FOR PUBLICATION


ATTORNEYS FOR APPELLANT :    ATTORNEYS FOR APPELLEES:

D. BRUCE KEHOE    THOMAS M. WEINLAND
RALPH E. DOWLING    RONALD W. FRAZIER
WILLIAM E. LUKENS    Frazier & Associates
Wilson, Kehoe & Winingham    Indianapolis, Indiana
Indianapolis, Indiana
             RYAN DUFFIN
            ROBERT W. HASH
            Jennings Taylor Wheeler & Bouwkamp
            Carmel, Indiana

NAOMI HARRIS,               )

2.    Whether genuine issues of material fact preclude summary judgment for the defendants.

    We affirm in part, reverse in part, and remand for further proceedings. See footnote

Our supreme court has expressly held that social guests are invitees. See Burrell v. Meads, 569 N.E.2d 637, 643 (Ind. 1991). And the Trainis’ counsel’s concession on this issue at the summary judgment hearing is binding on the Trainis. See Lystarczyk v. Smits, 435 N.E.2d 1011, 1014 (Ind. Ct. App. 1982). Accordingly, it is undisputed that Legear was a social guest, or invitee, on the Trainis’ houseboat at the time of her death. See footnote
    A landowner owes the highest duty of care to an invitee; that is the duty to exercise reasonable care for his protection while he is on the landowner’s property.See footnote Dunifon v. Iovino, 665 N.E.2d 51, 56 (Ind. Ct. App. 1996) (citing Burrell v. Meads, 569 N.E.2d at 639), trans. denied. Our supreme court has adopted the Restatement’s definition of this duty:
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the 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 the danger.

Burrell, 569 N.E.2d at 639-40 (citing Restatement (Second) of Torts § 343 (1965)). The duty of reasonable care extends not only to harm caused by a condition on the land but also to activities being conducted on the land. Estate of Pflanz, 678 N.E.2d at 1151.
    Where, as here, a duty of care exists, the “determination of whether a breach of duty occurred is a factual question which requires an evaluation of the landowner’s conduct with respect to the requisite standard of care.” Id. (quoting Kinsey v. Bray, 596 N.E.2d 938, 944 (Ind. Ct. App. 1992), trans. denied). In this regard, our supreme court has noted that “if the facts are in dispute, or if reasonable men may draw different conclusions from undisputed facts, the question of negligence is one for the jury.” Id. (quoting Lincoln Operating Co. v. Gillis, 232 Ind. 551, 114 N.E.2d 873, 875 (1953)).
Further, “[t]he question of whether and to what extent landowners owe any duty to protect their invitees from the criminal acts of third parties has been the subject of substantial debate among the courts and legal scholars in the past decade.” Delta Tau Delta v. Johnson, 712 N.E.2d 968, 971 (Ind. 1999). And “while landowners are not to be made the insurers of their invitees’ safety, landowners do have a duty to take reasonable precautions to protect their invitees from foreseeable criminal attacks.” Id. To determine whether a criminal act was foreseeable such that a landowner owed a duty to take reasonable care to protect an invitee from the act, we implement a totality of the circumstances test. See id. at 971-73. That test permits courts to consider all of the circumstances to determine duty. Id. at 973. A substantial factor in the determination of duty is the number, nature, and location of prior similar incidents, but the lack of prior similar incidents will not preclude a claim where the landowner knew or should have known that the criminal act was foreseeable. Id.
Here, Michael invited several people, including Legear, on board his parents’ houseboat, and questions of fact exist regarding whether he provided alcohol and marijuana to his guests. It is undisputed, however, that Michael witnessed Legear consume alcohol on the Trainis’ boat before she drowned. And Marling testified that Michael and Legear, along with the others, smoked marijuana together on the boat. Given the danger inherent in the use of alcohol and drugs aboard a boat on a reservoir, we cannot say, as a matter of law, that it was not reasonably foreseeable that one of Michael’s teenaged guests would become impaired and drown. Moreover, under the circumstances, it was reasonably foreseeable that teenagers under the influence of drugs or alcohol would engage in horseplay, such as occurred when Marling gave Legear a “slight push” into the water.
The dissent contends that we “presuppose” that Michael and the others were under the influence of drugs or alcohol. But Marling testified that he observed Legear consume anywhere from six to eight alcoholic beverages and smoke one or two joints on the Trainis’ boat that afternoon, that everybody on board was smoking marijuana, and that he “thought” everybody was drinking alcohol. Record at 866, 891. Given this evidence, we cannot say that Michael did not have a duty to ask Legear and the others to leave his parents’ boat or, in the alternative, to attempt to prevent the consumption of alcohol and marijuana aboard the boat. Whether Michael exercised the requisite degree of care for Legear’s safety under the circumstances is a question for a trier of fact. We conclude that the trial court erred when it found, as a matter of law, that Michael did not breach any duty to Legear. See footnote
    A determination of the Trainis’ liability to Harris is, however, another matter, since they were not present at the time of Legear’s death. As a general rule, the common law does not hold a parent liable for the tortious acts of her minor children. Wells v. Hickman, 657 N.E.2d 172, 176 (Ind. Ct. App. 1995). However, a child’s negligence may be imputed to his parent where the parent entrusts the child with an instrumentality which, because of the child’s lack of age, judgment, or experience, may become a source of danger to others. Ross v. Lowe, 619 N.E.2d 911, 915 (Ind. 1993) (citation omitted).
Here, the Trainis gave their minor son, Michael, permission to have friends aboard their houseboat. Despite Michael’s history of drug abuse, and despite the known presence of alcohol on the premises, See footnote the Trainis did not supervise Michael’s use of the boat on June 25, 1996. Indeed, Michael and his friends were using alcohol and marijuana on the Trainis’ houseboat that day. Given this evidence, a jury could reasonably conclude that Michael lacked the judgment necessary to keep the houseboat from being a source of danger to invitees. See id. We conclude that questions of fact exist regarding whether Michael’s negligence is imputable to the Trainis pursuant to the dangerous instrumentality exception set out in Ross, 619 N.E.2d at 915 (finding question of fact existed regarding parent’s liability for child’s failure to adequately restrain dog when meter reader entered back yard).
In sum, viewing the evidence in a light most favorable to Harris, we find that there are unresolved factual issues as to whether Michael and the Trainis breached their duty of reasonable care. Although the trial court may not believe that Harris will be successful at trial, summary judgment should not be entered where material facts conflict or where conflicting inferences are possible. See Estate of Pflanz, 678 N.E.2d at 1152.

