Michelle Converse v. Elkhart General Hospital, Inc. ( 2019 )

FILED
Mar 08 2019, 5:23 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel H. Pfeifer Edward L. Murphy, Jr.
James P. Barth Lauren R. Deitrich
Pfeifer, Morgan & Stesiak Rothberg Logan & Warsco LLP
South Bend, Indiana Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michelle Converse, March 8, 2019
Appellant-Plaintiff, Court of Appeals Case No.
18A-CT-1658
v. Appeal from the Elkhart Circuit
Court
Elkhart General Hospital, Inc., The Honorable Michael A.
Appellee-Defendant. Christofeno, Judge
Trial Court Cause No.
20C01-1307-CT-119
Robb, Judge.
Court of Appeals of Indiana | Opinion 18A-CT-1658 | March 8, 2019 Page 1 of 15
Case Summary and Issue
[1] Michelle Converse appeals the trial court’s grant of summary judgment in favor
of Elkhart General Hospital, Inc. on her claim of negligence. Converse presents
only one issue for our review, whether the trial court erred when it granted
summary judgment in favor of Elkhart General. Concluding the trial court
erred in granting summary judgment in favor of Elkhart General, we reverse
and remand.
Facts and Procedural History
[2] In early 2012, Converse was an employee of American Nursing Care (“ANC”),
which conducted its home health care business from a building owned by
Elkhart General. ANC had leased the building since July 1, 2011, and
Converse went to the location two to three times per week to pick up or drop off
paperwork and to attend case conferences before dismissing patients. ANC
instructed all its employees to use the side door to enter and exit the building.
[3] After one such conference on April 10, 2012, Converse walked from the side
door to her car in the parking lot around 9:25 a.m. Converse was returning to
the building on the clear, sunny morning when she spotted another nurse, Dale
Fish, with whom she needed to speak. Converse yelled Fish’s name and
attempted to run after him but fell on the way to Fish’s car. Converse claims
she lost her balance when she stepped on a landscaping rock that was loose on
the sidewalk, hit the raised concrete area adjacent to the sidewalk, stepped on
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another rock, and fell. Converse injured her arm in the fall and required several
surgeries. Converse claimed that she did not see the rock prior to her fall and
had never noticed any rocks on the sidewalk before but that she observed
scattered landscaping rocks on the sidewalk “here and there” after the fall.
Appellant’s Appendix, Volume 2 at 134.
[4] On July 22, 2013, Converse filed a complaint for damages against Elkhart
General, alleging negligence on the basis of premises liability. Elkhart General
moved for summary judgment on March 5, 2018. The trial court heard
arguments on May 14 and granted summary judgment in favor of Elkhart
General on June 21. Converse now appeals.
Discussion and Decision
I. Standard of Review
[5] We review a summary judgment order with the same standard applied by the
trial court. City of Lawrence Util. Serv. Bd. v. Curry, 68 N.E.3d 581, 585 (Ind.
2017). Summary judgment is appropriate only when “the designated
evidentiary matter shows that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” Ind.
Trial Rule 56(C). In the summary judgment context, we are not bound by the
trial court’s specific findings of fact and conclusions of law. Rice v. Strunk, 670
N.E.2d 1280, 1283 (Ind. 1996). The trial court’s findings and conclusions
merely aid our review by providing us with a statement of reasons for the trial
court’s actions. Id.Court of Appeals of Indiana | Opinion 18A-CT-1658 | March 8, 2019 Page 3 of 15
[6] Moreover, 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 v. State, 15 N.E.3d
1000, 1003 (Ind. 2014). 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. Premises Liability
[7] To prevail on a claim of negligence, Converse must establish: (1) Elkhart
General owed a duty to Converse; (2) Elkhart General breached that duty by
allowing its conduct to fall below the applicable standard of care; and (3)
Elkhart General’s breach of duty proximately caused a compensable injury to
Converse. Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2004).
[8] Before proceeding to the merits of the parties’ arguments, however, we pause to
emphasize Indiana’s unique summary judgment standard. Contrary to the
federal standard which permits the moving party to merely show the party
carrying the burden of proof lacks evidence on a necessary element, Indiana law
requires the moving party to “affirmatively negate an opponent’s claim.”
