author: BAKER, Judge.

text:
    Beth Ann JOHNSON, Mother of Emily Johnson, Deceased Minor Child, Appellant-Plaintiff, v. Lance JACOBS, Steven J. Cummings, Stacy Cummings, Lawrence County Board of Aviation Commissioners, Tony Newbold, Lawrence County Commissioners, Appellees-Defendants.
    No. 47A01-1102-CT-35.
    Court of Appeals of Indiana.
    Oct. 20, 2011.

      Matthew J. Schad, Schad & Schad, P.C., New Albany, IN, Attorney for Appellant.
    David L. Ferguson, Ferguson & Ferguson, Bloomington, IN, Jill Jennings Drzewieki, Tressler LLP, Chicago, IL, Attorneys for Appellees.
    Elaine D. Solomon, Blank Rome LLP, Philadelphia, PA, Attorney for Lawrence Co. Board of Aviation Comm.
   OPINION

BAKER, Judge.

Eric Johnson and his estranged wife, Beth, were in the midst of a divorce. Eric was taking flight lessons and in March 2007, he took Emily, their eight-year-old daughter, on a solo airplane flight in Lawrence County. Lawrence County consists of 448 square miles with a population of nearly 46,000. Eric crashed the plane into Vivian Pace’s house, killing himself and Emily. Pace is Beth’s mother, and her residence is one of approximately 18,500 in Lawrence County.

Beth sued the Lawrence County Board of Aviation Commissioners (Aviation Board), Eric’s Flight Instructor, Tony Newbold, and the Lawrence County Commissioners (collectively, the appellees) seeking damages for Emily’s wrongful death. Summary judgment was entered for all defendants. The undisputed designated evidence contained in the record establishes that Eric intentionally flew the airplane he had rented into his mother-in-law’s house. Thus, any negligence that might be attributed to the defendants was superseded by Eric’s intentional acts of flying the airplane into the residence and killing Emily.

Appellant-plaintiff Beth Ann Johnson, the mother of Emily, a minor child, now deceased, appeals the trial court’s grant of summary judgment in favor of the appel-lees. Beth argues that the designated evidence did not establish, as a matter of law, that Eric committed suicide and intentionally killed Emily when he flew the airplane into the house.

In the alternative, Beth argues that even if it could be assumed that Eric’s acts were intentional, the trial court erred in determining that the misuse of an aircraft was not a foreseeable consequence of the airport’s non-existent security procedures.

Concluding that the trial court properly entered summary judgment for the appel-lees because Eric’s intentional acts were a superseding intervening cause between any alleged negligence of the appellees and Emily’s death, we affirm.

FACTS

Eric and Beth were married on June 18, 1994. Emily, their only child, was born on February 16, 1999. In June 2006, Beth filed a petition for dissolution of marriage. The following month, Eric threatened Beth and held her at gunpoint for an entire night. As a result, Beth obtained a restraining order against Eric.

Pursuant to the dissolution decree, the Johnsons agreed to joint custody of Emily. However, Beth maintained physical custody of Emily. After the divorce, Eric told Beth on several occasions that he would not permit her to take Emily away from him.

Eric began flight lessons sometime in July 2006 and completed his first solo flight on January 20, 2007. During the last week of February 2007, Eric took Emily to Cancún, Mexico, for a vacation. On March 1, while still in Cancún, Eric called Beth. Eric became upset and argumentative with her when he discovered that Beth was in Florida with her new boyfriend, Dean Winegardener. The next day, Eric told his friend, Brenda Cooper, that he thought Beth and Winegardener were going to take Emily away from him.

As part of an agreement that permitted Eric to take Emily on that vacation, Eric was supposed to take Emily to school on March 5, 2007. However, sometime before March 5, 2007, Eric made a reservation to rent a Cessna airplane from a Flight Services company at Grissom Airport. On March 5, Eric sent a Limestone Girls Club Donor Brick and Block Program Form and a check for $500 through the mail to the Limestone Girls Club in Bedford. The form requested a brick be engraved “Emily and Eric Johnson 3-1-07.” That same day, Eric emailed the school and informed Emily’s teacher that she would be late. Beth learned about the email only after she called the school.

Rather than taking Emily to school, Eric went to Grissom Airport at approximately 8:45 a.m. and retrieved from Lance Jacobs, an airport employee, some keys for one of the airplanes. Eric arrived at the airport building alone, and Jacobs recognized Eric from a photograph on the wall, demonstrating that Eric was Newbold’s student. Jacobs knew that it was routine policy for student pilots to retrieve the keys to the hangar, pull out the airplane, and wait for the instructor to join them. On this occasion, Eric refused Jacobs’s offer to assist him with the hangar doors.

Approximately ten minutes later, Jacobs heard a plane’s engine start. Mike Sipes, a private pilot who was at the airport, walked into the building. Sipes mentioned that he had seen a little girl run up to a plane outside. ■ Jacobs then picked up some binoculars but could not see anyone other than the pilot in the plane. At approximately 9:00 a.m., Eric took off in a Cessna Airplane with Emily as his passenger. At some point prior to this time, Newbold had communicated to Eric that his personal rule was that his students were to have three supervised solo flights before he would “sign-off’ on unsupervised flights. Appellees’ Joint App. p. 84.

During the flight, Eric attempted to call Beth three times on her cell phone. Approximately one hour and fifteen minutes into the flight, Beth answered Eric’s third telephone call. Eric was angry and yelling and cursing during the conversation with Beth. Eric called Beth a “bitch” and “whore,” and told her that he would see her and Winegardener “in hell.” Id. at 31.

Emily also talked to Beth on the phone and told her mother to come get her. After Beth indicated that she was on her way, the phone lost its signal. Id. Because Beth thought that Eric was going to kidnap Emily, she went to the Bedford Police Department and reported the incident. At approximately 10:35 a.m., Ryan Patterson was at Grissom and saw the plane that Eric was flying. Although Patterson thought that the plane was going to land on one of the runways, it had the wind at its tail, which was contrary to the protocol for landing planes at Grissom. Patterson also noted that the Cessna’s landing flaps were not down. Patterson then saw the Cessna fly at a 45 degree angle toward the ground and believed that the Cessna had crashed.

While Patterson was watching the airplane, Greg Rollins — a private pilot with nearly 250 hours of flight experience — was also watching from his driveway in Bed-ford. Rollins noticed that the plane’s flaps were not in the correct landing position. Rollins then heard the Cessna’s engine throttle increase approximately 500 feet past his house. Rollins observed the Cessna bank “hard left and nose down.” Ap-pellees’ App. p. 69. Although Rollins lost sight of the aircraft, he heard the impact of the Cessna crash into Pace’s residence. Rollins opined that the plane looked like it was going to fly into the house. The NTSB investigated the crash and issued a report that suicide was the probable cause of the crash.

On June 6, 2008, Johnson filed an action for wrongful death against the Aviation Board, and several of its members, and the Lawrence County Commissioners. The Complaint alleged that the appellees were liable for Emily’s death because

9. All of the above named defendants knew or should have known that Eric Johnson was a student pilot, that as a student pilot he was not qualified and was not certified to start, to taxi, or to control an air craft without a certified flight instructor being aboard at all times.
10. All of the above named defendants knew or should have known that Eric Johnson was a student pilot, that as a student pilot he was not qualified and not certified to take a passenger on board while he was piloting an airplane.

Appellees’ App. p. 2-3.

On August 20, 2009, the Aviation Board filed a motion for summary judgment, claiming that any negligence that might be attributed to the Aviation Board was superseded by Eric’s intervening act of murdering Emily. The trial court heard argument on the motion on March 9, 2010, and ultimately granted summary judgment in the Aviation Board’s favor on May 12, 2010. The trial court ruled, among other things, that it could “not find any issue of material fact ... that leads to any conclusion other than this was an intentional act by Eric Johnson to kill himself and his daughter.” Appellant’s App. p. 12. Thus, the trial court concluded that Johnson’s conduct was a superseding intervening cause that broke the chain of causation.

On June 25, 2010, the Lawrence County Commissioners filed its motion for summary judgment, claiming that there was no genuine issue of material fact with regard to foreseeability, proximate cause, and intervening, superseding cause. On January 18, 2011, the trial court granted the Commissioners’ motion, stating:

[Tjhis was an intentional act by Eric Johnson to kill himself and his daughter. Said act resulting in a superseding intervening cause that broke the chain of causation between any alleged negligence the Defendants may or may not have and the Plaintiff.
In the alternative, ... Plaintiff relies heavily on the Transportation Security Administration, Security Guideline for General Aviation Airports, Information Publication A-100 (May 2004). Upon review of that document, the court finds that it does not contain any regulatory language nor is it intended to suggest that any recommendations or guidelines should be considered a mandatory requirement creating any sort of duty, nor does the Plaintiff allege this in their complaint. With no duty alleged or none to be found there can be no breach.

