German A. Linares v. El Tacarajo and U-Pull-And-Pay, LLC d/b/a Pic A Part ( 2019 )

FILED
Feb 08 2019, 7:54 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
James R. Browne, Jr. U-PULL-AND-PAY, LLC
Andrew B. Janutolo D/B/A PIC A PART
Abaigeal F. Musser Judy S. Okenfuss
Goodin Abernathy LLP Jenny R. Buchheit
Indianapolis, Indiana Gregory W. Pottorff
Ice Miller LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
German A. Linares, February 8, 2019
Appellant-Plaintiff, Court of Appeals Case No.
18A-CT-276
v. Appeal from the Marion Superior
Court
El Tacarajo and U-Pull-And- The Honorable Michael D. Keele,
Pay, LLC d/b/a Pic A Part, Judge
Appellees-Defendants. Trial Court Cause No.
49D07-1606-CT-21285
Robb, Judge.
Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019 Page 1 of 22
Case Summary and Issue
[1] German Linares suffered injuries when a mobile food truck serving food in the
parking lot of an automobile salvage business exploded while he waited in line
for his food. Linares sued both the food truck operator, El Tacarajo, LLC, and
the salvage business, U-Pull-and-Pay, LLC doing business as Pic-A-Part
(“UPAP”), for negligence. Linares appeals the entry of summary judgment for
UPAP, raising one issue for our review: whether summary judgment was
inappropriate because UPAP owed Linares a duty regarding dangerous
activities on its property or, in the alternative, because UPAP was engaged in a
joint venture with El Tacarajo and is vicariously liable for its negligent acts.
Concluding UPAP did not owe Linares a duty and was not engaged in a joint
venture with El Tacarajo, we affirm the trial court’s grant of summary judgment
to UPAP.
Facts and Procedural History
[2] UPAP is an automobile salvage business in Indianapolis, Indiana. In the
course of its business, flammable materials are sometimes brought onto UPAP’s
property when junk cars come into the salvage yard. Brian Brownstein, a
UPAP assistant store manager on duty when this incident occurred, explained
that when UPAP buys a car, it drains the fluids as part of preparing the car to
“be out in the yard area where customers can pull parts[.]” Appendix of
Appellant, Volume II at 135. In addition, UPAP sometimes comes across
propane tanks or other flammable materials that have been left in cars: “we go
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to the auto return auction which tends to have repossessions. People don’t have
time to take their belongings out of the car, or it was in a serious accident . . .
there might have been like a tank in the trunk that they didn’t know about[.]”
Id. at 137. UPAP’s employees have been trained in how to handle the
flammable materials they come across and the company keeps flammables like
aerosols, gasoline, and propane in a flame-retardant cabinet to promote safety
at the salvage yard. UPAP also posts warnings and instructions for customers
and checks customers’ bags and tool boxes as they enter to ensure they have not
brought any tools or other materials onto the lot that could lead to fires or
explosions.
[3] El Tacarajo operated a food truck that occasionally sold Mexican food from
UPAP’s parking lot in 2014 and 2015. Brownstein stated that this arrangement
was “a handshake deal” that had been set up when El Tacarajo approached a
previous manager and asked if it could come on site to sell food. Id. at 59.
UPAP’s local store managers knew that El Tacarajo would sell food from the
parking lot on busy days, usually Saturdays and Sundays, but UPAP had “no
expectation” about when they would come; “[i]t was just like whenever.” Id. at
145; see also id. at 154 (Dan Ulrich, general manager for UPAP’s eastern stores,
stating El Tacarajo would “come in and sell some food and leave. Come and
go as they please.”). El Tacarajo paid UPAP $25.00 per day on at least some of
the days they set up in UPAP’s parking lot, but Brownstein was “not sure [the
payments] were made every time[.]” Id. at 61.
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[4] UPAP never asked if El Tacarajo was licensed to sell food. UPAP did not ask
El Tacarajo whether it had fire safety procedures in place for using gasoline or
propane to operate its truck. In fact, Brownstein stated at his deposition that he
never had contact with anyone at the food truck. Ulrich noted that El Tacarajo
was “not one of our vendors to where we would be checking all of their
identifications.” Id. at 154. UPAP was not aware of any prior incidents
involving an explosion, fire, or other dangerous condition created by a food
truck, gas generator, or grill on its premises at any time prior to June 20, 2015.
