Sharon Handy v. P.C, Building Materials, Inc., PC Properties, Llc, David A. Stemler, and Karen L. Stemler

Nov 19 2014, 10:34 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
W. EDWARD SKEES RICHARD T. MULLINEAUX
The Skees Law Office CRYSTAL G. ROWE
New Albany, Indiana ASHLEY GILLENWATER EADE
Kightlinger & Gray, LLP
New Albany, Indiana
IN THE
COURT OF APPEALS OF INDIANA
SHARON HANDY, )
)
Appellant-Plaintiff, )
)
vs. ) No. 22A01-1403-CT-125
)
P.C. BUILDING MATERIALS, INC., )
PC PROPERTIES, LLC, DAVID )
A. STEMLER, and KAREN L. STEMLER, )
)
Appellees-Defendants. )
APPEAL FROM THE FLOYD CIRCUIT COURT
The Honorable Susan L. Orth, Special Judge
Cause No. 22C01-1207-CT-1068
November 19, 2014
OPINION - FOR PUBLICATION
CRONE, Judge
Case Summary
Sharon Handy appeals the trial court’s entry of summary judgment in favor of P.C.
Building Materials, Inc., PC Properties, LLC, David A. Stemler, and Karen L. Stemler
(collectively “PC”) on Handy’s negligence claim against PC. The sole issue presented for
our review is whether the trial court properly entered summary judgment in favor of PC.
Concluding that genuine issues of material fact remain for determination by a jury, we
reverse and remand for further proceedings.
Facts and Procedural History1
The limited undisputed facts available for our review indicate that on Saturday, July,
10, 2010, Handy entered onto the P.C. Building Materials store property in New Albany.
The store was open for business and Handy went to the store to shop for items for a home
remodeling project. While inside the store, Handy spoke to a store salesperson who directed
her to look at some granite countertops that were displayed outside the store. The
countertops were leaning against the outside wall of the store, just to the side of the front
entrance. Handy moved the countertops around a bit and took some rough measurements
before leaving the premises. The next day, Sunday, July 11, 2010, Handy decided to return
to the store to again look at the granite and to take precise measurements to see if the
countertops might work in her remodeling project. Handy was not sure whether or not the
store would be open that day. The store was closed when Handy arrived. However, since the
1
We heard oral argument on October 22, 2014, at the Indiana University Mauer School of Law in
Bloomington. We commend counsel for the quality of their advocacy and we thank the school for its
hospitality.
2
countertops were still outside the store, Handy decided to measure them. There were at least
two granite countertops leaning against the front outside wall of the store, one right in front
of the other. After she measured the first countertop as it leaned against the wall, Handy then
pulled the first countertop forward toward her body in order to measure the second
countertop that was behind it. Because she moved the first countertop “maybe an inch or so
more past its balancing point” the granite became “way too heavy.” Appellees’ App. at 37.
The first countertop fell over on Handy’s foot and “kicked out” the countertop behind it so
that it too fell on her foot. Id. at 36. Handy, who was wearing flip-flops at the time, suffered
an injury to her toe.
On July 10, 2012, Handy filed a negligence complaint against PC seeking damages for
her injury. On September 26, 2013, PC filed a motion for summary judgment and
designation of evidence arguing that Handy was a trespasser on the premises, or at best a
licensee, and that PC breached no duty to her as a matter of law. On November 1, 2013,
Handy served her response and designation of evidence in opposition to PC’s motion,
arguing that she was a business invitee and that a genuine issue of material fact remained as
to whether PC breached its duty to her.2 Following a hearing, the trial court granted PC’s
motion for summary judgment. Specifically, the court concluded that because Handy entered
the premises without PC’s permission, she was a trespasser to whom PC owed only a duty to
2
We note that on October 29, 2013, Handy filed with the trial court a “Notice of Agreed Extension of
Time” stating that PC had agreed to an extension of time for Handy to respond to the motion for summary
judgment up to and including November 1, 2013. Appellees’ App. at 44. PC did not object to the notice or
move to strike Handy’s response and designation of evidence at the time it was filed. PC similarly made no
objection to the timeliness of Handy’s summary judgment response during the summary judgment hearing.
