MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jan 16 2020, 5:25 am
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 APPELLANTS ATTORNEY FOR APPELLEE
Paul D. Ludwig Adam Willfond
Redman Ludwig, P.C. Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Viola Smith and William Smith, January 16, 2020
Appellants-Plaintiffs, Court of Appeals Case No.
19A-CT-1963
v. Appeal from the Marion Superior
Court
City of Indianapolis d/b/a The Honorable John M. T. Chavis,
Indianapolis Parks and Judge
Recreation Department, Trial Court Cause No.
Appellee-Defendant. 49D05-1703-CT-9046
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CT-1963 | January 16, 2020 Page 1 of 12
STATEMENT OF THE CASE
[1] Appellants-Plaintiffs, Viola Smith (Viola) and William Smith (William)
(collectively, the Smiths), appeal the trial court’s summary judgment
determining that there was no genuine issue of material fact precluding
judgment in favor of the Appellee-Defendant, City of Indianapolis and
Indianapolis Parks and Recreation (collectively, the City).
[2] We reverse and remand for further proceedings.
ISSUE
[3] The Smiths present two issues on appeal, which we consolidate and restate as
the following single issue: Whether the trial court erred by granting summary
judgment in favor of the City.
FACTS AND PROCEDURAL HISTORY
[4] In April 2015, the Smiths were regularly attending aerobics classes at the
Washington Park fitness center which is owned and maintained by the City. At
the time, Viola used a walking cane for assistance since she had problems with
her right leg. Due to Viola’s walking difficulties and the parking lot being far
from the fitness center, William would drop off Viola at the entrance before
class began and would retrieve their vehicle to pick up Viola at the entrance
after the class ended.
[5] On April 27, 2015, the Smiths attended an aerobics class at the Washington
Park fitness center. At the start of class, Viola informed the instructor that she
Court of Appeals of Indiana | Memorandum Decision 19A-CT-1963 | January 16, 2020 Page 2 of 12
was not feeling well. The instructor advised Viola to “take it easy,” and she
even suggested that Viola not participate in the class. (Appellant’s App. Vol. II,
p. 119). Notwithstanding the advice, Viola opted to take part in the class. After
class, Cassandra Shelby (Shelby), an employee of the City, “overheard”
William instruct “Viola to sit down and wait inside” the fitness center while he
retrieved their vehicle. (Appellant’s App. Vol. II, p. 116). However, Viola
exited the fitness center and waited for William at the entrance. Located at the
entrance of the center, there were some metal posts. Wanting to rest and while
supporting herself with her cane, Viola leaned on a metal post with her left
hand. Admittedly, Viola applied some “small amount” of pressure when she
leaned on the post. (Appellant’s App. Vol. II, p. 73). “[P]robably a few
seconds” later, the post gave way and she fell to the ground. (Appellant’s App.
Vol. II, p. 57). As a result, Viola fractured her right wrist. According to Viola,
she did not observe anything wrong with the post prior to leaning on it, nor was
there signage to alert her that the post was weak, or that she was barred from
leaning on it.
[6] On March 6, 2017, the Smiths filed a Complaint against the City, alleging
negligence and loss of consortium. The City timely filed its answer. Following
discovery, the City filed a motion for summary judgment designating excerpts
from Viola’s and William’s depositions and Viola’s medical records. In
addition, the City designated three affidavits from City employees, who were
present on the day Viola fell, alleging that Viola was visibly shaky even with the
assistance of a waking cane on the day she fell. In its memorandum in support,
Court of Appeals of Indiana | Memorandum Decision 19A-CT-1963 | January 16, 2020 Page 3 of 12
the City maintained that it was entitled to summary judgment as a matter of
law because the designated evidence failed to establish that it had a duty to
maintain the metal post in a “weight-bearing manner so people could lean on
it,” rather, its duty was confined to maintaining the property, “including the
sidewalk where Viola leaned on the post.” (Appellant’s App. Vol. II, p. 28).
