MEMORANDUM DECISION                                                       Jul 24 2015, 9:48 am


Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be 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.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
L. Matthew Nixon                                          Anthony M. Eleftheri
Fair, Nixon & Nixon                                       Wandini B. Riggins
Princeton, Indiana                                        Lewis Wagner, LLP
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Charles Bradley Nixon,                                    July 24, 2015

Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          82A01-1411-CT-505
        v.                                                Appeal from the Vanderburgh
                                                          Superior Court.
                                                          The Honorable Mary Margaret
JNJ Foods, LLC                                            Lloyd, Judge.
d/b/a McDonald’s,                                         Cause No. 82D03-1309-CT-03990
Appellee-Defendant.




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CT-505 | July 24, 2015              Page 1 of 12
[1]   Charles Bradley Nixon appeals the trial court’s grant of summary judgment in

      favor of JNJ Foods, LLC d/b/a McDonald’s (JNJ) on Nixon’s complaint for

      damages for injuries suffered after biting into food that allegedly contained a

      foreign object. Finding that there are genuine issues of material fact rendering

      summary judgment improper, we reverse and remand for further proceedings.


                                                     Facts
[2]   On March 12, 2012, during the early morning hours, Nixon, while working the

      third shift for the Gibson County Sheriff’s Department, purchased two sausage

      and cheese breakfast sandwiches from a McDonald’s located in Evansville.

      Nixon took a bite of one of the breakfast sandwiches and his tooth struck

      something hard, causing the tooth to crack. Nixon was in so much pain from

      the cracked tooth that he could not finish his shift. In a message to dispatch,

      Nixon stated: “I just broke my F---ing tooth on a sausage muffin..[Bite] all

      jacked up I’m going home...Painful.” Appellant’s App. p. 81 (capitalizations

      and punctuation original). Later that morning, Nixon saw his dentist, who

      confirmed Nixon had cracked a tooth and advised that the tooth needed to be

      extracted. As a result of losing the tooth, Nixon had to undergo a bone graft to

      prepare the socket for a tooth implant.


[3]   Nixon filed his complaint for damages against JNJ on September 9, 2013, and

      JNJ timely responded. On November 1, 2013, the trial court ordered the




      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CT-505 | July 24, 2015   Page 2 of 12
      parties to mediation.1 On July 1, 2014, JNJ filed its motion for summary

      judgment, brief in support thereof, and designated materials, which included

      Nixon’s deposition. The basis for JNJ’s motion for summary judgment was

      Nixon could not designate any specific factual evidence that would establish the

      causation element of his negligence claim. Nixon filed his response to JNJ’s

      motion for summary judgment and his designated evidence on July 29, 2014.

      The trial court held a telephonic hearing on JNJ’s motion for summary

      judgment on October 15, 2014. On October 22, 2014, the trial court summarily

      granted summary judgment in favor of JNJ. Nixon now appeals.


                                        Discussion and Decision
[4]   Nixon argues the trial court erred in granting summary judgment in favor of

      JNJ. Our standard of review on summary judgment is well established:

                 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 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




      1
          It is unclear whether the parties ever submitted to mediation.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CT-505 | July 24, 2015   Page 3 of 12
              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).
[5]   Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). “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, which is best

      applied by a jury after hearing all the evidence.” Kramer v. Catholic Charities of

      Diocese of Fort Wayne-S. Bend, Inc., --- N.E.3d ---, No. 71S03-1506-CT-350 (Ind.

      June 3, 2015).


[6]   Our Supreme Court has very recently cautioned that “[a]s long as competent

      evidence has been designated in response to a summary judgment motion, . . .

      ‘weighing [the evidence]—no matter how decisively the scales may seem to

      tip—[is] a matter for trial, not summary judgment.’” Stafford v. Szymanowski, ---

      N.E.3d ---, No. 89S01-1502-CT-64, at *4 (Ind. June 2, 2015) (quoting Hughley v.

      State, 15 N.E.3d 1000, 1005-06 (Ind. 2014)). In other words, if any weighing of

      evidence—of the facts—is required, then summary judgment is inappropriate.


[7]   In this case, Nixon provided the following deposition testimony:

