      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                FILED
      this Memorandum Decision shall not be
                                                                       Feb 17 2017, 7:47 am
      regarded as precedent or cited before any
      court except for the purpose of establishing                          CLERK
                                                                        Indiana Supreme Court
      the defense of res judicata, collateral                              Court of Appeals
                                                                             and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   APPELLEE PRO SE
      Bruce P. Clark                                           Ronald E. Smith
      Bruce P. Clark & Associates                              Fort Wayne, Indiana
      Saint John, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Steak ‘n Shake No. 315,                                  February 17, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               02A03-1604-SC-890
              v.                                               Appeal from the Allen Superior
                                                               Court, Small Claims Division
      Ronald E. Smith,                                         The Honorable Brian D. Cook,
      Appellee-Plaintiff                                       Magistrate
                                                               Trial Court Cause No.
                                                               02D01-1507-SC-11221



      Mathias, Judge.


[1]   This is an appeal from a $250 judgment won by Ronald E. Smith (“Smith”)

      from Steak ‘n Shake No. 315 (“the Restaurant”) in the small claims division of

      Allen Superior Court. The Restaurant argues the evidence was insufficient to

      sustain judgment in Smith’s favor.
      Court of Appeals of Indiana | Memorandum Decision 02A03-1604-SC-890 | February 17, 2017   Page 1 of 6
[2]   We affirm.


                                 Facts and Procedural Posture

[3]   On July 6, 2015, Smith visited the Restaurant in Fort Wayne, Indiana. There,

      Smith used the restroom. The restroom had a paper towel dispenser and a metal

      trash can mounted as one unit to the wall. As he was washing up, Smith tried to

      draw a paper towel from the dispenser, but the trash can came loose and fell,

      striking him on the leg. Smith suffered bleeding and bruising but did not see a

      doctor.


[4]   On July 20, 2015, Smith filed a notice of claim in the small claims division of

      Allen Superior Court, seeking $6,000 damages. A bench trial was set for August

      31, 2015. Smith proceeded pro se; a week before the trial date, the Restaurant

      retained a local law firm. On the Restaurant’s motion, trial was continued, and

      the magistrate permitted limited discovery by the Restaurant from Smith.

[5]   On November 16, 2015, a bench trial was held. Smith testified that, on July 6,

      2015, one of the Restaurant’s employees told him that Restaurant employees

      knew the trash can’s locking or latching mechanism was broken. “The [c]ourt

      found th[is] testimony to be very credible.” Appellant’s App. p. 22. After the

      close of evidence, the Restaurant’s lawyer asked the court to hold the case

      under advisement for sixty days while the parties discussed settlement. The

      court agreed.


[6]   After sixty days and no news, court staff called the lawyer’s firm to ask for an

      update. The call was not returned. A second call to the firm was returned, but
      Court of Appeals of Indiana | Memorandum Decision 02A03-1604-SC-890 | February 17, 2017   Page 2 of 6
      the lawyer no longer worked there. On February 10, 2016, the court entered a

      $250 judgment in favor of Smith. Notice of the judgment was inadvertently sent

      to the Restaurant directly rather than to counsel, who did not receive the notice

      until March 21, 2016.

[7]   On April 20, 2016, the Restaurant moved to set aside the judgment and for an

      extension of time to appeal. See Ind. Trial Rule 72(E) (“When the service [on a

      party under T.R. 5(B)] of a copy of the entry [of judgment] by the Clerk is not

      evidenced by a note made by the Clerk upon the Chronological Case Summary,

      the Court, upon application for good cause shown, may grant an extension of

      any time limitation within which to contest such . . . judgment to any party who

      was without actual notice [of the judgment] . . . .”). The court denied the

      motion to set aside, but, forthrightly acknowledging its mistaken service on the

      Restaurant, granted the motion for an extension. Appellant’s App. p. 22. This

      newly timely appeal followed.


