MEMORANDUM DECISION
Apr 22 2015, 9:55 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
James E. Ayers Jeffrey S. Zipes
Wernle, Ristine & Ayers Coots, Henke & Wheeler, P.C.
Crawfordsville, Indiana Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John E. Servies, April 22, 2015
Appellant-Plaintiff, Court of Appeals Case No.
54A01-1408-PL-363
v. Appeal from the Montgomery
Circuit Court
The Kroger Company, The Honorable Harry A. Siamas,
Appellee-Defendant. Judge
Cause No. 54C01-1211-PL-996
Najam, Judge.
Statement of the Case
[1] John E. Servies filed a complaint against The Kroger Company (“Kroger”)
alleging negligence. Following a bench trial, the trial court entered judgment in
favor of Kroger. Servies appeals and raises a single issue for our review, which
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we restate as whether the trial court erred when it concluded that Kroger did
not breach its duty of care to Servies. We affirm.
Facts and Procedural History
[2] On May 24, 2011, Servies, then eighty-seven years old, drove to a Kroger store
in Crawfordsville to pick up prescription medications from the pharmacy.
Servies parked his car “at the curb in front of the store” and walked up a ramp
towards a “pharmacy window” on the exterior of the store. Appellant’s App. at
56-57. Kroger had placed a hanging display of potted plants “above the
sidewalk in front of the store,” and Servies was trying to negotiate his way
through a gap between two hanging plants1 when someone called his name
from nearby. Id. at 56. As he turned to see who had called his name, Servies
struck his head on a hanging plant, lost his balance, and fell to the ground.
Servies sustained injuries as a result of the fall.
[3] On November 15, 2012, Servies filed a complaint against Kroger alleging
negligence. Following a bench trial, the trial court entered judgment in favor of
Kroger. In particular, the trial court concluded in relevant part as follows:
17. Kroger’s placement of the hanging pots was ill-advised.
The placement certainly was intended to favorably display the
pots for sale to Kroger customers approaching the grocery from
the parking lot or passing through the parking lot. Kroger placed
1
The plants were hanging from an eight-foot-long cable, and the cable sagged in the middle. “There was an
approximate [three-]foot ‘gap’ between the hanging pots and a yellow ribbon was tied on each end of the gap.
Servies had head room to walk under the wire cable from which the pots hung.” Appellant’s App. at 56.
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the hanging pots in the same location as the short ramp that
provides access to pedestrians from the parking lot to the
sidewalk. The purpose of the ramp presumably is to assist
pedestrians who may have trouble stepping up the curb onto the
sidewalk. The ramp is near to the Kroger pharmacy walk-up
window that allows customers to access the pharmacy without
entering the store. There was a three foot “gap” between the
pots, and Mr. Servies[,] who was walking up the curb ramp in
order to get to the pharmacy window[,] was attempting to
negotiate the pot gap when the accident occurred. The Court
infers from this that other customers who had difficulty
navigating the curb because of physical limitations would have
taken the same route that Mr. Servies was taking in order to
approach the pharmacy window from the parking lot. It is fair to
ask why would Kroger make the business decision to hang pots
in a high traffic area when the pots could have been displayed
either in a lower traffic area or in a different manner in front of
the store? If a better decision about placement of the pots had
been made[,] Servies’ injury may have been avoided.
18. However, the legal question to be answered by the Court is
somewhat different than the question posed in paragraph 17.
Kroger is neither an insurer nor subject to strict liability against
accidents that its invitees suffer on its property. In this case[,]
Servies testified that he had seen the hanging pots on prior visits
to the store and he knew that the pots were hanging in the
location to which he was walking. He knew that he could not
walk under the pots but that he would have to walk through the
three foot gap. Servies is required to prove by the greater weight
of the evidence that Kroger was negligent in order to hold Kroger
liable for his accident. This Court must decide whether Kroger
breached any duty of care that it owed to Servies. The comparative
knowledge of a possessor of land and an invitee regarding known
or obvious dangers may properly be taken into consideration in
determining whether the possessor breached the duty of
reasonable care under Sections 343 and 343A of the Restatement
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(Second) of Torts. See Tate v. Cambridge Commons Apartments, 712
N.E.2d 525 (Ind. Ct. App. 1999).