3
refrain from wilfully or wantonly injuring. The trial court further concluded that, even
applying a higher standard of care, there was no genuine issue of material fact indicating that
the countertops were a latent danger or any facts to indicate that PC should have realized that
the countertops presented an unreasonable danger that Handy would not have discovered.
Thus, the trial court concluded, as a matter of law, that PC did not breach any duty of care to
Handy. This appeal ensued.
Discussion and Decision
Section 1 – Standard of Review and Designated Evidence
Our standard of review in summary judgment cases is well settled.
When reviewing the grant or denial of summary judgment, this court applies
the same standard as the trial court. Specifically, we must determine whether
there is a genuine issue of material fact requiring a trial and whether the
moving party is entitled to judgment as a matter of law. Neither the trial court
nor the reviewing court may look beyond the evidence specifically designated
to the trial court. A party seeking summary judgment must make a prima facie
showing that there are no genuine issues of material fact and that the party is
entitled to judgment as a matter of law. Once the moving party satisfies this
burden through evidence designated to the trial court pursuant to Trial Rule 56,
the nonmoving party may not rest on its pleadings, but must designate specific
facts demonstrating the existence of a genuine issue for trial. On appeal, we
will assess the trial court’s decision to ensure that the parties were not
improperly denied their day in court. A genuine issue of material fact exists
where facts concerning an issue that would dispose of the litigation are in
dispute or where undisputed material facts are capable of supporting
conflicting inferences on such an issue.
Hassan v. Begley, 836 N.E.2d 303, 306-07 (Ind. Ct. App. 2005) (citations omitted). “In
determining whether genuine issues of material fact exist, the court must accept as true those
facts established by evidence favoring the nonmoving party and resolve all doubts against the
moving party.” Id. at 306. The trial court’s grant of a motion for summary judgment comes
4
to us cloaked with a presumption of validity, Altevogt v. Brand, 963 N.E.2d 1146, 1150 (Ind.
Ct. App. 2012), and the party appealing from a summary judgment decision has the burden of
persuading us that the trial court’s decision was erroneous. Walker v. Martin, 887 N.E.2d
125, 130 (Ind. Ct. App. 2008), trans. denied.
In the present case, the trial court entered findings of fact and conclusions thereon in
support of it entry of summary judgment. “Special findings are not required in summary
judgment proceedings and are not binding on appeal.” Warren v. Warren, 952 N.E.2d 269,
269 (Ind. Ct. App. 2011). However, such findings offer this Court valuable insight into the
trial court’s rationale for its review and facilitate our appellate review. Id.
PC requests that we begin our review by determining what evidence was properly
designated to the trial court and is therefore properly before this Court. PC filed its motion
for summary judgment and designation of evidence on September 26, 2013. Handy did not
serve her response and designation of evidence in opposition to summary judgment until
November 1, 2013.3 PC asserts that this Court should presume that the trial court, in reaching
its decision, appropriately disregarded as untimely Handy’s response and designation of
evidence in opposition to summary judgment. Indiana Trial Rule 56(C) provides that a party
opposing a summary judgment motion has thirty days after service of the motion to serve a
response and any opposing affidavits. “For cause found,” a trial court is authorized to “alter
3
The record indicates that, although Handy served her summary judgment response by mail on
November 1, 2013, it was filed with the trial court on November 5, 2013. The record also indicates that Handy
filed a supplemental designation of evidence on January 24, 2014.
5
any time limit set forth in this rule upon motion made within the applicable time limit.” Ind.
Trial Rule 56(I).