Neither UPAP nor El Tacarajo was aware of any dangerous condition of the
food truck or its equipment that would have or could have caused an explosion
at any time prior to June 20, 2015. Linares, who was a regular customer of
UPAP and who had purchased food from El Tacarajo several times before,
stated that he had no reason to believe the food truck was dangerous.
[5] On June 20, 2015, El Tacarajo was on UPAP’s property selling food from its
food truck. The food truck was positioned in the customer parking lot next to a
concrete wall partitioning the parking lot from the salvage yard. Linares also
visited UPAP on that date to purchase automobile glass. After making his
purchase from UPAP, Linares ordered food from El Tacarajo. As he waited for
his food, the food truck suddenly exploded and caught fire. Linares was injured
and taken by ambulance to Eskenazi Hospital for treatment.
[6] The Indianapolis Fire Department determined the explosion was caused by the
ignition of gas fumes from an open cooking flame. The Marion County Public
Health Department made similar findings, concluding that an El Tacarajo
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employee caused the explosion when, in order to refill a generator, he opened a
can of gasoline too close to a flattop grill.
[7] On June 15, 2016, Linares filed his complaint against UPAP1 and El Tacarajo,
alleging in Count One that El Tacarajo was negligent in its handling of
combustible fuels, in failing to have a license from the Marion County Health
Department, in failing to train its employees, and in failing to inspect its truck
and equipment. Count Two alleged UPAP was negligent in failing to monitor
or inspect El Tacarajo’s operations, failing to determine whether El Tacarajo
was properly licensed, and failing to study the food truck’s safety procedures.
Count Two also alleged UPAP was vicariously liable for El Tacarajo’s
negligent acts because it was engaged in a joint venture with El Tacarajo.
[8] During discovery, UPAP served requests for admissions on El Tacarajo, asking
El Tacarajo to admit: El Tacarajo did not share profits with UPAP; UPAP did
not pay El Tacarajo to market or sell food to UPAP’s customers; UPAP and El
Tacarajo were not engaged in a joint venture; and UPAP did not control any
aspect of El Tacarajo’s business or operations. Despite participating in this
litigation by, for instance, filing an appearance, filing an answer and jury
demand, and attending depositions, El Tacarajo did not respond to the requests
for admissions.
1
Linares first filed his complaint against El Tacarajo and Parts Landlord, LLC d/b/a Pic a Part but later
amended his complaint to identify UPAP d/b/a Pic a Part as the proper defendant.
Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019 Page 5 of 22
[9] UPAP then filed a motion for summary judgment arguing first that UPAP had
no duty to protect Linares from the unforeseeable actions of El Tacarajo and
second that it was not vicariously liable for the negligent acts of El Tacarajo.
Following a hearing, the trial court granted UPAP’s motion for summary
judgment and finding no just reason for delay, entered final judgment in favor
of UPAP. Linares timely filed a notice of appeal on February 9, 2018.
Discussion and Decision 2
I. Standard of Review
[10] When reviewing the grant or denial of summary judgment, we apply the same
test as the trial court: summary judgment is appropriate only if the designated
evidence shows there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Sedam v. 2JR
Pizza Enterps., LLC, 84 N.E.3d 1174, 1176 (Ind. 2017). “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 material facts support conflicting reasonable inferences.”
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).
2
We heard oral argument in this case on October 25, 2018, at Purdue University. We extend our
appreciation to the University, the Krannert Executive MBA Program, and the students for their hospitality,
and to the attorneys for their presentations.
Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019 Page 6 of 22
[11] Our review is limited to those facts designated to the trial court, T.R. 56(H),
and we construe all facts and reasonable inferences drawn from those facts in
favor of the non-moving party, Meredith v. Pence, 984 N.E.2d 1213, 1218 (Ind.
2013). On appeal, the non-moving party carries the burden of persuading us the
grant of summary judgment was erroneous. Hughley, 15 N.E.3d at 1003. A
grant of summary judgment will be affirmed if it is sustainable upon any theory
supported by the designated evidence. Miller v. Danz, 36 N.E.3d 455, 456 (Ind.