The Court concludes that any risk or danger created by the
hanging pots was known to Servies. He knew that the pots were
hanging there when he walked toward them up the ramp. He
knew that he could not walk under the pots. He knew that he
would have to walk through the gap in order to approach the
pharmacy window from the ramp. The Court also concludes
that Servies has failed to prove by [the] greater weight of the
evidence that Kroger should have anticipated the type of
accidental injury that Servies suffered when Servies knew that he
could not walk into or under the pots but that he must either
walk through the gap or take another route around the pots. The
condition and risk of the hanging pots would be apparent to and
recognized by a reasonable man, in the same position as Servies,
exercising ordinary perception, intelligence and judgment.
Taking all of this into consideration[,] the Court concludes that
Servies has not proven that Kroger breached any duty that it owed to
him.
19. Taking the evidence presented to the Court and
considering the application of Sections 343 and 343A of the
Restatement (Second) of Torts to this evidence[,] the Court must
conclude that Servies has not proven by the greater weight of the
evidence that Kroger is liable for the unfortunate injuries that he
suffered.
It [i]s [t]herefore [o]rdered, [a]djudged, and [d]ecreed that
Plaintiff shall take nothing against Defendant.
[4] Id. at 59-61 (emphases added). This appeal ensued.
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Discussion and Decision
[5] Servies contends that the trial court erred when it entered judgment in favor of
Kroger. Our standard of review is well settled. The trial court entered findings
of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A). We may
not set aside the findings or judgment unless they are clearly erroneous.
Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind. 2000). First, we
consider whether the evidence supports the factual findings. Id. Second, we
consider whether the findings support the judgment. Id. “Findings are clearly
erroneous only when the record contains no facts to support them either
directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A
judgment is clearly erroneous if it relies on an incorrect legal standard. Menard,
726 N.E.2d at 1210.
[6] In conducting our review, we give due regard to the trial court’s ability to assess
the credibility of witnesses. Id. While we defer substantially to findings of fact,
we do not do so to conclusions of law. Id. We do not reweigh the evidence;
rather, we consider the evidence most favorable to the judgment with all
reasonable inferences drawn in favor of the judgment. Yoon v. Yoon, 711
N.E.2d 1265, 1268 (Ind. 1999).
[7] In his argument on appeal, Servies first appears to contend that the trial court
erred when it concluded that Kroger did not owe Servies any duty of care. In
particular, Services maintains that
[t]he Trial Court has mistakenly confounded what could be
class[ified] as contributory negligence with the concept of
incurred risk, where the Plaintiff has voluntarily or knowingly or
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intentionally risked the hazard. The view of the Trial Court is
that the act by the Plaintiff absolves the landowner of
responsibility and erases the duty owed to the invitee. That is
incorrect.
Appellant’s Br. at 9 (emphasis original).2 But Servies misunderstands the trial
court’s findings and conclusions.
[8] To prevail on a theory of negligence, Servies was required to prove: 1) that
Kroger owed him a duty; 2) that it breached the duty; and 3) that his injury was
proximately caused by the breach. Harradon v. Schlamadinger, 913 N.E.2d 297,
300 (Ind. Ct. App. 2009), trans. denied. Here, it is undisputed that Servies was
Kroger’s invitee at the time of the fall. Accordingly, as a matter of law Kroger
owed him a duty to exercise reasonable care for his protection while he was on
the premises. Id. at 300-01. But, contrary to Servies’ argument on appeal, the
trial court did not conclude that Kroger owed no duty to Servies. Instead, the
trial court concluded that the preponderance of the evidence showed that
Kroger did not breach its duty to Servies. Servies’ contention on this issue is
without merit.
2
Servies cites case law regarding the affirmative defense of incurred risk, but Kroger did not assert that
affirmative defense in its answer, and the trial court does not refer to incurred risk in its findings and
conclusions. Instead, the trial court based its judgment on the Restatement (Second) of Torts §§ 343 and
343A, which we discuss below. Our supreme court has explained the difference between those Restatement
sections and the affirmative defense of incurred risk as follows: “For purposes of analysis of breach of duty
[under §§ 343 and 343A], a landowner’s knowledge is evaluated by an objective standard. This is in contrast
to the determination of the defense of incurred risk, wherein the invitee’s mental state of venturousness
(knowledge, appreciation, and voluntary acceptance of the risk) demands a subjective analysis of actual
knowledge.” Douglass v. Irvin, 549 N.E.2d 368, 370 (Ind. 1990).