In HomeEq Servicing Corp. v. Baker, our supreme court described this as a “bright
line rule” and explained,
[W]here a nonmoving party fails to respond within thirty days by either (1)
filing affidavits showing issues of material fact, (2) filing his own affidavit
under Rule 56(F) indicating why the facts necessary to justify his opposition
are unavailable, or (3) requesting an extension of time in which to file his
response under 56(I), the trial court lacks discretion to permit the party to
thereafter file a response. In other words, a trial court may exercise discretion
and alter time limits under 56(I) only if the nonmoving party has responded or
sought an extension of time within thirty days from the date the moving party
filed for summary judgment.
883 N.E.2d 95, 98 (Ind. 2008) (quoting Desai v. Croy, 805 N.E.2d 844, 850 (Ind. Ct. App.
2004), trans. denied.). The court recently reiterated this procedural bright line rule, stating
that it was now “firmly entrenched as an article of faith in Indiana law,” providing “clarity
and certainty to an area of law that for too long lacked both.” Mitchell v. 10th and The
Bypass, LLC, 3 N.E.3d 967, 973 (Ind. 2014).
Here, on October 29, 2013, Handy’s counsel filed with the trial court a “Notice of
Agreed Extension of Time” stating that counsel for PC had agreed to allow him an extension
of time to respond to the motion for summary judgment. However, at no time within the
thirty-day response period did Handy’s counsel file a request with the trial court for an
extension of time in which to file the summary judgment response. Absent a formal request
filed with and subsequently granted by the trial court, we agree with PC that the trial court
was without the discretion to accept Handy’s late-filed summary judgment response. As we
6
have recognized in this exact context, although “we encourage collegiality among members
of the legal profession and endeavor to promote cooperation and conflict resolution outside
the walls of the courthouse, in certain circumstances parties must still seek formal relief
directly from the trial court.” Booher v. Sheeram, LLC, 937 N.E.2d 392, 394 (Ind. Ct. App.
2010), trans. denied (2011). This is an example of such a circumstance. Id. Because Handy
failed to file a response to summary judgment or request an extension from the trial court
within the prescribed time, the trial court had no discretion to alter the time limits in Trial
Rule 56, and Handy’s response should not have been considered. DeLage Landen Fin.
Servs., Inc. v. Cmty. Mental Health Ctr., Inc., 965 N.E.2d 693, 699 (Ind. Ct. App. 2012),
trans. denied.4
Considering only the evidence designated by PC, the question remains as to whether
summary judgment in its favor was appropriately granted. Indeed, summary judgment “shall
not be granted as a matter of course because the opposing party fails to offer opposing
affidavits or evidence, but the court shall make its determination from the evidentiary matter
4
We note that PC did not file a motion to strike or otherwise object to Handy’s initial designation of
evidence or the trial court’s consideration of the same during the summary judgment hearing. Instead, PC
raises the timeliness issue for the first time on appeal in a footnote in its appellee brief. It is well settled that a
complaining party has a duty to direct the trial court’s attention to a defective filing, and failure to raise an
objection constitutes waiver on appeal. See e.g. Paramo v. Edwards, 563 N.E.2d 595, 600 (Ind. 1990).
Moreover, “[a] party may not take advantage of an error that he commits, invites, or which is the natural
consequence of his own neglect or misconduct.” Countrymark Coop., Inc. v. Hammes, 892 N.E.2d 683, 695
(Ind. Ct. App. 2008), trans. denied. By not objecting to the timing of Handy’s initial designation of evidence,
PC not only essentially invited the trial court to abuse its discretion and consider the evidence, PC has waived
its ability to assert that error on appeal. Thus, while we necessarily acknowledge that the trial court here
should not have considered the late-filed designated evidence, we remind PC that a party must still object to
inadmissible evidence to obtain appellate review of such error. To conclude otherwise would be tantamount to
treating a trial court’s erroneous consideration of late summary judgment filings as fundamental error. Absent
express direction by our supreme court, we are not inclined to do so. Nevertheless, as we conclude,
notwithstanding PC’s waiver of the issue and even considering solely the evidence designated by PC, summary
judgment is inappropriate.
7
designated to the court.” Ind. Trial Rule 56(C). Summary judgment is appropriate only 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. South Shore Baseball, LLC
v. DeJesus, 11 N.E.3d 903, 907 (Ind. 2014).
