MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 15 2018, 9:12 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANTS
Dennis F. Cantrell
Ian P. Goodman
Cantrell Strenski & Mehringer, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Alfred Stanley, et al., November 15, 2018
Appellants-Defendants, Court of Appeals Case No.
18A-CT-1354
v. Appeal from the Vigo Superior
Court
Dorothy Deverick, The Honorable Michael J. Lewis,
Appellee-Plaintiff. Judge
Trial Court Cause No.
84D06-1611-CT-7760
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-1354 | November 15, 2018 Page 1 of 9
Case Summary
[1] Dorothy Deverick (“Deverick”) filed a lawsuit against Alfred and Gertrude
Stanley (the “Stanleys”), claiming that she was injured after tripping on a
damaged public sidewalk that abuts the Stanleys’ property. The Stanleys filed a
motion for summary judgment, which the trial court denied. Thereafter, the
Stanleys pursued this interlocutory appeal.1 Concluding that the Stanleys had
no common-law duty to maintain the sidewalk and that a municipal ordinance
related to sidewalk maintenance does not confer a private right of action, we
reverse and remand for entry of summary judgment in favor of the Stanleys. 2
Facts and Procedural History
[2] In November 2016, Deverick filed a complaint against the Stanleys alleging that
she injured her leg after tripping and falling on a “public sidewalk” in front of
property belonging to the Stanleys. App. Vol. 2 at 10. Deverick alleged that the
Stanleys “had allowed a tree to grow” between “the sidewalk . . .and the curb
line of the street,” and that the “tree’s roots had grown unabated by [the
Stanleys],” causing the sidewalk “to become buckled and uneven.” Id.
Deverick claimed that she “failed to see the defect in the sidewalk” and was
injured “as a direct and proximate result” of the Stanleys’ negligence. Id. at 11.
1
This Court accepted jurisdiction over the discretionary interlocutory appeal on July 20, 2018.
2
As we reverse on this basis, we decline to address the Stanleys’ other contentions.
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[3] In July 2017, the Stanleys moved for summary judgment, designating evidence
that there was a tree stump between the sidewalk and the curb—in a strip of
land outside their lot lines, within the street right-of-way. There was also
evidence that neither the Stanleys—nor anyone on their behalf—“ha[d] ever
performed any work or maintenance to the sidewalk located outside of [their lot
lines] or the area between the sidewalk and the curb line of the road.” Id. at 41.
[4] Deverick filed a response to the motion but declined to designate any evidence.
At an ensuing hearing, the Stanleys argued that they had no common-law duty
to maintain the public sidewalk. The parties also focused on whether there was
a viable claim based upon the following city ordinance:
No owner or occupant of any lot or tract of land fronting on any
street shall allow the stump of any tree to project above the
surface of the ground between the property line and the curb line
within that part of the sidewalk abutting upon such lot or tract of
land.
Terre Haute City Code ch. 6, art. 7, § 6-144(b). The court denied the motion
for summary judgment and later certified its order. The Stanleys appealed the
order, and this Court accepted jurisdiction over the interlocutory appeal.
Discussion and Decision
Standard of Review
[5] At the outset, we note that Deverick has not filed a brief. When the Appellee
has declined to file a brief, we need not develop an argument on her behalf.
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Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014). Rather, in these
instances, we may reverse upon a showing of prima facie error, “defined as, at
first sight, on first appearance, or on the face of it.” Trinity Homes, LLC v. Fang,
848 N.E.2d 1065, 1068 (Ind. 2006) (quotation marks omitted).
[6] Summary judgment is appropriate only “if the designated evidentiary matter
shows that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). We
review de novo whether the trial court properly granted summary judgment.
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Moreover, to the extent that
the grant or denial of summary judgment turns on a pure question of law—such
as “the interpretation of an ordinance”—we review the question of law de novo.
Siwinski v. Town of Ogden Dunes, 949 N.E.2d 825, 828 (Ind. 2011).