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[9] Next, Servies contends that, “[t]he Trial Court, by incorrect application of
assumption of risk[,] has treated Kroger as an entity entitled to the contributory
negligence defense, has failed to weigh and compare the fault of the parties[,]
and [has] denied Servies the benefit and right of a comparative fault judgment.”
Appellant’s Br. at 12. In essence, Servies maintains that the trial court erred in
its application of case law and the Comparative Fault Act3 (“the Act”) in
entering judgment in favor of Kroger. We cannot agree.
[10] “The primary objective of the Act was to modify the common law rule of
contributory negligence under which a plaintiff was barred from recovery where
he was only slightly negligent.” Mendenhall v. Skinner & Broadbent Co., 728
N.E.2d 140, 142 (Ind. 2000). “The Act seeks to achieve this result through
proportional allocation of fault, ensuring that each person whose fault
contributed to cause injury bears his or her proportionate share of the total fault
contributing to the injury.” Id. But where, as here, the factfinder concludes
that the defendant did not breach its duty to the plaintiff, the plaintiff’s claim is
barred, and there is no fault to allocate to the defendant. See Ind. Code § 34-51-
2-6. To the extent Servies contends that the trial court erred in its application of
the Comparative Fault Act, because the court concluded that Kroger did not
3
Indiana Code Section 34-51-2-6 provides in relevant part that, in an action based on fault that is brought
against one defendant, the claimant is barred from recovery if the claimant’s contributory fault is greater than
the fault of all persons, including nonparties, whose fault proximately contributed to the claimant’s damages.
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breach its duty to Servies, Servies was solely at fault, and his claim was barred
under the Act.
[11] To the extent Servies contends that the trial court erred when it concluded that
Kroger did not breach its duty to Servies, that contention amounts to a request
that we reweigh the evidence, which we will not do. Our supreme court has
held that “[t]he comparative knowledge of a possessor of land and an invitee
regarding known or obvious dangers may properly be taken into consideration
in determining whether the possessor breached the duty of reasonable care
under Sections 343 and 343A of the Restatement (Second) of Torts.” Smith v.
Baxter, 796 N.E.2d 242, 245 (Ind. 2003). The standard for determining whether
there has been a breach of duty with respect to an allegedly obvious danger
under Section 343 is: (1) whether the landowner knew or by the exercise of
reasonable care would have discovered the dangerous condition and should
have realized that it involved an unreasonable risk of harm to invitees; (2)
whether the landowner should have expected that an invitee would fail to
protect himself from the danger; and (3) whether the landowner failed to
exercise reasonable care to protect the invitee. See Countrymark Cooperative, Inc.
v. Hammes, 892 N.E.2d 683, 691 (Ind. Ct. App. 2008), trans. denied. And
Section 343A, “which is meant to be read in conjunction with section 343,”
provides that a possessor of land is not liable to his invitees for physical harm
caused to them by any activity or condition on the land whose danger is known
or obvious to them, unless the possessor should anticipate the harm despite
such knowledge or obviousness. Id. at 688-89.
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[12] Here, the evidence supports the trial court’s findings and conclusions on the
issue of the comparative knowledge of Kroger and Servies regarding known or
obvious dangers on the premises. The evidence supports the trial court’s
findings that Servies was aware of the hanging plant display, having seen the
display on prior occasions, and that he knew he could not walk underneath the
plants but had to walk through the gap between plants.4 And the trial court’s
findings support its ultimate conclusion that, because “any risk or danger
created by the hanging pots was known to Servies,” Kroger did not breach its
duty of care it owed to him. Appellant’s App. at 60. The trial court’s judgment
in favor of Kroger is not clearly erroneous.
[13] Affirmed.
Baker, J., and Friedlander, J., concur.
4
Servies states that there is no evidence to support the trial court’s finding that Servies knew that he could
not walk underneath the hanging pots. But, as Kroger points out, Servies’ own trial testimony shows that he
knew that the pots were hanging “to[o] low” to enable him to pass underneath the display. Tr. at 61. Servies
agreed that he would have had to walk “through the gap” in the hanging pots, which is what he was trying to
do at the time of his fall. Id.
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