MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Dec 18 2018, 10:44 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Gary L. Griner Adam C. Hawkins
Mishawaka, Indiana Law Offices of Staff Counsel for
Farmers Insurance Exchange and
Affiliates
Chicago, Illinois
IN THE
COURT OF APPEALS OF INDIANA
Eligio J. Marquez, December 18, 2018
Appellant-Plaintiff, Court of Appeals Case No.
18A-CT-1143
v. Appeal from the St. Joseph Circuit
Court
Michael A. Love and Leslie L. The Honorable Jenny Pitts Manier,
Love1, Judge Pro Tempore
Appellees-Defendants. Trial Court Cause No.
71C01-1511-CT-400
1
Elsie Love, who was improperly named in the suit as Leslie, was the only defendant to appear in the matter
because Michael Love, who was also named in the complaint, died in 2008.
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Bradford, Judge.
Case Summary
[1] In September of 2015, Eligio Marquez agreed to help his neighbor Jamal Allen
repair a broken window located on the second story of Allen’s house, which
required them to work from the roof. The home was owned by Allen’s mother-
in-law Elsie Love, and she resided there with Allen and his family. After the
window was repaired, Marquez inspected a weak spot in the roof, misstepped,
and fell off the roof. In January of 2017, Marquez filed an amended negligence
complaint against Love. In April of 2018, the trial court granted Love’s motion
for summary judgment. Marquez contends that the trial court erred by entering
summary judgment. Because we conclude that there is a genuine issue as to
whether Love should have anticipated the harm to Marquez despite his
knowledge of and the obviousness of the weak spot in the roof, we reverse and
remand.
Facts and Procedural History
[2] On September 1, 2015, Allen asked his neighbor Marquez if he would help
repair a broken window at Allen’s house. The house was owned by Love, who
resided there with her son-in-law Allen and his family. The window was located
on the second story of the house and required Allen and Marquez to complete
the repair from the roof outside the window. After completing the repair,
Marquez noticed a weak spot in the southeast corner of the roof, and Allen
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agreed with Marquez’s assessment. Marquez could tell that the roof was weak
because the trusses were visible and had noticeable divots between them.
Marquez had gained some experience from repairing his mother’s roof. As the
two began to walk towards the weak spot, without any safety equipment and
having drunk some beer, Allen turned back around and went back inside the
house without saying anything to Marquez other than that he was going back
inside to clean up. Once Marquez reached the weak spot, he used his arms to
maintain his balance as he walked across the trusses. However, about ten to
fifteen seconds into his inspection, he stepped, missed a truss, and landed on a
weak spot causing him to fall from the roof. As a result of the fall, Marquez
broke both feet, and his right foot required reconstructive surgery.
[3] On January 26, 2017, Marquez filed an amended complaint against Love,
alleging negligence for personal injuries sustained from the fall. On January 16,
2018, Love moved for summary judgment, a motion which was granted by the
trial court on April 10, 2018.
Discussion and Decision
[4] Marquez contends that the trial court erred when it entered summary judgment
in favor of Love.
We review an order for summary judgment de novo, applying the
same standard as the trial court. 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. Summary judgment is improper if the moving
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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. 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.
Miller v. Rosehill Hotels, LLC, 45 N.E.3d 15, 18–19 (Ind. Ct. App. 2015) (internal
citations omitted). In negligence cases, a defendant is entitled to summary
judgment by establishing that the undisputed facts negate at least one element
of plaintiff’s claim. Podemski v. Praxair, Inc., 87 N.E.3d 540, 547 (Ind. Ct. App.
2017), trans. denied. “Generally, 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.” Id. The court as a matter of law, however, may
determine whether a breach of duty occurred where the undisputed facts lead to
but a single inference or conclusion. Id.
[5] To recover on negligence theory, a plaintiff must establish: (1) a duty owed by
defendant to plaintiff, (2) a breach of that duty, and (3) injury to plaintiff
resulting from defendant’s breach. Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind.
2004). Neither party disputes that Marquez was an invitee at the time of the
fall. Therefore, as a matter of law, Love owed him a duty of reasonable care
while he was on Love’s premises. The only question on appeal is whether, as a
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matter of law, the designated evidence established a question of fact as to
whether Love breached that duty of care.
[6] The standard Indiana has adopted for determining landowner liability to
invitees is stated in Section 343 of the Restatement (Second) of Torts, which is
to be read in conjunction with Section 343A. Roumbos v. Samuel G. Vazanellis &
Thiros & Stracci, PC, 95 N.E.3d 63, 66 (Ind. 2018). Section 343 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
(c) fails to exercise reasonable care to protect them against the
danger.
RESTATEMENT (SECOND) OF TORTS § 343 (AM. LAW INST. 1965). In addition,
section 343A(1) 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.” RESTATEMENT (SECOND) OF TORTS §
343A(1) (emphasis added). The comments to section 343A(1) further explain:
There are, however, cases in which the possessor of land can and
should anticipate that the dangerous condition will cause
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physical harm to the invitee notwithstanding its known or
obvious danger. In such cases the possessor is not relieved of the
duty of reasonable care which he owes to the invitee for his
protection. This duty may require him to warn the invitee, or to
take other reasonable steps to protect him, against the known or
obvious condition or activity, if the possessor has reason to
expect that the invitee will nevertheless suffer physical harm.
Such reason to expect harm to the visitor from known or obvious
dangers may arise, for example, where the possessor has reason
to expect that the invitee’s attention may be distracted, so that he
will not discover what is obvious, or will forget what he has
discovered, or fail to protect himself against it.
[7] We conclude that the danger of the weak spot on the roof was known and
obvious to both Marquez and Love. Marquez made his observation of the
exposed trusses and divots known to Allen, and Allen agreed that it made for a
weak spot in the roof. That said, we conclude that the designated evidence
generates an issue of material fact as to whether Love should have anticipated
that Marquez would be harmed despite his knowledge of and the obviousness
of the weak spot. On the one hand, there is designated evidence that Marquez
had some experience working on roofs and that he knew to step cautiously on
the trusses while inspecting the roof as to avoid harm. This designated evidence
could lead a reasonable fact-finder to conclude that Love anticipated the
possible harm to Marquez, but Marquez was fully capable of protecting himself
against the danger presented by the weak spot. On the other hand, there is
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designated evidence that Allen2 never took any steps to assist Marquez in
protecting himself against the potential harm, despite the facts that Allen knew
Marquez had drunk beer and was without any safety equipment. This
designated evidence could lead a reasonable fact-finder to conclude that Love
should have anticipated the possible harm to Marquez and that Love failed to
take any measures to protect him from that harm. To obtain summary
judgment, Love was required to designate evidence to establish that there were
no genuine issues of material fact, which she has not done. Because the
undisputed facts do not lead to a single inference or conclusion, the
determination of breach of duty, as a matter of law, was improper. Podemski, 87
N.E.3d at 547.
[8] The trial court’s entry of summary judgment is reversed and remanded.
Najam, J., and Crone, J., concur.
2
Although not directly addressed by either party, all seem to be operating under the assumption that Allen is
Love’s agent, and that his actions maybe imputed to her. See, e.g., Prudential Ins. Co. of Am. v. Winans, 325
N.E.2d 204, 206 (Ind. 1975) (“Generally, the knowledge of an agent acting within the scope of his authority
is imputed to his principal.”).
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