Appellant’s App. p. 16. Beth now appeals.

DISCUSSION AND DECISION

I. Standard of Review

Our standard of review for summary judgment is the same as that used in the trial court: summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Tom-Wat, Inc. v. Fink, 741 N.E.2d 843, 346 (Ind.2001). All facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party. Id. Also, review of a summary judgment motion is limited to those materials that are designated to the trial court. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind.2001). We may affirm the grant of summary judgment on any basis argued by the parties and supported by the record. Payton v. Hadley, 819 N.E.2d 432, 437 (Ind.Ct.App.2004).

II. Johnson’s Contentions

A. Proximate Cause of Emily’s Death

Beth argues that the trial court erred in granting the appellees’ motions for summary judgment because the trial court erroneously concluded that Eric committed suicide and murdered Emily. Instead, Beth argues that there is a genuine issue of material fact because the designated evidence also supports the reasonable inference that the “aircraft crash that killed Emily ... and her father was simply a tragic accident.” Appellant’s Reply Br. p. 3.

In resolving this issue, we initially observe that to recover for negligence, a plaintiff must establish: (1) a duty on the defendant’s part to conform his conduct to a standard of care arising from his relationship with the plaintiff; (2) a failure on the part of the defendant to conform his conduct to the requisite standard of care; and (3) an injury to the plaintiff proximately caused by the breach. Van Duyn v. Cookr-Teague Partnership, 694 N.E.2d 779, 781 (Ind.Ct.App.1998). An indispensable element of an action for negligence is that the act complained of must be a proximate cause of the injury. Rice v. Strunk, 670 N.E.2d 1280, 1284 (Ind.1996). To be considered a proximate cause, the negligent act must have set in motion a chain of circumstances which, in the natural, probable and continuous sequence, led to the resulting injury. Merchants Nat’l Bank v. Simrell’s Sports Bar & Grill, Inc., 741 N.E.2d 383, 389 (Ind.Ct.App.2000). And foreseeability of injury is regarded as an essential element or fundamental test of proximate cause. Johnson v. Bender, 174 Ind.App. 638, 369 N.E.2d 936, 939 (1977).

A willful, malicious criminal act of a third party is an intervening act that breaks the causal chain between the alleged negligence and the resulting harm. Merchants Nat’l Bank, 741 N.E.2d at 389. Although proximate cause is generally a question of fact, proximate cause becomes a question of law where only a single conclusion can be drawn from the facts. See Havert v. Caldwell, 452 N.E.2d 154, 159 (Ind.1983).

As set forth above, the undisputed designated evidence in this case established that Eric should have taken Emily to school on March 5, 2007. Instead, he took Emily to the airport, went alone into the airport building to retrieve the keys, refused assistance from the airport employee, put Emily in the airplane, and commenced a flight lasting approximately one and one-half hours. Appellees’ App. p. 58. Eric also circumvented his instructor’s rule of three supervised solo flights before an unsupervised flight could commence. Appellant’s App. p. 29.

The designated evidence also shows that Eric did not notify his instructor of his intention to fly on the date of the murder and his scheduling of an airplane rental despite his instructor’s personal rule that student pilots should complete three supervised solo flights prior to completing unsupervised solo flights. Appellees’ App. p. 37.

Eric attempted to contact Beth on her cell phone, and he made angry and threatening statements when he reached Beth on the third attempt. At some point during the conversation, Eric told Beth that she would never see Emily again. Id. at 31, 41, 64. Just before the plane crashed into Pace’s house, two bystanders witnessed the airplane abruptly angle downward and throttle its engines toward the ground, without taking the normal steps to prepare for landing, such as deploying flaps, reducing speed, and shallowing descent. Id. at 67-69. Erie crashed the airplane into the house shortly thereafter. As noted above, Pace’s residence was one of 18,500 houses in Lawrence County.

Eric sent a check for $500 in the mail to a local youth club for a commemorative brick, to be inscribed with both Emily’s and his name and a date. Appellees’ App. p. 51-56. The NTSB’s investigation determined that the crash was a murder-suicide. Both the Indiana State Police and Bedford Police considered the incident a murder-suicide. Id. at 127.

In light of the above, we conclude that Eric’s intentional criminal actions triggered the intervening, superseding cause doctrine and broke the causal chain between the Aviation Board’s alleged negligence and Emily’s death. Merchants Natl. Bank, 741 N.E.2d at 389. Thus, we agree with the trial court’s determination that none of the actions or inaction of any of the appellees could be considered a proximate cause of Emily’s death as a matter of law. As a result, we conclude that Johnson has failed to meet her burden of proof establishing that the trial court erred in granting the appellees’ motions for summary judgment on this basis.

B. “Misuse” of the Aircraft and Transportation Security Administration Guidelines

In the alternative, Beth argues that even if Eric’s acts were intentional, the trial court improperly granted summary judgment in the appellees’ favor because it should have been found that Eric’s intentional misuse of the airplane was a foreseeable consequence of Grissom’s non-existent security procedures. More particularly, Beth maintains that it was foreseeable that an unauthorized individual could have taken the airplane' and flown off in it. Beth asserts that had proper security measures been in place at Grissom and had the airplane been secured, the tragedy could have been prevented.

In general, reasonably foreseeable intervening acts do not break the chain of causation, and the original wrongful act can still be deemed the proximate cause of the injury. See Cook v. Ford Motor Co., 913 N.E.2d 311, 329-30 (Ind.Ct.App.2009) (observing that in a defective warning claim regarding airbags, it was appropriate to examine whether a child’s negligent intervening act of unbuckling her seat belt was foreseeable to the defendant manufacturer), trans. denied; Conder v. Hull Lift Truck, Inc., 435 N.E.2d 10, 15-16 (Ind.1982) (in a claim involving a defect design, it was proper to examine whether an intervening negligent alteration of a forklift’s operating system constituted sufficient evidence of a superseding cause to preclude a liability finding against the manufacturer).

In support of her foreseeability claim, Beth relies on Estate of Heck ex rel. Heck v. Staffer, 786 N.E.2d 265 (Ind.2003). In Heck, a police officer was murdered by the fugitive felon son of the defendant parents. The son used his parents’ loaded firearm that he had taken without them permission or knowledge. Id. at 267. The decedent police officer’s estate brought a negligence claim against the parents. Discovery revealed that the son, over a nine-year period, was charged or convicted of three instances of resisting law enforcement, two instances of battery, burglary, theft, drug possession, multiple counts of forgery and check deception, escape, non-support and contempt. Moreover, the son had stolen from his parents on numerous occasions, but they still permitted him to keep a key to their house.

Just before the shooting, the father told the police that he knew his son was consumed by a desperate frame of mind because the son knew that the police were looking for him, but the son did not want to be captured. Moreover, the father testified that his son had a “death wish.” Id. at 269. Indeed, the parents had helped the son flee from law enforcement on several occasions. Id. at 267. Despite all of this, the parents stored their gun between the cushions of a chair in their bedroom, where their son could easily find it. Id. at 271.

The parents moved for summary judgment, based on: 1) lack of duty to the deceased police officer; and 2) no proximate cause based on the superseding criminal act of their son. The trial court granted summary judgment and we affirmed that decision on the basis that the parents had no duty to the fallen police officer to safely store the handgun, and there was no proximate cause in light of the fact that the son’s criminal actions were an intentional foreseeable intervening cause of the officer’s death. Estate of Heck v. Stoffer, 752 N.E.2d 192, 199 (Ind.Ct.App.2001).

Our Supreme Court granted transfer and reversed on both grounds. First, it was determined that a gun owner does owe a duty of care to the public generally and under the facts at issue. Thus, a jury question existed as to whether or not the parents breached their duty of care through their method of storing the firearm. In particular, it was determined that the parents’ knowledge of the facts including: 1) their son’s criminal propensities; and 2) their knowledge of the foreseeable harm that their son posed to the police officers because of his desire to remain a fugitive, established a duty. Id. at 270.

Second, it was determined that because the officer’s murder was a natural probable and foreseeable consequence of the defendants’ act of leaving a loaded firearm in a location that was accessible to their son — a desperate fugitive from justice— the son’s criminal act did not constitute a superseding cause. Id. at 271. Hence, genuine issues of material fact remained as to both duty and proximate cause. Id.

The “foreseeability” issue here, of course, concerns Emily’s death. More specifically, the question is whether the appellees should have foreseen that Eric would permit Emily to board as his passenger when he knew that he was not yet authorized to carry a passenger, take off from the airport, and intentionally crash into his mother-in-law’s residence.

As noted above, Eric was not some unknown, unauthorized person who gained access to the airplane in question on the date of the incident. To the contrary, Eric was known to those who were operating the airport, including Jacobs, the airport employee, who gave the airplane’s keys to Eric on the date of the incident because he had a scheduled flying lesson on the airport calendar. Jacobs did not think that Eric was acting strangely when he saw him at the airport that day, and there was nothing out of the ordinary about a student pilot obtaining the keys to an airplane and taxiing it out to the runway before a scheduled flying lesson. Appellees’ App. p. 87, 49-50. None of the employees saw Emily on the day of the flight and Eric gave no indication to anyone that he was taking a passenger with him. Id. at 58-59, 60-62.

