Cheryll Lee v. Blue Chip Casino LLC (mem. dec.) ( 2016 )


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  • MEMORANDUM DECISION                                                                        FILED
    May 12 2016, 9:20 am
    Pursuant to Ind. Appellate Rule 65(D),                                                     CLERK
    this Memorandum Decision shall not be                                                  Indiana Supreme Court
    Court of Appeals
    and Tax Court
    regarded as precedent or cited before any
    court except for the purpose of establishing
    the defense of res judicata, collateral
    estoppel, or the law of the case.
    ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
    Thomas D. Blackburn                                     Roland Clark
    Ryan Lindinger                                          Charles C. Hoppe, Jr.
    Blackburn & Green                                       Knight, Hoppe, Kurnik & Knight,
    Granger, Indiana                                        Ltd.
    Schererville, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Cheryll Lee,                                            May 12, 2016
    Appellant-Plaintiff,                                    Court of Appeals Case No.
    46A04-1512-CT-2325
    v.                                              Appeal from the LaPorte Circuit
    Court
    Blue Chip Casino LLC,                                   The Honorable Thomas J.
    Appellee-Defendant.                                     Alevizos, Judge
    Trial Court Cause No.
    46C01-1402-CT-234
    Bradford, Judge.
    Case Summary
    Court of Appeals of Indiana | Memorandum Decision 46A04-1512-CT-2325 | May 12, 2016    Page 1 of 8
    [1]   Appellant-Plaintiff Cheryll Lee slipped and fell as she was entering Appellee-
    Defendant Blue Chip Casino’s establishment. Lee brought suit claiming that
    Blue Chip was negligent for maintaining an unreasonably dangerous premises
    and failing to warn her that the area in front of the entrance was slick and
    dangerous. The trial court awarded summary judgment in favor of Blue Chip
    finding that the area on which Lee slipped was not unreasonably dangerous
    because it was outdoors and wet due to rainwater, and that any potential
    hazard was open and obvious. We reverse.
    Facts and Procedural History
    [2]   On October 31, 2013, Lee visited the Blue Chip Casino with her sister and
    mother. Upon arriving, the group parked their vehicle under the main
    entryway awning where vehicles could be valeted. Lee exited the vehicle and,
    as she approached the doorway leading into the building, she slipped and fell to
    the ground. It had been raining throughout the day and the area underneath
    the entryway awning was wet. Approximately ninety minutes prior to Lee’s
    fall, another patron of the casino fell in the same general area and reported the
    incident to Blue Chip employees.
    [3]   On February 11, 2014, Lee filed a complaint against Blue Chip seeking
    damages for injuries allegedly sustained as a result of the fall. Lee alleged that
    Blue Chip was negligent for failing to warn her that the entryway was slick and
    for failing to maintain a reasonably safe premises. On July 10, 2015, Blue Chip
    filed a motion for summary judgment in which it denied breaching any duty to
    Court of Appeals of Indiana | Memorandum Decision 46A04-1512-CT-2325 | May 12, 2016   Page 2 of 8
    Lee. Lee filed a response to Blue Chip’s motion on September 9, 2015. After
    conducting a hearing on the matter, the trial court granted Blue Chip’s motion
    for summary judgment, reasoning as follows:
    17. The condition of the area was open and obvious, of which the
    Plaintiff was aware. Although there was an awning, the area was
    outside. Rain could clearly reach the area, hence having non-slip
    metal grates in place, which purpose was to drain water and
    catch access water off of shoes before invitees enter the casino.
    Thus, Defendant cannot be liable for failure to warn when
    Plaintiff was fully aware that it was wet. Further, Plaintiff
    admitted in her deposition to understanding that rain causes the
    ground to become wet, a wet ground could be slippery, and it is
    possible to fall when the ground is slippery. She also
    acknowledged that it rained that day. This shows that she
    discovered the dangerous condition of the wet ground and
    appreciated its danger. Further, immediately after she fell, she
    walked across the area a few more times to see what caused her
    to slip. The Court notes, she did not fall any of the times that she
    walked over the area pursuant to the original occasion. After
    finding no hidden cause, she continued on with her evening
    without reporting any injuries until the following day.