Further, the City asserted that since Viola was already shaky on the day she
leaned on the post, she was barred from recovery because she was
contributorily negligent. Finally, the City argued that William’s loss of
consortium was precluded for the same reasons as Viola’s negligence claim
because his loss of consortium was derivative in nature.
[7] The Smiths sought and were granted two extensions of time to respond to the
City’s summary judgment motion. Also, the parties jointly sought and were
granted two extensions of time. On June 28, 2019, the Smiths submitted their
response and their designated evidence included their own affidavits, and two
pictures of the metal post. On July 2, 2019, without conducting a hearing, the
trial court issued an Order, without findings of facts or conclusion thereon,
granting the City’s summary judgment motion. On July 29, 2019, the Smiths
filed a motion to correct error, and requested a hearing. After the City
responded and again without a hearing, the trial court issued an order denying
the Smiths’ motion to correct error.
[8] The Smiths now appeal. Additional facts will be provided as necessary.
Court of Appeals of Indiana | Memorandum Decision 19A-CT-1963 | January 16, 2020 Page 4 of 12
DISCUSSION AND DECISION
I. Standard of Review
[9] Summary judgment is appropriate only when there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law.
Ind. Trial Rule 56(C). “A fact is material if its resolution would affect the
outcome of the case, and an issue is genuine if a trier of fact is required to
resolve the parties’ differing accounts of the truth . . ., or if the undisputed facts
support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756,
761 (Ind. 2009).
[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-
moving party. Id. at 608. “Any doubt as to any facts or inferences to be drawn
therefrom must be resolved in favor of the non-moving party.” Goodwin v.
Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016). The party that
lost in the trial court bears the burden of persuading us that the trial court erred.
Biedron v. Anonymous Physician 1, 106 N.E.3d 1079, 1089 (Ind. Ct. App. 2018),
trans. denied.
Court of Appeals of Indiana | Memorandum Decision 19A-CT-1963 | January 16, 2020 Page 5 of 12
[11] The summary judgment in this case was entered upon a claim of negligence.
The Smiths contended that the City was negligent by failing to maintain the
metal post which Viola leaned on. To prevail on a theory of negligence, the
Smiths must prove the following three elements: (1) a duty owed to the plaintiff
by the defendant; (2) a breach of that duty by the defendant; and (3) an injury to
the plaintiff proximately caused by that breach. See McClyde v. Archdiocese of
Indianapolis, 752 N.E.2d 229, 232 (Ind. Ct. App. 2001).
[12] It is well-established that summary judgment is rarely appropriate in negligence
cases. Kennedy v. Guess, Inc., 806 N.E.2d 776, 783 (Ind. 2004). This is because
“[i]ssues of negligence, contributory negligence, causation, and reasonable care
are more appropriately left for the determination of a trier of fact.” Florio v.
Tilley, 875 N.E.2d 253, 256 (Ind. Ct. App. 2007), trans. denied. Nonetheless,
questions of law, like whether a defendant had a duty of care as to a plaintiff or
whether certain facts constitute proximate cause, may be appropriate for
summary judgment. See id. And while we observe that in the present case the
trial court did not enter findings of fact and conclusions of law in support of its
judgment, such 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 unto the trial court’s rationale for its review and
facilitate appellate review. Id.
Court of Appeals of Indiana | Memorandum Decision 19A-CT-1963 | January 16, 2020 Page 6 of 12
II. Analysis
[13] In the instant case, the Smiths’ negligence claim was based on premises
liability. The law is well-established that a person entering upon the land of
another comes upon the land as an invitee, a licensee, or a trespasser. Christmas
v. Kindred Nursing Ctrs. Ltd. P’ship, 952 N.E.2d 872, 878 (Ind. Ct. App. 2011).
Thus, the first step in resolving a premises liability case is to determine the
plaintiff’s status. Id. The status then defines the duty owed by the landowner to
the visitor. Id. The parties do not dispute Viola’s status as an invitee at the time
she fell and fractured her hand outside the Washington Park fitness center.