2015).
II. Summary Judgment
A. Negligence
[12] To prevail on his negligence claim, Linares must show: 1) UPAP owed a duty
to Linares; 2) UPAP breached that duty by allowing its conduct to fall below
the applicable standard of care; and 3) UPAP’s breach of duty proximately
caused a compensable injury to Linares. Smith v. Walsh Constr. Co. II, LLC, 95
N.E.3d 78, 84 (Ind. Ct. App. 2018), trans. denied. The element of duty is
generally a question of law to be determined by the court, whereas the elements
of breach and proximate cause generally present questions of fact to be
determined by the factfinder. Id. Thus, the question of UPAP’s duty to Linares
is amenable to determination by summary judgment. Id. at 85.
[13] Linares contends that UPAP had a duty to take reasonable steps to ensure that
El Tacarajo’s food truck operation did not harm Linares while he was on
UPAP’s property. He claims that given the nature of UPAP’s business, a gas
Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019 Page 7 of 22
explosion of any sort on UPAP’s property was foreseeable and therefore, UPAP
had a duty to take “reasonable precautionary steps to inspect El Tacarajo’s
operations[.]” Appellant’s Brief at 11.
[14] The duty a landowner owes to an invitee is well-established by Indiana
premises liability law: a landowner must exercise reasonable care for the
invitee’s protection while the invitee is on the premises. Rogers v. Martin, 63
N.E.3d 316, 320 (Ind. 2016). When a physical injury occurs as a result of a
dangerous condition on the premises, the Restatement (Second) of Torts section
343 accurately describes the landowner-invitee duty.3 Id. at 322-23. However,
injuries can also occur due to dangerous activities on the premises unrelated to
the premises’ condition, and landowners owe their invitees the general duty of
reasonable care under those circumstances, as well. Id. at 323. The “critical
element” in deciding whether a duty should be extended to a case in which an
invitee’s injury occurs due to some harmful activity on the premises is
foreseeability. Id. at 324.
3
Restatement (Second) of Torts section 343 (1965) 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.
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[15] Foreseeability as a component of duty is evaluated differently than
foreseeability in the context of proximate cause: whereas foreseeability for
purposes of proximate cause requires an evaluation of the facts of the actual
occurrence, foreseeability for purposes of duty is a general threshold
determination that requires a more general analysis of the broad type of plaintiff
and harm involved, without regard to the specific facts of the occurrence.
Cosgray v. French Lick Resort & Casino, 102 N.E.3d 895, 900 (Ind. Ct. App. 2018)
(the “foreseeability analysis”). “[F]or purposes of determining whether an act is
foreseeable in the context of duty we assess whether there is some probability or
likelihood of harm that is serious enough to induce a reasonable person to take
precautions to avoid it.” Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d
384, 392 (Ind. 2016) (quotation omitted).
[16] The parties agree that Linares was an invitee on UPAP’s property. The parties
also agree that UPAP therefore owed Linares the duty to exercise reasonable
care to keep its premises in a reasonably safe condition and to warn him of
known dangers or dangers that should have been known to UPAP. The parties
disagree on the appropriate test to be applied in determining whether UPAP
had a duty to protect Linares from the food truck explosion.
[17] Linares first asserts his claim should be evaluated under section 343 of the
Restatement (Second) of Torts and a committee comment thereto, arguing that
he was “injured due to a dangerous appliance and the hazardous use of
explosive materials[,]” and if UPAP had taken “reasonable precautionary steps
to inspect El Tacarajo’s operations, it could have foreseen and prevented the
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explosion[.]” Appellant’s Br. at 11-12.4 Linares concludes UPAP, by the
exercise of reasonable care, would have discovered the dangerous condition of
the food truck and should have realized that it involved an unreasonable risk of
harm to Linares and other business invitees.
[18] We disagree with Linares that UPAP’s duty should be determined under the
standard section 343 analysis for injuries resulting from a condition of the land.
