Oct 06 2015, 9:02 am
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES
James J. Kenney Cathleen M. Shrader
Saunders, Condon & Kenney, P.C. Thomas M. Kimbrough
Chicago, Illinois Barrett McNagny LLP
Fort Wayne, Indiana
Rori L. Goldman
Justin O. Sorrell
Hill Fulwider, P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jill Miller, October 6, 2015
Appellant-Plaintiff, Court of Appeals Case No.
48A02-1504-CT-246
v. Appeal from the Madison Circuit
Court
Rosehill Hotels, LLC d/b/a The Honorable Dennis D.
Holiday Inn Express; Carroll, Judge
Intercontinental Hotel Group Trial Court Cause No.
d/b/a Holiday Inn Express, 48C06-1301-CT-19
Appellees-Defendants.
Brown, Judge.
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[1] Jill Miller appeals the trial court’s entry of summary judgment in favor of
Rosehill Hotels, LLC d/b/a Holiday Inn Express and Intercontinental Hotel
Group d/b/a Holiday Inn Express (together, the “Hotel”) and the denial of her
motion to correct error. Miller raises one issue which we revise and restate as
whether the court erred in entering summary judgment in favor of the Hotel
and abused its discretion in denying her motion to correct error. We reverse
and remand.
Facts and Procedural History
[2] At about 8:00 or 8:30 a.m. on January 19, 2011, Miller exited the Holiday Inn
Express in Anderson, Indiana, where she had stayed the previous night. Miller
observed a “dusting of snow” and walked to her vehicle, which was
approximately thirty feet from the carport. Appellant’s Appendix at 33. By the
time she reached her vehicle, she noticed that the parking lot was a “little slick.”
Id. at 35. She entered her vehicle, listened to a weather report on the radio, and
then cancelled a work appointment scheduled for that day. She then moved her
vehicle as close as she could to the carport or sidewalk near the carport, exited
her vehicle, closed the door, and walked behind another car and approximately
fifteen to seventeen feet to the sidewalk. As she stepped from the parking lot up
onto the sidewalk, Miller slipped and fell.
[3] On January 15, 2013, she filed a complaint against the Hotel alleging in part
that it was guilty of the careless or negligent acts or omissions of failing to
remove ice or snow from the entrance and exit way from the premises, to
provide a safe area for her to walk after she had exited her car and was walking
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to the hotel, to properly remove ice or snow from the designated walkway of
the premises, to warn her of any obstacles present in the path of the entrance
and exit for the premises, and to make a reasonable inspection of the premises
when it knew or should have known that inspection was necessary to prevent
the premises from becoming dangerous. The Hotel filed an answer and asserted
affirmative defenses including that Miller incurred or assumed the risk of the
accident and injuries and that her own negligence caused or contributed to the
alleged accident.
[4] On October 27, 2014, the Hotel filed a motion for summary judgment, a brief in
support of its motion, and supporting evidence. An entry in the chronological
case summary (the “CCS”) dated October 29, 2014, states that Miller had thirty
days after service of the Hotel’s motion for summary judgment to respond in
accordance with Ind. Trial Rule 56 and that, if no timely response was filed, the
Hotel’s motion may be granted without further notice or hearing.
[5] On November 19, 2014, Miller filed a motion for an enlargement of time, and
the court granted her motion and ordered Miller to file her response to the
Hotel’s summary judgment motion on or before January 20, 2015. On
February 10, 2015, Miller filed her own motion for summary judgment arguing
that the Hotel had breached its duty to exercise reasonable care as a matter of
law.