[7] “Indiana’s distinctive summary judgment standard imposes a heavy factual
burden on the movant to demonstrate the absence of any genuine issue of
material fact on at least one element of the claim.” Siner v. Kindred Hosp. Ltd.
P’ship, 51 N.E.3d 1184, 1187 (Ind. 2016). Summary judgment is inappropriate
if the movant fails to carry this burden. Manley v. Sherer, 992 N.E.2d 670, 673
(Ind. 2013). However, if the movant succeeds, the burden shifts to the non-
moving party to designate contrary evidence demonstrating the existence of a
genuine issue of material fact. Id. In conducting our review, we look only to
the designated evidence, T.R. 56(H), and construe all factual inferences in favor
of the party who did not seek summary judgment, Manley, 992 N.E.2d at 673.
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[8] In this case, Deverick alleged that the Stanleys negligently caused her injury by
failing to properly maintain the public sidewalk. “[T]o prevail on a claim of
negligence the plaintiff must show: (1) duty owed to plaintiff by defendant; (2)
breach of duty by allowing conduct to fall below the applicable standard of care;
and (3) compensable injury proximately caused by defendant’s breach of duty.”
Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016)
(quoting King v. Ne. Sec., Inc., 790 N.E.2d 474, 484 (Ind. 2003)). Absent a duty
there can be no negligence. Id. “Whether a duty exists is a question of law for
the court to decide,” id. at 386-87, but “a judicial determination of the existence
of a duty is unnecessary where the element of duty has ‘already been declared
or otherwise articulated,’” Rogers v. Martin, 63 N.E.3d 316, 321 (Ind. 2016)
(quoting N. Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 465 (Ind. 2003)).
Duty from the Common Law
[9] The parties focused on whether the Stanleys could be liable under common-law
principles of negligence. Indeed, Deverick argued that the Stanleys were liable
under the common-law doctrine of negligence per se because the Stanleys had
allegedly violated the municipal ordinance. We note, however, that the
doctrine of negligence per se “assumes the existence of a common-law duty of
reasonable care.” Stachowski v. Estate of Radman, 95 N.E.3d 542, 544 (Ind. Ct.
App. 2018). Thus, the existence vel non of a viable claim based upon this
doctrine—or upon any other common-law theory of negligence—turns on
whether the Stanleys owed a common-law duty to Deverick.
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[10] It is well-settled that “[a] municipality has a common[-]law duty to exercise
reasonable care and diligence to keep its streets and sidewalks in a reasonably
safe condition for travel.” Denison Parking, Inc. v. Davis, 861 N.E.2d 1276, 1280
(Ind. Ct. App. 2007), trans. denied. Yet, it is also well-settled that “there is no
similar corresponding duty for owners of property abutting a public sidewalk.”
Id. (collecting cases). Rather, “[p]ersons are held to have assumed a duty to
pedestrians on public sidewalks only when they create artificial conditions that
increase risk and proximately cause injury to persons using those sidewalks.”
Id. at 1280 (emphasis removed).
[11] In Indiana, artificial conditions have included constructing a trench in a public
alley, see Gwaltney Drilling, Inc. v. McKee, 148 Ind. App. 1, 259 N.E.2d 710, 716
(1970), and leaving sand on a public sidewalk when the sand had been used to
enhance the appearance of the defendant’s building, see Taylor v. Ind. Bell Tel.
Co., 147 Ind. App. 507, 262 N.E.2d 399, 401 (1970). However, Indiana courts
have consistently found that the natural accumulation of ice and snow is not an
artificial condition. See Denison, 861 N.E.2d at 1280; cf. Personnett v. Great Atl. &
Pac. Tea Co., 142 Ind. App. 698, 237 N.E.2d 281, 282 (1968) (“It cannot be
seriously argued that one by inactivity transforms a natural accumulation of ice
and snow into an artificial condition.”).
