FOR PUBLICATION FILED
Feb 21, 2012, 9:22 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
DAVID M. HENN JEFFREY S. ZIPES
JAMES T. FLANIGAN BLAKE N. SHELBY
McClure McClure Davis & Henn Coots Henke & Wheeler, P.C.
Greenwood, Indiana Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DIXIE DIANA SCHULZ and JOSEPH SCHULZ, )
)
Appellants-Plaintiffs, )
)
vs. ) No. 32A05-1107-CT-368
)
THE KROGER COMPANY, KROGER LIMITED )
PARTNERSHIP I, SEVEN-UP AMERICAN )
BOTTLING CO., THE AMERICAN BOTTLING )
COMPANY, DR. PEPPER/SEVEN-UP INC., )
SEVEN-UP DISTRIBUTORS OF SOUTHEAST )
INDIANA, INC., and SEVEN-UP/RC BOTTLING )
COMPANY, INC. )
)
Appellees-Defendants. )
APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable Karen M. Love, Judge
Cause No. 32D03-0706-CT-017
February 21, 2012
OPINION – FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellants-Plaintiffs, Dixie Diana Schultz (Dixie) and Joseph Schultz (Joseph)
(collectively, the Schultzes), appeal the trial court’s summary judgment in favor of
Appellees-Defendants, the Kroger Company, Kroger Limited Partnership I, (Kroger)
Seven-Up American Bottling Co., the American Bottling Company, Dr. Pepper/Seven-
Up, Inc., Seven-Up Distributors of Southeast Indiana Inc., Seven-Up/RC Bottling
Company, Inc., with respect to Kroger’s knowledge about the existence of a hazardous
condition in its store.
We affirm.
ISSUE
The Schultzes present one issue on appeal, which we restate as: Whether the trial
court erred in finding that there was no genuine issue of material fact that Kroger lacked
actual and constructive knowledge of the hazardous condition in its store.
FACTS AND PROCEDURAL HISTORY
On June 23, 2005, Dixie and Joseph went to the Kroger store located in
Brownsburg, Indiana. After being in the store for approximately fifteen minutes, Dixie
walked over to a Seven-Up display in the back of the store to purchase a bottle of Seven-
Up. As she approached the display, she slipped over a clear liquid and fell, hitting her
head and back on the floor. When she stood up, her shirt and pants were wet. Kroger
employee, Jessica McCombs (McCombs), learned of Dixie’s fall almost immediately
after it occurred and arrived at the scene a couple of minutes later.
2
On June 20, 2007, the Schultzes filed their Amended Complaint against Kroger
and various other defendants. Subsequently, on November 24, 2009, all defendants,
except Kroger, were voluntarily dismissed from the action. On February 24, 2011,
Kroger filed its motion for summary judgment and designation of evidence. On May 25,
2011, the trial court conducted a hearing on Kroger’s motion. On June 28, 2011, the trial
summarily issued its judgment in favor of Kroger.
The Schultzes now appeal. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
Summary judgment is appropriate only when there are no genuine issues of
material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial
Rule 56(C). In reviewing a trial court’s ruling on summary judgment, this court stands in
the shoes of the trial court, applying the same standards in deciding whether to affirm or
reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d
604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we must determine
whether there is a genuine issue of material fact and whether the trial court has correctly
applied the law. Id. at 607-08. In doing so, we consider all of the designated evidence in
the light most favorable to the non-moving party. Id. at 608. The party appealing the
grant of summary judgment has the burden of persuading this court that the trial court’s
ruling was improper. Id. When the defendant is the moving party, the defendant must
show that the undisputed facts negate at least one element of the plaintiff’s cause of
action or that the defendant has a factually unchallenged affirmative defense that bars the
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plaintiffs’ claim. Id. Accordingly, the grant of summary judgment must be reversed if
the record discloses an incorrect application of the law to the facts. Id.
We observe that in the present case, the trial court did not enter findings of fact
and conclusions of law in support of its judgment. Special findings are not required in
summary judgment proceedings and are not binding on appeal. Id. However, such
findings offer this court valuable insight into the trial court’s rationale for its review and
facilitate appellate review. Id.
II. Analysis
The Schultzes now argue that the trial court erred when it concluded that there was
no genuine issue of material fact that Kroger had no actual or constructive notice of the
dangerous condition which caused Dixie to slip and fall.
As “a person who is invited to enter or remain on the land for a purpose directly or
indirectly connected with business dealings with the possessor of the land,” the Schultzes
became business invitees when they entered Kroger. Burrell v. Meads, 569 N.E.2d 637,
642 (Ind. 1991). Therefore, Kroger owed the Schultzes a duty to exercise reasonable care
for their protection while they remained on the premises. Id. This duty is further
delineated by the Restatement (Second) of Torts § 343 (1965), which provides:
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 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
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(c) fails to exercise reasonable care to protect them against the danger.
See also Golba v. Kohl’s Dept. Store, Inc., 585 N.E.2d 14, 15 (Ind. Ct. App.