[6] In support of its summary judgment motion, the Hotel designated selected
pages of Miller’s deposition. In her deposition, when asked to describe what
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happened, she testified that she had gathered her things to go to meetings, that
she went outside, that “[t]he ground was snow covered,” and that she walked to
her vehicle. Id. at 31. She testified her vehicle “was parked maybe 30 feet to
the right from the carport, and . . . about one row out.” Id. She testified that
she entered her vehicle and turned on the radio to listen to the weather report
and that the report “was kind of sketchy for the day.” Id. She testified “[s]o
[she] called [her] contact . . . and let him know that [she] was not going to
come, because it was a pretty hefty drive from Anderson to the [] facility that
[she] was going to” and “told him [she] was not going to come in, because the
weather sounded like it was not great and going to get worse that day.” Id. She
also testified that she believed she sent an email message to her boss to tell him
she “was cancelling the conference call because [she] wasn’t willing to die for
him.” Id. Miller further testified that she “moved [her] car as close as [she]
could to the carport, the sidewalk that comes from the carport, and gathered
[her] things,” that she “got [her] coffee and [her] backback,” and that she
“stepped out of the vehicle went to step up on the curb and went down.” Id. at
32.
[7] When asked if she had checked the weather conditions before she departed the
hotel, Miller replied, “I did not. I looked outside,” and when asked what she
saw, she stated “[a] dusting of snow.” Id. at 33. When asked what she meant
by her statement that she cancelled her meeting because she did not want to die,
she answered “I felt like it was probably going to get bad out, and I didn’t – it
was treacherous.” Id. at 34. When asked if it was “going to get bad out” or
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“was it already bad out,” Miller testified “[w]ell, I felt like it was a little slick.”
Id. When asked if she knew when she went to her car that the weather
conditions were bad, she answered: “I knew when I got to my – by the time that
I got to my car, yeah.” Id. She also indicated there was less than an inch of
snow on the ground and did not recall if it was snowing at the time.
[8] When asked her reason for moving her car, Miller testified “[b]ecause as I
walked out of the hotel, I had to walk across the parking lot, and that felt a little
uncomfortable,” and when asked how, she testified “[u]ncomfortable like you
didn’t know what was under your feet, ice. It was a little slick. The sidewalk
had been salted that I walked on. So the reason that I moved my car was to get
closer to the sidewalk beyond the carport so that I could get back. That was my
best route to getting back onto a safe sidewalk.” Id. at 35. When asked “[s]o
when you walked out to the car, you knew that there was snow and ice on the
ground,” Miller said “[b]y the time that I stood on the – as I got closer to my
car, yes, it was obvious.” Id. at 36. Miller was asked “as I understand it, you
moved your car because you knew that the conditions were bad and you
wanted to get closer to the entrance,” and she said “[y]es.” Id.
[9] Miller was then asked to explain her route of travel from her vehicle to where
she fell, and she testified that she exited her car, that “there was a car parked to
the left of me, and then there was a carport, or the sidewalk that goes to the
carport,” and that she “shut the door, walked behind the car, and stepped up
onto the curb on that sidewalk past the carport, and from there I went down. I
stepped up onto the sidewalk.” Id. She testified that she walked from her
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vehicle to the point where she fell “15, 17 feet. Maybe a little bit more.” Id. at
37. She testified that she had a cup of coffee in her hand and a backpack on her
shoulder, and that she had been wearing jeans and steel toe shoes as she often
spends time on the floor of manufacturing and food and beverage facilities.
When asked “[s]o you got out to your car and determined that the conditions
were bad enough that you were going to cancel your calls,” Miller replied
“[c]orrect.” Id. at 38. When asked to describe how she fell, she said: “I stepped
up on the far – you know, if you’re looking at the hotel as far . . . to the right,
and I stepped up with my right foot, one, and as I picked up my left foot to also
move it up, things just went out from under me, and I came down.” Id. Miller
was asked “if I understand your testimony, you were stepping up immediately
prior to your falling or stepping up onto a curb,” and Miller said “[s]tepping
onto the sidewalk. There’s a curb, and then the sidewalk begins.” Id.
[10] In a Decree dated February 12, 2015, the court found that Miller did not file a
response to the Hotel’s summary judgment motion, that there were no genuine
issues of material fact, and that the Hotel was entitled to summary judgment as
a matter of law, and the court entered judgment in favor of the Hotel and
against Miller. Miller filed a motion to correct error, and the court denied the
motion. In its CCS entry dated March 25, 2015, the court noted it denied
Miller’s motion to correct error and stated that her summary judgment motion
was filed two weeks after the response to the Hotel’s summary judgment
motion was due, that accordingly the pleading cannot be considered a timely
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response, and that under the circumstances a final judgment had been entered
and the trial court would take no further action with respect to Miller’s motion.
