FILED
Dec 09 2019, 8:36 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Steven P. Lammers Andrew B. Miller
Allyse E. Wirkkala Logansport, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Buckingham Management LLC, December 9, 2019
et al., Court of Appeals Case No.
19A-CT-657
Appellants-Defendants,
Appeal from the Tippecanoe
v. Superior Court
The Honorable Randy J. Williams,
Tri-Esco, Inc., Judge
Trial Court Cause No.
Appellee-Defendant.
79D01-1701-CT-7
Altice, Judge.
Case Summary
[1] Buckingham Management, L.L.C., d/b/a Bradford Place Apartments (Bradford),
appeals from the grant of summary judgment in favor of Tri-Esco, Inc. (Tri-Esco).
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Bradford claims that genuine issues of material fact exist as to whether Tri-Esco
exercised reasonable care in performing its snow and ice removal duties after the
plaintiff, Deborah Perez, slipped and fell on ice in Bradford’s parking lot.
[2] We affirm.
Facts & Procedural History 1
[3] Bradford is an apartment complex in Lafayette that Buckingham manages. On
February 23, 2015, at approximately 7:00 a.m., Perez drove to Bradford where her
daughter lived. Perez was going to pick up her grandchildren and take them to
school. When Perez arrived at Bradford and was exiting her vehicle in the parking
lot, she noticed that the lot was “pretty much ice.” Appellant’s Appendix Vol. III at
47. Perez walked toward her daughter’s residence, balancing herself against her
vehicle. At some point, Perez slipped and fell and landed on her left arm and
shoulder. As a result of the fall, Perez claimed that she was injured and was—and
still is—in physical pain.
[4] The record shows that on October 17, 2014, Bradford’s owner—Lafayette Housing
Associates (Lafayette Housing)—entered into a Services Agreement (Agreement)
with Tri-Esco for snow removal. The Agreement provided that Tri-Esco was to
1
Oral argument was held on October 31, 2019 at Hanover Central High School in Cedar Lake, Indiana. We
extend many thanks. First, we thank counsel for the quality of their oral and written advocacy, for
participating in post-argument discussions with the audience, and for commuting to Lake County, Indiana.
We especially thank the staff and administration at the high school for their accommodations and the
students in the audience for their thoughtful post-argument questions.
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remove snow and ice from the streets running through Bradford and the parking lot
where Perez fell. If it snowed at least two inches, Tri-Esco was to clear the ice and
snow at Bradford without an explicit request by Bradford’s management to do so.
The initial proposal and the “snow removal specifications” set forth in the
Agreement provided that Tri-Esco would salt the driveways or parking lots only
upon Bradford’s specific request. Appellant’s Appendix Vol. II at 48, 90, 113, 119.
Another clause stated that “[s]alting shall be performed without request as
warranted by ice/snow conditions for all communities. . . .” Id. at 70, 115, 165.
Finally, the Agreement provided that the “[s]alting of streets will be authorized by
the Maintenance Supervisor or Property Manager.” Id. at 68, 113, 163.
[5] It was undisputed that discretionary salting by Tri-Esco never occurred, and there
was no requirement that Tri-Esco was to make periodic inspections of the property.
In short, Tri-Esco salted only upon Bradford’s express request that it do so. All
provisions of the Agreement were initialed by a Tri-Esco representative.
[6] The designated evidence established that Tri-Esco did not maintain any consistent
presence on the premises, unlike Bradford’s onsite maintenance crew. Bradford
purchases approximately two-and-one-half tons of bagged salt each winter for its
own snow and ice removal. Bradford has snow removal equipment and a salt
applicator on the property for the management of its sidewalks.
[7] On February 21, two days prior to Perez’s fall, Tri-Esco removed snow at Bradford
with pickup trucks and plows. That same day, Bradford employees applied nine
bags of ice melt on the premises. Neither Tri-Esco nor Bradford engaged in
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additional snow removal or salt application on the premises after February 21, and
Bradford did not request Tri-Esco to do so. Bradford conceded that Tri-Esco had
no contractual obligation to be on site after the initial snow removal because the
two-inch snowfall provision in the Agreement was not triggered. Bradford further
admitted that it had no expectation that Tri-Esco would provide any snow removal
or salting services on February 22 or 23.
[8] On January 19, 2017, Perez filed a complaint against Bradford and Tri-Esco, seeking
damages for her injuries, which included compensation for various surgeries. Perez
alleged that she suffered injury due to the negligence and carelessness of the agents
and/or employees of Bradford and Tri-Esco for failing to: (1) properly inspect and
maintain the property in a safe condition; (2) put down salt; (3) remove snow and
ice; and (4) warn of the dangerous condition. Tri-Esco and Bradford denied the
allegations and raised affirmative defenses in their answers to the complaint.
[9] On October 1, 2018, Tri-Esco filed a motion for summary judgment, claiming that
it was entitled to judgment as a matter of law because the designated evidence
failed to establish that it had a duty to apply salt to the parking lot during the two
days prior to the fall. Tri-Esco also asserted that there was no additional snowfall
during that period that contractually obligated it to perform any services absent
Bradford’s explicit request that it do so. Tri-Esco claimed that it was under no
obligation to preemptively inspect and/or provide services to Bradford and,
therefore, no duty was owed because it lacked any control over the premises.
