Reham Al-Sinan v. Blackbird Farms Apartments, LLC and WH Long Rentals, Inc. (mem. dec.) ( 2019 )

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 Nov 06 2019, 8:47 am
the defense of res judicata, collateral
CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEES
Christopher G. Stevenson Andrew B. Miller
D. Bruce Kehoe Starr Austen & Miller LLP
Wilson Kehoe Winingham, LLC Logansport, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Reham Al-Sinan, November 6, 2019
Appellant-Plaintiff, Court of Appeals Case No.
19A-CT-1236
v. Appeal from the Tippecanoe
Superior Court
Blackbird Farms Apartments, The Honorable Randy J. Williams,
LLC and WH Long Rentals, Judge
Inc.,
Appellees-Defendants. Trial Court Cause No.
79D01-1604-CT-56
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CT-1236 | November 6, 2019 Page 1 of 5
Case Summary
[1] On March 3, 2015, Reham Al-Sinan was injured after she fell and hit her head
outside her apartment in the Blackbird Farms apartment complex. Reham filed
suit against Blackbird Farms and WH Long Rentals, Inc. (collectively,
“Blackbird”), alleging that (1) Blackbird breached the duty it owed her by
negligently failing to keep the public walkways and entry areas clear of
hazardous conditions and (2) she was injured as a result of Blackbird’s
negligence. Blackbird filed a motion for summary judgment, which was
granted by the trial court. Reham challenges the trial court’s order granting
Blackbird’s motion on appeal. Concluding that an issue of material fact
remains as to whether Blackbird breached its duty to Reham, we reverse the
trial court’s order granting Blackbird’s motion for summary judgment and
remand to the trial court for further proceedings.
Facts and Procedural History
[2] Reham leased an apartment at Blackbird from August of 2013 to August of
2015. Between 7:15 and 7:30 on the morning of March 3, 2015, Reham slipped
and fell on the service ramp connected to the entry area of her apartment.
Reham called 911 and was transported to the hospital for treatment.
[3] On April 8, 2016, Reham filed suit against Blackbird, arguing that Blackbird
breached the duty it owed her by negligently failing to keep its sidewalks, public
Court of Appeals of Indiana | Memorandum Decision 19A-CT-1236 | November 6, 2019 Page 2 of 5
walkways, and entry areas clear of ice and snow. Reham further argued that
she was injured as a result of Blackbird’s negligence.
[4] On February 6, 2019, Blackbird filed a motion for summary judgment. Reham
filed a response in opposition to Blackbird’s motion after which Blackbird filed
a reply in support of its motion for summary judgment and a motion to strike
an expert report designated by Reham. The trial court conducted a hearing on
the pending motions on April 22, 2019, after which it issued orders granting
Blackbird’s motions for summary judgment and to strike.
Discussion and Decision
[5] The purpose of summary judgment is to terminate litigation
about which there can be no dispute and which may be
determined as a matter of law. Our standard of review is the
same as that of the trial court. Summary judgment is appropriate
only where the evidence shows that there is no genuine issue of
material fact and the moving party is entitled to judgment as a
matter of law. For summary judgment purposes, a fact is
“material” if it bears on ultimate resolution of relevant issues. In
negligence cases, summary judgment is rarely appropriate
because such cases are particularly fact sensitive and are
governed by a standard of the objective reasonable person-one
best applied by a jury after hearing all of the evidence.
Nonetheless, summary judgment is appropriate when the
undisputed material evidence negates one element of a
negligence claim.
Harradon v. Schlamadinger, 913 N.E.2d 297, 300 (Ind. Ct. App. 2009) (internal
citations omitted).
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[6] In order for a lessee to recover from a landlord on a theory of negligence, the
lessee must show a duty on the part of the landlord and a breach of that duty.
Zimmerman v. Moore, 441 N.E.2d 690, 693 (Ind. Ct. App. 1982). In asserting
that Blackbird was negligent, Reham contends that it had a duty to keep the
property’s walkways in a safe condition; Blackbird failed to remove dangerous
conditions, i.e., ice; and she was injured as a result of Blackbird’s negligence.
For its part, Blackbird does not dispute that it owed Reham a duty but rather
claims that it did not breach the duty it owed to Reham.
[7] The mere allegation of a fall is insufficient to establish negligence. Taylor v.
Cmty. Hosps. of Ind., Inc., 949 N.E.2d 361, 364 (Ind. Ct. App. 2011). In this
case, however, Reham did not merely allege that she fell. Reham’s deposition
testimony, which was designated to the court, indicates that on the morning
Reham fell, “[i]t was pretty cold” and Reham observed that the steps by the
front entry area of her building “looked slippery and icy.” Appellant’s App.
Vol. II p. 56. Reham attempted to avoid the area that “looked slippery” by
walking on a nearby service ramp that “didn’t look slippery.” Appellant’s App.
Vol. II p. 61. However, despite her attempt to avoid the allegedly hazardous
area, she slipped and fell “as soon as [she] stepped on” the service ramp.
Appellant’s App. Vol. II p. 61. Reham indicated that although she did not see
ice on the service ramp where she fell, she assumed she slipped on ice.
[8] In support of its motion for summary judgment, Blackbird denies that the ramp
where Reham fell was icy and focuses on Reham’s statement that she did not
see ice on the ramp, arguing that her assumption that she fell on ice amounts to
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nothing more than inferential speculation. While we agree that inferential
speculation alone cannot establish negligence, see Wright Corp. v. Quack, 526
N.E.2d 216, 218 (Ind. Ct. App. 1988), Reham’s claim is not based on inferential
speculation alone. According to her deposition testimony, Reham observed icy
conditions in the immediate area and attempted to avoid what appeared to be
the most hazardous of these locations. Reham’s deposition testimony alone is
sufficient to create an issue of material fact as to whether Blackbird breached its
duty to keep its walkways clear of hazardous conditions. As such, the trial
court erred by granting summary judgment in favor of Blackbird. 1
[9] The judgment of the trial court is reversed and the matter is remanded for
further proceedings.
Vaidik, C.J., and Riley, J., concur.
1
Given that we conclude that Reham’s designated deposition testimony created a genuine issue of material
fact as to whether Blackbird breached its duty to Reham, we need not discuss the other evidence designated
by the parties or consider whether the trial court abused its discretion in excluding Reham’s proffered expert
report from the designated evidence.
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