1992), reh’g denied, trans. denied. Thus, while a landowner’s duty to a business invitee
includes a duty to exercise reasonable care to protect the invitee from foreseeable dangers
on the premises, there is no duty to insure a business invitee’s safety while on the
premises. Booher v. Sheeram, LLC, 937 N.E.2d 392, 395 (Ind. Ct. App. 2010), reh’g
denied, trans. denied. As an invitor is not the insurer of the invitee’s safety, and before
liability may be imposed on the invitor, it must have actual or constructive knowledge of
the danger. Carmichael v. Kroger Co. 654 N.E.2d 1188, 1191 (Ind. Ct. App. 1995),
trans. denied.
A. Actual Knowledge
The designated affidavit of McCombs, Kroger’s employee, establishes that Kroger
did not have actual knowledge of the hazardous condition. Specifically, McCombs stated
that “I was not nor, to the best of my knowledge, was any Kroger employee notified of
the existence of any foreign substance(s) or potential hazard(s) on the floor at any time
prior to the alleged fall.” (Appellants’ App. p. 47).
B. Constructive Knowledge
Turning to constructive knowledge, we note that we have defined constructive
knowledge as a “condition [which] has existed for such a length of time and under such
circumstances that it would have been discovered in time to have prevented injury if the
storekeeper, his agents or employees had used ordinary care.” Wal-Mart Stores, Inc. v.
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Blaylock, 591 N.E.2d 624, 628 (Ind. Ct. App. 1992), trans. denied (citing F.W.
Woolworth Co. v. Jones, 130 N.E.2d 672, 673 (Ind. Ct. App. 1955)).
The designated evidence reflects that Dixie slipped on a clear liquid, resembling
water, near the Seven-Up display at the back of the store. McCombs stated in her
affidavit that
3. To the best of my knowledge, the alleged fall occurred at about 4:10
p.m. and happened near the [Seven-Up] display in the back portion of the
store (in front of the back room swinging doors.) I learned of the alleged
fall almost immediately after it occurred. I arrived at the accident scene
only a couple of minutes after the fall occurred.
4. I, and fellow Kroger employees, Julie Bryant and Lucian Adamson, had
been in the area where [Dixie] had fallen approximately 5-10 minutes
before [Dixie’s] fall occurred. In the 5-10 minute period of time before the
alleged fall, I did not, nor to the best of my knowledge did any other Kroger
employee, observe any foreign substance(s) or potential hazard(s) on the
floor. The floor was clean and dry.
***
6. Pursuant to Kroger’s store policies, its management team continually
monitors and inspects store floor surfaces in order to keep them safe and
free of any hazardous conditions. Additionally, all Kroger employees are
charged with the duty to inspect, maintain, and monitor store floors for the
presence of any potentially hazardous condition. In the event a Kroger
employee observes or is notified of the presence of any foreign substance(s)
or hazard(s) on the floor, such employees are trained and instructed to (a)
immediately pick up/clean up the foreign substance(s); (b) immediately
place signs/cones to alert customers of the foreign substance(s) and of the
potential danger created by the foreign substance(s); or (c) immediately
notify management of the potentially dangerous situation. These steps
were not taken by any Kroger employee because Kroger employees were
neither notified nor aware of the presence of any hazardous condition with
respect to the floor at any time prior to [Dixie’s] fall.
(Appellants’ App. pp. 46-47). There is no designated evidence contradicting or disputing
McCombs’ statements recorded in her affidavit.
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It is evident from the designated evidence before us that the window of time
between a Kroger employee being present in the area where Dixie fell and Dixie’s fall
was ten minutes at most. Ten minutes prior to her fall, the floor was clean and dry. Short
of imposing a strict liability standard or mandating an employee’s presence in every aisle
at all times, we conclude that there is no genuine issue of fact in the case before us that
Kroger did not have constructive knowledge of the hazardous condition. Therefore, we
affirm the trial court’s grant of summary judgment in favor of Kroger.1
CONCLUSION
Based on the foregoing, we find that Kroger was entitled to summary judgment as
there was no genuine issue of material fact that Kroger lacked actual or constructive
knowledge of the hazardous condition in its store.
Affirmed.
FRIEDLANDER, J. and MATHIAS, J. concur
1
Additionally, the Schultzes claim that Kroger’s reliance on its Requests of Admissions in support of its
motion for summary judgment was erroneous because “[t]he entitlement to summary judgment must be
established by affirmative evidence, not by the absence of evidence.” (Appellants’ Br. p. 13). The
Schultzes argue that “[t]o the extent that the trial court relied on the Requests for Admission in granting
summary judgment in favor of Kroger, such reliance was erroneous.” (Appellants’ Br. p. 13). First,
because the trial court summarily granted judgment in favor of Kroger, we cannot discern the trial court’s
rationale for its decision. Second, Kroger also designated parts of Dixie’s deposition and McCombs’
affidavit in support of its motion. Upon review of those documents, we reach the conclusion that
affirmative evidence establishes the absence of a material issue of fact.
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Dixie Diana Schulz and Joseph Schulz v. The Kroger Co., Kroger Limited Partnership
Combined Opinion