The high court granted transfer in Beth Palmer Kopczynski, individually and as next friend and parent of Alisha Palmer, and Alisha Palmer v. David Bryan Barger and Peggy Lucas Barger, No. 88S05-0710-CV-423, to determine whether the Bargers were responsible for an injury Alisha Palmer suffered while using their trampoline without adult supervision.
Alisha, who was home alone with her brothers, was asked if she wanted to jump on the Bargers' trampoline by the Bargers' 6-year-old son, Bryan, who was also unsupervised at the time. Alisha, who had never been on a trampoline, hurt her knee while jumping on it with several other children. Alisha and her mother, Beth Kopczynski, filed a complaint against the Bargers alleging premises liability and liability for an attractive nuisance. The trial court granted summary judgment in favor of the Bargers, which the Court of Appeals affirmed. The COA held Alisha was a trespasser and there was no evidence of willful or wanton conduct of the Bargers. The appellate court also held the plaintiffs failed to establish that the trampoline was dangerous or attractive to children or that the Bargers knew children would trespass and be injured.
On both counts, the Supreme Court found material issues of fact and reversed the summary judgment in favor of the Bargers. Whether Alisha had reason to know Bryan didn't have actual authority to invite her onto the property and to use the trampoline is a factual question, wrote Justice Theodore Boehm.
Comparing the trampoline to an unenclosed junkyard, the justices ruled the trampoline may be considered an attractive nuisance, but that is also a question of material fact to be determined by the trial court. The Bargers argued Alisha, who was 12 at the time of the incident, was old enough to understand the dangers of using a trampoline; they had no reason to suspect she would trespass; and that trampolines pose no particular attraction to children.
The evidence is conflicting as to whether Alisha understood the dangers of using a trampoline, especially when there were other jumpers on it at the same time. The Bargers admitted they had chased off other children using the trampoline before and hadn't shown "that it is unreasonable to assume that children would be attracted to a large trampoline that sits in the middle of an open yard, particularly when there is an unsupervised child regularly jumping on it," Justice Boehm wrote.
The high court remanded the case to the trial court for further proceedings consistent with the opinion.