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Following a hearing on Tri-Esco’s motion, the trial court granted summary
judgment in its favor on February 21, 2019. Bradford now appeals. 2
Discussion & Decision
[10] When reviewing the grant of summary judgment, this court applies the same
standard as the trial court. City of Mishawaka v. Kvale, 810 N.E.2d 1129, 1132 (Ind.
Ct. App. 2004). The purpose of summary judgment is to terminate litigation if
there are no genuine, material factual disputes and the issue can be determined as a
matter of law. Indiana Trial Rule 56(C); Illinois Farmers Ins. Co. v. Wiegand, 808
N.E.2d 180, 184 (Ind. Ct. App. 2004), trans. denied. 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. Schrum v. Moskaluk, 655 N.E.2d 561, 564 (Ind. Ct.
App. 1995), trans. denied. A factual issue is “genuine” if the trier of fact must
resolve the opposing party’s differing versions of the underlying facts. Sammadar v.
Jones, 766 N.E.2d 1275, 1279 (Ind. Ct. App. 2002). Once the moving party makes
a prima facie showing of the nonexistence of a genuine issue of material fact, the
burden shifts to the nonmoving party to set forth specific facts showing the
existence of a genuine issue for trial. Dugan v. Mittal Steel USA Inc., 929 N.E.2d
184, 185-86 (Ind. 2010).
2
Perez has not challenged the grant of summary judgment in Tri-Esco’s favor.
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[11] Bradford claims that the trial court erred in granting summary judgment for Tri-
Esco because there is a genuine issue of material fact as to whether Tri-Esco
exercised reasonable care in performing the snow removal on February 21, 2015,
and whether Tri-Esco was required to apply salt to the premises absent a specific
request by Bradford that it do so.
[12] To recover under a theory of negligence, a plaintiff must establish the following
elements: (1) a duty on the part of the defendant in relation to the plaintiff; (2) a
failure by the defendant to conform his conduct to the requisite standard of care;
and (3) an injury to the plaintiff proximately caused by the failure. Anderson v. Four
Seasons Equestrian Ctr., Inc., 852 N.E.2d 576, 580 (Ind. Ct. App. 2006), trans. denied.
Duty is a question of law for the court to decide. Absent a duty, there can be no
breach of duty and thus no negligence or liability based upon the breach. Wilson v.
Haimbaugh, 482 N.E.2d 486, 487 (Ind. Ct. App. 1985). Whether the law
recognizes an obligation on the part of a particular defendant to conform his
conduct to a certain standard for the benefit of the plaintiff is generally a question
of law for the court. Helton v. Harbrecht, 701 N.E.2d 1265, 1267 (Ind. Ct. App.
1998), trans. denied.
[13] Relevant to our discussion is Peters v. Forster, 804 N.E.2d 736 (Ind. 2004), where
our Supreme Court addressed a contractor’s liability to third parties. In Peters, a
contractor installed a wheelchair ramp at a homeowner’s residence. The
contractor knew that the ramp did not satisfy building code requirements.
Following the installation, the homeowner’s daughter attached some carpeting to
the ramp. Peters, who was delivering meals to the residence, slipped on the ramp
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and fell when he was leaving. Peters sued for his injuries, and the trial court
granted the contractor’s motion for summary judgment, which this court reversed
on appeal. Peters v. Forster, 770 N.E.2d 414 (Ind. Ct. App. 2002). Our Supreme
Court granted transfer and determined that Indiana no longer follows the
“acceptance rule,” which provides that contractors owe no duty of care to third
parties after the owner has “accepted” the work. Peters, 804 N.E.2d at 738-39.
Rather, it was determined that a contractor may be liable for injury or damage to a
third person as a result of the condition of the work “where it was reasonably
foreseeable that a third party would be injured by such work caused by the contractor’s
negligence.” Id. at 742 (emphasis added).
[14] Although Bradford contends that the rationale espoused in Peters should compel
the same result here because Perez’s injuries were reasonably foreseeable to Tri-
Esco, we first note that it is undisputed that there was no two-inch snowfall during
the two days prior to Perez’s fall that would have triggered further services under
the Agreement. Bradford did not request any salt application or additional snow
removal from Tri-Esco within that timeframe, and Bradford’s crew did not perform
any additional snow removal during those two days. Further, Bradford admitted
that it had no expectation for Tri-Esco to be on the premises at any time after
February 21, 2015, and Bradford conceded that it was in a better position to know
the actual condition of the property than Tri-Esco. Had Tri-Esco in some way
created a dangerous condition on February 21, Bradford had two days to remedy
such a circumstance through its own employees, or it could have requested Tri-
Esco to apply additional salt to the affected areas. With no additional work having
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been performed by Bradford, and no follow-up contact made to Tri-Esco for
additional services, we cannot say that it was reasonably foreseeable to Tri-Esco
that Perez would be injured two days after Tri-Esco completed its work. Thus, we
reject Bradford’s reliance on the rationale advanced in Peters in support of its
contention that summary judgment was improperly entered for Tri-Esco.