In short, unlike the circumstances in Heck, nothing in the record suggests that the appellees should have foreseen that Eric would use the rented airplane to commit murder and suicide. Put another way, the designated evidence fails to establish that Eric’s murder of Emily by intentionally crashing the airplane was a natural, probable, and foreseeable consequence of the appellees’ purported violation of a duty to properly secure the airplane.

Finally, we reject Beth’s suggestion that a post-9/11 study that was conducted by the Transportation Security Administration (TSA) that she placed in the record are relevant to the issue of foreseeability and breach of the appellees’ duty to provide security at the airport. More particularly, the publication that Beth submitted clearly states that the materials are only proposals, and those documents provide that it was simply recommending that TSA develop a plan for implementing a risk management approach to general aviation security.

The security guidelines report states that

This document does not contain regulatory language. It is not intended to suggest that any recommendations or guidelines contained herein might be considered as mandatory requirements imposed upon [General Aviation] facilities or operators, nor are these recommendations and guidelines intended to suggest any specific or general criteria to be met in order to qualify for Federal funding.

Appellant’s App. p. 109. Moreover, it has been determined that “historically, [General Aviation] airports have not been subject to federal rules regarding airport security.” Appellant’s App. p. 112 (emphasis added).

As late as 2008, the TSA still did not require security programs at airports the size of Grissom, and the TSA was just beginning to engage in rulemaking regarding safety and security programs for aircraft operators that handle large aircraft. As a result, the trial court properly determined that the documents that Beth submitted did not establish a duty that Grissom and the appellees should have followed with regard to security at the airport.

For all these reasons, we conclude that the trial court properly granted summary judgment for the appellees.

The judgment of the trial court is affirmed.

KIRSCH, J., and BROWN, J., concur.

      . The Aviation Board is comprised of four unpaid individuals who are appointed by the Lawrence County Board of Commissioners. The Aviation Board did not operate Grissom Airport or maintain any physical presence at the airports. It did not rent aircraft or provide flight instruction. The Aviation Board had contracted with appellee Cummings to serve as Grissom’s manager and Fixed Base Operator for the airport. Appellees’ App. p. 127. Cummings rented the airplane that he co-owned with his brother, Stacy, to those who took flying lessons. The student pilots, including Eric, coordinated their flying lessons with private instructors, including New-bold. Id.


source: Caselaw Access Project

license: Public Domain

text:
    OHIO FARMERS INSURANCE COMPANY and S.C. Nestel, Inc., Appellants-Defendants, v. INDIANA DRYWALL & ACOUSTICS, INC., Appellee-Plaintiff.
    No. 49A02-1106-CC-534.
    Court of Appeals of Indiana.
    May 22, 2012.
    Ordered Published July 6, 2012.

      Raymond A. Basile, Paul J. Carroll, Mercer Belanger, P.C., Indianapolis, IN, Attorneys for Appellants.
    Amy L. Cueller, The Cueller Law Office, Indianapolis, IN, Attorney for Appellee.
   OPINION

BAKER, Judge.

Appellants-defendants Ohio Farmers Insurance Company (Ohio Farmers) and S.C. Nestel, Inc. (Nestel), appeal the trial court’s denial of their respective motions for partial summary judgment with regard to plaintiff-appellee Indiana Drywall & Acoustics’s (Indiana Drywall) cause against Nestel and Ohio Farmers on its claim for conversion, breach of contract, fraud, and breach of payment on a bond.

Nestel argues that the trial court improperly denied its motion regarding Indiana Drywall’s fraud claim because the designated evidence did not support a claim on that count and Indiana Drywall could prove no damages. In the alternative, Nestel maintains that the trial court improperly denied its motion for judgment on the evidence at trial on that count.

Ohio Farmers argues that the trial court improperly denied its motion for partial summary judgment with regard to Indiana Drywall’s action for breaching the terms of the bond because the designated evidence establishes that Indiana Drywall did not bring its cause of action against Ohio Farmers in a timely fashion under the terms of the bond.

We conclude that the judgment entered in Indiana Drywall’s favor against Nestel was proper, but reverse the denial of Ohio Farmers’s motion for summary judgment with respect to Indiana Drywall’s bond claim.

FACTS

In August 2005, Nestel, along with Horne Development, L.P. and Horne Properties-Bedford, LLC (collectively, Horne) entered into a contract where Nes-tel agreed to construct a Walmart and some other retail stores on property that Horne owned in Lawrence County.

Nestel hired several subcontractors to perform certain aspects of the work associated with the project. One of the subcontractors was Indiana Drywall, and on September 12, 2005, it entered into a “Standard Form of Agreement Between Contractor and Subcontractor” (Contract) with Nestel. Appellants’ App. p. 28£M0. In accordance with the Contract, Indiana Drywall was to furnish all drywall and framing work in relation to the project.

During the course of the project, a dispute arose between Nestel and Home regarding Horne’s claims that Nestel and its subcontractors were wrongfully delaying completion of the project and that there were refusals and delays in making full and prompt payment for labor and materials that had been provided for the project.

By August 22, 2006, Indiana Drywall believed that it had completed all work contemplated under the Contract and various change orders and directives. All of its work was purportedly completed to Nestel and Home’s satisfaction. However, Indiana Drywall told Nestel that it believed that it was entitled to additional compensation for work performed on the project. Nestel disputed the claim, in part, based on certain backcharge claims that Home asserted on the project because of incomplete and defective work of Nes-tel’s subcontractors, as well as delays for which Home asserted claims for liquidated damages.

When Indiana Drywall completed its work on the project, it alleged that Nestel owed it an outstanding balance of $209,075.38. As a result, on August 31, 2006, Indiana Drywall filed a “Notice of Intention to Hold a Mechanic’s Lien” against Horne in the Lawrence County Recorder’s Office in the amount of $209,075.38. Id. at 278, 280-87. Thereafter, Indiana Drywall received a few payments from Nestel that reduced the balance that was allegedly owed to $148,633.75.

When Indiana Drywall started to press Nestel for payment in 2007, Nestel informed Indiana Drywall that it had a payment bond on the project. Apparently in light of Nestel’s payments and assurances following the recording of the lien, Indiana Drywall did not move to foreclose on the lien.

On May 24, 2007, Nestel faxed a one page document to Indiana Drywall, entitled “Payment Bond” that had been issued by Ohio Farmers. Appellants’ App. p. 205, 208-09. Linda Wollom, Indiana Drywall’s secretary, contacted Ohio Farmers and indicated that it had not been paid in full for its work on the project. Wollom asked Ohio Farmers what had to be done to file a claim and Ohio Farmers suggested that she send a “letter of request.” Tr. p. 193. Thereafter, Hansford Kelly, owner and president of Indiana Drywall, prepared and sent a letter to Ohio Farmers seeking payment under the bond for the outstanding balance that Nestel owed in the amount of $148,633.75. The provisions of the payment bond had been recorded in the Lawrence County Recorder’s Office.

In a letter of June 4, 2007, Ohio Farmers acknowledged receipt of Kelly’s May 25, 2007 letter and enclosed a proof of claim for Indiana Drywall’s use in submitting a claim under the bond. Indiana Drywall received a proof of claim form on July 9, 2007. That same day, Indiana Drywall completed the proof of claim form and faxed and mailed it to Ohio Farmers.

Thereafter, Indiana Drywall received a letter, advising that Ohio Farmers would be in contact at some point concerning Indiana Drywall’s claim. Indiana Drywall asked Ohio Farmers to provide it with a copy of its payment bond but Ohio Farmers never did so.

In January 2008, Howard Golden of Nestel contacted Kelly, the owner and president of Indiana Drywall, to see if Indiana Drywall would be willing to waive its lien. In exchange, Golden apparently promised that Nestel would pay Indiana Drywall the outstanding balance of $148,633.75 that was owed.

The conditional release and waiver states in relevant part that

NOW, THEREFORE, for and in consideration of ... $148,633.75, the payment of which has been promised as the sole consideration for this Final Conditional Release and Waiver of Lien which shall become effective only upon the receipt of such payment, Subcontractor hereby waives and releases any and all liens....
This Final Conditional Release and Waiver of Lien is given in order to induce payment of the amount indicated above, and becomes effective only upon receipt of such amount by Subcontractor.

Appellants’ App. p. 264.

According to the wife of Indiana Drywall’s president, Nestel faxed the release and waiver form to Indiana Drywall, and purportedly stated that it would pay Indiana Drywall the outstanding balance of $148,633.75 if the release was signed. Nestel apparently told Greg Kelly — Hans-ford’s son — that Nestel would immediately pay the outstanding balance. However, Nestel never paid and Indiana Drywall subsequently went out of business.

