MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Oct 24 2018, 7:14 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Steven W. Etzler Renee J. Mortimer
Malloy Etzler & Lawhead, PC Scott B. Cockrum
Highland, Indiana Schererville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Scott Ehrlich, October 24, 2018
Appellant-Plaintiff, Court of Appeals Case No.
18A-CT-989
v. Appeal from the Lake Superior
Court
FME, Inc., The Honorable John M. Sedia,
Appellee-Defendant. Judge
Trial Court Cause No.
45D01-1403-CT-73
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-989 | October 24, 2018 Page 1 of 9
STATEMENT OF THE CASE
[1] Appellant-Plaintiff, Scott Ehrlich (Ehrlich), appeals the trial court’s summary
judgment in favor of Appellee-Defendant, FME, Inc. (FME), on Ehrlich’s slip-
and-fall claim.
[2] We affirm.
ISSUE
[3] Ehrlich presents us with two issues on appeal, which we consolidate and restate
as the following single issue: Whether the trial court erred when it concluded
that there was no genuine issue of material fact that FME was negligent in the
performance of its duty.
FACTS AND PROCEDURAL HISTORY
[4] On September 27, 2012, Ehrlich was an employee of Akal Security and was
working at the United States Courthouse in Hammond, Indiana. At
approximately 11:55 a.m., Ehrlich went to the third-floor men’s restroom.
While approaching the sink area, Ehrlich fell down onto the floor, sustaining
injuries to his neck, back, and shoulder. Ehrlich had not noticed “any
substance under [his] feet” and had no personal knowledge of water on the
restroom floor. (Appellant’s App. Vol. II, p. 214).
[5] David Dabertin (Dabertin), a local attorney, was present in the restroom at the
time of Ehrlich’s fall. Dabertin noticed that Ehrlich was laying about three to
four feet from the sink. Checking the floor, he did not see “anything” on the
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floor, “no water,” and “no substance of any kind.” (Appellee’s App. Vol. II, p.
58). Dabertin confirmed that he did not “see anything on the floor, no grease,
nothing . . . . There was nothing there.” (Appellee’s App. Vol. II, pp. 59-60).
After making sure Ehrlich was fine, Dabertin informed the courthouse
marshals.
[6] Greg Mucha (Mucha), a security officer with DECO Security, the company
responsible for patrolling the courthouse, arrived in the restroom after being
alerted of the incident. Although Mucha was not in the restroom at the time of
the fall, he completed the incident report noting that “[i]t appeared that
[Ehrlich] slipped and fell in a puddle of water on the floor in the men’s
washroom on the 3rd floor, north side of the building.” (Appellee’s App. Vol.
II, p. 77). In his deposition, Mucha stated that he “believe[d]” the floor “was
damp” and it was “[p]robably a wet floor.” (Appellant’s App. Vol. III, p. 34).
Pete Nelson (Nelson), a colleague of Ehrlich, also arrived on the scene and
noted “a black mark on the floor in the relative area of his feet.” (Appellee’s
App. Vol. II, p. 99). He cautioned that he was unaware whether “that came
from [Ehrlich] or somebody else. That does happen in this building; people
shuffle their feet and certain types of soles will leave a black mark.” (Appellee’s
App. Vol. II, p. 99). However, Mucha testified in his deposition that Nelson
“did say there was a puddle of water on the floor.” (Appellant’s App. Vol. III,
p. 35).
[7] At the time of the incident, FME was retained by the General Services
Administration (GSA), the division of the United States Government that runs
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its buildings, to perform certain cleaning and janitorial services, including the
cleaning of the third-floor men’s restroom. The contract between the parties
required the implementation of a quality control plan and also required FME to
perform frequent checks of the courthouse and identify any hazardous
conditions that could develop. At the time of the incident, the contract’s daily
cleaning schedule reflected that an FME employee had cleaned the restroom
between 8:15 and 9:00 a.m. No evidence was designated that the restroom was
checked by FME later that morning.
[8] On March 24, 2014, Ehrlich filed his Complaint against FME, sounding in
negligence for failing to properly maintain the premises and based on a third-
party beneficiary theory that FME failed to perform the janitorial services
pursuant to its contract with GSA. On January 10, 2018, FME filed its motion
for summary judgment, memorandum of law, and designation of evidence. On
February 23, 2018, Ehrlich responded to FME’s summary judgment motion
with a memorandum of law and designation of evidence. On April 4, 2018,
after a hearing, the trial court issued its Order, granting summary judgment to
FME, concluding in pertinent part:
Here, although Ehrlich satisfies the initial foreseeability analysis
[of premises liability], Attorney Dabertin’s testimony establishes
a prima facie showing that FME has met the Burrell [] analysis. In
response, Ehrlich has designated a report showing the presence of
water in the restroom and testimony that the usual practice under
the GSA contract was for FME not only to clean the restroom
once daily, but also to clean and/or inspect it twice a day.
However, in reviewing Ehrlich’s designated evidence, and
drawing all reasonable inferences in his favor, the [c]ourt cannot
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say that there is any genuine issue of material fact to present to a
finder of fact: the report was hearsay based upon hearsay, and
when its author, [Mucha], and the witness referred to in the
report, [Nelson], were deposed, neither could recall seeing any
water on the restroom floor where Ehrlich fell. Ehrlich himself
testified in his deposition that he did not see water on the floor
before or after he fell.
