Elizabeth Roumbos v. Samuel G. Vazanellis and Thiros and Stracci, PC , 2017 Ind. App. LEXIS 83 ( 2017 )

FILED
Feb 24 2017, 9:23 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Mark S. Pantello David C. Jensen
Benson, Pantello, Morris, James & Robert J. Feldt
Logan, LLP Eichhorn & Eichhorn, LLP
Fort Wayne, Indiana Hammond, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Elizabeth Roumbos, February 24, 2017
Appellant-Plaintiff, Court of Appeals Case No.
45A03-1606-CT-1424
v. Appeal from the Lake Superior
Court
Samuel G. Vazanellis and Thiros The Honorable John M. Sedia,
and Stracci, PC, Judge
Appellees-Defendants. Trial Court Cause No.
45D01-1501-CT-2
Najam, Judge.
Statement of the Case
[1] Elizabeth Roumbos appeals the trial court’s entry of summary judgment for
Samuel G. Vazanellis and Thiros and Stracci, PC (collectively, “the law firm”).
Roumbos raises two issues for our review, which we consolidate and restate as
whether the trial court erred when it entered summary judgment. We hold that,
Court of Appeals of Indiana | Opinion 45A03-1606-CT-1424 | February 24, 2017 Page 1 of 11
although the designated evidence shows that Roumbos, as a business invitee,
was aware of a dangerous condition on the floor of the business, a genuine
question of material fact exists with respect to whether the business owner
should have anticipated Roumbos’ harm despite her knowledge. Accordingly,
we reverse and remand for further proceedings.
Facts and Procedural History
[2] On January 18, 2011, Roumbos, who was eighty-five years old at the time,
visited her husband at St. Anthony’s Hospital (“the hospital”) in Lake County.
Roumbos had visited her husband at that hospital on a number of prior
occasions. On this occasion, her husband asked her to bring him a glass of
water, which she did. When he had finished with the glass of water, he
returned it to her, and she turned to put the glass on the table from which she
had obtained it. In doing so, she tripped over some wires that were running
flush along the floor and under the table, which resulted in a severe injury to
Roumbos.
[3] In a later deposition, Roumbos testified as follows:
Q. . . . had you walked over [the wires] to get to the table to
pour the water?
A. Yes, I did.
Q. Okay. And did you step over them?
A. No.
Court of Appeals of Indiana | Opinion 45A03-1606-CT-1424 | February 24, 2017 Page 2 of 11
Q. You just walked over them?
A. Uh-huh.
***
Q. Okay. Well, you stepped on them, or you stepped over
them, one or the other, didn’t you?
A. If I step[ped] on [them], I could have fell [sic].
***
Q. And you agree with me that if you look[ed] down, you
would have seen [the wires], wouldn’t you?
A. Probably.
Q. . . . And when you turned around, you didn’t look down,
though, did you?
A. No.
***
Q. But there was no reason why you couldn’t look around
and see what was on the floor, was there?
A. No.
Court of Appeals of Indiana | Opinion 45A03-1606-CT-1424 | February 24, 2017 Page 3 of 11
Appellant’s App. Vol. II at 93-94, 96.1
[4] Roumbos hired the law firm to represent her in a negligence claim against the
hospital, but the law firm failed to file her complaint within the relevant statute
of limitations. Accordingly, Roumbos filed a complaint for legal malpractice
against the law firm. Thereafter, the law firm moved for summary judgment.
[5] On March 24, 2016, the trial court entered summary judgment for the law firm.
In doing so, the court stated, in relevant part, as follows:
6. . . . to . . . prove causation [in a legal malpractice action,
Roumbos] must . . . prove that, but for [the law firm’s]
negligence, the outcome of the lawsuit against [the hospital]
would have been more favorable. . . . Roumbos must therefore
prove that [the hospital] breached its duty to her as a business
invitee.
***
8. . . . The evidence designated by [the law firm] . . . as set for in
the deposition testimony of Roumbos . . . [is] that . . . she told
someone that she tripped on a telephone cord but that she did not
look down and would have avoided it if she had seen it . . . [,
which] meets [the law firm’s] initial burden of showing that there
was no genuine issue of material fact that would allow anything
1
In its brief on appeal, the law firm asserts that Roumbos was equivocal about the cause of her fall in her
deposition testimony. We cannot agree. It is clear from the totality of her testimony that at all times
Roumbos identified the wires as the cause of her fall. See Appellant’s App. Vol. II at 80-83. Accordingly, we
reject the law firm’s argument that Roumbos cannot contradict herself to create a genuine question of
material fact as well as the law firm’s argument that Roumbos’ claim against the hospital was based
exclusively on the fact of the fall.
Court of Appeals of Indiana | Opinion 45A03-1606-CT-1424 | February 24, 2017 Page 4 of 11
more than a “mere accident” and that [the law firm] is entitled to
judgment as a matter of law.
9. The burden was then placed upon Roumbos to respond and
show that a genuine issue of material fact did indeed exist.