In May 2010, Indiana Drywall received notice for the first time of the specific bond provisions. After obtaining a copy of the bond in June 2010, and having received no further payment from Nestel, Indiana Drywall brought Ohio Farmers into the impending litigation for the purpose of recovering under the bond.

The bond provides in relevant part, that 4. The Surety [Ohio Farmers] shall have no obligation to Claimants [Indiana Drywall] under this Bond until:
4.1 Claimants who are employed by or have a direct contract with the Contractor [Nestel] have given notice to the Surety ... and sent a copy, or notice thereof, to the Owner [Horne], stating that a claim is being made under this bond and, with substantial accuracy, the amount of the claim.

Ex. 1. Ohio Farmers representatives testified at trial that Indiana Drywall satisfied the requirements under paragraph 4 of the bond. Tr. p. 179-80. The bond also provides that

6. When the Claimant has satisfied the conditions of Paragraph 4, the Surety shall promptly and at the Surety’s expense take the following actions:
6.1 Send an answer to the Claimant, with a copy to the Owner, within 45 days after receipt of the claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed.
6.2 Pay or arrange for payment of any undisputed amounts.

Tr. Ex. 1. Ohio Farmers admitted that it did not satisfy the requirements of paragraph 6 of the bond.

Judy Kelly verified that Indiana Drywall never received a letter from Ohio Farmers disputing Indiana Drywall’s claim but stated that if it had, it would have sought the assistance of a lawyer and possibly taken some action against Ohio Farmers. Instead, the only letter that Indiana Drywall received from Ohio Farmers was the correspondence acknowledging receipt of Indiana Drywall’s proof of claim and advising that Ohio Farmers would contact it at some point.

Finally, paragraph 11 of the bond provides that

11. No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the location in which the work or part of the work is located or after the expiration of one year from the date (1) on which the Claimant gave the notice required by Subparagraph 4.1 or Clause 4.2.3, or (2) on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Construction Contract, whichever of (1) or (2) first occurs. If the provisions of the Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable.

Tr. Ex. 1 (emphasis added).

On April 20, 2009, Indiana Drywall filed its complaint against Nestel, alleging breach of contract, fraud, and conversion. More specifically, Indiana Drywall alleged that Nestel failed to pay the amount due under the contract, that Nestel committed conversion because it “knowingly and intentionally exerted unauthorized control over monies specifically entrusted to Nes-tel for the certain purpose of paying Indiana Drywall” under the Contract, and that Nestel’s alleged misconduct was fraudulent. Appellants’ Amended App. p. 111-15.

Indiana Drywall filed a motion for leave to join Ohio Farmers as an additional defendant, which the trial court subsequently granted. On August 19, 2010, Ohio Farmers filed a counterclaim, alleging that Indiana Drywall’s lawsuit was frivolous in accordance with Indiana Code section 34-52-1-1. It also alleged that Indiana Drywall had filed its lawsuit against Ohio Farmers with malicious intent and that the filing of such a claim constituted an abuse of process.

Also on August 19, 2010, Ohio Farmers and Nestel filed separate motions for summary judgment. Nestel maintained that it was entitled to judgment as a matter of law on the fraud and conversion claims because an action for criminal conversion is not a valid legal claim under Indiana’s construction law because Indiana “is not a trust fund state by which an obligation is imposed upon ... Nestel to hold funds paid to it for work performed by Indiana Drywall in trust.” Appellants’ Amended App. p. 228-29. Nestel also claimed that Indiana Drywall has failed to “identify any facts or allegations that rise to the level of actionable fraud.” Id. at 229.

Ohio Farmers claimed that it was entitled to summary judgment because the unambiguous language set forth in the payment bond precludes recovery by Indiana Drywall. Ohio Farmers asserted that the only way in which it could be obligated to pay Indiana Drywall any amount relating to the project is “by and through the Payment Bond.” Id. at 137. Ohio Farmers maintained that Indiana Drywall failed to satisfy the one-year requirement to recover under the bond and that Indiana Drywall failed to file suit in Lawrence County, “in which the work or part of the work is located,” which the terms of the Payment Bond required. Id. at 146.

Following a hearing on November 22, 2010, the trial court denied Ohio Farmers’s motion for summary judgment. However, the trial court granted Nestel’s motion for summary judgment on the conversion claim, but denied the motion on the fraud count, finding that a genuine issue of material fact existed for trial.

On May 24, 2011, the matter proceeded to a jury trial. For purposes of the trial, Ohio Farmers stipulated and agreed that 1) it never provided a copy of its bond to Indiana Drywall; 2) it never rejected or denied Indiana Drywall’s claim for payment under the bond; and 3) Indiana Drywall submitted its proof of claim to Ohio Farmers on July 9, 2007. Nestel admitted that it breached the contract with Indiana Drywall in failing to pay the balance due and owing in the amount of $148,633.75, along with prejudgment interest. Thus, the only claim that remained for trial with Nestel was the fraud claim.

At some point, both Ohio Farmers and Nestel moved for a judgment on the evidence, which the trial court denied. On May 25, 2011, the jury entered its verdict in favor of Indiana Drywall and against Nestel on the fraud claim and against Ohio Farmers for breach of the payment bond, which resulted in an award of principal and interest in the amount of $196,196.55, plus attorney fees. Ohio Farmers and Nestel now appeal.

DISCUSSION AND DECISION

I. Ohio Farmers

Ohio Farmers first maintains that the trial court improperly denied its motion for partial summary judgment on Indiana Drywall’s claim under the payment bond. Ohio Farmers argues that it is entitled to judgment as a matter of law because Indiana Drywall failed to file suit against Ohio Farmers under the Payment Bond in a timely fashion.

A. Standard of Review

In reviewing summary judgment rulings, we apply the same standard as the trial court. Kopczynski v. Barger, 887 N.E.2d 928, 930 (Ind.2008). Summary judgment is appropriate only where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Id. The party seeking summary judgment has the initial burden of proving the absence of a genuine issue of material fact as to an outcome-determinative issue. Only then must the non-movant come forward with contrary evidence demonstrating the existence of genuine factual issues that should be resolved at trial. Kroger Co. v. Plonski, 930 N.E.2d 1, 9 (Ind.2010). A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute or where undisputed facts are capable of supporting conflicting inferences on such an issue. Mahan v. Am. Standard Ins. Co., 862 N.E.2d 669, 675 (Ind.Ct.App.2007). Even if the facts are undisputed, summary judgment is inappropriate when the record reveals that the law has been applied incorrectly. Masten v. AMCO Ins. Co., 953 N.E.2d 566, 569 (Ind.Ct.App.2011), trans. denied.

B. Ohio Farmers ’s Claims

We initially observe that in response to Ohio Farmers’s contentions, Indiana Drywall asserts that “both Nestel and Ohio Farmers took steps to conceal the one-year limitation from Indiana Drywall,” which should excuse it from performing in accordance with the payment bond provisions. Appellee’s Br. p. 12.

The record demonstrates that paragraph eleven of the Contract, as quoted above, provides that any suits against Ohio Farmers under the payment bond must be initiated within one year from the date of the last work under the construction contract or the submission of the proof of claim, whichever occurs first. Appellants’ App. p. 159-64.

Here, the record reflects that the contract between Nestel and Horne was terminated on January 15, 2007, Indiana Drywall submitted its proof of claim to Ohio Farmers on July 9, 2007, and Indiana Drywall filed suit against Ohio Farmers under the payment bond on April 19, 2009. Hence, the last date on which work under the Contract could have been performed was on January 15, 2007. Thus, Indiana Drywall filed its complaint one year and three months after that date.

Paragraph eleven of the payment bond is unambiguous. And generally, where no ambiguity is present, the trial court is constrained by the “four corners rule.” Clark v. CSX Tmnsp., Inc., 737 N.E.2d 752, 757 (Ind.Ct.App.2000). More specifically, in Clark it was determined that

in construing [a] written instrument, the language of the instrument, if unambiguous, determines the intent of the instrument such that parol or extrinsic evidence is inadmissible to expand, vary, or explain the instrument unless there has been a showing of fraud, mistake, ambiguity, illegality, duress or undue influence. Even if ambiguity exists, extrinsic evidence is only admissible to explain the instrument and not contradict it.

Id. at 758.

Moreover, such principles are not changed simply because Indiana Drywall is asserting its claim as a third-party beneficiary to a surety agreement. We recently addressed this issue in Town of Plainfield v. Paden Engineering Co., 943 N.E.2d 904, 915 (Ind.Ct.App.2011):

A contract of surety creates a tripartite contractual relationship between the party secured, the principal obligor, and the party secondarily liable. Meyer v. Bldg. & Realty Serv. Co., 209 Ind. 125, 133, 196 N.E. 250, 253 (1935). A surety is one who undertakes to do that which the principal is bound to do in the event the principal fails to comply with an obligation. Id. While insurance contracts are in many respects similar to surety contracts, there is a “wide difference between the two kinds of contracts.” Id. “Insurance has been defined as a contract whereby one undertakes to indemnify another against loss, damage, or liability arising from an unknown or contingent event; whereas a contract of suretyship is one to answer for the debt, default, or miscarriage of anotherf.]” 209 Ind. at 134, 196 N.E. at 253-54. A surety’s liability must be measured by the strict terms of his contract. In re Kemper Ins. Companies, 819 N.E.2d 485, 490 (Ind.Ct.App.2004).