Discussion
[11] The issue is whether the trial court erred in entering summary judgment in
favor of the Hotel and against Miller or abused its discretion in denying Miller’s
motion to correct error. We generally review rulings on motions to correct
error for an abuse of discretion. Ind. Bureau of Motor Vehicles v. Charles, 919
N.E.2d 114, 116 (Ind. Ct. App. 2009); Speedway SuperAmerica, LLC v. Holmes,
885 N.E.2d 1265, 1270 (Ind. 2008), reh’g denied. An abuse of discretion occurs
if the trial court’s decision is against the logic and effect of the facts and
circumstances before it, or the reasonable inferences drawn therefrom. Lighty v.
Lighty, 879 N.E.2d 637, 640 (Ind. Ct. App. 2008), reh’g denied.
[12] We review an order for summary judgment de novo, applying the same standard
as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). The
moving party bears the initial burden of making a prima facie showing that there
are no genuine issues of material fact and that it is entitled to judgment as a
matter of law. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). Summary
judgment is improper if the moving party fails to carry its burden, but if it
succeeds, then the nonmoving party must come forward with evidence
establishing the existence of a genuine issue of material fact. Id. We construe
all factual inferences in favor of the nonmoving party and resolve all doubts as
to the existence of a material issue against the moving party. Id. In the
summary judgment context, we are not bound by the trial court’s specific
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findings of fact and conclusions of law. Rice v. Strunk, 670 N.E.2d 1280, 1283
(Ind. 1996). They merely aid our review by providing us with a statement of
reasons for the trial court’s actions. Id. Summary judgment is rarely
appropriate in negligence cases because they are particularly fact-sensitive and
are governed by a standard of the objective reasonable person, which is best
applied by a jury after hearing all the evidence. Kramer v. Catholic Charities of
Diocese of Fort Wayne-S. Bend, Inc., 32 N.E.3d 227, 231 (Ind. 2015).
[13] Miller contends the Hotel is not entitled to summary judgment based upon the
affirmative defense of incurred risk. She claims that her testimony established
only that the first sidewalk leading to the parking lot had been salted and that
no evidence was designated to establish that the parking lot or the sidewalk
where she fell had been treated with rock salt or that the Hotel took reasonable
efforts to make the walking areas of the premises safe. She argues that, “[a]fter
walking into the parking lot[, she] noticed the surface of the parking lot was
slick . . . .” Appellant’s Brief at 11. She further contends that, while the Hotel’s
position is that she knew the parking lot was slick, the record establishes that
her fall occurred not in the parking area but on an adjacent sidewalk near the
carport which was not salted, that her knowledge that the parking area was slick
does not establish that she had an appreciation that an adjacent sidewalk was
also slick and unsalted, and that there is no evidence of “venturousness.” Id. at
12. She states that, “[h]aving just walked on a salted sidewalk, her act of
driving to a similar sidewalk which she perceived to be a safe walkway negates
any voluntary acceptance of the risk” and that “[c]learly [she] took appropriate
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action to avoid the risk when she appreciated it.” Id. She also asserts that the
court failed to analyze the motion for summary judgment in accordance with
the Comparative Fault Act.
[14] The Hotel maintains the designated evidence demonstrates that it breached no
duty to Miller and thus that summary judgment in its favor was proper. It
argues that Miller’s deposition testimony “establishes her awareness of the
adverse conditions and her appreciation of the danger those conditions posed”
and that she “was personally aware of the slick, snowy, and icy conditions, so
much so that she canceled planned travel, fearing it posed a mortal danger to
her and moved her car in an attempt to reduce the distance she had to walk to
go back inside the hotel.” Appellee’s Brief at 13-14. The Hotel further argues
the designated evidence does not reveal the condition of the area where Miller
fell and whether it was salted or unsalted. It argues that Miller knew from
looking outside that the area was snow covered, experienced the snowy and icy
conditions first hand once she started walking to her car, yet continued
knowing the conditions were dangerous, and, returning to the hotel and despite
the conditions, carried a coffee and a fifteen-pound backpack.