Hughley, 15 N.E.3d at 1003 (quotation omitted). Or, to put it more simply,
Indiana law requires a movant to prove their opponent would lose, rather than
simply showing their opponent is unlikely to win. If, and only if, the movant
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sustains this burden does the burden shift to the opponent to set forth specific
facts showing that there is a genuine issue of material fact. Markley Enters., Inc.
v. Grover, 716 N.E.2d 559, 564 (Ind. Ct. App. 1999). If the movant fails in their
initial burden or the non-movant successfully designates evidence establishing a
genuine issue of material fact, summary judgment must be denied. Hughley, 15
N.E.3d at 1004 (noting “Indiana consciously errs on the side of letting marginal
cases proceed to trial on the merits, rather than risk short-circuiting meritorious
claims.”) And, with this “more onerous burden[,]” id. at 1003, in mind, we
turn to the parties’ arguments.
[9] Converse’s status at the time of the accident was an invitee. 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. Vernon v. Kroger Co., 712 N.E.2d 976, 979 (Ind. 1999).
[10] “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, 322-323
(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
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(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.
A. Unreasonable Risk of Harm
[11] Applying Section 343 to the facts presented here, the trial court concluded
Converse failed to designate evidence that the landscaping rocks on the
sidewalk presented an unreasonable risk of harm. See Appealed Order at 6, ¶
19. In light of our more onerous summary judgment standard, however, we
must disagree.
[12] On summary judgment, Elkhart General designated the following evidence
from Converse’s testimony:
(1) Converse admits she normally looks where she is walking;
(2) before the incident, on a clear day, she never saw the rock;
(3) after the fall she saw some scattered rocks on the sidewalk
and similar landscaping rocks adjacent to the sidewalk;
and
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(4) she failed to take basic safety measures that are
appropriate in just about any situation, such as looking
where you’re walking.
Appellant’s App., Vol. 2 at 49. Elkhart General then argued these statements
“preclude any reasonable inference that the rock posed an ‘unreasonable’
danger.” Id. But, rather than affirmatively negating Converse’s claim and
demonstrating that no genuine issue of material fact remained, Elkhart
General’s designated evidence actually highlighted several disputes of fact on its
face, namely: whether Converse was looking where she was walking at the
time of her fall and whether the landscaping rocks posed an unreasonable
danger even to those exercising basic safety measures.
[13] Regardless, even if we were to assume this evidence shifted the burden to
Converse to designate evidence that the condition posed an unreasonable risk of
harm, Elkhart General was still not entitled to summary judgment. A condition
poses an unreasonable risk of harm when there is a “sufficient probability of a
harmful event occurring that a reasonably prudent person would have foreseen
it or some similar event as likely to happen.” Cty of Cameron v. Brown, 80
S.W.3d 549, 556 (Tex. 2002). And, in response to Elkhart General’s motion,
Converse designated evidence that Elkhart General decorated the area next to
the sidewalk with rocks of a similar color as the sidewalk and that Elkhart
General failed to install a border or barrier to keep the rocks from littering the
sidewalk. Converse then slipped and fell on a rock that she did not see, she
suspects, because the color blended together. This evidence was sufficient, even
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if minimally so, to present a question of fact as to whether Elkhart General
knew or should have known that if the rocks were to litter the sidewalk, they
would create an unreasonable risk of harm. Moreover, because of the similarity
in color, this evidence also presents a question of whether Elkhart General
should have expected invitees to fail to discover the danger or protect
themselves from it. See Rhodes, 805 N.E.2d at 387.
[14] Elkhart General could have designated evidence in the form of an affidavit,
expert opinion, or other evidence that established the landscaping rocks did not
pose an unreasonable risk of harm. However, because it failed to do so, the
burden never shifted to Converse, and the trial court therefore erred in granting
summary judgment.
B. Actual or Constructive Knowledge
[15] Next, Elkhart General designated parts of Converse’s testimony to argue she
lacked “evidence showing that any other person associated with Elkhart
General Hospital was aware of any issues related to the alleged condition prior
to the trip-and-fall.” Appellant’s App., Vol. 2 at 50; see Carmichael v. Kroger Co.,
654 N.E.2d 1188, 1191 (Ind. Ct. App. 1995) (noting that as an invitor is not the
insurer of the invitee’s safety, an invitor must have actual or constructive
knowledge of the danger before liability may be imposed), trans. denied. Once
again, Elkhart General’s argument misunderstands Indiana’s summary
judgment standard. Indeed, “it is well-settled that merely alleging that the
plaintiff has failed to produce evidence on each element of a claim is insufficient
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to entitle the defendant to summary judgment under Indiana law.” J.H. v. St.
Vincent Hosp. and Health Care Ctr., Inc., 19 N.E.3d 811, 818 (Ind. Ct. App. 2014)
(citing Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123
(Ind. 1994)).
[16] In this regard, a good example of a defendant meeting Indiana’s burden on
summary judgment was presented in Schulz v. Kroger Co., 963 N.E.2d 1141 (Ind.