[12] In this case, there is uncontroverted designated evidence that the offending tree
roots grew into a public sidewalk from a tree within the street right-of-way. We
cannot say that the owners of property abutting that public sidewalk created an
artificial condition—and thereby assumed a common-law duty to pedestrians—
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based merely upon this tree growth. Thus, the Stanleys could not be liable to
Deverick based upon a common-law duty to maintain the public sidewalk.
Duty from the Ordinance
[13] Even without owing a common-law duty to the plaintiff, a defendant might
nevertheless face civil liability for violating a statute or ordinance. Stachowski,
95 N.E.3d at 545. This type of civil liability exists only where the statute or
ordinance confers a “private right of action”—that is, where the lawmaking
body “intended to establish . . . a duty enforceable by tort law.” Id.; see also Doe
#1 v. Ind. Dep’t of Child Servs., 81 N.E.3d 199, 201-02 (Ind. 2017).
[14] “The determination of whether a civil cause of action exists begins with an
examination of legislative intent.” Estate of Cullop v. State, 821 N.E.2d 403, 408
(Ind. Ct. App. 2005). We “use the same methodology to interpret ordinances
as . . . statutes.” Siwinski, 949 N.E.2d at 828. We first evaluate whether the
law is clear and unambiguous on the point in question. Id. If the law is clear
and unambiguous, then “no room exists for judicial construction.” Id. If,
however, there is “ambiguity that allows for more than one interpretation,”
then we construe the law to give effect to the intent of the drafter. Id.
[15] In this case, the parties focused on the following ordinance:
No owner or occupant of any lot or tract of land fronting on any
street shall allow the stump of any tree to project above the
surface of the ground between the property line and the curb line
within that part of the sidewalk abutting upon such lot or tract of
land.
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Terre Haute City Code ch. 6, art. 7, § 6-144(b). Where—as here—the
ordinance does not expressly establish a private right of action, we make two
inquiries while remaining “reluctant to infer this unwritten intent.” Doe #1 v.
Ind. Dep’t of Child Servs., 81 N.E.3d 199, 202 (Ind. 2017) (quotation marks
omitted). First, we look to whether the law “primarily protects the public at
large”; if “designed mainly for public benefit, [the law] implies no right of
action.” Id.; see also Blanck v. Ind. Dep’t of Corr., 829 N.E.2d 505, 509 (Ind. 2005)
(“[A] private cause of action generally will be inferred where a statute imposes a
duty for a particular individual’s benefit but will not be where the [l]egislature
imposes a duty for the public’s benefit.”). Second, we look to whether the law
“contains an independent enforcement mechanism,” Doe #1, 81 N.E.3d at 202,
because “courts may not engraft another,” id. at 204.
[16] This Court has already concluded that—absent more—ordinances like the
instant ordinance are designed to “aid the municipality in discharging its duty
to maintain the streets and sidewalks in a reasonably safe condition,” not to
protect pedestrians. Carroll v. Jobe, 638 N.E.2d 467, 470 (Ind. Ct. App. 1994),
trans. denied; cf. Lawson v. Lafayette Home Hosp., Inc., 760 N.E.2d 1126, 1129 (Ind.
Ct. App. 2002) (“[M]unicipal ordinances that require abutting owners or
occupiers to remove snow and ice from public sidewalks do not, as a matter of
law, create a duty under which an owner or occupier can be held liable to third
party pedestrians.”), trans. denied. Furthermore, the Terre Haute City Code
contains an enforcement mechanism, providing for fines and potential civil
action brought by the municipality. See Terre Haute City Code ch. 1, § 1-11.
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[17] In light of the foregoing, we conclude that the ordinance does not confer a
private right of action supporting Deverick’s claim. Thus, the Stanleys could
not be liable to Deverick based upon any alleged violation of this ordinance.
Conclusion
[18] Having discerned (1) no common-law duty and (2) no applicable private right
of action, we conclude that the Stanleys were entitled to summary judgment.
We therefore reverse and remand for entry of summary judgment in their favor.
[19] Reversed and remanded.
Mathias, J., and Bradford, J., concur.
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