                                                                             FILED
                                                                        Sep 07 2017, 8:03 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Michael E. Polen, Jr.                                      Douglas B. Bates
      Dyer, Indiana                                              Chelsea R. Stanley
                                                                 Jeffersonville, Indiana

                                                                 Zachary M. VanVactor
                                                                 Louisville, Kentucky


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Carol Walters,                                             September 7, 2017
      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 64A03-1702-CT-421
              v.                                                 Appeal from the Porter Superior
                                                                 Court
      JS Aviation, Inc. d/b/a Eagle                              The Honorable Mary R. Harper,
      Aircraft,                                                  Judge
      Appellee-Defendant                                         Trial Court Cause No.
                                                                 64D05-1410-CT-8841



      Altice, Judge.


                                                 Case Summary


[1]   Carol Walters attended an open house at JS Aviation, Inc. d/b/a Eagle Aircraft

      (JS Aviation) and fell as she walked through a doorway from the pilot’s lounge

      to the hangar. Just after the threshold was a five-and-one-quarter inch step

      Court of Appeals of Indiana | Opinion 64A03-1702-CT-421 | September 7, 2017                Page 1 of 8
      down into the hangar that she did not notice. Walters filed suit against JS

      Aviation for injuries resulting from her fall, and JS Aviation sought summary

      judgment, which the trial court granted. On appeal, Walters argues that

      summary judgment was improperly granted.


[2]   We reverse and remand.


                                        Facts & Procedural History


[3]   JS Aviation operates a flight school at the Porter County Regional Airport,

      which Walters’s husband attended. On the morning of April 26, 2014, Walters,

      her husband, and her seven-year-old grandson arrived early at JS Aviation for

      an open house. They entered at the front of the pilot’s lounge. On the other

      side of the lounge was the entrance to the hangar through a set of double doors.

      These doors were usually kept closed but were opened wide into the lounge that

      day for the event. When the doors were open like this, it was customary for JS

      Aviation to place chairs in front of the doors with signs on them warning people

      to watch their step. Because Walters arrived to the event early, the chairs were

      not in place yet.


[4]   Shortly after their arrival, Walters’s grandson saw a plane in the hangar and

      walked in that direction. The hangar was brightly lit, while the lounge was

      much more dim. Walters followed a few steps behind her grandson as she

      looked straight ahead toward him and the plane. She did not notice that there

      was a step down into the hangar. Nor did she see warning signs on one of the

      opened doors and on the floor. As she passed through the doorway, Walters

      Court of Appeals of Indiana | Opinion 64A03-1702-CT-421 | September 7, 2017   Page 2 of 8
      missed the step down and fell.1 Walters acknowledged that if she had looked

      down at that exact moment, she would have seen the step. Walters, however,

      perceived the floor surface as “one flat level” extending from the lounge into the

      hanger. Appellant’s Appendix at 134.


[5]   The step down to the hangar is five-and-one-quarter inches and occurs within a

      few inches of the threshold on the hangar-side of the doors. Facing up on the

      floor, just before the step, is a red sign with white letters stating:


                                                   !!!CAUTION!!!
                                              WATCH YOUR STEP
                                                        STEP UP


      Id. at 82. The wording is oriented to be read from the hangar but is also visible

      from inside the lounge. There was a similar red warning sign placed about eye

      level on one of the white doors that was opened into the lounge. Another sign

      on the wall of the lounge, warning of a step down, was obscured by the open

      door. Further, on either side of the silver, metal threshold and step lay black

      nonslip mats. Walters described these mats as appearing to be one carpet.


[6]   On October 8, 2014, Walters filed the instant action alleging premises liability

      and seeking damages for injuries she sustained from the fall.2 Two years later,




      1
        Later that day, Walters posted on social media about going to the airport and her fall: “Well, I went with
      Danny and Mason to Valparaiso airport. So excited I didn’t watch my step and fell. Hurt my ankle. Going
      to drop off Mason go to ER. I’m so mad. Had a nice day planned for us.” Appellant’s Appendix at 75.
      2
          Walters has not alleged that the step was in violation of any construction standard or building code.


      Court of Appeals of Indiana | Opinion 64A03-1702-CT-421 | September 7, 2017                           Page 3 of 8
      JS Aviation moved for summary judgment. The trial court held a hearing on

      January 9, 2016, and thereafter issued an order granting summary judgment in

      favor of JS Aviation. Walters now appeals.


                                           Discussion & Decision


[7]   We review a grant of summary judgment de novo, in the same way as the trial

      court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). We will affirm such

      a ruling only if, after drawing all reasonable inferences in favor of the non-

      moving party, the designated evidence shows that there is no genuine issue as to

      any material fact and the moving party is entitled to judgment as a matter of

      law. 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 material facts support

      conflicting reasonable inferences.” Id. (quoting Williams v. Tharp, 914 N.E.2d

      756, 761 (Ind. 2009)).


[8]   A summary judgment movant bears the initial burden of demonstrating the

      absence of any genuine issue of fact on a determinative issue. Id. If the movant

      does so, the non-movant then bears the burden of coming forward with

      contrary evidence showing an issue for the trier of fact. Id. We must carefully

      review a grant of summary judgment to ensure that a party was not improperly

      denied its day in court. Id.