[15] Miller’s action against the Hotel is a negligence claim. In order to recover on a
negligence theory, a plaintiff must establish: (1) a duty owed by the defendant
to the plaintiff; (2) a breach of that duty; and (3) injury to the plaintiff resulting
from the defendant’s breach. Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2004).
A defendant is entitled to summary judgment by demonstrating that the
undisputed material facts negate at least one element of the plaintiff’s claim.
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Countrymark Coop., Inc. v. Hammes, 892 N.E.2d 683, 688 (Ind. Ct. App. 2008),
trans. denied.
[16] The parties do not dispute that the Hotel owed a duty to Miller as an invitee.
“If a duty of care exists, the determination of whether a breach of duty occurred
is a factual question requiring an evaluation of the landowner’s conduct with
respect to the requisite standard of care.” Countrymark, 892 N.E.2d at 688
(citing Douglass v. Irvin, 549 N.E.2d 368, 370 (Ind. 1990)). As a result, summary
judgment is “rarely appropriate” in negligence cases. Id. (citing Rhodes, 805
N.E.2d at 387). “This is because negligence cases are particularly fact sensitive
and are governed by a standard of the objective reasonable person—one best
applied by a jury after hearing all of the evidence.” Id. (citing Rhodes, 805
N.E.2d at 387).
[17] A property owner must maintain its property in a reasonably safe condition for
business invitees. Id. (citing Douglass, 549 N.E.2d at 369). Indiana has adopted
the formulation of landowners’ liability to business invitees expressed in the
Restatement (Second) of Torts. Id. (citing Douglass, 549 N.E.2d at 370); see
Smith v. Baxter, 796 N.E.2d 242, 244 (Ind. 2003). The Restatement 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 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
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(c) fails to exercise reasonable care to protect them against
the danger.
RESTATEMENT (SECOND) OF TORTS § 343. Under this section, an invitee is
“entitled to expect that the possessor will take reasonable care to ascertain the
actual condition of the premises and, having discovered it, either to make it
reasonably safe by repair or to give warning of the actual condition and the risk
involved therein.” Merrill v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258, 1265
(Ind. Ct. App. 2002) (citing RESTATEMENT (SECOND) OF TORTS § 343, cmt. d),
trans. denied.
[18] In addition, Restatement (Second) of Torts § 343A(1), which addresses known
and obvious dangers and is meant to be read in conjunction with § 343,
provides: “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.” The word “known” denotes not only
knowledge of the existence of the condition or activity itself, but also
appreciation of the danger it involves, and thus the condition or activity must
not only be known to exist, it must also be recognized that it is dangerous, and
the probability and gravity of the threatened harm must be appreciated.
RESTATEMENT (SECOND) OF TORTS § 343A, cmt. b. “Obvious” means that
both the condition and the risk are apparent to and would be recognized by a
reasonable person, in the position of the visitor, exercising ordinary perception,
intelligence, and judgment. Id.
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[19] In Smith v. Baxter, the plaintiff climbed a ladder on a grain bin and fell. 796
N.E.2d at 245-246. The plaintiff and one of the defendants had commented
earlier in the day that the ladder was damp with dew. Id. at 246. The trial
court denied the defendants’ motion for judgment on the evidence. Id. at 243.
The Indiana Supreme Court discussed Restatement (Second) of Torts §§ 343
and 343A and stated that consideration of the parties’ knowledge of a risk could
be appropriate for the determination of both breach of duty and the defense of
incurred risk. See id. at 243-244. Quoting its previous opinion in Douglass v.
Irvin, the Court stated:
For purposes of analysis of breach of duty, 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. Thus, factual
circumstances may exist in which a court may find that a landowner’s
failure to take precautions or to warn may constitute a breach of duty
because it was reasonably foreseeable that the invitee could suffer harm
despite knowledge or obviousness of the risk, and at the same time find
that an invitee had actual knowledge and appreciation of the specific risks
involved and voluntarily accepted that risk, thus establishing the defense
of incurred risk.