Although Linares is correct that when an injury occurs as a result of some
condition on the land, section 343 describes the landowner-invitee duty and a
foreseeability analysis is not required, Linares was not injured by a condition of
UPAP’s land. “Conditions of the land” are typically physical characteristics,
such as untreated ice, a decaying tree, or uneven flooring. See Dehoyos v. Golden
Manor Apartments, 101 N.E.3d 874 (Ind. Ct. App. 2018) (addressing premises
liability under section 343 when plaintiff slipped on ice on sidewalk outside her
apartment building); Marshall v. Erie Ins. Exch., 923 N.E.2d 18 (Ind. Ct. App.
4
The comment, quoted by Linares in his brief at page 13, states:
f. Appliances used on land. A possessor who holds his land open to others must possess
and exercise a knowledge of the dangerous qualities of the place itself and the appliances
provided therein, which is not required of his patrons. Thus, the keeper of a
boardinghouse is negligent in providing a gas stove to be used in an unventilated
bathroom, although the boarder who is made ill by the fumes uses the bathroom with
knowledge of all the circumstances, except the risk of so doing. This is true because the
boardinghouse keeper, even though a man of the same class as his boarders, is required to
have a superior knowledge of the dangers incident to the facilities which he furnishes to
them.
Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019 Page 10 of 22
2010) (unhealthy tree fell onto neighbor’s house in urban or residential area),
trans. denied; Smith v. King, 902 N.E.2d 878 (Ind. Ct. App. 2009) (plaintiff fell
through hole in floor of house under construction).
[19] In Jones v. Wilson, 81 N.E.3d 688 (Ind. Ct. App. 2017), the plaintiff attended a
wrestling event at a county fairgrounds and was injured when she was assaulted
by an unknown assailant as she walked through a dark parking lot to her car
after the event. The plaintiff sued the event promoter and the fairgrounds’
owner, and the trial court granted summary judgment to the promoter. On
appeal, the parties disagreed over whether section 343 or the foreseeability
analysis should be applied: the plaintiff argued she was injured because the lack
of lighting which contributed to her attack is a condition of the land, whereas
the promoter argued she was injured by an assailant not by, for instance,
stepping in a hole and therefore she was injured because of activities occurring
on the land. Id. at 694-95. The court agreed with the promoter: the plaintiff’s
“injuries resulted from the conduct of a third person” and the foreseeability
analysis therefore applied. Id. at 695. This situation is similar: although it was
the stove in the food truck on UPAP’s property igniting that caused the
explosion, Linares’s injuries resulted from the activities of El Tacarajo’s
employees in relation to that stove. Therefore, the foreseeability analysis must
be applied to determine if a duty exists at all.
[20] Despite claiming his injuries were caused by a condition of the land, and
despite further claiming that the foreseeability analysis should not apply
because this case does not involve a criminal or intentional act, Linares does
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address the foreseeability analysis. He advocates that in this case, the test
requires considering whether “a gasoline explosion or fire on UPAP’s property
that could harm its customers” was foreseeable and concludes that it was.
Appellant’s Br. at 15. In support of his argument, Linares notes that flammable
materials regularly come onto UPAP’s property; that its employees are trained
in safety hazards connected with collecting, storing, and handling those
materials; and that it takes steps to prevent customers from using ignition
sources in the yard; therefore, UPAP was at least theoretically aware of the
hazards associated with flammable materials.5 Linares’s reliance on UPAP’s
policies and procedures related to its own business are irrelevant for purposes of
this analysis because it was not the activities surrounding UPAP’s business that
caused Linares’s injuries. In other words, Linares was not injured by an
explosion of flammable materials that belonged to or were the responsibility of
UPAP. For this reason, we also disagree with Linares that the “broad type of
harm” is any explosion on UPAP’s premises.
[21] Although the foreseeability analysis for determining duty is a consideration of
the broad “zone of danger” that could be caused by activities on the land (as
opposed to the more specific “zone of danger” addressed by proximate cause),
we do not conduct the analysis in the broadest terms possible. For instance, in
5
To the extent Linares relies on the fact that there was a fire on UPAP’s property in the past, Brownstein
stated at his deposition that a car caught fire during his time working for UPAP, but he could not recall
whether it occurred before or after the food truck explosion. App. of Appellant, Vol. II at 138. Moreover, it
was a car in the salvage yard that caught fire, not a food truck or even a car in the parking lot. For both of
those reasons, that fire does not make the food truck explosion foreseeable.