Handy’s complaint sounds in negligence. To prevail on a claim of negligence, the
plaintiff must prove: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that
duty by the defendant, and (3) an injury to the plaintiff as a proximate result of the breach.
Key v. Hamilton, 963 N.E.2d 573, 579 (Ind. Ct. App. 2012), trans. denied. Summary
judgment is rarely appropriate in negligence cases because they are particularly fact sensitive
and are “governed by a standard of the objective reasonable person—one best applied by the
jury after hearing all of the evidence.” Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004).
Still, summary judgment is appropriate when the undisputed material evidence negates an
element of the plaintiff’s claim. Id. at 385.
Section 2 – Premises Liability and Duty
Handy asserts that summary judgment was inappropriate because genuine issues of
material fact remain regarding her status on the premises and PC’s corresponding duty of
care. We agree.
A person entering upon the land of another enters as an invitee, a licensee, or a
trespasser. Rhoades v. Heritage Invs., LLC, 839 N.E.2d 788, 791 (Ind. Ct. App. 2005), trans.
denied (2006). “The person’s status on the land defines the nature of the duty owed by the
landowner to the visitor.” Huffman v. Dexter Axle Co., 990 N.E.2d 947, 952 (Ind. Ct. App.
8
2013) (quoting Rhoades, 839 N.E.2d at 791). As a general rule, a person’s status on the land,
along with the duty owed by the landowner, is a matter left to the determination of the trial
court and not the jury. Winfrey v. NLMP, Inc., 963 N.E.2d 609, 613 (Ind. Ct. App. 2012).
However, a person’s status on the land may turn on factual issues that must be resolved by
the trier of fact, thereby precluding disposition by summary judgment. Kopczynski v. Barger,
887 N.E.2d 928, 931 (Ind. 2008). Such is the case here.
We have summarized the nature of the duty owed to visitors as follows:
The highest duty of care is owed to an invitee; that duty being to
exercise reasonable care for the invitee’s protection while he or she is on the
premises. As to a licensee, the duty is to refrain from willfully or wantonly
injuring him or her or acting in a manner to increase his or her peril; this
includes the duty to warn a licensee of any latent (non-obvious) danger on the
premises of which the landowner has knowledge. Finally, the duty owed to a
trespasser is the duty merely to refrain from wantonly or willfully injuring him
or her after discovering his or her presence.
An invitee is a person who is invited to enter or remain on another’s
land. There are three categories of invitee: the public invitee, the business
visitor, and the social guest. Licensees and trespassers are persons who enter
the land of another for their own convenience, curiosity, or entertainment and
take the premises as they find them. Unlike trespassers, however, licensees
have a privilege to enter or remain on the land by virtue of the landowners or
occupier’s permission or sufferance. In determining whether an individual is
an invitee or licensee, the distinction between the terms “invitation” and
“permission” is critical.
Yates v. Johnson Cnty. Bd. of Comm’rs, 888 N.E.2d 842, 848-49 (Ind. Ct. App. 2008)
(citations and some quotation marks omitted).
In Burrell v. Meads, 569 N.E.2d 637, 642-643 (1991), our supreme court formally
adopted the “invitation test” as the analytical basis for deciding which visitors will be granted
invitee status, concluding that “examination of the invitation itself must be the first step of
9
any inquiry into invitee status.” Id. “An invitation differs from mere permission in this: an
invitation is conduct which justifies others in believing that the possessor desires them to
enter the land; permission is conduct justifying others in believing that the possessor is
willing that they shall enter if they desire to do so.” Androusky v. Walter, 970 N.E.2d 687,
691-92 (Ind. Ct. App. 2012) (quoting Christmas v. Kindred Nursing Ctr. Ltd. P’ship, 952
N.E.2d 872, 879 (Ind. Ct. App. 2011) (citation omitted)). The decisive factor in determining
whether a landowner has extended an “invitation” or “permission” is the interpretation that a
reasonable person would put upon the landowner’s words and actions given all of the
surrounding circumstances. Rhoades, 839 N.E.2d at 792. “An invitation may be express or
implied.” Yates, 888 N.E.2d at 849. “If a landowner induces a person to enter land by
express or reasonably implied invitation, then the landowner leads that guest to believe that
the land has been prepared for his or her safety.” Id.