BAKER, Judge, concurring in part and dissenting in part.

     While I agree with the majority’s decision to affirm the grant of summary judgment for Quakertown Marina, Inc., I respectfully dissent from the reversal of the trial court’s denial of summary judgment with respect to Michael and his parents.
    I embrace the “totality of the circumstances” test in determining whether a landowner should be exposed to potential liability for the criminal act of a third person. See Delta Tau Delta v. Johnson, 712 N.E.2d 968, 971 (Ind. 1999). I am compelled to part ways, however, with the majority’s application of this test as it relates to the designated evidence that was put before the trial court. First, the majority presupposes that the teenagers aboard the houseboat were “under the influence of drugs or alcohol.” Slip op. at 9. Marling initially testified in his deposition that he thought everyone on the boat was drinking. He then acknowledged that some of the people might not have been drinking. The evidence does not establish that Michael knew anyone was intoxicated at the time of the incident. The uncontroverted evidence establishes that Michael had consumed less than one beer prior to the incident, and there has been no showing that Michael supplied Legear with any intoxicant. Marling testified that he did not know who supplied the marijuana or who may have supplied Legear with any alcohol. Moreover, none of the alcohol stored on the houseboat by his parents was consumed on the day of the incident, and the evidence is undisputed that Michael did not make the others aware of the alcohol that his parents kept on the houseboat because he did not want to get into trouble.
    I would also note that the designated evidence established that, prior to the incident, LeGear had commented to the others that she was interested in swimming at a beach near the marina. Jessica remarked that she had been swimming with a friend earlier in the day. In my view, one cannot be negligent for failing to foresee that another, who would propose to go swimming, would actually not know how to swim. Thus, in applying the “totality of the circumstances” test set forth in Delta Tau Delta, I cannot agree that a genuine issue of material fact remains as to whether Michael exercised the requisite degree of care for Legear’s safety. I would affirm the trial court’s judgment entered in Michael’s favor.
    With respect to the potential liability of Michael’s parents, the majority acknowledges the general rule that parents are not liable for the tortious acts of their minor children. Slip op. at 10 (citing Wells v. Hickman, 657 N.E.2d 172, 176 (Ind. Ct. App. 1995)). An exception to this “no liability” rule exists, though, when the child is entrusted with an instrumentality which, “because of the child’s lack of age, judgment, or experience, may become a source of danger to others.” Slip op. at 10 (citing Ross v. Lowe, 619 N.E.2d 911, 915 (Ind. 1993)). The imposition of a duty with respect to a parent in such a circumstance is limited to incidents where a reasonably foreseeable victim is injured by a reasonably foreseeable harm. Wells, 657 N.E.2d at 177-78.
    I cannot agree with the majority’s notion that “Michael’s history of drug abuse” was a factor in imputing knowledge on the part of the Trainis to exercise greater control or supervision over their son. Specifically, the designated evidence showed that Michael had one arrest for marijuana possession prior to the incident. He then completed a drug counseling program. Moreover, the evidence is equivocal at best as to whether Michael had used marijuana on June 25, 1996. See footnote I thus cannot agree that questions of fact exist regarding whether any alleged negligence on Michael’s part could be imputed to his parents under the “dangerous instrumentality” exception on this basis.
    The undisputed evidence also shows that the Trainis maintained the requisite safety equipment on the houseboat. There is no evidence showing that the Trainis consented to, directed, or sanctioned any wrongdoing. To the contrary, they established rules for Michael to follow, including those that were taught by the Coast Guard. The Trainis prohibited Michael from inviting people onto the houseboat without their permission, and he was forbidden to use alcohol or illegal drugs. In my view, the parents’ knowledge that Michael had previously smoked marijuana does not rise to the level of an actual and immediate knowledge of his incapacity to operate the houseboat. The totality of the circumstances here does not dictate a determination that the Trainis should be faced with any potential liability. To hold otherwise would inappropriately render the Trainis an insurer of Legear’s safety.
    Finally, there is no evidence that the Trainis had ever met Legear or Marling. Hence, there is nothing to suggest that they might have reasonably foreseen that Marling would push Legear from the houseboat into the lake and cause her death. In essence, there is no showing that the Trainis breached any duty here that may have prevented Legear’s drowning. Given these circumstances, I cannot agree that any genuine issues of material fact exist as to whether any negligence on Michael’s part may be imputed to the Trainis. Therefore, I vote to affirm the trial court’s judgment in all respects.