FOR PUBLICATION                                                 Jun 21 2013, 5:51 am




ATTORNEY FOR APPELLANT:                            ATTORNEY FOR APPELLEE:

JULIE J. HAVENITH                                  Attorney for Horseshoe Hammond, LLC
Travelers Staff Counsel Office                     STACY J. VASILAK
Merrillville, Indiana                              Querry & Harrow
                                                   Merrillville, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA
GASSER CHAIR COMPANY, INC.,                        )
                                                   )
       Appellant-Defendant,                        )
                                                   )
              vs.                                  )     No. 45A03-1210-CT-435
                                                   )
MARLENE J. NORDENGREEN,                            )
                                                   )
       Appellee-Plaintiff,                         )
                                                   )
HORSESHOE HAMMOND, LLC, d/b/a                      )
HORSESHOE CASINO,                                  )
                                                   )
       Appellee-Third Party Defendant.             )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                         The Honorable Gerald N. Svetanoff, Judge
                              Cause No. 45D04-1001-CT-7

                                         June 21, 2013

                              OPINION - FOR PUBLICATION

MAY, Judge
        Marlene Nordengreen sued Horseshoe Casino and Gasser Chair Company,

alleging she was injured at Horseshoe while using a chair Gasser manufactured. The trial

court granted summary judgment for Horseshoe but denied Gasser’s motion. Gasser

appeals, arguing the trial court should not have granted summary judgment for Horseshoe

because Horseshoe did not provide evidence the Gasser chair was the proximate cause of

Nordengreen’s injury; it did not apply the correct standard of care by Horseshoe to its

invitees; and there were issues of fact as to Horseshoe’s knowledge of a defect on its

premises.1 We affirm the summary judgment for Horseshoe.

        On cross-appeal, Horseshoe argues the trial court erred to the extent it determined

certain third-party claims Horseshoe made against Gasser became moot by virtue of the

summary judgment for Horseshoe. We agree and remand for consideration of those

claims.

                          FACTS AND PROCEDURAL HISTORY

        In September of 2009, Nordengreen was a patron at the Horseshoe Casino in

Hammond. She sat on a chair at a slot machine and the chair “came down and caught the

back of [her] leg.”           (App. at 94.)         Horseshoe bought 3300 chairs, including

Nordengreen’s, from Gasser. The chairs feature “[p]layer adjustable seat height,” (id. at

154), and use a gas cylinder for the height adjustment.




1
  Gasser presents these as three discrete issues. As explained below, no evidence of proximate cause was
required. The resolution of all three issues therefore turns on the determination whether there is an issue
of fact as to Horseshoe’s knowledge the Gasser chairs amounted to a dangerous condition on its premises.
                                                    2
       The gas cylinders eventually wear out, “like the shock absorbers on your car.” (Id.

at 156.) How long the cylinder lasts depends on how often it is used, but the cylinders

have a one-year warranty.        Gasser provided Horseshoe with general maintenance

instructions to inspect the chairs, including the gas cylinders, annually.        Horseshoe

inspected them daily.      Gasser suggested a visual inspection and a pressure test:

“basically sit on them and push down on them to be certain that they’re holding the

pressure.” (Id. at 159.) Gasser gave Horseshoe no warning about what might happen if a

gas cylinder failed.    Gasser’s president stated if the gas cylinder fails, the chair

“[g]enerally doesn’t collapse all at once.” (Id. at 163.)

       Nordengreen’s chair was inspected immediately after the accident. It appeared the

gas cylinder had failed, and the chair was removed from service so it could be repaired.

It was repaired before Gasser could inspect it.

                             DISCUSSION AND DECISION

       When reviewing a grant or denial of summary judgment, our standard is the same

as it was for the trial court: whether there is a genuine issue of material fact, and whether

the moving party is entitled to judgment as a matter of law. Haub v. Eldridge, 981

N.E.2d 96, 101 (Ind. Ct. App. 2012). Summary judgment should be granted only if the

evidence sanctioned by Indiana Trial Rule 56(C) shows there is no genuine issue of

material fact and the moving party deserves judgment as a matter of law. Id. There is a

genuine issue of material fact when facts concerning an issue that would dispose of the

litigation are in dispute or where the undisputed facts can support conflicting inferences

                                              3
on such an issue. Id. All evidence must be construed in favor of the opposing party, and

all doubts as to the existence of a material issue must be resolved against the moving

party. Id. However, once the movant has carried its initial burden of going forward

under Trial Rule 56(C), the nonmovant must come forward with sufficient evidence

demonstrating the existence of genuine factual issues that should be resolved at trial. Id.