In Paden, the Town of Plainfield, as a third-party beneficiary to the performance bonds between the principal, Paden Engineering (Paden), and the sureties that issued two performance bonds, sought to obtain payment under the performance bonds for delays and defects in Paden’s work. We ultimately found the sureties to be free from liability as a result of the third-party beneficiary Town of Plainfield’s failure to satisfy certain conditions relating to notice and certification from the architect. We found in the sureties’ favor and enforced these conditions despite the fact that the Town of Plainfield alleged in a third-party complaint that the sureties had first breached the performance bond by failing to compensate the Town of Plain-field.

In this case, paragraph eleven of the payment bond sets forth the one-year limitation period to file suit. In our view, this language is dispositive and entitles Ohio Farmers to the entry of summary judgment on Indiana Drywall’s payment bond claim. Also, as noted above, the entire contents of the payment bond was recorded in the Lawrence County Recorder’s Office. Appellants’ App. p. 158. Indiana Drywall could have obtained the entire payment bond, including but not limited to, the one-year period of limitations, had it requested the same from the Lawrence County Recorder. In short, Indiana Drywall cannot avoid the imposition of summary judgment and create a genuine issue of material fact by citing to its own ignorance and inability to determine its obligations under the bond.

In light of these circumstances, we conclude that the trial court erred in denying Ohio Farmers’s motion for summary judgment on Indiana Drywall’s claim against it to recover under the payment bond.

C. Nestel’s Claims

As discussed above, Nestel argues that the trial court erred in denying its motion for summary judgment regarding Indiana Drywall’s claim for fraud against it. Nes-tel maintains that Indiana failed to properly plead that claim and there were no facts to support the conclusion that there were genuine issues of material fact with regard to the fraud claim. Nestel asserts that Indiana Drywall’s fraud claim was predicated upon a representation of future conduct, a broken promise or on a representation of existing intent that was not executed. Moreover, Nestel asserts that Indiana Drywall failed to establish proof of damages and reasonable reliance to prevail on a claim for fraud. Thus, Nestel claims that the judgment must be set aside.

We initially observe that the essential elements of actual fraud are a false material misrepresentation of past or existing facts, made with knowledge or reckless ignorance of the falsity, which causes reliance to the detriment of the person relying on the representation. Comfax Corp. v. North Am. Van Lines, Inc., 587 N.E.2d 118, 125 (Ind.CtApp.1992). The burden of proving by a preponderance of the evidence all of the elements of fraud rests upon the party alleging it. Holder v. Smith, 122 Ind.App. 371, 105 N.E.2d 177, 181 (Ind.Ct.App.1952).

1. Pleading

We first address Nestel’s contention that Indiana failed to properly plead the count for fraud. In general, Indiana Trial Rule 9(B) requires that fraud be pleaded with particularity. To allege fraud sufficiently, “the pleadings must state the time, the place, the substance of the false representations, the facts misrepresented, and identification of what was procured by fraud.” Abbott v. Bates, 670 N.E.2d 916, 921 n. 3 (Ind.CtApp.1996). Indiana Drywall’s complaint avers in pertinent part that

6. A portion of the total monies entrusted to and received by Nestel on the Project were to be used for the certain purpose of paying Indiana Drywall in full.
7. As is evidenced by the attached January 29, 2008 “Final Conditional Release And Waiver Of Lien” (“Release and Waiver”), a true and accurate copy of which is attached hereto as Exhibit B, Nestel does not dispute the amount or the appropriateness of the outstanding balance due Indiana Drywall and has promised to pay same to Indiana Drywall.
8. Nestel’s promise to Indiana Drywall to pay all sums due under the Contract was and is false. Indiana Drywall relied on Nestel’s material misrepresentation which was made by Nestel with knowledge of its falsity. Such material misrepresentation induced Indiana Drywall to enter into the Release and Waiver and refrain from pursuing Nestel for the outstanding balance due, all to Indiana Drywall’s detriment.
9. Despite Indiana Drywall’s repeated demands to Nestel for payment of the outstanding balance described herein, and despite Nestel’s promise and obligation, it has failed to make full payment to Indiana Drywall for services rendered pursuant to the Contract.
21. Indiana Drywall incorporates herein by reference the allegations set forth in paragraphs 1 through 20 as if fully set forth herein.
22. S.C. Nestel’s actions as described herein were and are fraudulent in nature.

Appellants’ App. p. 290-94.

In addition to the above, we note that the time of Nestel’s alleged fraud is specifically referenced in the release and waiver form that is attached to the complaint as an exhibit. Appellants’ App. p. 128. The place is identified by way of the facsimile line referenced at the top of the release. The remaining requirements — the substance of the false representations, the facts misrepresented, and identification of what was procured by fraud — are all specifically identified in the paragraphs of the complaint that are cited above.

Subsequent discovery provided further verification of Indiana Drywall’s allegations. For instance, in response to certain of Nestel’s Interrogatories, Indiana Drywall reported the following:

Nestel, through its representatives (Steve Randall, Darrell Akemon, Howard Golden, Steve Nestel), repeatedly assured Greg Kelly and Cory Joy of Indiana Drywall that Nestel would pay Indiana Drywall in full. Additionally, Nestel assured Indiana Drywall that if it executed the Final Conditional Release and Waiver of Lien, payment of the outstanding balance due Indiana Drywall, in the amount of $148,633.75, would be forthcoming. Also, there was never any indication from Nestel that Indiana Drywall would not be paid in full. There were no complaints lodged concerning Indiana Drywall’s work, no 24-hour notices, nothing.

Appellants’ App. p. 320-21.

Indiana Drywall and its workers did everything asked of them under the Contract and by Nestel. In return, Nestel promised Indiana Drywall payment in full provided Indiana Drywall released and waived its lien. Indiana Drywall relied on Nestel’s representations and released its lien. However, Nestel did not pay Indiana Drywall in full.

Id. at 321.

Indiana Drywall was consistently specific about the basis of its fraud claim against Nestel throughout the litigation. For all of these reasons, we conclude that Indiana Drywall has satisfied the requirements of Trial Rule 9 in pleading its claim for fraud against Nestel.

2. Fraud Generally; Summary Judgment

As noted above, the elements of actual fraud are: (1) a material misrepresentation of past or existing facts; (2) made with knowledge or reckless ignorance of falsity; (3) which caused the complainant to rely on the misrepresentation to the complainant’s detriment. Jackson v. Blanchard, 601 N.E.2d 411, 418 (Ind.Ct.App.1992). Deception and reliance involve the state of mind of the victim. As such, their existence or absence is a question for the trier of fact. Once resolved, we cannot disturb that finding without a clear showing that it was not supported by the evidence. Plumley v. Stanelle, 160 Ind.App. 271, 275, 311 N.E.2d 626, 630 (1974).

In this case, the evidence reveals that Nestel received certain monies from Horne that were specifically designated for payment to Indiana Drywall to compensate it for work it had already performed on the project. However, Nestel did not pay that money and retained those funds. Appellants’ App. pp. 311-13.

In January 2008, Howard Goldon, on Nestel’s behalf, approached Hansford Kelly and represented to him that if Indiana Drywall would release and waive the lien, Nestel would pay Indiana Drywall the $148,633.75 outstanding balance. Id. at 278. In reliance on Goldon’s representation, Indiana Drywall signed the release and waiver to secure the monies it believed would be paid as a result of its relinquishment. Id. at 279. Nestel, however, never intended on paying the outstanding balance owed to Indiana Drywall. The fallacy of Nestel’s representation can be inferred from the fact that when it made such a statement, it already had possession of at least a portion of Indiana Drywall’s money. Id. at 312. In our view, such a statement on Nestel’s part amounts to a material misrepresentation of existing facts, made with knowledge of its falsity.

Nestel contends that Indiana Drywall never presented any direct evidence that the alleged statement was false at the time it was made. Appellant’s Br. p. 10. However, we have previously held that it is not necessary “that fraud be proved by direct or positive evidence, but it will be sufficient if facts and circumstances be proved from which it can fairly be inferred.” Baker v. Meenach, 119 Ind.App. 154, 157, 84 N.E.2d 719, 722 (1949).

Indiana Drywall designated facts and evidence that effectively demonstrated that Nestel had no intention of paying Indiana Drywall following relinquishment of the lien. Further, Indiana Drywall designated evidence showing that it relied on Nestel’s material misrepresentation to its detriment. Thus, we conclude that the trial court’s denial of Nestel’s summary judgment motion was appropriate.