Based upon the limited designated facts, we can affirmatively conclude that Handy
was not a trespasser. We respectfully disagree with the trial court and conclude that the mere
fact that Handy did not have express verbal permission from PC to enter the premises on that
Sunday did not make her a trespasser. We further disagree with PC’s assertion that the fact
that the store was closed when Handy entered onto the property is dispositive as to Handy’s
10
status.5 Although the store was closed, a reasonable trier of fact could infer that PC left the
countertops displayed just outside the front entrance of the store for the purpose of attracting
members of the public and potential customers to view and consider purchasing those items.6
There is no indication in the record that access to the displayed items was in any way altered
or limited by the fact that the store was closed. It may reasonably be inferred that, had PC
not wished to attract potential customers when its store was closed, it would have moved the
countertops away from any type of public access.
It is undisputed that Handy entered onto the property to view the countertops for
potential purchase, the exact purpose for which they were displayed, and not simply for her
own convenience and curiosity. On its face, PC’s conduct justified others in believing that
PC was willing to have them enter the premises if they desired to do so. Thus, at a minimum,
Handy was a licensee with the privilege to enter the premises by virtue of PC’s permission or
sufferance. The question becomes whether that privilege was also extended by invitation.
5
PC repeatedly emphasizes the fact that the store was closed when Handy entered onto the property
and cites to Taylor v. Duke, 713 N.E.2d 877 (Ind. Ct. App. 1999), as support for its position that she was a
trespasser or, at most, a licensee. In Taylor, we held that a homeless teenager who sought shelter under a
trailer parked against the back of a closed store in the loading dock area was a trespasser. Id. at 881. Our
conclusion, however, was in no way contingent upon the fact that the store was closed but rather was based
upon the fact that the plaintiff entered the premises solely for his own convenience (seeking shelter) and not for
any purpose for which the premises were generally held open to the public. Id. We find the facts of Taylor
wholly inapposite to this case.
6
PC takes issue with the phrase “public display” used by Handy in her brief and argues that the
designated evidence “does not support the idea that these two granite countertop pieces were on public
display.” Appellees’ Br. at 16-17 n.12. Construing the facts favorable to Handy, we conclude that “public
display” is a reasonable description of how the countertops were stored just outside the front entrance of the
building.
11
Handy urges that she was an invitee/business visitor7 and that she was impliedly
invited onto the PC premises. Based upon the limited record before us, we cannot determine
as a matter of law whether Handy had an implied invitation to enter onto the premises, or
merely permission to do so. That is to say, viewing the evidence favoring Handy and
resolving all doubts against PC, genuine issues of material fact remain as to whether PC
engaged in conduct which would have justified a reasonable person in Handy’s position in
believing that PC desired her to enter onto the premises, thus making her an invitee. Under
the circumstances, PC has not met its burden of demonstrating that it is entitled to judgment
as a matter of law as to Handy’s status on the premises.
Section 3 – Premises Liability and Breach
PC maintains that, even assuming that Handy qualified as an invitee and was owed the
highest duty of reasonable care, such duty was not breached by PC as a matter of law. The
question of whether there has been a breach of duty in a negligence action is generally a jury
question and inappropriate for resolution by summary judgment. N. Ind. Pub. Serv. Co. v.
Sharp, 790 N.E.2d 462, 466 (Ind. 2003). Indeed, whether a duty of care has been breached is
only a question of law when the facts are undisputed and only one inference can be drawn
from them. Id. We cannot say that the limited facts before us lead to but one inference.
7
A business visitor is a person who is invited to enter or remain on land for a purpose directly or
indirectly connected with business dealings with the possessor of the land. Burrell, 569 N.E.2d at 642 (citing
the RESTATEMENT (SECOND) OF TORTS § 332).