[15] Additionally, the designated evidence establishes that Tri-Esco no longer
maintained any control over the premises after the initial snow removal. Indeed, a
defendant’s duty to a plaintiff is often conditioned on his control of the premises at
the time of the accident. Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2001); Yates v.
Johnson Co. Bd. of Comm’rs, 888 N.E.2d 842, 847 (Ind. Ct. App. 2008). Control is
the greatest factor because the law seeks to impose “liability on the person who
could have known of any dangers on the land and therefore could have acted to
prevent any foreseeable harm.” Rider v. McCamment, 938 N.E.2d 262, 268 (Ind. Ct.
App. 2010). The party in control is in the best position to prevent injury on the
premises. Id.
[16] To illustrate, in Kostidis v. General Cinema Corp., 754 N.E.2d 563 (Ind. Ct. App.
2001), trans. denied, the plaintiff was walking in a parking lot owned by the
defendant who had hired Schostak Brothers to manage the property. Schostak
Brothers in turn hired L&P to remove snow and ice from the parking lot. Pursuant
to the contract, L&P was to remove snow from the parking lot after an inch or
more of snow had fallen.
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[17] On January 31, 1996, L&P removed snow from the parking lot, which was the last
time it rendered any of its services prior to the plaintiff’s fall on February 2. A
panel of this court concluded that L&P lacked control over the parking lot at the
time of the fall, thereby precluding liability for the plaintiff’s injuries. In so
holding, the court stated
While L&P had control over snow removal operations in the
parking lot and on the sidewalks, there is no evidence suggesting that
L&P retained control over the premises once its work was completed. . . .
L&P’s completion of its work and its relinquishment of any
control it had over the property is . . . evidenced by the fact that
Schostak Brothers’s designated property inspector . . . apparently
found L&P’s work satisfactory and did not ask L&P to return to perform
additional services.
Id. at 569 (emphases added).
[18] As were the circumstances in Kostidis, Tri-Esco had no control over Bradford’s
parking lot at the time of the fall. It had not rendered services to Bradford in the
two days prior to Perez’s fall, was not on the property on the day of Perez’s fall,
and Bradford never requested that it return to provide any additional snow and ice
removal. Moreover, nothing in the Agreement imposed a requirement on Tri-Esco
to periodically inspect the property. To that end, absent any presence, control, or
express request from Bradford that Tri-Esco be onsite or perform further snow
removal, there is no basis on which to find that Tri-Esco owed a duty to Perez.
[19] Finally, we reject Bradford’s attempt to create a genuine issue of material fact in
light of conflicting provisions in the Agreement. Even though there is a conflict in
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facts and inferences on some elements of a claim, summary judgment may be
proper when no dispute exists as to the facts that are dispositive of the litigation.
Helton, 701 N.E.2d at 1268. Additionally, “[i]f necessary, the text of a disputed
provision [in a contract] may be understood by reference to other provisions within
the four corners of the document.” Claire’s Boutiques, Inc. v. Brownsburg Station
Partners LLC, 997 N.E.2d 1093, 1098 (Ind. Ct. App. 2013). Where a contract is
ambiguous or uncertain in its terms, the intent of the parties must be determined by
extrinsic evidence. First Federal Sav. Bank v. Key Markets, Inc., 559 N.E.2d 600, 604
(Ind. 1990). Rules of contract construction and extrinsic evidence may be
employed in giving effect to the parties’ reasonable expectations. Id.
[20] Here, the requirement that Tri-Esco receive specific authority from Bradford before
applying salt or ice melt is found twice in the Agreement, as opposed to the
provision stating that “[s]alting shall be performed without request as warranted by
ice/snow conditions for all communities,” which is only stated once. Appellant’s
Appendix Vol II at 70, 115, 165. Moreover, the parties’ standard practice was that if
there was a two-inch snowfall, Tri-Esco would go to Bradford—without an explicit
request—to remove snow from the parking lots and driveways. Under paragraph
seven of the initial proposal and the one page “snow removal specifications” in the
Agreement, Tri-Esco would salt the driveways or parking lots only if Bradford
specifically requested that it do so. Appellant’s Appendix Vol. II at 48, 90, 113, 119.
Bradford admitted that discretionary salt applications by Tri-Esco, as provided in
paragraph ten of the multiple page specification, never occurred. Rather, the
undisputed facts are that Tri-Esco salted only upon Bradford’s explicit request that
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it do so, which was pursuant to the parties’ past performance. Hence, the
conflicting provisions in the agreement do not create a genuine issue of material
fact as to whether Tri-Esco should have applied salt and other snow removal
services after February 21 without Bradford’s request. For the foregoing reasons,
we affirm the trial court’s grant of summary judgment in Tri-Esco’s favor.
[21] Judgment affirmed.
Robb, J. and Bradford, J., concur.
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