Smith, 796 N.E.2d at 244 (quoting Douglass, 549 N.E.2d at 370). The Court
acknowledged that Douglass had been decided before the adoption of the
Indiana Comparative Fault Act and observed that, under the Comparative
Fault Act, while a plaintiff’s conduct constituting incurred risk may not support
finding a lack of duty, such conduct is not precluded from consideration in
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determining breach of duty. Id. at 244-245. The Court thus concluded that the
analysis in Douglass has not been altered by the Comparative Fault Act and 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.” Id. at 245.
[20] Turning to the defendants’ motion for judgment on the evidence, the Court
noted that the evidence showed the defendants were aware of risks presented by
the ladder and that it was also reasonable to infer that the defendants were
aware that the plaintiff would climb the ladder despite its obvious hazards. Id.
at 246. The Court concluded that substantial evidence existed that the
defendants knew or should have known that climbing the ladder involved an
unreasonable risk of harm and further, that “[i]t is a much closer question as to
whether there was substantial evidence that (1) the defendants should have
expected that the plaintiff would not discover or realize the danger, or fail to
protect himself against it, and (2) the defendants should have anticipated the
harm despite the plaintiff’s knowledge or the obvious nature of the risk,” that it
must look only to the evidence and the reasonable inferences most favorable to
the plaintiff as a nonmoving party, and that “[t]he interpretation of the
evidence, with the necessary assessments of weight and credibility, was properly
left to the sound judgment of the jury.” Id.
[21] In Countrymark, the plaintiff was on the defendants’ property to pick up
gasoline. 892 N.E.2d at 686. The meter on the gas racks malfunctioned, and
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the plaintiff could not complete the loading of his fuel. Id. The plaintiff walked
to a maintenance building and, as he approached the building, noticed ice on
the pavement in front of both doors. Id. He attempted to walk across the ice
but fell. Id. The plaintiff sued the defendants for his personal injuries, and the
trial court denied the defendants’ motion for summary judgment. Id. at 687.
[22] On appeal, we set forth the relevant standards under the Restatement (Second)
of Torts §§ 343 and 343A(1) and Smith as discussed above. Id. at 688-690. We
then concluded that the appropriate standard under Restatement (Second) of
Torts § 343 was (a) whether Countrymark 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; (b) whether
Countrymark should have expected that an invitee would fail to protect himself
from the danger; and (c) whether Countrymark failed to exercise reasonable
care to protect the invitee. Id. at 691. We also noted that the plaintiff had
“admitted that he was aware of the ice and recognized the danger” and thus
that, “in addition to the aforementioned elements under section 343, under
section 343A of the Restatement (Second) of Torts, Countrymark is not liable
unless they should have anticipated the harm despite an invitee’s knowledge of
the danger or the obviousness of the danger.” Id.
[23] We noted that we resolve all inferences in favor of the nonmoving party in
considering a motion for summary judgment, that the plaintiff had a duty under
Countrymark’s rules to report malfunctions to a Countrymark employee, and
that while searching for a Countrymark employee the plaintiff fell on ice in
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front of the maintenance building. Id. We concluded that, under the
circumstances, genuine issues of material fact existed as to whether
Countrymark, 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 the plaintiff, whether Countrymark should have expected that
the plaintiff would fail to protect himself from the danger, and whether it failed
to exercise reasonable care to protect the plaintiff. Id. We further specifically
held that “genuine issues exist[ed] as to whether Countrymark should have
anticipated the harm despite [the plaintiff’s] knowledge of the danger or the
obviousness of the danger.” Id. at 691-692. We thus held that summary
judgment was not proper. Id. at 692.