              Q:       How do you know you bit down on something hard?
              A:       Because it broke my tooth in half.
              Q:       So you were assuming there was something in your sandwich
                       because it broke your tooth?
      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CT-505 | July 24, 2015   Page 4 of 12
              A:       Yes, I’m not assuming. There was something in my sandwich
                       that broke my tooth in half. There is no assumption to that.
              Q:       How do you know there was something that shouldn’t have
                       been in your sandwich?
              A:       Because I bit down on something hard. If you’re eating
                       mashed potatoes and bite down on a rock, you know there is a
                       rock in your mashed potatoes. You know there is something
                       hard in something that is supposed to be soft.
              Q:       Okay. So your testimony is you were in the process of chewing
                       and you bit down and you felt pain in your tooth?
              A:       I bit down on something hard that caused pain in my tooth.
              Q:       And is it your testimony you recall feeling something in the
                       sandwich?
              A:       I bit down on something hard that was not supposed to be in
                       the sandwich that broke my tooth.
                                                       ***
              Q:       Do you have any proof, sir, that there was a foreign object in
                       the sandwich?
              A:       Yes.
              Q:       What proof?
              A:       It broke my tooth.
              Q:       So you’re assuming that there had to be a foreign object
                       because your tooth broke?
              A:       I’m not assuming. A sausage McMuffin, normal, average
                       sausage McMuffin does not have hard objects in it that is
                       capable of breaking a person’s tooth.
                                                       ***
              Q:       Sir, I understand your testimony that you bit down on
                       something that you believe was a hard, foreign object.
              A:       I know it was, because it broke my tooth.
[8]   Appellant’s App. p. 69.




      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CT-505 | July 24, 2015   Page 5 of 12
[9]    It is well accepted that “[u]nder Indiana summary judgment procedure, a

       nonmovant is not required to come forward with contrary evidence until the

       party seeking summary judgment demonstrates the absence of a genuine issue

       of material fact.” Kennedy v. Murphy, 659 N.E.2d 506, 508 (Ind. 1995). In other

       words, “[m]erely alleging that the plaintiff has failed to produce evidence on

       each element [of a cause of action] is insufficient to entitle the defendant to

       summary judgment under Indiana law.” Deuitch v. Fleming, 746 N.E.2d 993

       (Ind. Ct. App. 2001).


[10]   Here, JNJ argues that because Nixon is unable to produce the hard object itself,

       there is no designated evidence creating a genuine issue of material fact.

       Kennedy and Deuitch, among myriad other cases, establish that this argument is

       insufficient to entitle JNJ to summary judgment. Instead, JNJ must prove the

       absence of a genuine issue of material fact with respect to each element of

       Nixon’s negligence claim, which it has failed to do.


[11]   In any event, we disagree with JNJ’s contention that Nixon’s evidence is

       insufficient. As JNJ’s brief itself argues, “the designated materials support a

       finding that an alternative cause is more likely.” Appellee’s Br. p. 9 (emphasis

       added). Whether one cause is “more likely” than another is quite clearly a

       question of fact that must be answered by a factfinder. Nixon’s testimony,

       alone, is sufficient evidence of his negligence claim to create a material issue of

       fact rendering summary judgment inappropriate. Whether his testimony alone

       is sufficient to prove his claim is a question that must be answered by a

       factfinder, but it is, at the least, enough to survive on summary judgment.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CT-505 | July 24, 2015   Page 6 of 12
[12]   In this case, there are multiple issues of material fact that must be determined

       by a factfinder. It was improper to enter summary judgment in favor of JNJ as

       a matter of law.


[13]   The judgment of the trial court is reversed and remanded for further

       proceedings.


       Najam, J., concurs, and Friedlander, J., dissents with opinion.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CT-505 | July 24, 2015   Page 7 of 12
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Charles Bradley Nixon,                                   Court of Appeals Case No.
                                                                82A01-1411-CT-505
       Appellant-Plaintiff,

               v.

       JNJ Foods, LLC
       d/b/a McDonald’s,
       Appellee-Defendant.




       Friedlander, Judge, dissenting.

[14]   I believe the trial court correctly granted summary judgment in favor of JNJ,

       and therefore respectfully dissent.


[15]   Nixon’s action alleges negligence on JNJ’s part. The three elements of

       negligence are a duty owed to the plaintiff by the defendant, a breach of that

       duty by the defendant, and injury to the plaintiff proximately caused by that

       breach. Kincade v. MAC Corp., 773 N.E.2d 909 (Ind. Ct. App. 2002).

       “Negligence will not be inferred; rather, all of the elements of a negligence

       action must be supported by specific facts designated to the trial court or


       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CT-505 | July 24, 2015   Page 8 of 12
       reasonable inferences that might be drawn from those facts.” Id. at 911. An

       inference resting on no more than speculation or conjecture is not a reasonable

       inference. Kincade v. MAC Corp., 773 N.E.2d 909. Negligence will not be

       inferred from the mere fact of an accident, absent special circumstances.

       Hayden v. Paragon Steakhouse, 731 N.E.2d 456 (Ind. Ct. App. 2000).


[16]   Nixon repeatedly confirmed in his deposition testimony that he cannot confirm,

       much less identify existence of a foreign object, as he did not see, examine, or

       preserve one, e.g.:

                Q: Did you see [the alleged foreign object], sir?
                A: No.[2]
                Q: Has anyone seen it?
                A: No.
                Q: Did you make any efforts to preserve what it was?
                A: No.
       Appellant’s Appendix at 42. In fact, Nixon admitted that the only proof that a

       foreign object existed was the injury itself:

                Q: Do you have any proof, sir, that there was a foreign object in the
                sandwich?
                A: Yes.
                Q: What proof?
                A: It broke my tooth.