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Goodwin, the court identified the broad type of harm as “the probability of a
criminal attack, namely: a shooting inside a bar.” 62 N.E.3d at 393. Thus, it is
clear that we do not completely divorce this analysis from the circumstances; if
we were to do so, the broad type of harm in Goodwin would have been
described as simply the probability of an altercation between two bar patrons.
See also Estate of Staggs ex rel. Coulter v. ADS Logistics Co., LLC, 102 N.E.3d 319,
325 (Ind. Ct. App. 2018) (identifying the plaintiffs as motorists and the broad
type of harm that occurred as “a vehicular accident after commercial cargo
became unsecured and struck the motorists” rather than the broadest definition
of the type of harm as simply a “motor vehicle accident”), trans. denied; Polet v.
ESG Sec., Inc., 66 N.E.3d 972, 983 (Ind. Ct. App. 2016) (identifying the type of
plaintiff as “a patron of an outdoor concert” and the broad type of harm as “the
probability or likelihood of a stage collapse caused by a strong wind”).
[22] Accordingly, Linares’s formulation of the foreseeability analysis is too broad.
True, UPAP was generally aware that flammable liquids and open flames can
interact explosively and therefore had a duty to protect its invitees from
explosions due to the materials that belonged to it. But for purposes of the
foreseeability analysis, the type of plaintiff is a patron of a business and the
broad type of harm is the probability or likelihood that an independently
operated food truck on the premises of that business would explode or catch fire
due to employee error.
[23] No one—not UPAP, not El Tacarajo, and not Linares himself—believed or had
any reason to believe the food truck was defective or dangerous. Had UPAP
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inspected the food truck, as Linares believes it should have, first, it is unclear
what UPAP, as a salvage business, would have been qualified to inspect for,
and second, there still would not have been any reason to believe the food truck
was defective, because it was not in fact a defect that caused the explosion but
rather human error. As for UPAP’s alleged failure to inquire about El
Tacarajo’s license, the record indicates as of August 2014, El Tacarajo had an
expired certified food handler certificate and an unpaid licensing fee. It is not
clear that remained true as of the date of this incident and further, the licensing
requirement apparently had no bearing on safe operation of the food truck, only
the safe handling of food. Finally, there was no designated evidence to suggest
UPAP had knowledge of any food truck explosions anywhere in the past, let
alone any of the same or similar nature.
[24] Should food trucks be inspected? Probably. Should UPAP have taken more
interest in a mobile business it allowed to operate on its premises and sell to its
customers? Possibly. But should a company in a completely unrelated private
business which periodically provides a parking space be required to conduct
that inspection and ensure the food truck is safely maintained and its employees
properly trained? Even if UPAP had asked the questions Linares and the
dissent argue it should have, it still would not have been reasonably foreseeable
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to UPAP that the food truck would suddenly explode because of an employee’s
negligence.6
[25] In a recent case, this court considered whether a lake owner had a duty to
protect a swimmer from contracting a rare brain infection caused by an amoeba
found naturally in fresh water. Daviess-Martin Cty. Joint Parks & Recreation Dep’t
v. Estate of Abel by Abel, 77 N.E.3d 1280 (Ind. Ct. App. 2017), trans. denied. The
court determined that it was not reasonably foreseeable that a swimmer would
contract such an infection and held there was no duty. Id. at 1289-90. In that
case, the landowner’s obligation was to provide a safe lake and yet the court
found there was no duty and reversed the trial court’s denial of summary
judgment in favor of the landowners. Here, we are reviewing the grant of
summary judgment where the defendant is several steps removed from being
directly responsible for the instrument causing damage.
