MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 26 2018, 8:35 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott A. Faultless Tammy J. Meyer
Craig Kelley & Faultless, LLC Ary Avnet
Indianapolis, Indiana Metzger Rosta, LLP
Noblesville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Diana Gilkey, June 26, 2018
Appellant-Plaintiff, Court of Appeals Case No.
40A01-1712-CT-2823
v. Appeal from the Jennings Superior
Court
Mac’s Convenience Stores, LLC, The Honorable Gary L. Smith,
d/b/a Circle K, Judge
Appellee-Defendant Trial Court Cause No.
40D01-1604-CT-6
Crone, Judge.
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Case Summary
[1] Diana Gilkey fell and was injured shortly after exiting a convenience store
owned by Mac’s Convenience Stores, LLC, d/b/a Circle K (“Circle K”). She
filed a negligence action against Circle K, claiming that she fell because of
Circle K’s failure to properly maintain its sidewalk in a reasonably safe
condition. The trial court granted Circle K’s motion for summary judgment,
and Gilkey now appeals, claiming that genuine issues of material fact preclude
summary judgment. We affirm.
Fact and Procedural History
[2] One afternoon, Gilkey entered Circle K to prepay for gasoline and purchase soft
drinks. Minutes later, she exited the store carrying three large soft drinks. After
she went through the door, she walked a few feet to her left on the front
sidewalk, preparing to return to the pump where she had parked her vehicle,
and then stepped out toward the parking lot. When she saw a truck
approaching the curb, she stepped backward and fell and injured her left arm
and shoulder.
[3] Gilkey filed a negligence action against Circle K, asserting that a portion of the
concrete was chipped and cracked, and that she suffered injuries as a proximate
result of Circle K’s alleged failure to maintain the concrete surface in a
reasonably safe condition or its failure to warn her of its allegedly defective
condition. Circle K filed a motion for summary judgment, accompanied by a
memorandum and designated evidence, which included Gilkey’s deposition
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and responses to interrogatories, a security camera videotape, and an
eyewitness’s affidavit. Gilkey filed a motion in opposition to summary
judgment, accompanied by a memorandum and designated materials, i.e., the
complaint, excerpts from her deposition, and photographs of the front of the
convenience store. Circle K filed a reply to Gilkey’s motion in opposition.
After a hearing on Circle K’s motion, the trial court issued an order granting
summary judgment in favor of Circle K. Gilkey now appeals. Additional facts
will be provided as necessary.
Discussion and Decision
[4] Gilkey contends that the trial court erred in granting summary judgment in
favor of Circle K. We review a summary judgment de novo, applying the same
standard as the trial court and drawing all reasonable inferences in favor of the
nonmoving party. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). In
conducting our review, we consider only those matters that were designated at
the summary judgment stage. Haegert v. McMullan, 953 N.E.2d 1223, 1229
(Ind. Ct. App. 2011). Summary judgment is appropriate if the designated
evidence shows that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law. Hughley, 15 N.E.3d
at 1003; Ind. Trial Rule 56(C).
[5] The moving party bears the initial burden of demonstrating the “absence of any
genuine issue of fact as to a determinative issue.” Williams v. Tharp, 914 N.E.2d
756, 761 (Ind. 2009). Then the burden shifts to the nonmoving party to “come
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forward with contrary evidence” showing a genuine issue for the trier of fact.
Id. at 762. The nonmoving party cannot rest upon the allegations or denials in
the pleadings. Syfu v. Quinn, 826 N.E.2d 699, 703 (Ind. Ct. App. 2005). In
Hughley, our supreme court emphasized that the moving party bears an onerous
burden of affirmatively negating an opponent’s claim. 15 N.E.3d at 1003. This
approach is based on the policy of preserving a party’s day in court, thus erring
on the side of allowing marginal cases to proceed to trial on the merits rather
than risking the short-circuiting of meritorious claims. Id. at 1003-04.
[6] In determining whether issues of material fact exist, we neither reweigh
evidence nor judge witness credibility. Peterson v. Ponda, 893 N.E.2d 1100, 1104
(Ind. Ct. App. 2008), trans. denied (2009). Rather, we must accept as true those
facts established by the designated evidence favoring the nonmoving party. Brill
v. Regent Commc’ns, Inc., 12 N.E.3d 299, 309-10 (Ind. Ct. App. 2014), trans.
denied. A trial court’s grant of summary judgment arrives on appeal clothed
with a presumption of validity. Williams, 914 N.E.2d at 762. We may affirm a
grant of summary judgment on any legal basis supported by the designated
evidence. Harness v. Schmitt, 924 N.E.2d 162, 165 (Ind. Ct. App. 2010).