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 facts support conflicting reasonable inferences. In re Paternity of

G.W., 983 N.E.2d 1193, 1196 (Ind. Ct. App. 2013).

       1.     Horseshoe’s Knowledge of a Dangerous Condition on its Premises

       The trial court’s summary judgment in favor of Horseshoe was premised on

evidence Gasser knew the gas cylinders were subject to failure within a year, but

Horseshoe had not been warned about that. Nor did Gasser warn Horseshoe about what

might happen if the gas cylinder failed. Other Gasser chairs at Horseshoe had “failed”

before the Nordengreen incident, (App. at 12), but only one-half of one percent of the

3300 chairs Horseshoe bought from Gasser “appeared to have issues with the gas

cylinders.” (Id.) No patrons had been injured by gas cylinder problems. Therefore, the

trial court determined, there was “no evidence from which it can be reasonably inferred

that Horseshoe had actual or constructive notice that the chair upon which [Nordengreen]

was seated at the time of her alleged injury presented a dangerous condition to her.” (Id.

at 12-13.)

                                              4
       A possessor of land is subject to liability for physical harm caused to his invitees

by a condition on the land if he a) knows or by the exercise of reasonable care would

discover the condition, and should realize it involves an unreasonable risk of harm to

such invitees; 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 v. Meads, 569 N.E.2d 637, 639-40 (Ind. 1991), reh’g

denied.   A defendant is entitled to summary judgment by demonstrating that the

undisputed material facts negate at least one of the elements of the plaintiff’s claim.

McCraney v. Gibson, 952 N.E.2d 284, 288 (Ind. Ct. App. 2011) trans. denied. The

designated evidence negated the element of Horseshoe’s knowledge of the condition.

       Gasser first asserts, without citation to authority, that

       [b]efore the trial court could properly reach a conclusion regarding actual or
       constructive notice on the part of Horseshoe of a defect in the chair as a
       matter of law, there first had to be no genuine issue of material fact that a
       defect in the design or manufacture of the chair was in fact the sole
       proximate cause of [Nordengreen’s] accident rather than another cause such
       as negligent inspection or maintenance of the chair by Horseshoe as alleged
       by [Nordengreen].

(Appellant’s Br. at 9.)

       We decline to accept Gasser’s apparent premise that evidence of one element of a

tort is necessarily required on summary judgment in order to negate a different element.

Specifically, we decline to hold a premises owner’s knowledge of a dangerous condition

on its premises cannot be determined without first knowing the dangerous condition was

the “sole proximate cause,” (id.), of an injury. As we noted in McCraney, 952 N.E.2d at

                                               5
288, a defendant is entitled to summary judgment if it demonstrates the undisputed

material facts negate a single element of the plaintiff’s claim.

        The question before us, then, is whether Horseshoe negated the element of

knowledge of a dangerous condition on its premises, and we decline Gasser’s invitation

to require in addition that Horseshoe offer proof regarding any other element. The trial

court noted evidence other chairs at Horseshoe had failed before the incident involving

Nordengreen, but Horseshoe received 3300 chairs from Gasser and only one-half of one

percent “appeared to have issues with the gas cylinders on them.” (App. at 12.) None of

the problems with those chairs involved injuries to patrons. The trial court found no

evidence from which it could be reasonably inferred that Horseshoe had actual or

constructive knowledge the chair Nordengreen was using “presented a dangerous

condition to her.” (Id. at 13.)

        Gasser asserts “the trial court held that there were other problems with the chair

prior to Plaintiff’s accident, and that Horseshoe knew of these problems.” 2 (Appellant’s

Br. at 24) (emphasis added). Gasser then states, without explanation or citation to

2
  Gasser offers no citation to the record to support this statement regarding “the chair,” and we can find
no such trial court “holding.” The trial court did note evidence “other chairs at the casino had failed”
before the incident involving Nordengreen, (App. at 12) (emphasis added), but only one-half of one
percent of the Gasser chairs Horseshoe bought “appeared to have issues with the gas cylinders” and no
injuries to patrons had resulted. (Id.) We find nothing in the trial court’s Order that states, or even
suggests, there were problems of which Horseshoe was aware with the chair Nordengreen was using, and
we admonish counsel to refrain from so misrepresenting the record. See Young v. Butts, 685 N.E.2d 147,
151 (Ind. Ct. App. 1997) (noting a number of affirmative misrepresentations by Young’s counsel of the
evidence in the record, “which misrepresentations are particularly offensive because they would, if true,
directly affect the propriety of the trial court grant of judgment on the evidence.”) The same is true of
Gasser’s statement “there were other problems with the chair prior to Plaintiff’s accident, and that
Horseshoe knew of these problems.”
.
                                                    6
authority, “[t]his alone constitutes evidence of actual or constructive notice of a danger

on [Horseshoe’s] premises.” (Id. at 24.)