    18. Plaintiff contends that there is an issue as to notice, when a
    previous invitee slipped in the exact same spot, approximately
    ninety (90) minutes prior to Plaintiff’s fall.
    19. This cannot suffice as proper notice to Defendants. The
    invitee who fell prior to Plaintiff did not valet park, he self-
    parked. Therefore, he walked across the parking lot on the wet
    ground and fell when he got up to the front entrance. The fact
    that said area was possibly dangerous is not notice unless it is
    unreasonably dangerous. A reasonable person would think that
    since the ground was wet and he walked through the wet parking
    lot, he could slip. Again, rain causes the ground to become wet,
    a wet ground could be slippery, and it is possible to fall when the
    Court of Appeals of Indiana | Memorandum Decision 46A04-1512-CT-2325 | May 12, 2016   Page 3 of 8
    ground is slippery. It was a reasonable risk under the
    circumstances to realize that one may slip and fall.
    Appellee’s App. pp. 3-4. Lee now appeals the trial court’s grant of summary
    judgment.
    Discussion and Decision
    [4]   Pursuant to Indiana Trial Rule 56(C), summary judgment is appropriate only
    where there are no genuine issues of material fact and the moving party is
    entitled to judgment as a matter of law. Landmark Health Care Assocs., L.P. v.
    Bradbury, 
    671 N.E.2d 113
    , 116 (Ind. 1996). “‘A genuine issue of material fact
    exists where facts concerning an issue which would dispose of the litigation are
    in dispute or where the undisputed facts are capable of supporting conflicting
    inferences on such an issue.’” 
    Id. (quoting Scott
    v. Bodor, Inc., 
    571 N.E.2d 313
    ,
    318 (Ind. Ct. App. 1991). We construe all evidence and factual inferences in
    favor of the non-moving party and all doubts as to the existence of a material
    issue must be resolved against the moving party. Tibbs v. Huber, Hunt & Nichols,
    Inc., 
    668 N.E.2d 248
    , 249 (Ind. 1996).
    [5]   “Summary judgment is rarely appropriate in negligence cases.” 
    Id. Such cases
    are 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. Harradon v.
    Schlamadinger, 
    913 N.E.2d 297
    , 300 (Ind. Ct. App. 2009). “Nonetheless,
    summary judgment is appropriate when the undisputed material evidence
    negates one element of a negligence claim.” 
    Id. Court of
    Appeals of Indiana | Memorandum Decision 46A04-1512-CT-2325 | May 12, 2016   Page 4 of 8
    [6]   In order to recover on a theory of negligence, the plaintiff must establish three
    elements: (1) a duty owed to the plaintiff by the defendant; (2) a breach of that
    duty; and (3) an injury to the plaintiff proximately caused by that breach. 
    Id. Lee argues
    that Blue Chip breached its duty to her, a business invitee, by failing
    to maintain reasonably safe premises and failing to provide some warning that
    its entryway was slick and potentially dangerous.1
    [7]   “A landowner owes to an invitee or social guest ‘a duty to exercise reasonable
    care for his protection while he is on the landowner’s premises.’” Pfenning v.
    Lineman, 
    947 N.E.2d 392
    , 406 (Ind. 2011) (quoting Burrell v. Meads, 
    569 N.E.2d 637
    , 639 (Ind. 1991). In Burrell, the Indiana Supreme Court adopted the
    Restatement’s analysis for premises liability.
    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. 569 N.E.2d at 639-640
    (quoting Restatement (Second) of Torts § 343 (1965)).
    “‘A possessor of land is not liable to his invitees for physical harm caused to
    1
    Blue Chip appears to concede on appeal that it owed a duty to Lee as an invitee.
    Court of Appeals of Indiana | Memorandum Decision 46A04-1512-CT-2325 | May 12, 2016    Page 5 of 8
    them by an 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.’” Rhodes v. Wright, 
    805 N.E.2d 382
    , 387 (Ind. 2004)
    (quoting Restatement (Second) of Torts § 343A(1)).