3. Judgment on the Evidence

In addressing Nestel’s claim as to whether the trial court properly denied its motion for judgment on the evidence at trial regarding Indiana Drywall’s fraud claim against it, we first note that Indiana Trial Rule 50 provides that “where all or some of the issues in a case tried before a jury ... are not supported by sufficient evidence ..., the court shall withdraw such issues from the jury and enter judgment thereon....”

Our standard of review on a motion for judgment on the evidence is the same as that governing the trial court in making its decision. State Farm Mut. Auto. Ins. Co. v. Noble, 854 N.E.2d 925, 931 (Ind.Ct.App.2006). Judgment on the evidence is proper only where all or some of the issues are not supported by sufficient evidence. Id. The trial court looks only to the evidence and the reasonable inferences drawn most favorable to the nonmoving party, and the motion should be granted only where there is no substantial evidence supporting an essential issue in the case. If there is evidence that would allow reasonable people to differ as to the result, judgment on the evidence is not appropriate. J.E. Stone Tree Serv., Inc. v. Bolger, 831 N.E.2d 220, 227 (Ind.Ct.App.2005). When, as in this case, the trial court declined to intervene, and refused to set aside the jury verdict, it is not the province of this Court to do so unless the verdict is wholly unwarranted under the law and the evidence. Indian Trucking v. Harber, 752 N.E.2d 168, 178-179 (Ind.Ct.App.2001).

When reviewing a trial court’s ruling on a motion for judgment on the evidence, we examine the evidence and the reasonable inferences most favorable to the nonmoving party from a quantitative as well as qualitative perspective. Northrop Carp. v. General Motors Corp., 807 N.E.2d 70, 87 (Ind.Ct.App.2004). Quantitatively, evidence may fail only where there is none at all; however, qualitatively, it fails when it cannot reasonably be said that the intended inference may logically be drawn therefrom. Id.

Although Nestel contends that its statement to Indiana Drywall was not a misrepresentation of existing fact, the evidence presented at trial suggests otherwise. As set forth above, Goldon represented to Indiana Drywall that it would immediately pay the balance owed if Indiana Drywall would release the lien. The combined testimony of Judy and Greg Kelly remains unrefuted. Specifically, Nestel represented to the Kellys that once Indiana Drywall released and waived its rights under the lien, Indiana Drywall would be paid immediately. However, Indiana Drywall was not paid and, as a result, it lost all rights under the lien, could no longer afford to be in business, and was forced to close its operations.

Such a misrepresentation by Nestel was with regard to an existing fact at the time it was made, i.e. that Nestel would pay Indiana Drywall as soon as the release and waiver were signed. It was Greg Kelly’s belief that once Indiana Drywall signed the release, the funds that Nestel owed them would be paid. Nestel was conveying to Indiana Drywall that it was ready to pay the money immediately after the release and waiver had been signed. Therefore, Nestel was misrepresenting an existing fact at the time.

Nestel also cannot successfully contend that Indiana Drywall was not harmed by the signing of the release and waiver. Indeed, the evidence at trial demonstrated that Indiana Drywall believed that it was relinquishing its lien when it signed that document. Tr. p. 152. Nestel induced Indiana Drywall to forego its rights under the lien by misrepresenting that it would immediately get paid as a result. Id. at 150. The fact remains that Nestel deceptively communicated to Indiana Drywall that it would be paid immediately following its relinquishment of the lien. As a result of this misrepresentation, Indiana Drywall surrendered the lien, which was the only remaining leverage it had to secure payment from Nestel, and the balance remained unpaid.

Indiana Drywall presented sufficient evidence at trial to establish that it reasonably relied upon Nestel’s misrepresentations to its own detriment when it signed the Release and Waiver that resulted in the release of the lien. The evidence reveals that Indiana Drywall relied on Nestel’s representation of immediate payment and based upon its reliance, it gave up its rights under the lien and went out of business. Tr. p. 112,151-52.

In light of these circumstances, Nestel has presented no evidence suggesting that Indiana Drywall’s fraud claim should have been removed from the jury. In short, Indiana Drywall established at trial that it reasonably relied on the deceptive statements that Nestel made in deciding to sign the release and waiver and sustained damages as a result. Thus, the trial court properly denied Nestel’s motion for judgment on the evidence.

Ip. Sufficiency of the Evidence

Finally, Nestel argues that the evidence was insufficient to support the verdict for fraud. On appeal, we will “sustain a general verdict upon any theory consistent with the evidence,” reversing a jury’s verdict “only where there is a total failure of evidence or where the jury’s verdict is contrary to the uncontradicted evidence.” Everage v. N. Ind. Public Sen. Co., 825 N.E.2d 941, 950 (Ind.Ct.App.2005). We will not reweigh the evidence or judge credibility of witnesses, but will only determine whether the jury’s verdict is supported by substantial evidence of probative value. Hanas v. Rasmussen, 484 N.E.2d 63, 66 (Ind.Ct.App.1985). The evidence and all reasonable inferences drawn therefrom will be viewed in favor of the verdict. Callaway v. Callaway, 932 N.E.2d 215, 220 (Ind.Ct.App.2010).

In our view, it is apparent that the designated evidence at the summary judgment stage and the evidence that Indiana Drywall presented at trial in its case-in-chief, was sufficient to support the jury’s verdict on the fraud count. Thus, we decline to set aside the jury’s May 25, 2011 verdict against Nestel for fraud in the amount of $196,196.55, plus attorney fees.

The judgment of the trial court is affirmed in part and reversed in part.

DARDEN, J., and BAILEY, J., concur.

      . Because we find that the trial court erred in denying Ohio Farmers's motion for summary judgment, we need not address its contention that the trial court should have granted its motion for judgment on the evidence at trial.


author: FRIEDLANDER, Judge.

text:
    James ANDROUSKY, II, Individually and as Personal Representative of The Estate of James Androusky, III, Deceased, Appellant, v. Cole A. WALTER and Tammra Androusky, Appellees.
    No. 83A01-1103-CT-137.
    Court of Appeals of Indiana.
    May 30, 2012.

      David W. Stone, IV, Stone Law Office & Legal Research, Anderson, IN, John P. Nichols, Anderson & Nichols, Terre Haute, IN, Attorneys for Appellant.
    Sheila M. Sullivan, Scott P. Sullivan, Flynn & Sullivan, PC, Indianapolis, IN, Attorneys for Appellees.
   OPINION

FRIEDLANDER, Judge.

James Androusky II (Father), individually and as personal representative of the estate of James Androusky III (James), filed a child wrongful death action against Cole Walter following the drowning death of James in Walter’s residential swimming pool. Father appeals the jury verdict in favor of Walter, presenting the following restated instructional issues:

1. Did the trial court abuse its discretion by instructing the jury to determine whether James was an invitee or licensee?
2. Did the trial court abuse its discretion by instructing the jury regarding abandonment under the Child Wrongful Death Act?
3. Did the trial court improperly instruct the jury regarding a state administrative pool safety regulation?
4. Did the trial court properly instruct the jury on the effect of a parent’s failure to supervise his or her child around a known or obvious condition upon the land?

We affirm.

Father and Tamara Androusky (Mother) married right out of high school in 2004. James was the second child born to their marriage, on February 22, 2006. Although the marriage ended in divorce in July 2006, Mother and Father were together on and off again until October 2008. During this time, they had a third child in December 2007. Father never paid the court-ordered support, but he did provide financial support to some extent when he and Mother were together.

Mother married her long-time friend, Matthew Hollingsworth, in August 2006 so that she would have medical insurance to cover a gall bladder operation. Father apparently lived with Mother and Holl-ingsworth in South Carolina during at least part of this marriage, which ended in April 2007. Mother moved back to Indiana with Father in July 2007. As set forth above, their unstable relationship ended in October 2008, and Mother eventually moved back to South Carolina with the children.

Following a conviction for theft in February 2009, Father drafted a document pursuant to which he attempted to terminate his parental rights to his three children in exchange for Mother’s non-enforcement of any child support obligation. Father filed the notarized document, which was signed by Mother and Father, with the Parke Circuit Court on April 23, 2009.

Thereafter, in July 2009, Hollingsworth and Mother planned a trip back to Indiana with the kids. Hollingsworth notified Cole Walter, his former step-father, of the upcoming visit. Walter told Hollingsworth that he would like to see him but that Mother and her children were not welcome. Therefore, Hollingsworth, Mother, and the children initially stayed with Mother’s family until they were kicked out due to an argument between Mother and her mother.

Late in the evening on Wednesday, July 22, Hollingsworth arrived at Walter’s home with Mother and the children. Walter was already in bed, as he worked very early in the morning. Hollingsworth, Mother, and the three children slept in Hollingsworth’s old bedroom. While at work the following day, Walter learned from his live-in girlfriend, Donna Kelly, that Mother and the children had spent the night at his home. He planned to confront Hollingsworth after work, but when he returned home, they were not there. Once again, they arrived that night after Walter went to bed.