                                         Standard of Review

[8]   We review judgments following a bench trial for clear error. Trinity Homes, LLC

      v. Fang, 848 N.E.2d 1065, 1067 (Ind. 2006). We neither reweigh the evidence

      nor re-evaluate witness credibility. City of Dunkirk Water & Sewage Dep’t v. Hall,

      657 N.E.2d 115, 116 (Ind. 1995). Rather, we view the facts and the reasonable

      inferences from them in the light most favorable to the judgment below. Id. If a

      reasonable trier of fact could have found for the appellee by a preponderance of

      the evidence, we affirm. Id. Appellate deference “is particularly important in


      Court of Appeals of Indiana | Memorandum Decision 02A03-1604-SC-890 | February 17, 2017   Page 3 of 6
       small claims actions, where trials are informal, with the sole objective of

       dispensing speedy justice between the parties according to the rules of

       substantive law.” Fang, 848 N.E.2d at 1067-68 (internal citation and quotation

       omitted). We review the trial court’s legal conclusions de novo. Id. at 1068.


[9]    Smith has filed no brief. Because we will not undertake to argue on his behalf,

       we will reverse on a showing of prima facie error under the standard set out

       above, that is, error apparent “at first sight, on first appearance, or on the face

       of it.” Id.


                                      Discussion and Decision

[10]   An owner or occupier of real property has a duty to business invitees to keep

       the property in a reasonably safe condition, Douglass v. Irvin, 549 N.E.2d 368,

       369 (Ind. 1990), or, put differently, to exercise reasonable care for invitees’

       protection. Harradon v. Schlamadinger, 913 N.E.2d 297, 300-01 (Ind. Ct. App.

       2009), trans. denied. Breach of this duty subjects the owner to liability for injuries

       to invitees foreseeably caused by it. Id.


[11]   If plaintiff invitee’s injuries were allegedly caused by an unsafe condition on

       defendant owner’s property, the plaintiff must show the defendant’s actual or

       constructive knowledge of the condition to prove negligent breach by failure to

       remedy or warn of it. Id. Further, a plaintiff’s showing of breach may be

       defeated by evidence that the unsafe condition was obvious, and that the

       defendant reasonably expected the plaintiff to discover, realize, and avoid the

       danger posed by it. Douglass v. Irvin, 549 N.E.2d 368, 370 (Ind. 1990).

       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-SC-890 | February 17, 2017   Page 4 of 6
[12]   Here, we find sufficient evidence to sustain judgment in favor of Smith. The

       Restaurant owed Smith a duty as a business invitee to exercise reasonable care

       for his safety. In the context of a wall-mounted unit, a broken locking or

       latching mechanism creates the foreseeable risk that the unit will fall off the wall

       when used and injure its user. See Appellant’s App. p. 8 (trial court found

       same). Smith testified, and the trial court found credible, id. p. 22, that the

       Restaurant’s employees had actual knowledge of the defective mechanism on

       July 6, 2015. No record evidence tends to show that such a defect would be

       obvious to an ordinary user of the dispenser and trash can, nor that the

       Restaurant reasonably expected its customer invitees to discover, realize, and

       avoid the danger posed by it.

[13]   In short, a reasonable trier of fact could have found that the Restaurant owed a

       duty to Smith to keep its property safe for his use; the Restaurant negligently

       breached that duty by failing to remedy or warn of a defect of which it had

       actual knowledge; and the Restaurant’s breach foreseeably caused the trash can

       to become unmounted and fall when the unit was used, striking Smith, injuring

       him, and causing him damages in the amount of $250.

[14]   The Restaurant argues that Smith “failed to present any evidence” that it had

       actual or constructive knowledge of the defect, Appellant’s Br. p. 6, but this is

       not so. Appellant’s App. p. 22 (trial court found actual knowledge on basis of

       Smith’s testimony). The Restaurant argues further that it presented contrary

       evidence, Appellant’s Br. p. 6, but we have no record of it, and in any event the

       trial court was free to discredit it. The Restaurant argues further that the danger

       Court of Appeals of Indiana | Memorandum Decision 02A03-1604-SC-890 | February 17, 2017   Page 5 of 6
       created by the defect was not foreseeable, id. p. 10, but offers us no evidence

       from which to conclude that the trial court’s contrary finding was clearly

       erroneous. Finally, the Restaurant argues that “it was just as, if not more

       likely,” that Smith caused his own injuries, id., but this is mere speculation we

       will not entertain. The Restaurant makes no argument as to damages.


                                                 Conclusion

[15]   For the above reasons, the judgment below is affirmed.


[16]   Affirmed.


       Baker, J., and Pyle, J., concur.




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