Even if the [c]ourt were to forego the Burrell [] analysis in the
context of Ehrlich’s third-party beneficiary claim, the
uncontroverted testimony of Dabertin, Mucha and Nelson
demonstrates that there is no material issue of fact that no water
nor any other substance was on the floor of the third-floor men’s
restroom of the courthouse where Ehrlich fell. This would
obviate any requirement in FME’s contract that FME identify a
hazardous condition where none existed.
(Appellant’s App. Vol. II, p. 14).
[9] Ehrlich now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
I. Standard of Review
[10] 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-
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moving party. Id. at 608. A fact is ‘material’ for summary judgment purposes if
it helps to prove or disprove an essential element of the plaintiff’s cause of
action; a factual issue is ‘genuine’ if the trier of fact is required to resolve an
opposing party’s different version of the underlying facts. Ind. Farmers Mut. Ins.
Group v. Blaskie, 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant
of summary judgment has the burden of persuading this court that the trial
court’s ruling was improper. First Farmers Bank & Trust Co., 891 N.E.2d at 607.
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
plaintiff’s 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.
[11] We observe that, in the present case, the trial court entered 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.
AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct.
App. 2004). However, such findings offer this court valuable insight into the
trial court’s rationale for its review and facilitate appellate review. Id.
II. Analysis
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[12] Denying that he had sued FME on a premises liability theory, Ehrlich contends
that the trial court erred when it found that no genuine issue of material fact
existed with respect to Ehrlich’s third-party beneficiary contract claim.
[13] Third-party beneficiaries may directly enforce a contract. St. Paul Fire & Marine
Ins. Co. v. Pearson Const. Co., 547 N.E.2d 853, 856 (Ind. Ct. App. 1989). A third-
party beneficiary contract exists when (1) the parties intend to benefit a third
party; (2) the contract imposes a duty on one of the parties in favor of the third
party; and (3) the performance of the terms of the contract render a direct
benefit to the third party intended by the parties to the contract. Id. A party
may also use such status as the basis of the duty in a negligence context. Id. at
857. In a contract for work, there is an implied duty to do the work skillfully,
carefully, and in a workmanlike manner. Id. Negligent failure to do so is a tort,
as well as a breach of contract. Id.
[14] Defining himself as the third-party beneficiary under the contract, Ehrlich
maintains that FME failed to identify the hazardous conditions that caused his
fall in the restroom, pursuant to the terms of the contract. Without concluding
whether Ehrlich can be characterized as a third-party beneficiary under the
contract, we find that Ehrlich’s claim fails.
[15] Absent factual evidence, negligence cannot be supported by an inferred chain of
events and inferential speculation alone cannot establish negligence. Wright
Corp. v. Quack, 526 N.E.2d 216, 218 (Ind. Ct. App. 1988), trans. denied. In
Hayden v. Paragon Steakhouse, 731 N.E.2d 456, 457 (Ind. Ct. App. 2000),
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Hayden slipped and fell shortly after he exited the restaurant to retrieve his car.
There were no witnesses to his fall. Id. at 458. Although he alleged in his
complaint that he slipped and fell on snow and ice on Paragon’s property, he
testified in his deposition that he did not see any snow on the pavement where
he fell. Id. He noted that it was his “belief” that he slipped on ice and that he
“suspects” he slipped on “something.” Id. Because Hayden was required to
come forward with specific facts that demonstrate the existence of a negligent
condition that caused his fall and he cannot rely on speculation and conjecture,
we granted summary judgment to Paragon as a matter of law. Id. at 458-59.
[16] Likewise, here, there is no designated evidence that establishes water was
actually on the floor in the men’s restroom. Ehrlich testified that he did not
know what had caused his fall in the restroom as he did not notice any
substance under his feet or personally noticed any water on the floor. The only
other witness present in the restroom, Dabertin, testified that he checked the
floor and did not see anything—“no water” and “no substance of any kind.”
(Appellee’s App. Vol. II, p. 58). Dabertin concluded that “[t]here was nothing
there.” (Appellee’s App. Vol. II p. 60). Nelson, Ehrlich’s colleague who
arrived after the incident, only referred to “a black mark on the floor in the
relative area of [Ehrlich’s] feet,” but he was unaware whether the mark “came
from [Ehrlich] or somebody else.” (Appellee’s App. Vol. II, p. 99). Mucha,
who was not in the restroom and did not personally witness the fall, learned of
the incident from other employees who did not witness the fall either, and
described the incident as appearing that Ehrlich slipped and fell in a puddle of
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water in the men’s restroom. However, Mucha’s conclusion is “sheer
speculation.” Wright Corp., 526 N.E.2d at 218 (With no witness present and the
victim unable to establish the cause of her fall, we determined that the post-
incident report offered unsubstantiated speculation as to the cause of the fall.)
Ehrlich’s reliance on Mucha’s determination that he “believed[d]” the floor was
“[p]robably” wet is an attempt to impose negligence on FME by mere guess
and conjecture. (Appellant’s App. Vol. III, p. 34). As it cannot be established
that water was present on the floor in the men’s restroom, we cannot say that
FME might have been negligent under the terms of its contract. “Falling and
injuring one’s self proves nothing. Such happenings are commonplace
wherever humans go.” Ogden Estate v. Decatur Co. Hospital, 509 N.E.2d 901, 903
(Ind. Ct. App. 1987), reh’g denied, trans. denied. While we are sympathetic to
Ehrlich’s plight, considering the designated evidence, we cannot find that there
is a genuine material issue of fact that FME was negligent in the performance of
its contract.
CONCLUSION
[17] Based on the foregoing, we conclude that there is no genuine issue of material
fact that FME was negligent in the performance of its duty.
[18] Affirmed.
[19] Vaidik, C. J. and Kirsch, J. concur
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