12
Indiana has adopted the Restatement (Second) of Torts Section 343, which provides
that 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.
Burrell, 569 N.E.2d at 639-40 (quoting RESTATEMENT (SECOND) OF TORTS § 343 (1965)).
All three conditions set forth in Section 343 must be met for liability to attach. Harradon v.
Schlamadinger, 913 N.E.2d 297, 301 (Ind. Ct. App. 2009), trans. denied (2010).
Additionally, Section 343A of the Restatement (Second) of Torts, which discusses known or
obvious dangers, is meant to be read along with Section 343. Christmas, 952 N.E.2d at 881.
That Section “provides, in part, as follows: ‘A possessor of land is not liable to his invitees
for physical harm caused to them by any ... condition on the land whose danger is known or
obvious to them, unless the possessor should anticipate the harm despite such knowledge or
obviousness.’” Id. (citing Smith v. Baxter, 796 N.E.2d 242, 245 (Ind. 2003) (quoting
RESTATEMENT (SECOND) OF TORTS § 343A)). Indeed, ‘“[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.’” Id. (quoting Smith,796
N.E.2d at 245).
13
Here, reasonable people could differ as to whether the granite countertops represented
a known or obvious danger to Handy. Moreover, the obviousness of any danger does not
resolve the issue, see Rhodes, 805 N.E.2d at 388, as questions remain whether PC: (1) knew
or by the exercise of reasonable care should have realized that the granite involved an
unreasonable risk of harm to Handy; (2) should have expected that she would not realize the
unreasonable risk of harm of moving, pulling, or tipping the granite forward; and (3) failed to
exercise reasonable care to protect her against the danger. In short, assuming that Handy was
an invitee on the premises, genuine issues of material fact remain as to whether PC breached
its duty of care to her.
Based on the foregoing, the trial court erred when it entered summary judgment in
favor of PC. We are mindful that even if this Court believes that the nonmoving party will
not be successful at trial, summary judgment should not be granted where material facts
conflict or conflicting inferences are possible. Dunaway v. Allstate Ins. Co., 813 N.E.2d 376,
384 (Ind. Ct. App. 2004). Therefore, we reverse the trial court’s entry of summary judgment
and remand for further proceedings consistent with this opinion.
Reversed and remanded.
MATHIAS, J., concurs.
RILEY, J., concurs in part and dissents in part with opinion.
14
IN THE
COURT OF APPEALS OF INDIANA
SHARON HANDY, )
)
Appellant-Plaintiff, )
)
vs. ) No. 22A01-1403-CT-125
)
P.C. BUILDING MATERIALS, INC., )
PC PROPERTIES, LLC, DAVID A. )
STEMLER, and KAREN L. STEMLER, )
)
Appellees-Defendants. )
RILEY, Judge, concurring in part and dissenting in part
While I agree with the majority’s conclusion regarding the extent of the designated
evidence available for our review, I respectfully dissent from its conclusion that a genuine
issue of material fact remains as to Handy’s status on the premises and PC’s corresponding
duty of care. Although the majority could “affirmatively conclude that Handy was not a
trespasser,” based on “the limited record,” it could not determine “as a matter of law whether
Handy had an implied invitation to enter onto the premises, or merely permission to do so.”
Slip op. pp. 10, 12.
Finding that the question of Handy’s status is a matter of law, my analysis of the
designated evidence is in line with the trial court’s conclusion that Handy is “a trespasser,” or
at best, a licensee. See Appellant’s App. p. 10; Morningstar v. Maynard, 798 N.E.2d 920,
15
922 (Ind. Ct. App. 2003). “Even if considering a stricter standard, [PC] has not presented a
genuine issue that the countertops were a latent danger, and further nothing to indicate that
[PC] could have realized the countertops presented an unreasonable danger that [Handy]
would have discovered.” Appellant’s App. p. 10. I would affirm the trial court’s summary
judgment in every respect.
16