[24] In this case, the parties do not dispute that the Hotel had a continuing duty to
maintain its property in a reasonably safe condition for invitees and to deal with
ice and snow on its property for the safety of its customers. We thus turn to
whether the designated evidence establishes that the Hotel did not breach its
duty as a matter of law. The appropriate standard under Restatement (Second)
of Torts § 343 is: (a) whether the Hotel 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; (b) whether the Hotel
should have expected that an invitee would fail to protect herself from the
danger; and (c) whether the Hotel failed to exercise reasonable care to protect
the invitee. See Countrymark, 892 N.E.2d at 691. Further, to the extent Miller
had actual knowledge of and appreciated the risk of a dangerous condition,
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under Restatement (Second) of Torts § 343A, the Hotel is not liable unless it
should have anticipated the harm despite Miller’s knowledge of the danger or
the obviousness of the danger. See id.
[25] The designated evidence reveals that Miller looked outside before she departed
the hotel building and saw a dusting of snow. When asked if she knew when
she went to her car that the weather conditions were bad, Miller answered: “I
knew when I got to my – by the time that I got to my car, yeah.” Appellant’s
Appendix at 34 (emphasis added). When asked why she moved her vehicle,
she stated: “Because as I walked out of the hotel, I had to walk across the
parking lot, and that felt a little uncomfortable.” Id. at 35. After cancelling her
meeting, Miller moved her vehicle as close as she could to the carport or
sidewalk. When asked “[s]o when you walked out to the car, you knew that
there was snow and ice on the ground,” Miller replied: “By the time that I stood
on the – as I got closer to my car, yes, it was obvious.” Id. at 36 (emphases
added). Also, when asked “[s]o you got out to your car and determined that the
conditions were bad enough that you were going to cancel your calls,” she
replied “[c]orrect.” Id. at 38 (emphasis added).
[26] As to whether Miller voluntarily accepted a known and obvious risk of danger
as a matter of law, we conclude that a reasonable inference from Miller’s
deposition testimony is that she was not aware of the relative slickness of the
parking lot and walkways on the Hotel’s property until after she had walked on
the parking lot either part or all of the way to her vehicle. To satisfy its burden
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of making a prima facie showing that it was entitled to summary judgment, the
Hotel was required to designate evidence showing that Miller had actual
knowledge and appreciation of the specific risks involved and voluntarily
accepted those risks. See Smith, 796 N.E.2d at 244. An invitee’s mental state of
knowledge, appreciation, and voluntary acceptance of the risk demands a
subjective analysis of actual knowledge. See id. A reasonable jury could
conclude that, by the time Miller had actual knowledge and appreciation of the
risk or extent of the slick conditions on the Hotel’s property, there was no
reasonable opportunity for her to avoid or escape the risk or the conditions
under the circumstances. Also, Miller testified that the portion of the sidewalk
on which she had previously walked had been salted, that she moved her
vehicle as close as she could to the carport or the sidewalk near the carport, and
that the reason she moved her vehicle “was to get closer to the sidewalk beyond
the carport so that I could get back” and “[t]hat was my best route to getting
back onto a safe sidewalk.” Appellant’s Appendix at 35. The Hotel
acknowledges that the designated evidence does not establish that the area of
the sidewalk on which Miller’s foot slipped had been salted or treated. See
Appellee’s Brief at 15 (stating “an examination of the designated deposition
testimony includes no testimony as to the condition of the area in which Miller
fell, i.e., whether it was salted or unsalted”). Under the circumstances,
including that Miller was attempting to return to the sidewalk area she believed
had been salted or treated and moved her vehicle as close to the carport or
sidewalk as possible once she had actual knowledge of the slick condition of the
parking lot, a reasonable jury could determine that Miller did not have an
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appreciation of the specific risk of the slick sidewalk, did not have a reasonable
opportunity to avoid the conditions under the circumstances, and did not
voluntarily accept the risk of any dangerous condition once she had actual
knowledge of it. See Get-N-Go, Inc. v. Markins, 544 N.E.2d 484, 485-488 (Ind.
1989) (noting that the plaintiff walked onto Get-N-Go’s icy parking lot and fell
and that she was generally aware of the icy conditions outside but was already
on the parking lot when she realized the extent of the danger, and holding that
“even when a danger is known and appreciated, continued exposure to it does
not amount to incurring its risk where there is no reasonable opportunity to
escape from it” or where “the exposure is the result of influence, circumstances
or surroundings which are a real inducement to continue despite the danger” 1
(citing Hollowell v. Midwest Smorgasbord, Inc., 486 N.E.2d 16, 17-18 (Ind. Ct.