Friday afternoon while Kelly and Walter were away, Hollingsworth and Mother had others over for a pool party in Walter’s backyard. When Walter arrived home that evening, he was not happy at the scene in his backyard. He immediately confronted Hollingsworth and told him that they had to leave. Hollingsworth agreed to leave but then asked if they could stay just one more night, as he and Mother had nowhere else to go. Walter reluctantly agreed that they could stay until morning, at which time they would “get up, have breakfast, [and] leave”. Transcript at 304.

The next morning, Walter once again left early in the morning for work. The boys awakened Hollingsworth around 8:00, and he got them dressed and took them downstairs for breakfast while Mother continued to sleep. Around 10:30, Mother was still in bed, Hollingsworth was on his laptop, and children were watching cartoons. At some point three-year-old James and his four-year-old brother asked to play outside. Hollingsworth let them out to the backyard through the kitchen door and periodically checked on them as they played at the bottom of the steps. Shortly thereafter, Mother came downstairs and stepped outside with the boys. Mother came back inside and left the boys unattended in the fenced-in backyard that contained an open, in-ground pool. When Mother eventually returned outside, she did not see James. She yelled for Holl-ingsworth and then ran around the side of the house and to the front porch. Both she and Hollingsworth then looked in the house for him until it finally occurred to Hollingsworth that he might be in the pool. Hollingsworth immediately ran to the pool, dove in, and found James at the bottom. James was taken off life support the day after the incident when it was determined that he was brain-dead.

Father filed the instant child wrongful death action against Walter on August 19, 2009. The complaint was based on premises liability and alleged negligence for lack of fencing between the home and the pool, lack of a safety cover over the pool, and lack of supervision around the pool. Following unsuccessful summary judgment motions by both parties, a jury trial commenced on February 22, 2011. The jury returned a verdict in favor of Walter on March 1, 2011. Father now appeals, challenging a number of instructions given by the trial court.

In reviewing a trial court’s decision to give or to refuse tendered instructions, we consider: (1) whether the instruction correctly states the law; (2) whether there was evidence in the record to support the giving of the instruction; and (3) whether the substance of the instruction is covered by other instructions which are given. Fraudose v. Jones, 907 N.E.2d 139 (Ind.Ct.App.2009), ajfd on reh’g, 910 N.E.2d 862, trans. denied. The trial court has discretion in instructing the jury and will be reversed on the last two above only when the instruction amounts to an abuse of discretion. Id. We, however, review whether an instruction correctly states the law de novo. Id. A party seeking a new trial on the basis of instructional error must show a reasonable probability that the complaining party’s substantial rights have been adversely affected. See Dyer v. Doyle, 870 N.E.2d 573 (Ind.Ct.App.2007), trans. denied.

1.

Father initially claims that the trial court abused its discretion by instructing the jury regarding licensee versus invitee status. He argues that there was no evidence presented at trial that James was a licensee and that the undisputed evidence established he was a social guest/invitee. We cannot agree.

A landowner’s liability to persons on the premises generally depends on the person’s status as a trespasser, licensee, or invitee. See Kopczynski v. Barger, 887 N.E.2d 928 (Ind.2008). While the determination of the duty owed by a landowner is ordinarily a question of law for the court to decide, “it may turn on factual issues that must be resolved by the trier of fact.” Id. at 931.

In Burrell v. Meads, 569 N.E.2d 637 (Ind.1991), our Supreme Court adopted the invitation test as the analytical framework for deciding which visitors will be afforded invitee versus licensee status. Id. at 642 (“the invitation itself must be the first step of any inquiry into invitee status”). Relevant to our discussion here, the Court held that a social guest is entitled to invitee status. A social guest is one who enters the landowner’s property pursuant to an “express or reasonably implied invitation.” Id. at 643.

On the other hand, licensees are not invited guests and “enter the land of another for their own convenience, curiosity, or entertainment”. Rhoades v. Heritage Investments, LLC, 839 N.E.2d 788, 791 (Ind.Ct.App.2005), trans. denied. They have a privilege to enter or remain upon the land by virtue of the landowner’s “permission or sufferance.” Id. See also Christmas v. Kindred Nursing Ctr. Ltd. P’ship, 952 N.E.2d 872 (Ind.Ct.App.2011).

Thus, in determining a visitor’s status, the distinction between invitation and permission becomes critical. Rhoades v. Heritage Inv., LLC, 839 N.E.2d 788. “An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so.” Christmas v. Kindred Nursing Ctr. Ltd. P’ship, 952 N.E.2d at 879 (quoting Restatement (Second) of Torts § 332). “[T]he decisive factor with regard to whether the possessor had extended an ‘invitation’ or ‘permission’ is the interpretation that a reasonable man would put upon the possessor’s words and actions given all the surrounding circumstances.” Rhoades v. Heritage Inv., LLC, 839 N.E.2d at 792.

In the instant case, Walter presented evidence indicating that Mother and her children were not expressly or impliedly invited to stay at his home. In fact, Walter made clear that they were not welcome and reluctantly agreed to allow them to stay one night only because Hollingsworth indicated they had nowhere else to go. Under the specific facts of this case, one could reasonably conclude that Mother and her children were not social guests but were rather licensees merely permitted by Walter to stay until the morning. Cfi Burrell v. Meads, 569 N.E.2d at 643 (“Burrell and the visitors in the three other cases we decide today were all individuals known to the landowner who came to the premises upon actual invitation or arguably upon standing invitation”); Dunifon v. Iovino, 665 N.E.2d 51, 56 (Ind.Ct.App. 1996) (“Meredith engaged in pleasantries with Iovino upon the groups’ arrival and generally treated Iovino as a social guest”), trans. denied. The trial court did not err by instructing the jury on licensee status.

2.

Father next challenges the trial court’s decision to' instruct the jury on Walter’s abandonment defense. He contends this was an abuse of discretion because there was no evidence in the record to support the giving of such an instruction.

The challenged instruction provides as follows:

[Walter] also claims that [Father] is not entitled to recover, because he abandoned [James] during his lifetime. To prove this defense, Cole Walter must prove by the greater weight of the evidence that [Father] made only token efforts to support or to communicate with [James] during his lifetime, and by such actions abandoned James, precluding recovery [under] the Child Wrongful Death Act.

Transcript at 476.

Under the Child Wrongful Death Act, “a parent who abandoned a deceased child while the child was alive is not entitled to any recovery under [the Act].” Ind.Code Ann. § 34-23-2-1© (West, Westlaw through 2011 1st Regular Sess.). In the instant case, the evidence indicates that Father and Mother’s relationship ended for good in October 2008. After that time, there is evidence that Father saw James infrequently and provided little to no financial support. Further, in April 2009, Father drafted, executed, and filed with the court a document purporting to terminate his parental rights to James and his two other sons in exchange for the non-enforcement of his child support obligation.

On appeal, as well as at trial, Father asserts reasons for failing to pay child support and for attempting to sign away his parental rights several months prior to the drowning. We agree with Walter that the essence of Father’s argument focuses on the weight or credibility of the evidence of abandonment, not the lack thereof. Though conflicting, there was evidence in the record to support giving the abandonment instruction. Therefore, the trial court did not abuse its discretion in so instructing the jury.

3..

Father next challenges the trial court’s instruction regarding an administrative pool safety regulation. 675 Ind. Admin. Code 2ÍM-27, the regulation in effect at the time of James’s death, provided in relevant part as follows:

(c) Access to residential pools shall be restricted by one (1) of the following means:
(1) Walls or fencing not less than five (5) feet high and completely surrounding the pool and deck area with the exception of self-closing and latching gates and doors, both capable of being locked.
(2) Other means not less than (5) feet high and deemed impenetrable by the enforcing authority at the time of construction and completely surrounding the pool and deck area when the pool is not in use.
(3) A combination of subdivisions (1) and (2) that completely surrounds the pool and deck with the exception of self-closing and latching gates and doors which are capable of being locked....
(4) A power safety pool cover....

Father claims that the trial court improperly interpreted the regulation by instructing the jury that the regulation “does not require there to be a fence between the house and the pool, and the walls of the house and garage can be part of the enclosing walls and fences.” Transcript at 479.

Father’s argument is based upon his assertion that “[fjencing immediately surrounding the pool and deck area is far more effective as a safety measure that [sic] simply fencing a yard.” Appellant’s Reply Brief at 8 (emphasis supplied). We have no doubt this is true, but our interpretation of the regulation is not controlled by the fact that four-sided isolation pool fencing is safer than traditional three-sided property-line fencing. A plain reading of the regulation simply does not support the interpretation advanced by Father. Rather, property-line fencing, with the home acting as one of the walls surrounding the pool area, is clearly adequate under 675 I.A.C. 20-4-27(c). The trial court properly instructed the jury in this regard.