Ct. App. 2012). There, a customer slipped and fell on a clear liquid near a
Seven-Up display. The customer brought suit against Kroger and the trial court
eventually granted summary judgment in Kroger’s favor. On appeal, we
concluded Kroger had designated sufficient evidence to establish that it lacked
actual or constructive knowledge of the condition and that Kroger had therefore
affirmatively negated an element of the customer’s claim. Specifically, Kroger
designated an affidavit stating that no Kroger employee had been notified of the
spill near the Seven-Up display. Therefore, in the absence of any evidence to
the contrary, we concluded Kroger had established that it “did not have actual
knowledge of the hazardous condition.” Id. at 1144.
[17] The affidavit also stated that pursuant to Kroger’s policies, an employee had
been in the area of the spill within five to ten minutes of the fall and that there
was no clear liquid on the floor. Noting that constructive knowledge is defined
as a “condition which has existed for such a length of time and under such
circumstances that it would have been discovered in time to have prevented
injury if the storekeeper, his agents or employees had used ordinary care[,]” id.
at 1144, we explained:
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It is evident from the designated evidence before us that the
window of time between a Kroger employee being present in the
area where [the customer] fell and [the customer’s] fall was ten
minutes at most. Ten minutes prior to her fall, the floor was
clean and dry. Short of imposing a strict liability standard or
mandating an employee’s presence in every aisle at all times, we
conclude that there is no genuine issue of fact in the case before
us that Kroger did not have constructive knowledge of the
hazardous condition.
Id. at 1145.
[18] Similarly here, Elkhart General could have designated an affidavit
demonstrating that it lacked actual or constructive knowledge of the condition.
But, once again, Elkhart General failed to affirmatively negate this element of
Converse’s claim and summary judgment on this issue was improper.
C. Known and Obvious Condition
[19] Next, Converse argues the trial court erred in concluding the landscaping rock
was a “known and obvious” condition. See Appealed Order at 5, ¶ 17. We
agree.
[20] The Restatement instructs that Section 343 should be read together with Section
343A. Restatement § 343, cmt. a. Section 343A(1) provides:
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.
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See, e.g., Rhodes, 805 N.E.2d at 387 (quoting Restatement § 343A(1)). A
condition on the land or premises is “known” if the plaintiff is both aware of the
condition and appreciates its danger. Restatement § 343A, cmt. b. A condition
is “obvious” if both the condition and the risk are apparent to, and would be
recognized by, a reasonable person in the position of the visitor exercising
ordinary perception, intelligence, and judgment. Id.
[21] Our supreme court recently addressed the issue of known and obvious
conditions in Roumbos v. Samuel G. Vazanellis & Thiros & Stracci, PC, 95 N.E.3d
63 (Ind. 2018). There, a client brought a legal malpractice action against a law
firm for missing the deadline to file her premises liability action against a
hospital where she was injured after tripping on cords lying on the floor. Under
the “trial-within-a-trial” doctrine, the law firm invoked the defense that the
hospital would have asserted:
that the hospital did not breach its duty under premises-liability
law because [the client’s] fall was caused by a known or obvious
condition: the wires and cords lying on the floor on which [the
client] allegedly tripped.
Id. at 64. Because the client had provided evidence that the wires were
unknown to her, the issue turned on whether the condition was “obvious.” Id.
at 67. Our supreme court explained:
The second prong of our Section 343 analysis asks a similar
question about the obviousness of the condition, but does so from
the perspective not of the invitee but of the landowner. Section
343 considers whether the landowner should expect that invitees
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will fail to discover or realize the danger, or will fail to protect
themselves against it. When analyzing breach of duty under
Section 343, we evaluate a landowner’s knowledge under an
objective, reasonable-person standard. See Smith v. Baxter, 796
N.E.2d 242, 244 (Ind. 2003). Thus, the same analysis applies,
whether viewed from the landowner’s perspective under Section
343 or from the invitee’s under Section 343A. Either way, it is
an issue of reasonableness: What should the landowner expect
will not be discovered under Section 343? And what should be
obvious to the invitee under Section 343A?
Whether a risk is obvious is a question courts can sometimes
resolve on summary judgment. For example, we found no issue
of material fact regarding a golf-course operator’s objectively
reasonable expectation that persons on the course would “realize
the risk of being struck by an errant golf ball and take appropriate
precautions.” Pfenning v. Lineman, 947 N.E.2d 392, 406 (Ind.
