MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                      FILED
court except for the purpose of establishing                              Nov 06 2019, 8:47 am
the defense of res judicata, collateral
                                                                               CLERK
estoppel, or the law of the case.                                          Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEYS FOR APPELLANT                                 ATTORNEY FOR APPELLEES
Christopher G. Stevenson                                Andrew B. Miller
D. Bruce Kehoe                                          Starr Austen & Miller LLP
Wilson Kehoe Winingham, LLC                             Logansport, Indiana
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Reham Al-Sinan,                                         November 6, 2019
Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                        19A-CT-1236
        v.                                              Appeal from the Tippecanoe
                                                        Superior Court
Blackbird Farms Apartments,                             The Honorable Randy J. Williams,
LLC and WH Long Rentals,                                Judge
Inc.,
Appellees-Defendants.                                   Trial Court Cause No.
                                                        79D01-1604-CT-56



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CT-1236 | November 6, 2019                   Page 1 of 5
                                          Case Summary
[1]   On March 3, 2015, Reham Al-Sinan was injured after she fell and hit her head

      outside her apartment in the Blackbird Farms apartment complex. Reham filed

      suit against Blackbird Farms and WH Long Rentals, Inc. (collectively,

      “Blackbird”), alleging that (1) Blackbird breached the duty it owed her by

      negligently failing to keep the public walkways and entry areas clear of

      hazardous conditions and (2) she was injured as a result of Blackbird’s

      negligence. Blackbird filed a motion for summary judgment, which was

      granted by the trial court. Reham challenges the trial court’s order granting

      Blackbird’s motion on appeal. Concluding that an issue of material fact

      remains as to whether Blackbird breached its duty to Reham, we reverse the

      trial court’s order granting Blackbird’s motion for summary judgment and

      remand to the trial court for further proceedings.



                            Facts and Procedural History
[2]   Reham leased an apartment at Blackbird from August of 2013 to August of

      2015. Between 7:15 and 7:30 on the morning of March 3, 2015, Reham slipped

      and fell on the service ramp connected to the entry area of her apartment.

      Reham called 911 and was transported to the hospital for treatment.


[3]   On April 8, 2016, Reham filed suit against Blackbird, arguing that Blackbird

      breached the duty it owed her by negligently failing to keep its sidewalks, public




      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1236 | November 6, 2019   Page 2 of 5
      walkways, and entry areas clear of ice and snow. Reham further argued that

      she was injured as a result of Blackbird’s negligence.


[4]   On February 6, 2019, Blackbird filed a motion for summary judgment. Reham

      filed a response in opposition to Blackbird’s motion after which Blackbird filed

      a reply in support of its motion for summary judgment and a motion to strike

      an expert report designated by Reham. The trial court conducted a hearing on

      the pending motions on April 22, 2019, after which it issued orders granting

      Blackbird’s motions for summary judgment and to strike.



                                Discussion and Decision
[5]           The purpose of summary judgment is to terminate litigation
              about which there can be no dispute and which may be
              determined as a matter of law. Our standard of review is the
              same as that of the trial court. Summary judgment is appropriate
              only where the evidence shows that there is no genuine issue of
              material fact and the moving party is entitled to judgment as a
              matter of law. For summary judgment purposes, a fact is
              “material” if it bears on ultimate resolution of relevant issues. In
              negligence cases, summary judgment is rarely appropriate
              because such cases are particularly 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.
              Nonetheless, summary judgment is appropriate when the
              undisputed material evidence negates one element of a
              negligence claim.


      Harradon v. Schlamadinger, 913 N.E.2d 297, 300 (Ind. Ct. App. 2009) (internal

      citations omitted).


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1236 | November 6, 2019   Page 3 of 5
[6]   In order for a lessee to recover from a landlord on a theory of negligence, the

      lessee must show a duty on the part of the landlord and a breach of that duty.

      Zimmerman v. Moore, 441 N.E.2d 690, 693 (Ind. Ct. App. 1982). In asserting

      that Blackbird was negligent, Reham contends that it had a duty to keep the

      property’s walkways in a safe condition; Blackbird failed to remove dangerous

      conditions, i.e., ice; and she was injured as a result of Blackbird’s negligence.

      For its part, Blackbird does not dispute that it owed Reham a duty but rather

      claims that it did not breach the duty it owed to Reham.


[7]   The mere allegation of a fall is insufficient to establish negligence.             Taylor v.

      Cmty. Hosps. of Ind., Inc., 949 N.E.2d 361, 364 (Ind. Ct. App. 2011). In this

      case, however, Reham did not merely allege that she fell. Reham’s deposition

      testimony, which was designated to the court, indicates that on the morning

      Reham fell, “[i]t was pretty cold” and Reham observed that the steps by the

      front entry area of her building “looked slippery and icy.” Appellant’s App.

      Vol. II p. 56. Reham attempted to avoid the area that “looked slippery” by

      walking on a nearby service ramp that “didn’t look slippery.” Appellant’s App.

      Vol. II p. 61. However, despite her attempt to avoid the allegedly hazardous

      area, she slipped and fell “as soon as [she] stepped on” the service ramp.

      Appellant’s App. Vol. II p. 61. Reham indicated that although she did not see

      ice on the service ramp where she fell, she assumed she slipped on ice.


[8]   In support of its motion for summary judgment, Blackbird denies that the ramp

      where Reham fell was icy and focuses on Reham’s statement that she did not

      see ice on the ramp, arguing that her assumption that she fell on ice amounts to

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1236 | November 6, 2019       Page 4 of 5
      nothing more than inferential speculation. While we agree that inferential

      speculation alone cannot establish negligence, see Wright Corp. v. Quack, 526

      N.E.2d 216, 218 (Ind. Ct. App. 1988), Reham’s claim is not based on inferential

      speculation alone. According to her deposition testimony, Reham observed icy

      conditions in the immediate area and attempted to avoid what appeared to be

      the most hazardous of these locations. Reham’s deposition testimony alone is

      sufficient to create an issue of material fact as to whether Blackbird breached its

      duty to keep its walkways clear of hazardous conditions. As such, the trial

      court erred by granting summary judgment in favor of Blackbird. 1


[9]   The judgment of the trial court is reversed and the matter is remanded for

      further proceedings.


      Vaidik, C.J., and Riley, J., concur.




      1
        Given that we conclude that Reham’s designated deposition testimony created a genuine issue of material
      fact as to whether Blackbird breached its duty to Reham, we need not discuss the other evidence designated
      by the parties or consider whether the trial court abused its discretion in excluding Reham’s proffered expert
      report from the designated evidence.

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1236 | November 6, 2019                    Page 5 of 5