Roumbos’s response . . . demonstrated . . . that she saw, or
should have seen, any wires on the floor before she fell.
10. The designated evidence presented by Roumbos does not
meet the responsive burden of showing that there is a genuine
issue of material fact that warrants presentation of this case to the
jury or that she is entitled to judgment as a matter of law. All
Roumbos could ultimately say was that she slipped and fell near
a table in a hospital room where wires were plainly visible,
whether she saw them or not. . . . There is no genuine issue of
material fact, and the defendants are entitled to judgment as a
matter of law.
Id. at 17-18. This appeal ensued.
Discussion and Decision
[6] Roumbos asserts that the trial court erred when it entered summary judgment
for the law firm. As our supreme court has stated:
We review summary judgment de novo, applying the same
standard as the trial court: “Drawing all reasonable inferences in
favor of . . . the non-moving parties, summary judgment is
appropriate ‘if the designated evidentiary matter shows that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.’” Williams v.
Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 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
Court of Appeals of Indiana | Opinion 45A03-1606-CT-1424 | February 24, 2017 Page 5 of 11
undisputed material facts support conflicting reasonable
inferences.” Id. (internal citations omitted).
The initial burden is on the summary-judgment movant to
“demonstrate [ ] the absence of any genuine issue of fact as to a
determinative issue,” at which point the burden shifts to the non-
movant to “come forward with contrary evidence” showing an
issue for the trier of fact. Id. at 761-62 (internal quotation marks
and substitution omitted). And “[a]lthough the non-moving
party has the burden on appeal of persuading us that the grant of
summary judgment was erroneous, we carefully assess the trial
court’s decision to ensure that he was not improperly denied his
day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
omitted).
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to
Hughley).
[7] Further, we acknowledge that the trial court here entered detailed and
thoughtful findings and conclusions in support of its entry of summary
judgment for the law firm. Such findings and conclusions are neither “required
nor prohibited in the summary judgment context.” Knighten v. E. Chicago Hous.
Auth., 45 N.E.3d 788, 791 (Ind. 2015). And while the court’s findings and
conclusions “aid our review of a summary judgment ruling[,] they are not
binding on this Court.” Id. (quotation marks omitted).
[8] As the trial court correctly recognized, Roumbos’ legal malpractice claim
against the law firm would have required her, at trial, to “prove a ‘case-within-
a-case.’” Schultheis v. Franke, 658 N.E.2d 932, 940 (Ind. Ct. App. 1995), trans.
Court of Appeals of Indiana | Opinion 45A03-1606-CT-1424 | February 24, 2017 Page 6 of 11
denied. In the summary judgment context, this required the law firm to
demonstrate that, had it filed Roumbos’ complaint against the hospital in a
timely manner, she would have been no better off than its alleged negligence
had placed her. To meet that burden, the law firm sought to negate the element
of proximate cause in Roumbos’ action against it. And, to do that, the law firm
argued that the hospital did not breach its duty of care to Roumbos, and,
therefore, it would not have mattered if the law firm had timely filed her
complaint against the hospital because, had the law firm done so, the hospital
would simply have been entitled to summary judgment against Roumbos.
[9] To prevail on her theory of negligence against the hospital, Roumbos would
have been required to prove: (1) that the hospital owed her a duty; (2) that it
breached the duty; and (3) that her injury was proximately caused by the
breach. Harradon v. Schlamadinger, 913 N.E.2d 297, 300 (Ind. Ct. App. 2009),
trans. denied. It is undisputed that Roumbos was the hospital’s invitee at the
time of the fall. Accordingly, as a matter of law the hospital owed her a duty to
exercise reasonable care for her protection while she was on the premises. Id. at
300-01. The only question in this appeal is whether the designated evidence
demonstrates, as a matter of law, that the hospital did not breach its duty to
Roumbos.
[10] The standard in Indiana for determining a landowner’s liability to business
invitees is stated in Section 343 of the Restatement (Second) of Torts, which
provides that a landowner is liable for harm to invitees if and only if the
landowner: (1) knew or by the exercise of reasonable care would have
Court of Appeals of Indiana | Opinion 45A03-1606-CT-1424 | February 24, 2017 Page 7 of 11
discovered the dangerous condition, and should have realized that it involved
an unreasonable risk of harm to invitees; (2) should have expected that an
invitee would not discover or realize the danger, or would fail to protect herself
from the danger; and (3) failed to exercise reasonable care to protect the invitee
against the danger. See Smith v. Baxter, 796 N.E.2d 242, 245 (Ind. 2003);
Countrymark Coop., Inc. v. Hammes, 892 N.E.2d 683, 688 (Ind. Ct. App. 2008),
trans. denied. However, Section 343A(1), “which is meant to be read in
conjunction with section 343,” 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.” Countrymark, 892
N.E.2d at 688-89 (emphasis added; quotation marks omitted).
