                                                                       FILED
                                                                  Jun 26 2020, 9:12 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Richard K. Shoultz                                          Tara M. Worthley
Neal Bowling                                                Steven L. Langer
Lewis Wagner, LLP                                           Valparaiso, Indiana
Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Pioneer Retail, LLC,                                        June 26, 2020
d/b/a Wiseway Food,                                         Court of Appeals Case No.
Appellant-Defendant,                                        20A-CT-83
                                                            Appeal from the Lake Superior
        v.                                                  Court
                                                            The Honorable Calvin D.
Jane Jones,                                                 Hawkins, Judge
Appellee-Plaintiff                                          Trial Court Cause No.
                                                            45D02-1507-CT-125




Baker, Judge.




Court of Appeals of Indiana | Opinion 20A-CT-83 | June 26, 2020                            Page 1 of 7
[1]   On February 15, 2014, Jane Jones slipped and fell on a sidewalk outside of the

      Wiseway Food grocery store, sustaining significant injuries. Jones then filed

      suit against multiple parties, among them Pioneer Retail, LLC (Pioneer),1 for

      damages. Pioneer filed a motion for summary judgment, arguing that there was

      no genuine issue of material fact regarding which party owed a duty of care to

      Jones and, consequently, that it was entitled to judgment as a matter of law.

      The trial court denied Pioneer’s motion, the matter proceeded to trial, and the

      jury ultimately returned a judgment in Jones’s favor and held that Pioneer was

      25% at fault for her injuries. Now, Pioneer appeals the trial court’s denial of its

      motion for summary judgment,2 contending that the trial court erred. Finding

      no error, we affirm.


                                                       Facts
[2]   Multiple actors factor into the backdrop of this case. Gateway Arthur, Inc.

      (Gateway), owns the property at 10839 Randolph Street in Crown Point, where

      the Wiseway Food grocery store is located. Emmes Realty Services, LLC

      (Emmes), is the management company for the property, and it contracted with

      DLC Landscape and Snow Removal, Inc. (DLC), to regularly clear snow, ice,




      1
       Pioneer owns the grocery store known as “Wiseway Food.” For purposes of this appeal and because there
      are so many entities involved in this litigation, Pioneer and Wiseway are one and the same.
      2
       See Keith v. Mendus, 661 N.E.2d 26, 35 (Ind. Ct. App. 1996) (holding that “the denial of a motion for
      summary judgment is reviewable on appeal following a final judgment entered after trial on the merits[]”).

      Court of Appeals of Indiana | Opinion 20A-CT-83 | June 26, 2020                                   Page 2 of 7
      and other debris from the property. Gateway leased the property to tenant

      Pioneer, which owns and operates the Wiseway Food grocery store.


[3]   On February 15, 2014, Jones was walking into Wiseway Food through its main

      entrance when she slipped and fell on the sidewalk immediately outside the

      store. It is undisputed that sometime before Jones parked and walked into the

      store, it had been snowing and that some snow and/or ice had accumulated on

      the sidewalk where Jones fell. After sustaining serious injuries from her fall, on

      May 6, 2015, Jones filed a complaint against Wiseway Food, which she later

      amended to include Pioneer. In two separate answers filed on June 15, 2015,

      and February 22, 2016, Pioneer claimed that it both was and was not the tenant

      of that property. Pursuant to a stipulation of the parties, Wiseway Food was

      dismissed and subsumed into Pioneer; Jones then subsequently added

      Gateway, Emmes, and DLC as defendants.


[4]   On June 27, 2019, Pioneer filed a motion for summary judgment, arguing that

      “it was Gateway, and not Pioneer that owed a duty to [Jones] to remove ice

      from the Common Area where [Jones] fell.” Appellant’s App. Vol. II p. 52

      (emphases omitted). In support of its motion, Pioneer designated evidence in

      the form of (1) Jones’s amended complaint; (2) Pioneer’s answer to the

      amended complaint; (3) the deposition transcript of Jones; and (4) the

      deposition transcript of Emmes property manager Amy Giroud. Pioneer’s

      proffered evidence attempted to show that Gateway was landlord of the

      property and the sidewalk was a common area that Gateway was solely

      responsible for maintaining. This evidence, Pioneer contends, demonstrates

      Court of Appeals of Indiana | Opinion 20A-CT-83 | June 26, 2020           Page 3 of 7
      that there is no genuine issue of material fact regarding which entity—

      Gateway—has exclusive ownership and control over the sidewalk in front of

      Wiseway Food. Therefore, Pioneer argues that it owed no duty of care to Jones

      as an invitee and, consequently, that it is entitled to judgment as a matter of

      law.


[5]   In her July 29, 2019, response to Pioneer’s motion for summary judgment and

      in her counter-motion for summary judgment, Jones designated evidence in the

      form of (1) her amended complaint; (2) Pioneer’s affirmative defenses; (3) the

      lease between Gateway and Pioneer; and (4) the deposition transcripts from

      Wiseway corporate designee Brett Gargano, assistant store managers Sam

      Liubakka, Tammy Bobey, and Chris Brown, and Jones herself. According to

      Jones:


               Wiseway/Pioneer’s claim that it had no duty to its customers is
               unreasonable and baseless upon prevailing and clearly established
               Indiana legal precedents, [Pioneer’s] own conduct and it’s [sic]
               own witness’s testimony which clearly establish its recognition of
               its duty to its customers separate and apart from its contract with
               Gateway. It defies logic that [Pioneer] would make the argument
               that it had no duty to its customers in the face of Brett Garganos’
               [sic] clear and unequivocal testimony to the contrary.