With respect to the instruction regarding this regulation, Father also contends that the trial court improperly instructed the jury that a violation of the regulation could be considered as “mere evidence of negligence” or “evidence tending to show a lack of reasonable care”. Transcript at 479. He argues that the trial court should have instructed that violation of the regulation is negligence per se. Such an instruction, however, would have been error because the violation of an administrative regulation is “only some evidence of negligence for the jury to consider.” Zimmerman v. Moore, 441 N.E.2d 690, 696 (Ind.Ct.App.1982). See also Town of Kirklin v. Everman, 217 Ind. 683, 29 N.E.2d 206 (1940) (opinion on rehearing); Lachenman v. Stice, 838 N.E.2d 451 (Ind.Ct.App.2005), trans. denied. Further, even if the instruction was erroneous, which it was not, any error would be harmless. Father, by counsel, essentially acknowledged in closing that there was no violation of the regulation and asked the jury to focus instead on common-law negligence. See Transcript at 467 (counsel urged the jury to “just forget about the regulation”).

4.

Finally, Father challenges the following instruction given by the trial court over his objection:

Absent exigent circumstances, Indiana law dictates that the duty to provide for a child’s safety will always rest with the child’s parent. In addition, persons entrusted with children have a duty to supervise their charges and exercise ordinary care on behalf of the child in their custody.... If a parent or person charged with the care of a child has been warned of a condition, or if a condition is or should be obvious to the parent, the homeowner does not owe a duty of care to the parent’s child, and the parent’s failure to supervise the child properly is the proximate cause of the injury or death. Unless you find that exigent circumstances existed that would have alleved [sic] [Mother] and Matthew Hollingsworth of the duty to supervise James Androusky III, you must find in favor of Cole Walter and no further deliberation is needed with regard to allegations against this Defendant.

Id. at .477.

Father’s complaint with respect to this instruction turns primarily on the perceived unfairness in depriving him of recovery for the death of his son due to the negligence of his ex-wife and her boyfriend. Father’s argument in this regard is misguided in that it is focused entirely on his right to recover damages and ignores the fact that Walter’s negligence must first be established. Before damages are recoverable, Father must first establish that Walter owed a duty to James, he breached that duty, and James’s death was proximately caused by that breach. See Harradon v. Schlamadinger, 913 N.E.2d 297 (Ind.Ct.App.2009), trans. denied.

In the case of Harradon, upon which the challenged instruction was premised, an infant suffocated while sleeping on a sofa with her mother during a visit at the defendants’ home. In affirming summary-judgment in favor of the homeowners, we observed that the parents were the exclusive caregivers to the infant while on the premises and that they were “very aware of the dangers of sleeping on the sofa with the baby”, yet chose to do so anyway. Id. at 302. We analogized the situation to an attractive nuisance case in which a child was injured while sledding with his father on the landowner’s property and the attractive nuisance doctrine was found to be inapplicable. See Kelly v. Ladywood Apartments, 622 N.E.2d 1044 (Ind.Ct.App.1993), trans. denied. With Kelly in mind, we stated that “absent exigent circumstances ..., public policy and common sense dictate that the duty to provide for a child’s safety will usually rest with the child’s parents while the child is in the parents’ presence.” Harradon v. Schlamadinger, 913 N.E.2d at 302. In light of the parents’ knowledge and assumption of the risks involved to the infant under their exclusive care, we concluded as a matter of law that the homeowners “did not breach the duty of reasonable care they owed to the Parents’ baby.” Id. at 303.

To the extent that Harradon may imply that a landowner’s duty is eliminated by the presence of a child’s parent when the parent is fully aware of a danger on the land, we disagree. The landowner, of course, continues to owe a duty to the child. The ultimate question, as decided in Harradon as a matter of law, is whether the landowner breached the duty. Though not one of the arguments raised by Father on appeal, we observe that the instruction improperly indicated that under certain circumstances Walter would owe no duty of care to James. This error, however, is inconsequential here.

It is undisputed that Walter was not home at or near the time of James’s death and that Mother and Hollingsworth were the adults exclusively caring for three-year-old James and his siblings. Further, Mother and Hollingsworth were completely aware of the open swimming pool in Walter’s fenced-in backyard. Despite knowledge of this dangerous condition, Mother allowed her three- and four-year-old sons to play in the backyard unattended and within close proximity to the pool.

Assuming Mother and her children were invitees, Walter was subject to liability for physical harm caused by a condition upon his land if, but only if, he:

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against danger.

Harradon v. Schlamadinger, 913 N.E.2d at 301 (citing Restatement (Second) of Torts § 343). When the injured invitee is a child, we apply this standard by also considering the child’s abilities, age, experience, and maturity. Id. Harradon, however, counsels that we should not in every instance look blindly to the child’s ability to discover the danger. Rather, when a parent is present and fully aware of the danger but consciously (and, as in the instant case, recklessly) disregards the risks while caring for the child, the landowner should not generally be found to have breached the duty owed to the child. See id.

In sum, although the instruction based upon Harradon was not an entirely correct statement of the law, the instruction did not adversely affect Father’s substantial rights. Under the specific circumstances of this case as set out above, we hold as a matter of law that Walter did not breach any duty owed to James and the sole proximate cause of James’s death was Mother’s lack of supervision.

Judgment affirmed.

MAY, J., and BARNES, J., concur.

      . We note this was the only door to the backyard and, in addition to a lock, it had an alarm that sounded whenever the door was opened.

      . The action also included Mother as a code-fendant and Hollingsworth as a non-party.

      . Moreover, even if they were invitees that night, there was evidence presented indicating that they exceeded the scope of their limited invitation when they did not promptly awake, get ready, and vacate the home on the day of the drowning. See Rider v. McCamment, 938 N.E.2d 262, 268 (Ind.Ct.App.2010) ("when an invitee exceeds the scope of invitation, she loses her status”). Contrary to Father’s assertion on appeal, there is no indication in the record that "[t]hey were getting ready to leave when the child drowned.” Appellant's Reply Brief at 3.

      . This regulation was repealed in 2011 and filed, with changes, at 675 Ind. Admin. Code 14-4.3-296.

      . The Centers for Disease Control and Prevention reports "an 83% reduction in the risk of childhood drowning with a four-sided isolation pool fence, compared to three-sided property-line fencing.” CDC.gov, Unintentional Drowning: Fact Sheet, http://www.cdc. gov/homeandrecreationalsafety/watersafety/ waterinjuries-factsheet.html (last visited April 20, 2012).

      . We observe that other states have adopted statutes expressly requiring isolation fencing if other safety measures (such as a safety pool cover) are not present. See, e.g., Ariz.Rev. Stat. Ann. § 36-1681(C) (providing that if a residence constitutes part of the enclosure for the pool, there shall be between the pool and residence a minimum four foot wall, fence or barrier); Cal. Health & Safety Code § 115921(c) (defining enclosure as "a fence, wall, or other barrier that isolates a swimming pool from access to the home”) and § 115922(1) ("pool shall be isolated from access to a home by an enclosure”); Fla. Stat. Ann. § 515.29(l)(c) ("barrier must be placed around the perimeter of the pool and must be separate from any fence, wall, or other enclosure surrounding die yard unless the fence, wall, or other enclosure or portion thereof is situated on the perimeter of the pool”) and (5) ("[a] wall of a dwelling may serve as part of the barrier if it does not contain any door or window that opens to provide access to the swimming pool”).

      . We explained the inapplicability of the attractive nuisance doctrine in Kelly as follows:
      The immediate presence of Kelly’s father negates all of the policy reasons for shifting the duty to care for this child from his father to Ladywood. Kelly was brought to the hill by his father and supervised by his father. Under the attractive nuisance doctrine, the trespassing child must have failed, because of his youth, to discover the condition or realize the danger involved in going on to the defendant’s property. 62 Am.Jur.2d Premises Liability § 326 (1990). As an adult, Kelly's father, not Ladywood, is charged with the care of his son and with understanding and appreciating the possible danger that snow may cover objects which would obstruct a sled's path.

        Id. at 1049.

      . Similarly, our courts have extended greater protection to child licensees than adult licensees, requiring the landowner to consider the child’s youth and lack of experience in assessing the ability of a child to perceive and avoid danger. See Johnson v. Pettigrew, 595 N.E.2d 747, 750 (Ind.Ct.App.1992) (“if a landowner can anticipate that a child will not perceive a danger obvious to adults ... he may be required to take additional precautions to protect his child licensees’’), trans. denied.

      . We emphasize that this is not a case in which a child unknowingly wandered out of the house and fell into the swimming pool. On the contrary, the adults caring for James consciously and recklessly allowed him to play outside near an open swimming pool without supervision.

      . Walter raises two issues in his cross appeal, which are moot given our determination of the issues raised by Father. Therefore, we do not address the cross-appeal issues.