[7] Gilkey’s underlying action is one for negligence. To recover on a theory of
negligence, a plaintiff must establish three elements:
(1) a duty on the part of the defendant to conform his conduct to
a standard of care arising from his relationship with the plaintiff,
(2) a failure of the defendant to conform his conduct to the
requisite standard of care required by the relationship, and (3) an
injury to the plaintiff proximately caused by the breach.
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Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991).
[8] Gilkey bases her negligence action on premises liability, maintaining that Circle
K breached its duty of reasonable care for her safety as an invitee on the
property and thereby proximately caused her injuries. See Burrell v. Meads, 569
N.E.2d 637, 639 (Ind. 1991) (landowner owes invitee a duty to exercise
reasonable care for her safety while she is on landowner’s premises, which
includes maintaining and inspecting property and warning invitee of
unreasonable risk of harm). Where such actions involve the grant or denial of
summary judgment, “[n]egligence will not be inferred; rather, specific factual
evidence, or reasonable inferences that might be drawn therefrom, on each
element must be designated to the trial court.” Hayden v. Paragon Steakhouse,
731 N.E.2d 456, 458 (Ind. Ct. App. 2000). “[A]n inference is not reasonable
when it rests on no more than speculation or conjecture.” Id. “The mere
allegation of a fall is insufficient to establish negligence, and negligence cannot
be inferred from the mere fact of a fall.” Taylor v. Cmty. Hosps., Inc., 949 N.E.2d
361, 364 (Ind. Ct. App. 2011) (quoting Hall v. Eastland Mall, 769 N.E.2d 198,
206 (Ind. Ct. App. 2002)).
[9] In Taylor, a woman slipped and fell by a hospital elevator while carrying food
from the hospital’s cafeteria to her husband’s room. 949 N.E.2d at 362. There
were no eyewitnesses to her fall. Id. In her complaint for negligence, she
alleged that she had slipped on a wet floor, but she admitted in her deposition
that she did not know for a fact that there was something on the floor that had
caused her to slip and that she had not seen anything on the floor. Id. at 363.
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Another panel of this Court affirmed summary judgment in favor of the
hospital, concluding that Taylor’s negligence claim was based on speculation
and conjecture and emphasizing, “She infers that something was on the
Hospital’s floor because she fell. She, however, admits that she neither saw nor
felt anything on the floor prior to or in the moments after her fall.” Id. at 366.
[10] Similarly, in Hayden, a patron fell shortly after he exited a restaurant to retrieve
his vehicle. 731 N.E.2d at 457. Again, there were no eyewitnesses to the fall.
Id. at 458. In his complaint for negligence, Hayden claimed that he had slipped
and fallen on snow and ice that the restaurant had failed to clear or salt. Id. at
457. Yet, in his deposition, he testified that he did not see any snow on the
pavement where he fell and did not know whether there was ice in the area. Id.
at 458. He also testified that he did not recall the pavement being slippery
before he fell and did not know for sure what caused him to fall but simply
believed and suspected that he had slipped on something. Id. Finding that
Hayden had relied on speculation and conjecture as to the proximate cause of
his injuries instead of coming forward with specific facts demonstrating the
existence of a negligent condition that caused his fall, the Hayden court affirmed
summary judgment in favor of the restaurant. Id. at 458-59.
[11] Here, Gilkey fell shortly after exiting Circle K, a place that she patronized “all
the time.” Ex. 1 at 16 (Plaintiff’s Deposition at 59). When asked if she had
ever noticed the imperfection in the pavement when going in and out of the
store, she replied in the negative, stating, “I don’t look down when I’m
walking.” Id. (Plaintiff’s Dep. at 60-61). She was wearing flip flops and
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carrying three large soft drinks when she fell. The photographic and video
exhibits show the cracked and chipped pavement to be directly in front of the
double doors at the entrance to Circle K. Exs. 3, 17, 18, and 19. The video
footage from immediately before her fall shows Gilkey exiting through the
double doors and walking to her left out of the view of the camera, which
showed the cracked and chipped portion of the pavement directly outside the
double doors. We agree with the trial court’s observation concerning the video:
Exhibit 3 is a security video that captures the Plaintiff as she
leaves the building and turns to her left. The video does not
show her fall, but clearly shows that she is well to the left of the
“cracked and chipped” concrete by several feet and has not
fallen. The video does not show Plaintiff fall, stumble, stagger or
in any way have difficulty walking in the area of the concrete that
Plaintiff claims caused her fall.
Appellant’s App. Vol. 2 at 10-11.