[14] Under Indiana premises liability law, a landowner owes the highest duty to an
invitee: The duty to exercise reasonable care for his protection while he is on
the landowner’s premises. Burrell v. Meads, 569 N.E.2d 637, 639-40 (Ind. 1991).
This duty extends to keeping a parking lot safe and providing a safe and suitable
means of ingress and egress. Converse v. Elkhart General Hospital, Inc., 120
N.E.3d 621, 626 (Ind. Ct. App. 2019).
[15] Here, Viola was injured by a metal post erected close by the entrance of the
Washington Park fitness center. The City correctly argues that Viola’s injuries
were caused by a condition of the land. “Conditions of the land” are typically
physical characteristics, such as untreated ice, a decaying tree, or uneven
flooring. See Linares v. El Tacarajo, 119 N.E.3d 591, 598 (Ind. Ct. App. 2019).
(addressing premises liability under section 343 when plaintiff slipped on ice on
sidewalk outside her apartment building) trans. denied; See Marshall v. Erie Ins.
Exch., 923 N.E.2d 18, 25 (Ind. Ct. App. 2010) (unhealthy tree fell onto
Court of Appeals of Indiana | Memorandum Decision 19A-CT-1963 | January 16, 2020 Page 7 of 12
neighbor’s house in urban or residential area), trans. denied; Smith v. King, 902
N.E.2d 878, 880 (Ind. Ct. App. 2009) (plaintiff fell through hole in floor of
house under construction). “When a physical injury occurs as a result of a
condition on the land, the three elements described in Restatement (Second) of
Torts Section 343, accurately describe the landowner-invitee duty.” Rogers v.
Martin, 63 N.E.3d 316, 322-23 (Ind. 2016). 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.
[16] All three conditions set forth in Section 343 must be met for liability to attach.
Harradon v. Schlamadinger, 913 N.E.2d 297, 301 (Ind. Ct. App. 2009), trans.
denied. Additionally, Section 343 of the Restatement (Second) of Torts, which
discusses known or obvious dangers, is meant to be read along with Section
343A. Christmas, 952 N.E.2d at 881. That Section “provides, in part, as
follows: ‘A possessor of land is not liable to his invitees for physical harm
caused to them by any . . . condition on the land whose danger is known or
obvious to them, unless the possessor should anticipate the harm despite such
Court of Appeals of Indiana | Memorandum Decision 19A-CT-1963 | January 16, 2020 Page 8 of 12
knowledge or obviousness.’” Id. (citing Smith v. Baxter, 796 N.E.2d 242, 245
(Ind. 2003) (quoting RESTATEMENT (SECOND) OF TORTS § 343A)). Indeed,
“‘[t]he comparative knowledge of a possessor of land and an invitee regarding
known or obvious dangers may properly be taken into consideration in
determining whether the possessor breached the duty of reasonable care under
Sections 343 and 343A of the Restatement (Second) of Torts.’” Id. (quoting
Smith, 796 N.E.2d at 245).
[17] The Smiths’ premises liability theory was based upon their claim that the City
failed to properly maintain the metal post which Viola leaned on. In support of
its summary judgment motion, the City designated Viola’s and William’s
deposition. In her deposition, Viola averred that after concluding the aerobics
class, she exited the fitness center and waited for William outside. Supporting
herself with her cane, and wanting to rest, she leaned on the metal post with her
left hand. Moments later, the post gave way, and she fell and fractured her
right wrist. Viola admitted that she applied some “small amount” of pressure
when she leaned on the post. (Appellant’s App. Vol. II, p. 73). Then arguing
that Viola was contributorily negligent, the City additionally designated three
affidavits from their onsite employees who collectively declared that on the day
Viola fell and injured her wrist, Viola was shaky and unstable even with the
assistance of a walking cane. However, none of the three employees indicated
that the City was not responsible in maintaining the post, or that Viola should
not have leaned on the metal post.