[26] Focusing on the harm inflicted on Linares when an employee of a food truck
UPAP occasionally allowed onto its property—an employee whose job it was
to operate a mobile food truck that relies on a generator to power its
6
Linares concludes that “[a] jury should be left with the task of determining whether, under a complete
picture of the evidence, UPAP breached a duty owed to Mr. Linares.” Appellant’s Br. at 15. It is unclear
whether Linares is advocating that we apply the “totality of the circumstances” test that was abandoned by
our supreme court when it decided Goodwin, see 62 N.E.3d at 389 (“[W]e now recognize that although the
‘totality of the circumstances’ test is useful in determining foreseeability in the context of proximate
causation, it is inappropriate when analyzing foreseeability in the context of duty.”), or whether he is arguing
that the case should be decided on the factual determination of breach. In either event, determining whether
UPAP owed Linares a duty using the foreseeability analysis is the threshold determination. See Cosgray, 102
N.E.3d at 900; Goodwin, 62 N.E.3d at 386 (“Absent a duty there can be no negligence or liability based upon
the breach.”).
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operations—fueled the generator in too close proximity to an open flame, we
conclude that such harm was not normally to be expected and thus was not
reasonably foreseeable by UPAP. Linares’ injury is unfortunate, but UPAP did
not owe him a duty.
B. Vicarious Liability
[27] Linares also advanced a claim for vicarious liability alleging UPAP and El
Tacarajo were engaged in a joint venture. “As in a partnership, the parties to a
joint venture are jointly and severally liable.” DLZ Indiana, LLC v. Greene Cty.,
902 N.E.2d 323, 330 (Ind. Ct. App. 2009). A joint venture is “an association of
two or more persons formed to carry out a single business enterprise for profit.”
Robbins v. Trustees of Indiana University, 45 N.E.3d 1, 6 (Ind. Ct. App. 2015). In
a joint venture, “the parties must be bound by an express or implied contract
providing for (1) a community of interests, and (2) joint mutual control, which
is an equal right to direct and govern the undertaking that binds the parties to
the agreement.” Id. A joint venture agreement also must provide for sharing of
profits. Id. A joint venture is similar to a partnership, except a joint venture
contemplates a single transaction. Id.[28] Although whether a joint venture exists is generally a question of fact, where
the question can be resolved by looking only at undisputed facts, the existence
of a joint venture is a question of law appropriate for summary judgment. DLZ
Indiana, LLC., 902 N.E.2d at 328. Our review of the designated materials
reveals that to the extent there was an agreement between El Tacarajo and
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UPAP, and to the extent such agreement may have been mutually beneficial, it
is undisputed that any such agreement did not provide for mutual control over
the venture. El Tacarajo unilaterally decided when to go to UPAP’s premises
to sell its food, who to employ, what food it would offer, and how much it
would charge. UPAP unilaterally decided where on its property El Tacarajo
could park and it could have told El Tacarajo to leave on any given day or to
leave and never return. No decisions were made jointly by UPAP and El
Tacarajo in regard to the food truck operation.
[29] In addition, it is undisputed that even if El Tacarajo occasionally paid UPAP
for use of its parking lot, it always paid $25.00 and that amount had no
relationship to the profits El Tacarajo earned during a given sales day. See
Walker v. Martin, 887 N.E.2d 125, 138 (Ind. Ct. App. 2008) (holding that parties
were not engaged in a joint venture because they did not share in any profit
from the sale of logs, although one party paid the other per load based on miles
traveled or per board feet of wood hauled), trans. denied; Inland Steel v. Pequignot,
608 N.E.2d 1378, 1382 (Ind. Ct. App. 1993) (holding that a contract for steel
shipments at predetermined rates is not profit sharing for purposes of
establishing a joint venture), trans. denied. Thus, any agreement the parties had
did not provide for profit-sharing.
[30] The fact that two or more parties agree to work “jointly and in collaboration”
or “collectively” does not necessarily mean that they are engaged in a joint
venture. DLZ Indiana, LLC, 902 N.E.2d at 329. Even without considering El
Tacarajo’s failure to respond to UPAP’s requests for admissions about the
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arrangement, the undisputed designated evidence demonstrates that UPAP was
not engaged in a joint venture with El Tacarajo for the purpose of finding
UPAP vicariously liable for El Tacarajo’s negligence.
Conclusion
[31] Linares has failed to carry his burden to show us that the trial court’s decision
to grant summary judgment in favor of UPAP was improper.