       Gasser has waived this allegation of error. Bald assertions made in an appellate

brief are not to be considered in determining whether there is a genuine issue of fact,

Pitcock v. Worldwide Recycling, Inc., 582 N.E.2d 412, 416 (Ind. Ct. App. 1991), and on

review, we will not search the record to find a basis for a party’s argument. Young v.

Butts, 685 N.E.2d 147, 151 (Ind. Ct. App. 1997).

       Notwithstanding the waiver, we cannot say the evidence gives rise to a genuine

issue of fact as to Horseshoe’s knowledge the chair represented a dangerous condition on

its premises. An invitor is not the insurer of the invitee’s safety, and before liability may

be imposed on the invitor, it must have actual or constructive knowledge of the danger.

Schulz v. Kroger Co., 963 N.E.2d 1141, 1144 (Ind. Ct. App. 2012). As explained above,

Gasser has not demonstrated Horseshoe had actual knowledge Nordengreen’s chair was

dangerous.

       Nor did it have constructive knowledge. There is constructive knowledge when a

condition 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 invitor had used

ordinary care. Id. In Schulz, the designated evidence reflected Schulz slipped on liquid

at the back of the store. The time between her fall and a Kroger employee’s arrival at the

place where she fell was ten minutes at most, and ten minutes before she fell, the floor

was clean and dry.     “Short of imposing a strict liability standard or mandating an

                                             7
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. We affirmed summary judgment for Kroger. Id.

        In the case before us, the evidence was that Horseshoe inspected the chairs daily.3

There had been no reported problems with the chair Nordengreen used. When a gas

cylinder fails, the chair generally “doesn’t collapse all at once.” (App. at 163.) Instead,

when someone sits on it, “it starts to drift downward.” (Id.) Gasser did not warn

Horseshoe a gas cylinder could suddenly fail, or warn it about what might happen if a gas

cylinder failed. While the trial court noted there had been unspecified “issues” with gas

cylinders on one-half of one percent of the chairs at Horseshoe, none of the problems had

resulted in injuries. We cannot find a genuine issue of fact as to Horseshoe’s knowledge

the chair was a dangerous condition on its premises, and summary judgment for

Horseshoe was not error.

        2.      Mootness

        After Nordengreen brought her action, Horseshoe filed a third party complaint

against Gasser alleging negligence, breach of contract, and breach of warranty. The trial


3
    Gasser characterizes this and certain other statements as “unsupported, self-serving assertions”
(Appellant’s Br. at 12) on which a summary judgment should not be based. We have held it is error to
base summary judgment solely on a party’s self-serving affidavit “when evidence before the court raises a
genuine issue as to the affiant's credibility.” Insuremax Ins. Co. v. Bice, 879 N.E.2d 1187, 1190 (Ind. Ct.
App. 2008), trans. denied. Gasser has not presented evidence disputing the credibility of Horseshoe’s
affiant, nor, as in Bice, “is there inconsistent or evasive language in the designated evidence.” Id. We
decline Gasser’s invitation to hold a statement in an affidavit must be disregarded as “self-serving” just
because it might support the opposing party’s position.


                                                    8
court did not address those matters in the summary judgment order now before us, but in

a footnote it said the “practical effect of this Order granting Horseshoe’s Motion for

Summary Judgment is to render moot Horseshoe’s Third-Party Complaint against

Gasser.” (App. at 13 n.1.) On cross-appeal, Horseshoe argues that was error because its

breach of contract and breach of warranty claims against Gasser remain. We agree, 4 and

remand so the trial court may resolve the remaining issues raised in Horseshoe’s third-

party complaint.

        Affirmed in part and remanded.

BAKER, J., and MATHIAS, J., concur.




4
  Gasser argues Horseshoe’s attempt “to now appeal the trial court’s dismissal” of the third-party claims
is time-barred because Horseshoe “did not appeal the dismissal of its claims” within thirty days as
required by rule. (Appellant’s Reply Br. at 11) (emphases added). Gasser directs us to nothing in the
record that indicates there was a trial court order “dismissing” the third-party complaint. We decline to
hold the trial court’s statement in a footnote about the “practical effect” of its summary judgment order
amounts to a final order of dismissal that Horseshoe could have appealed.

                                                   9