      Appellant’s App. Vol. III p. 102.


[6]   On September 26, 2019, the trial court held oral argument on all the pending

      summary judgment motions; the next day, on September 27, the trial court

      denied both Pioneer’s original motion and Jones’s counter-motion for summary

      judgment. Following certification, this Court denied Pioneer’s motion for

      Court of Appeals of Indiana | Opinion 20A-CT-83 | June 26, 2020            Page 4 of 7
      interlocutory appeal on November 8, 2019. The matter then proceeded to a

      December 11, 2019, trial, at the conclusion of which the jury entered judgment

      in favor of Jones and awarded her $1,437,187.50 in damages. The jury found

      Pioneer to be 25% at fault and Gateway, Emmes, and DLC to collectively be

      75% at fault for Jones’s injuries. Pioneer was ultimately ordered to pay

      $479,062.50. Pioneer now appeals.


                                    Discussion and Decision
[7]   Pioneer’s sole argument on appeal is that the trial court erred by denying its

      motion for summary judgment. Specifically, Pioneer contends that there was no

      genuine issue of material fact regarding which entity owed a duty of care to

      Jones. Pioneer argues that because it “exercised zero control of the area where

      [] Jones fell, as a matter of law, it owed her no duty,” appellant’s br. p. 12, and

      that summary judgment should have been awarded in its favor.


[8]   Our standard of a review for a motion for summary judgment is well settled:


              [W]hen we review a grant or denial of a motion for summary
              judgment, our standard of review is the same as it is for the trial
              court. The moving party must show there are no genuine issues of
              material fact and it is entitled to judgment as a matter of law. If the
              moving party carries its burden, then the non-moving party must
              present evidence establishing the existence of a genuine issue of
              material fact. In deciding whether summary judgment is proper,
              we consider only the evidence the parties specifically designated to
              the trial court. We construe all factual inferences in favor of the
              non-moving party and resolve all doubts regarding the existence of
              a material issue against the moving party.




      Court of Appeals of Indiana | Opinion 20A-CT-83 | June 26, 2020              Page 5 of 7
       Knighten v. E. Chi. Hous. Auth., 45 N.E.3d 788, 791 (Ind. 2015) (internal

       citations omitted).


[9]    To recover damages for negligence, a plaintiff must prove that (1) the defendant

       owed a duty to the plaintiff; (2) the defendant breached that duty; and (3) the

       plaintiff’s injury was proximately caused by defendant’s breach. Robertson v.

       B.O., 977 N.E.2d 341, 344 (Ind. 2012). In its brief, Pioneer contests only

       whether it owed a duty of care to Jones. According to the evidence proffered by

       Pioneer, Gateway, as landlord of the property, was the exclusive owner of the

       sidewalk and was ultimately responsible for keeping it clear of accumulating

       snow and ice. Gateway’s hiring of DLC to plow the sidewalk, Pioneer

       contends, further supports its argument that Gateway, and not Pioneer, was

       obligated to keep customers like Jones safe.


[10]   However, Indiana caselaw directly contradicts Pioneer’s central argument as to

       why it is entitled to judgment as a matter of law. It is well established that

       Pioneer, as a business entity, has a duty of care to its invitees. See Lutheran Hosp.

       of Ind., Inc. v. Blaser, 634 N.E.2d 864, 868 (Ind. Ct. App. 1994) (holding that

       “[t]he invitor has a duty to exercise reasonable care to discover defects or

       dangerous conditions on the premises, and he will be charged with knowledge

       of, and held liable for injuries which result from, any dangerous condition

       which he could have discovered in the exercise of reasonable care[]”). “The

       duty of an invitor to exercise reasonable care for the safety of his invitees is an

       active and continuing one.” Get-N-Go, Inc. v. Markins, 550 N.E.2d 748, 751 (Ind.

       1990). Moreover, “a party cannot contract out his duty to exercise reasonable

       Court of Appeals of Indiana | Opinion 20A-CT-83 | June 26, 2020             Page 6 of 7
       care with respect to third parties.” Morris v. McDonald’s Corp., 650 N.E.2d 1219,

       1222-23 (Ind. Ct. App. 1995).


[11]   Therefore, as a matter of law, Pioneer owed some duty of care to Jones as an

       invitee. And the fact that Gateway is the landlord of the property and

       contracted with DLC to clear ice and snow does not summarily absolve Pioneer

       of liability regarding its duty of care to its invitees. Notwithstanding the lease,

       the surveillance footage, or the actions and testimony of Pioneer’s or DLC’s

       individual employees, Indiana law leads us to but one conclusion: that the trial

       court did not err when it denied Pioneer’s motion for summary judgment.


[12]   The judgment of the trial court is affirmed.


       Bradford, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 20A-CT-83 | June 26, 2020              Page 7 of 7
