to help his father park isn’t barred by Indiana’s Guest Statute.

Robert Clark Jr. was a passenger in his father’s car when he exited the car and walked in front of a parking space to help his father navigate into it. Robert Clark Sr. accidently hit the accelerator instead of the brake when Clark Jr. signaled for his father to stop, pinning Clark Jr. between the car and another vehicle. The son suffered significant leg injuries, leading to a lawsuit filed by Clark Jr. and his wife for negligence.

The father asserted the Indiana Guest Statute as an affirmative defense, and both parties sought summary judgment on the issue. The trial court ruled in favor of the father. The Indiana Court of Appeals reversed, although the judges were divided in their decision.

The Indiana justices were also split, with a 3-2 majority holding that the statute does not bar the son’s lawsuit. The high court took the case to resolve the conflict of authority, citing C.M.L. ex rel. Brabant v. Republic Servs. Inc., 800 N.E.2d 200 (Ind. Ct. App. 2003), and KLLM Inc. v. Legg (826 N.E.2d 136 (Ind. Ct. App. 2005).

The statute spells out when an owner, operator, or person responsible for the operation of a motor vehicle is not liable for loss or damage arising from certain people’s injuries or death resulting from the operation of the vehicle. The statute applies when specific relatives or a hitchhiker is being transported without payment “in or upon the motor vehicle” unless the injuries or death are caused by wanton misconduct.

The father claimed in the statute “upon” means “as long as the guest has a sufficient relationship to the vehicle, the guest is upon the vehicle for purposes of the statute.”

Chief Justice Brent Dickson and Justices Robert Rucker and Steven David found the Guest Statute to be unambiguous. “Upon” should be given its literal meaning, which connotes a physical connection or contact with the vehicle, Dickson wrote.

“Thus, if the injury is sustained at a time when a passenger is in mere physical contact with the motor vehicle but standing outside of or off of it or at a time when the passenger is not being ‘transported’ by the vehicle, then the Indiana Guest Statute does not bar a passenger's damage action against the driver,” he wrote.

The majority ordered the trial court deny the father’s motion for summary judgment and grant it in favor of Clark Jr.

Justices Frank Sullivan and Mark Massa dissented because they would affirm the trial court’s judgment. They believed the analysis of KLLM and the dissent of Chief Judge Margret Robb in this case are correct.