App. 1985) (holding, based upon the designated facts that the plaintiff realized
the floor was wet after he had started to walk over it, that a jury could
reasonably infer that the plaintiff found himself in a position of peril whether he
continued or retreated and that, by walking close to the wall in an effort to
avoid the water, he had exercised reasonable care that an ordinary person
would exercise in similar circumstances, and reversing the trial court’s grant of
summary judgment), reh’g denied, trans. denied)), on reh’g, 550 N.E.2d 748 (Ind.
1
Although Get-N-Go, like Douglass, was decided prior to the adoption of the Comparative Fault Act, as noted
above the Indiana Supreme Court held in Smith that a plaintiff’s conduct constituting incurred risk may still
be considered with respect to whether there was a breach of duty. See Smith, 796 N.E.2d at 245 (“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 (Second) of Torts.”).
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1990); see also Handy v. P.C. Bldg. Materials, Inc., 22 N.E.3d 603, 611 (Ind. Ct.
App. 2014) (holding in part that reasonable people could differ as to whether
certain countertops leaning against a wall represented an obvious danger to the
plaintiff), trans. denied. As a result, based on the designated evidence, we cannot
say that Miller voluntarily accepted the risk of a known and obvious danger as a
matter of law.
[27] In addition, under these circumstances a trier of fact could reasonably
determine that the Hotel should have anticipated that Miller would attempt to
walk from her vehicle back to the carport or sidewalk despite the obviousness of
the risk or danger. See Countrymark, 892 N.E.2d at 686-692 (observing that the
plaintiff noticed ice on the pavement in front of both doors and nevertheless
attempted to walk across the ice and holding that genuine issues of fact existed
as to whether Countrymark should have anticipated the harm despite the
plaintiff’s knowledge or the obviousness of the danger); see also Smith, 796
N.E.2d at 246 (concluding it was a close question as to whether the defendants
“should have anticipated the harm despite the plaintiff’s knowledge or the
obvious nature of the risk”). Based on the designated evidence, genuine issues
of material fact exist as to whether the Hotel should have anticipated that its
customers would attempt to walk from their vehicles to the carport or sidewalk
despite their knowledge or the obviousness of the risk.
[28] Further, the Hotel did not designate evidence that it did not know of, or by the
exercise of reasonable care would not have discovered, the conditions of the
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parking lot or walkways on its property, that it did not expect its invitees to
walk from their vehicles to the carport or sidewalk, that the condition of the
portion of the sidewalk upon which Miller’s foot slipped was not unreasonably
unsafe or that it had treated that area, or that it had taken steps constituting
reasonable care to protect its invitees under the circumstances. See Christmas v.
Kindred Nursing Centers Ltd. P’ship, 952 N.E.2d 872, 881-882 (Ind. Ct. App.
2011) (noting that the defendant had argued that the danger of slipping on ice
was known or obvious to the plaintiff, holding in part a trier of fact could infer
from the designated evidence that the defendant should have expected that the
plaintiff would not realize the unreasonable risk of harm of ice hidden by water
and snow, concluding there was a genuine issue of material fact pertaining to
whether the defendant breached its duty of care, and reversing the trial court’s
entry of summary judgment).
[29] Construing all factual inferences in favor of Miller as the nonmoving party, we
conclude that the Hotel failed to carry its burden of establishing that Miller
voluntarily accepted a known and obvious risk as a matter of law or that it did
not breach its duty to maintain its property in a reasonably safe condition for its
invitees as a matter of law. Accordingly, the entry of summary judgment in
favor of the Hotel was improper. See Countrymark, 892 N.E.2d at 691-692.
Conclusion
[30] For the foregoing reasons, we reverse the entry of summary judgment in favor
of the Hotel and against Miller and remand for further proceedings.
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[31] Reversed and remanded.
Riley, J., and Altice, J., concur.
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