       2
         Nixon explained that the reason he did not make an effort to preserve the alleged foreign object was because
       at the time, he “didn’t know how much damage there was.” Appellant’s Appendix at 42. Nixon also conceded
       that “sometimes teeth break for other reasons unrelated to being a foreign object in food,” and yet, he
       maintains that his broken tooth could only have resulted from a foreign object in his breakfast sandwich. Id.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CT-505 | July 24, 2015              Page 9 of 12
       Id. at 42. Here, there is no question of fact. Nixon admits that he has no

       physical proof that a foreign object was present in his breakfast sandwich. To

       be sure, the only “proof” Nixon has that any such foreign object ever existed in

       his food is that “[i]t broke [his] tooth.” Id. This “proof” entirely begs the

       question. Thus, Nixon’s self-serving claim that his broken tooth could only

       have resulted from a foreign object in his sandwich is based entirely upon

       speculation and conjecture.


[17]   This court has routinely upheld the grant of summary judgment in favor of

       defendants where the plaintiff is unable to identify the cause of the alleged

       injury without resorting to speculation. In Hayden v. Paragon Steakhouse, 731

       N.E.2d 456, the plaintiff fell outside of the restaurant on a snowy day. The

       plaintiff’s only support for his claim was that his feet simply went out from

       underneath him. This court affirmed the grant of summary judgment in favor

       of the defendant, finding that the plaintiff would not prove negligence because

       he was unable to identify the cause of his fall and only speculated based upon

       the surrounding circumstances.


[18]   This court reached a similar result in Midwest Commerce v. Livings, 608 N.E.2d

       1010 (Ind. Ct. App. 1993), wherein the plaintiff filed a complaint against her

       bank after she fell while standing in line on the bank’s premises. Because the

       plaintiff could not identify what caused her to fall, this court concluded that she

       failed to meet her burden to establish causation.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CT-505 | July 24, 2015   Page 10 of 12
[19]   Granted, this is not a slip-and-fall scenario like those presented in Hayden and

       Midwest Commerce, but it is similar with respect to the nature of the claim.

       Indeed, I agree with JNJ that Nixon’s claim is based solely on his speculation

       that there was a foreign object in his breakfast sandwich. As noted above, pure

       speculation cannot support the causation component of a negligence claim.


[20]   The majority asserts that it was incumbent upon JNJ, as the movant, to prove

       that Nixon’s breakfast sandwich did not contain a foreign object. See slip op. at

       6 (“[m]erely alleging that the plaintiff has failed to produce evidence on each

       element [of a cause of action] is insufficient to entitle the defendant to summary

       judgment under Indiana law”). The majority would therefore require JNJ to

       meet the impossible burden of proving a negative. See Jackson v. Warrum, 535

       N.E.2d 1207, 1218 (Ind. Ct. App. 1989) (describing as “impossible” the

       “burden of proving a negative fact”). The law should not impose such an

       impossible burden upon JNJ. See Town of Montezuma v. Downs, 685 N.E.2d 108,

       116 n. 9 (Ind. Ct. App. 1997) (“[t]o require the Downs to affirmatively prove

       that the pipeline was not inspected would require them to prove a negative,

       something which we refuse to do”). Indeed, it has long been the case that

       “where a negative is essential to the existence of a right the party claiming the

       right has the burden of proving such negative.” Boulden v. McIntire, 119 Ind.

       574, 21 N.E. 445, 448 (1889). Aside from Nixon’s speculation, he admittedly

       has no evidence from which he could meet this burden if this case were

       presented to a fact-finder. As noted above, Nixon’s speculation cannot serve as

       the basis for a finding of causation.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CT-505 | July 24, 2015   Page 11 of 12
[21]   Keeping in mind that the purpose of T.R. 56 is to “promote the expeditious

       resolution of lawsuits and conserve judicial resources,” 3 I believe summary

       judgment is warranted if the movant either disproves an element of the non-

       movant’s claim or demonstrates that the non-moving party cannot carry its

       burden of proof at trial. JNJ demonstrated the latter. In such case, I see no

       reason to go to trial or prolong these proceedings as I believe Nixon’s claim is

       destined to fail. Accordingly, I respectfully dissent from the majority’s

       conclusion, and I would affirm the order of the trial court granting summary

       judgment in favor of JNJ.




       3
        Pearman v. Jackson, 25 N.E.3d 772 (Ind. Ct. App. 2015) (citing Rosi v. Business Furniture Corp., 615 N.E.2d
       431 (Ind. 1993)).

       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CT-505 | July 24, 2015              Page 12 of 12