    [8]   Blue Chip argues, and the trial court found, that it cannot be held liable because
    (1) the condition of its entryway was not unreasonably dangerous and (2) any
    dangerous condition was open and obvious and so did not merit a warning.
    While these issues would appear to be factual questions for the jury, Blue Chip
    argues that because no reasonable jury could find that it breached its standard
    of care, the question of breach becomes a question of law for the court. Cox v.
    Paul, 
    828 N.E.2d 907
    , 912-13 (Ind. 2005) (“The question of the breach of a duty
    is usually one for the trier of fact. However, if any reasonable jury would
    conclude that a specific standard of care was or was not breached, the question
    of breach becomes a question of law for the court.”) (citations omitted).
    [9]   We cannot agree with Blue Chip’s contention that no reasonable jury could find
    that it breached its duty of care. Lee submitted evidence that another patron
    slipped and fell in the same area just ninety minutes prior to her, that patron
    reported his fall to Blue Chip staff, and an internal incident report was created
    by Blue Chip. This supports the inference that the area was unreasonably
    dangerous and that Blue Chip was aware of the danger. Furthermore, while it
    is obvious that rain can cause slick surfaces, it may not have been obvious that
    the grating on which Lee slipped was wet, as it was underneath an awning. Lee
    stated that, prior to her fall, she did not notice that the ground was wet.
    Court of Appeals of Indiana | Memorandum Decision 46A04-1512-CT-2325 | May 12, 2016   Page 6 of 8
    Additionally, it is unclear whether the grating increased the risk of slipping.
    Blue Chip concedes that it did not post any warning signs that the area was
    slippery.
    [10]   In Christmas v. Kindred Nursing Centers Ltd. Partnership, we addressed a factually
    similar situation when a man slipped on ice and fell as he was walking toward
    the entrance of a nursing home. 
    952 N.E.2d 872
    , 875 (Ind. Ct. App. 2011).
    The plaintiff, Christmas, stated that as he approached the facility he stepped in
    what he thought to be melting snow on the sidewalk which turned out to be ice,
    causing his fall. The trial court granted the defendant’s motion for summary
    judgment. On appeal, this court reversed, finding as follows:
    From this evidence, a trier of fact could infer from the designated
    evidence that Windsor (1) knew or by the exercise of reasonable
    care would discover the condition, and should have realized that
    it involved an unreasonable risk of harm to Christmas; (2) should
    have expected that Christmas would not discover or realize the
    unreasonable risk of harm of ice hidden by water and snow; and
    (3) failed to exercise reasonable care to protect Christmas against
    the danger. In short, there is a genuine issue of material fact
    pertaining to whether Windsor breached its duty of care.
    
    Id. at 881-82
    (emphasis added).
    [11]   It could be argued in Christmas that the danger of hidden ice on a sidewalk that
    is covered in a snow is an open and obvious danger. Nonetheless, determining
    whether the condition of the sidewalk was unreasonably dangerous was a
    material question of fact not appropriate for summary judgment. The same
    logic applies to the instant case. Determining whether Blue Chip’s entryway
    Court of Appeals of Indiana | Memorandum Decision 46A04-1512-CT-2325 | May 12, 2016   Page 7 of 8
    posed an unreasonable risk, and whether that risk was open and obvious, are
    factual questions left to the trier-of-fact. We again note that summary judgment
    is generally disfavored as an alternative to trial, particularly in fact-sensitive
    negligence cases. See Simon Prop. Grp., L.P. v. Acton Enterprises, Inc., 
    827 N.E.2d 1235
    , 1240 (Ind. Ct. App. 2005); see also 
    Harradon, 913 N.E.2d at 300
    . Because
    there is a genuine issue of material fact regarding whether Blue Chip breached
    its duty of care, we find that the trial court’s award of summary judgment was
    inappropriate.
    [12]   The judgment of the trial court is reversed.
    Bailey, J., and Altice, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 46A04-1512-CT-2325 | May 12, 2016   Page 8 of 8