2011). Viewed through the lens of Section 343A, we could also
say that the risk of errant golf balls is apparent to and recognized
by a reasonable person on a golf course exercising ordinary
perception, intelligence, and judgment.
We have likewise held that a professional baseball club would
have no reason to believe that a spectator in the stands would not
realize the danger of or fail to protect herself from foul balls
entering the stands. S. Shore Baseball, LLC v. DeJesus, 11 N.E.3d
903, 910 (Ind. 2014) (holding that danger’s obviousness was
highlighted by warning printed on her ticket, warning sign in
aisle near her seat, and public-address announcement made
before beginning of game). From the vantage point of the
reasonable invitee, the risk of baseballs entering the stands was
obvious.
Unlike the obvious risks in those cases, however, we conclude
that a material factual dispute remains here: Does the firm’s
designated evidence establish that the various wires on the
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hospital-room floor and the risks they pose would be apparent to
a reasonable person? Construing the designated facts most
favorably to [the client] and drawing all reasonable inferences in
her favor, we hold that a jury could reasonably find the wires
were not obvious to the ordinary reasonable person in [the
client’s] position.
Id. at 67-68.
[22] Returning to the facts presented here, the evidence establishes that Converse did
not see the rock and she did not know of any rocks on the sidewalk before that
point. See Appellant’s App., Vol. 2 at 133; Meredith, 984 N.E.2d at 1218 (noting
that we construe all factual inferences in favor of the nonmoving party).
Therefore, the condition could not, under our summary judgment standard,
have been “known” by Converse. See Restatement § 343A, cmt. b. The
question then becomes, as in Roumbos, whether the condition was “obvious[.]”
95 N.E.3d at 67.
[23] To that point, Elkhart General claims this case is on “all fours” with this court’s
recent decision in Podemski v. Praxair, Inc., 87 N.E.3d 540 (Ind. Ct. App. 2017),
trans. denied. Brief of Appellee at 13. There, the court applied Section 343 and
343(A)(1) where a truck driver slipped and fell on air hose running downward
from a post into a grate in a darkened area of the facility. Id. at 542. The
designated evidence established that the truck driver had been at the facility
roughly every day for “many years[,]” was aware the facility had lacked lighting
in that area for over five years, and carried a flashlight which he used to “look
around[.]” Id. at 548. The court therefore concluded the “condition presented
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by the air hose and the illumination of the area around the hose was known and
obvious.” Id.
[24] We view the facts presented here as distinguishable from Podemski. The truck
driver in Podemski visited the facility almost every day and had “known” of the
area’s insufficient lighting and the dangers that may entail. Converse, however,
only visited the building two to three times per week and was unaware of the
landscaping rocks. See Appellant’s App., Vol. 2 at 138. In that sense, these
facts are similar to the client in Roumbos who had been to the hospital a
“number of times” but there was no evidence that the prior rooms she visited
were identically configured or that there were wires on the floor. 95 N.E.3d at
68; see Appellant’s App., Vol. 2 at 138 (Converse testified that she did not
normally walk on the area of the sidewalk where she fell).
[25] In light of these factual similarities with Roumbos, we ask the same question:
Does Elkhart General’s designated evidence establish that the rocks on the
sidewalk and the risks they pose would be apparent to a reasonable person?
Unlike the errant golf ball in Pfenning, 947 N.E.2d at 406, the foul ball in S.
Shore Baseball, LLC, 11 N.E.3d at 910, or the air hose concealed by darkness in
Podemski, 87 N.E.3d at 542, our answer is no. Therefore, whether the
landscaping rocks generally, or the rocks littering the sidewalk specifically,
posed a danger that was “known” to Converse, or that such danger should have
been “obvious” to her, are factual questions which remain for trial. See
Roumbos, 95 N.E.3d at 67.
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[26] In sum, Elkhart General remains free to argue these questions to the jury.1 Or,
should Elkhart General designate sufficient evidence to affirmatively negate an
element of Converse’s claim in a future motion for summary judgment and
should Converse fail to designate sufficient evidence to show a question of fact,
Elkhart General could avoid these questions altogether. However, on the facts
presented here, we conclude the trial court erred in granting summary judgment
in favor of Elkhart General and we therefore reverse the trial court’s order and
remand for further proceedings.
Conclusion
[27] For the reasons stated above, we reverse the trial court’s order granting
summary judgment in favor of Elkhart General and remand to the trial court for
further proceedings consistent with this opinion.
[28] Reversed and remanded.
Riley, J., and Kirsch, J., concur.
1
Under the Comparative Fault Act, “[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.” Smith v. Baxter, 796 N.E.2d 242, 245 (Ind. 2003).
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