[12] Moreover, unlike in Taylor and Hayden, where the falls were unwitnessed, an
eyewitness observed Gilkey’s fall. Circle K designated eyewitness Jeffrey
Downs’s affidavit, in which he averred, in pertinent part,
2. On November 13, 2015, I drove my vehicle to the Circle K
Store …. On this occasion, I drove into the parking lot located in
front of the store during the early afternoon although I am not
exactly certain of the time that I arrived there. I intended to park
my vehicle and to enter the store. I saw a woman walking out of
the front door to the store. I stopped my vehicle in the parking
lot because the woman was walking near the area where I
intended to park. She looked to be about in her forties or early
fifties. She was to the right of the front door of the store from
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where I was outside the store. She was walking into the parking
lot and because I was not sure what she was going to do, I
motioned for her to go on but she motioned back to me to drive
by. I started to move my automobile. I could see that she was
moving backward and she was away from the door and not near
the front entrance to the store but was more to the side. I then
noticed that she fell to the ground and I saw her fall but I do not
know why she fell. Based on what I witnessed and where she
was on the ground, it was evident that she could not have fallen
on the cracked pavement that was located in the area just outside
the front door of the store.
3. After I saw the lady on the ground, I then got out of my
vehicle and went over to where she was lying to see if I could
assist her. She was a fairly large woman and I have a back
condition and I could not help her. She was on the ground not
near the cracked pavement in front of the store, but rather in an
area to the side of the entrance to the store. She had not fallen
near the cracked pavement in front of the store but rather in an
area to the side of the entrance and she was lying on the
pavement.
Ex. 2.
[13] Gilkey’s deposition, designated in its entirety by Circle K and in part by Gilkey,
includes statements such as, “It’s all fuzzy” and “all a blur to me.” and Ex. 1 at
17-18, 20 (Plaintiff’s Dep. at 63, 76). When asked if she remembered what
happened when she fell, and “What caused you to fall?” she responded, “I
don’t remember anything after [the fall]. I don’t even remember falling. I
remember stepping out and then stepping back, because there was a truck, and
that’s all I can remember.” Id. at 18 (Plaintiff’s Dep. at 66-67). When she was
shown Exhibit 17, a photograph depicting the imperfections or rough space
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being in the middle of the doorway, she stated, “I fell more to the left over here.
I didn’t fall right here …. Q. So you didn’t fall in the middle of the doorway
area? A. No. Right here.” Id. at 17 (Plaintiff’s Dep. at 65.) “Q. But you
don’t remember at any point in time where you were on the ground, where you
were situated?” A. Right.” Id. at 20 (Plaintiff’s Dep. at 77). The video footage
shows conclusively that Gilkey walked to her left as the door closed and that
she walked out of the picture and did not fall in the cracked and chipped area.
This evidence is corroborated by Downs’s eyewitness affidavit and Gilkey’s
deposition. We therefore find Circle K’s designated materials sufficient to
affirmatively negate the causation element of Gilkey’s negligence claim.
[14] With Circle K having made a prima facie showing negating Gilkey’s claim, it
was then incumbent on Gilkey to come forward with facts to controvert Circle
K’s designated materials. She designated certain portions of her deposition, but
not once in the deposition did Gilkey state that she fell because of the cracked
and chipped pavement. Nor did she submit an affidavit to that effect, as was
the case in Hughley. See 15 N.E.3d at 1004 (where plaintiff “designated an
affidavit – albeit a perfunctory and self-serving one – that specifically
controverted the [appellee’s] prima facie case.”). The deposition excerpt
designated by Gilkey includes the following exchange concerning her location
on the sidewalk when she fell (as depicted in Exhibit 18): “What do you think
happened that made you fall? A. I believe I stepped right there [using
photograph] and fell. When I went to step off, I believe there was a truck
coming, and I stepped here, and then I stepped back and stepped right there on
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that, and that’s when I fell.” Ex. 1 at 17 (Plaintiff’s Dep. at 66) (emphases
added). Her testimony and labels marking her location at the time she fell were
not unequivocal but instead appeared to be best guesses. See Ex. 18
(photograph of sidewalk area outside Circle K).
[15] In sum, the designated evidence established that Gilkey fell but that she does
not know why, where, or how. Thus, Gilkey’s negligence claim is based on
mere speculation and conjecture, and “negligence cannot be inferred from the
mere fact of a fall.” Taylor, 949 N.E.2d at 364. We find no error in the trial
court’s grant of summary judgment in favor of Circle K. Accordingly, we
affirm.
[16] Affirmed.
Bailey, J., and Brown, J., concur.
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