[11] Here, the law firm’s designated evidence answers the first question under
Section 343(A)(1), namely, that Roumbos knew of the wires in her husband’s
room at the hospital and further recognized their danger. Roumbos testified
that she saw the wires when she was getting a glass of water for her husband.
She further testified that she consciously avoided the wires because, had she
stepped on them, she could have fallen. She then testified that, as she was
returning the glass of water to the table, she did not look down to see where the
wires were, and that, had she done so, she “[p]robably” would have seen the
wires again. Appellant’s App. Vol. II at 94. In other words, Roumbos testified
that she knew the wires were there and that she had already avoided them once,
but she had stopped paying attention and, as a result, tripped and fell. There is
Court of Appeals of Indiana | Opinion 45A03-1606-CT-1424 | February 24, 2017 Page 8 of 11
no question in light of that evidence that Roumbos knew of the dangerous
condition, which satisfied the first component of Section 343(A)(1).
[12] The trial court’s analysis ends there, but that is not the end of the inquiry.
Rather, Section 343(A)(1) continues by qualifying the circumstances in which
landowners are not liable for known or obvious risks and states that, despite
such knowledge or obviousness, nonetheless liability may attach if “the
possessor should anticipate the harm despite such knowledge or obviousness.”
Restatement (Second) of Torts § 343(A)(1). In the comments to Section
343(A)(1), the Restatement explains:
There are, however, cases in which the possessor of land can and
should anticipate that the dangerous condition will cause
physical harm to the invitee notwithstanding its known or
obvious danger. In such cases the possessor is not relieved of the
duty of reasonable care which he owes to the invitee for his
protection. This duty may require him to warn the invitee, or to
take other reasonable steps to protect him, against the known or
obvious condition or activity, if the possessor has reason to
expect that the invitee will nevertheless suffer physical harm.
Such reason to expect harm to the visitor from known or obvious dangers
may arise, for example, where the possessor has reason to expect that the
invitee’s attention may be distracted, so that he will not discover what is
obvious, or will forget what he has discovered, or fail to protect himself
against it. . . .
Id. cmt. f (emphasis added). And the Restatement provides the following
illustration of that law:
Court of Appeals of Indiana | Opinion 45A03-1606-CT-1424 | February 24, 2017 Page 9 of 11
The A Drug Store has a soda fountain on a platform raised six
inches above the floor. The condition is visible and quite
obvious. B, a customer, discovers the condition when she
ascends the platform and sits down on a stool to buy some ice
cream. When she has finished, she forgets the condition, misses
her step, falls, and is injured. If it is found that this could
reasonably be anticipated by A, A is subject to liability to B.
Id. illus. 3.
[13] We conclude that the above illustration provided in the Restatement is
analogous to the facts designated in the instant appeal and is consistent with
Indiana law. Indeed, as the Indiana Supreme Court has stated, “[t]he
determination of whether a breach of duty occurred is a factual question
requiring an evaluation of the landowner’s conduct with respect to the requisite
standard of care. In this factual assessment, the issue of the landowner’s and
the invitee’s comparative knowledge becomes relevant.” PSI Energy, Inc. v.
Roberts, 829 N.E.2d 943, 959 (Ind. 2005) (quotation marks omitted), abrogated in
part on other grounds by Helms v. Carmel High Sch. Vocational Bldg. Trades Corp.,
854 N.E.2d 345 (Ind. 2006). And we have previously acknowledged, in the
summary judgment context, that “a trier of fact could reasonably determine that
the [the landowner] should have anticipated that [the invitee] would attempt to
walk from her vehicle back to the carport or sidewalk despite the obviousness of
the risk or danger [from snow in the parking lot].” Miller v. Rosehill Hotels, LLC,
45 N.E.3d 15, 24 (Ind. Ct. App. 2015). And we have held that summary
judgment is not proper where “genuine issues exist[ed] as to whether [the
landowner] should have anticipated the harm [from ice on the ground] despite
Court of Appeals of Indiana | Opinion 45A03-1606-CT-1424 | February 24, 2017 Page 10 of 11
[the invitee’s] knowledge of the danger or the obviousness of the danger.”
Countrymark, 892 N.E.2d at 691-92.
[14] Accordingly, to demonstrate that it was entitled to summary judgment, the law
firm was required to designate evidence that demonstrated that the hospital
could not have reasonably anticipated that, despite actual prior knowledge of
the dangerous condition of the wires running along the floor of its room, an
invitee might forget about the condition and later be injured by it. See Hughley,
15 N.E.3d at 1003-04; see also Restatement, supra, § 343(A)(1) cmt. f and illus. 3.
The law firm designated no such evidence. Accordingly, it is not entitled to
judgment as a matter of law. The trial court’s entry of summary judgment for
the law firm is reversed, and we remand for further proceedings.
[15] Reversed and remanded for further proceedings.
Bailey, J., and May, J., concur.
Court of Appeals of Indiana | Opinion 45A03-1606-CT-1424 | February 24, 2017 Page 11 of 11