Court of Appeals of Indiana | Memorandum Decision 19A-CT-1963 | January 16, 2020 Page 9 of 12
[18] In response to the City’s motion, the Smiths designated pictures of the metal
post that gave way. Also, the Smiths designated their own affidavits. In her
affidavit, Viola asserted that the metal post “did not have any visible writing or
warning symbols of any kind advising that it was unstable or otherwise about to
fall” and further, the deterioration or corrosion of the metal post was not readily
apparent when she leaned on it. (Appellant’s App. Vol. II, p. 134).
[19] If the metal post presented a known and obvious danger, then the City probably
would not be liable. As noted, “[t]he Restatement instructs that Section 343
should be read together with Section 343A.” Roumbos v. Samuel G. Vazanellis &
Thiros & Stracci, PC, 95 N.E.3d 63, 66 (Ind. 2018). In particular, 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.” Id. While the City was justified
in this case to expect Viola to use caution on the day she fell since she was
unstable and shaky even with the assistance of a cane, the evidence on
summary judgment does not show that Viola failed to protect herself from that
risk. Without signs signaling that no persons should lean on the post, there is
nothing necessarily unreasonable about leaning on a post, and the evidence
does not compel the inference that Viola knew that leaning on the post would
lead her to falling down and fracturing her wrist. See Handy v. P.C. Bldg.
Materials, Inc., 22 N.E.3d 603, 611 (Ind. Ct. App. 2014) (holding in part that
reasonable people could differ as to whether certain countertops leaning against
Court of Appeals of Indiana | Memorandum Decision 19A-CT-1963 | January 16, 2020 Page 10 of 12
a wall represented an obvious danger to the plaintiff), trans. denied. As a result,
based on the designated evidence, we cannot say that Viola voluntarily
accepted the risk of a known and obvious danger as a matter of law. A
reasonable jury could conclude that, by the time Viola had actual knowledge
and appreciation of the risk the metal post possessed, there was no reasonable
opportunity for her to avoid or escape the risk or the conditions under the
circumstances.
[20] Moreover, even if the danger was obvious, that does not resolve the issue as
questions remain whether the City: (1) knew or by the exercise of reasonable
care should have realized that the metal post in question involved an
unreasonable risk of harm to Viola; (2) should have expected that Viola would
not realize the unreasonable risk of harm of leaning on the metal post; and (3)
failed to exercise reasonable care to protect Viola against the danger. See Rhodes
v. Wright, 805 N.E.2d 382, 388 (Ind. 2004). Indeed, the City did not designate
evidence that it did not know of, or by the exercise of reasonable care would not
have discovered, that the metal post on its property was weak, that it did not
expect its invitees to lean on such posts, that the metal post was not
unreasonably unsafe, or that it had taken steps constituting reasonable care to
protect its invitees under the circumstances. In short, based on Viola’s status as
an invitee on the premises, genuine issues of material fact remain as to whether
the City breached its duty of care to her.
[21] Construing all factual inferences in favor of the Smiths as the nonmoving
parties, we conclude that the City failed to carry its burden of establishing that
Court of Appeals of Indiana | Memorandum Decision 19A-CT-1963 | January 16, 2020 Page 11 of 12
Viola voluntarily accepted a known and obvious risk as a matter of law or that
it did not breach its duty to maintain its property in a reasonably safe condition
for its invitees as a matter of law. We are mindful that even if this Court
believes that the nonmoving party will not be successful at trial, summary
judgment should not be granted where material facts conflict or conflicting
inferences are possible. Dunaway v. Allstate Ins. Co., 813 N.E.2d 376, 384 (Ind.
Ct. App. 2004). Accordingly, we hold that the summary judgment in favor of
the City was improper and therefore, we reverse the trial court’s entry of
summary judgment and remand for further proceedings consistent with this
opinion.
CONCLUSION
[22] For the foregoing reasons, we reverse the trial court’s summary judgment in
favor of the City and remand for further proceedings.
[23] Reversed and remanded.
[24] Baker, J. and Brown, J. concur
Court of Appeals of Indiana | Memorandum Decision 19A-CT-1963 | January 16, 2020 Page 12 of 12