[32] Affirmed.
Vaidik, C.J., concurs.
Kirsch, J., dissents with opinion.
Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019 Page 18 of 22
IN THE
COURT OF APPEALS OF INDIANA
German A. Linares,
Appellant-Plaintiff, Court of Appeals Case No.
18A-CT-276
v.
El Tacarajo and U-Pull-And-
Pay, LLC d/b/a Pic A Part,
Appellees-Defendants.
Kirsch, Judge, dissenting.
[1] Food truck explosions occurred in Traverse City, Michigan in 2013;
Philadelphia, Pennsylvania in 2014; Foggy Bottom, District of Columbia in
2016; Portland, Oregon in 2017; Downtown, District of Columbia in 2017; and
in Southwest Washington, District of Columbia, in 2018.
Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019 Page 19 of 22
[2] In the Philadelphia explosion, two people were killed; nine others were injured.
The explosion shook buildings in the area and sent a fireball 200 feet into the
air. The leaking propane tank was sent ninety-five feet onto neighboring
property. The subsequent lawsuit was settled for One Hundred and Sixty
Million Dollars, believed to be the largest pre-trial personal injury settlement in
the state.
[3] Food trucks carry flammable materials in close proximity to open-fire grills. As
such, they pose inherent dangers. The National Fire Prevention Journal reported
that “A standard 20-gallon propane tank has the same explosive capability in
170 sticks of dynamite.” NFPA Journal, May-June 2015.
[4] Beginning in 2014, El Tacarajo operated a food truck from time to time upon
the premises of U-Pull-and-Pay, LLC (“UPAP”). El Tacarajo routinely paid
UPAP $25.00 for each day it parked its truck on their premises and sold food
which was cooked on its truck to UPAP’s customers.
[5] On June 20, 2015, German Linares came upon UPAP’s property to conduct
business with UPAP. While there, he stood in line at the El Tacarajo food
truck which was parked upon the UPAP premises. While he was waiting, the
food truck exploded, injuring Linares. It was later determined that the
explosion was caused by an El Tacarajo employee who opened a can of
gasoline too close to a hot grill on the truck.
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[6] Linares was on the UPAP property for a business purpose. He was a business
invitee and was owed a duty of reasonable care. He sustained physical harm
caused by the accidental or negligent acts of an El Tacarajo employee.
[7] UPAP was well aware of the risks of explosions from handling flammable
materials. Indeed, as noted in the majority opinion, UPAP trains its employees
in handling flammable materials and posts warnings and instructions for its
customers about the dangers.
[8] Notwithstanding its knowledge of the risks of mishandling gasoline, propane,
and other flammable materials, UPAP made no inquiry or investigation of El
Tacarajo’s use of flammable substances on its property in close proximity to its
customers. UPAP failed to make reasonable inquiries about El Tacarajo’s
operations and failed to determine whether such operations posed an
unreasonable risk of harm to its customers. Indeed, nothing in the record
before us indicates that UPAP made any inquiry regarding (1) whether El
Tacarajo was licensed to sell food in the conduct of its business, (2) whether it
trained its employees in the handling of flammable substances in close
proximity to heat sources, (3) whether it used gasoline or other flammable
substances in its operations, (4) whether it had proper fire safety procedures in
place, or (5) whether it complied with legal and safety requirements.
[9] Restatement of the Law 2d, Torts (1965), Section 344 provides:
A possessor of land who holds it open to the public for entry for
his business purposes is subject to liability to members of the
public while they are upon the land for such a purpose, for
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physical harm caused by the accidental, negligent, or intentional
harmful acts of third persons or animals, and by the failure of the
possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done,
or
(b) give a warning adequate to enable the visitors to avoid the
harm, or otherwise to protect them against it.
[10] Summary judgment is rarely appropriate in negligence cases and, from my
perspective, is not appropriate here. These cases are fact sensitive and are
governed by a standard of the objective reasonable person. The determination
of liability should be made by a jury after hearing all the evidence. Rhodes v.
Wright, 805 N.E.2d 382, 387 (Ind. 2004).
[11] I would reverse the judgment of the trial court and remand for further
proceedings.
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