[9]   To prevail on a claim of negligence, a plaintiff must prove: (1) a duty owed by

      the defendant to the plaintiff; (2) a breach of that duty; and (3) an injury to the

      Court of Appeals of Indiana | Opinion 64A03-1702-CT-421 | September 7, 2017    Page 4 of 8
       plaintiff proximately caused by the breach. Brown v. Buchmeier, 994 N.E.2d 291,

       294 (Ind. Ct. App. 2013). Summary judgment is generally inappropriate in

       negligence cases because issues of contributory negligence, causation, and

       reasonable care are fact sensitive and more appropriately left for the trier of fact.

       Coffman v. PSI Energy, Inc., 815 N.E.2d 522, 527 (Ind. Ct. App. 2004).

       Nonetheless, a defendant is entitled to summary judgment when the undisputed

       material facts negate at least one element of the plaintiff’s case. Brown, 994

       N.E.2d at 294. Further, although the question of breach is usually one for the

       trier of fact, “if any reasonable jury would conclude that a specific standard of

       care was or was not breached, the question of breach becomes a question of law

       for the court.” Id. (quoting Cox v. Paul, 828 N.E.2d 907, 911 (Ind. 2005)).


[10]   In this case, the parties agree that Walters was JS Aviation’s business invitee

       and, thus, Section 343 of the Restatement (Second) of Torts applies.

               A possessor of land is subject to liability for physical harm caused
               to his invitees by a condition on the land if, but only if, he


                        (a) knows or by the exercise of reasonable care would
                        discover the condition, and should realize that it involves
                        an unreasonable risk of harm to such invitees, and


                        (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.



       Court of Appeals of Indiana | Opinion 64A03-1702-CT-421 | September 7, 2017      Page 5 of 8
       Yost v. Wabash Coll., 3 N.E.3d 509, 515 (Ind. 2014). Under Indiana law, it is

       well-settled that, although a landowner must exercise reasonable care for the

       safety of invitees, the landowner is not an insurer of the invitee’s safety. Schulz

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


[11]   “Conditions posing only a reasonable risk of harm do not trigger a landowner’s

       duty to protect and cannot support a finding of premises liability against a

       landowner.” Pickens v. Wal-Mart Stores E., LP, 2015 WL 4997064 (N.D. Ind.

       Aug. 20, 2015). In granting summary judgment in favor of JS Aviation, the

       trial court appears to have concluded as a matter of law that “an unexpected

       step down is not an ‘unreasonable risk of harm.’” Appellant’s Appendix at 12.

       We cannot agree. Steps and stairs are an everyday occurrence, and invitees are

       generally expected to see them and know how to use them. However, under

       the specific facts of a particular case, a step’s character, location, or surrounding

       conditions may create an unreasonable risk of harm to an invitee. See Milby v.

       Pace Pontiac, Inc., 176 So.2d 554, 556 (Fla. Dist. Ct. App. 1965); Bertrand v. Alan

       Ford, Inc., 537 N.W.2d 185, 188-190 (Mich. 1995).


[12]   In this case, it is notable that JS Aviation thought this step enough of a hazard

       to call for multiple warnings. Indeed, this step down occurred in an unlikely

       spot – almost immediately after the threshold. There were also nonslip mats on

       either side of the step, which led Walters to perceive the floor as “one flat level”

       surface extending from the lounge into the hangar. Appellant’s Appendix at 134.

       Additionally, the lighting between the lounge and the hangar was significantly

       different. We conclude that these circumstances present an issue of fact

       Court of Appeals of Indiana | Opinion 64A03-1702-CT-421 | September 7, 2017   Page 6 of 8
       regarding whether the step presented an unreasonable risk of harm to invitees.

       For these same reasons, a question of fact exists regarding whether JS Aviation

       should have anticipated that an invitee would not see the step.


[13]   We are left to determine whether, as a matter of law, JS Aviation exercised

       reasonable care to protect invitees against the danger posed by the step. The

       record establishes that warning signs were attached to the ground next to the

       hangar side of the threshold and on the open door. Both warned:

       “!!!CAUTION!!! WATCH YOUR STEP”.3 Appellant’s Appendix at 80, 82.

       Had the doors been closed, as they usually were, it is likely Walters would have

       observed the eye-level warning sign on the door. With the doors opened into

       the lounge, however, the sign on the door was off to the side and not as obvious

       to someone walking from the lounge to the brightly-lit hangar. This is likely

       why JS Aviation usually chose to put chairs with additional signage in front of

       the open doors during events.


[14]   Viewing the facts and inferences most favorable to Walters, we find them

       adequate to present triable issues of fact as to whether JS Aviation breached its

       duty of reasonable care and was a contributing cause to Walters’s injuries.

       Thus, the trial court erred in granting summary judgment.


[15]   Judgment reversed and cause remanded.




       3
         While the signs also indicated that it was a step up rather than a step down, there is no indication that this
       inaccuracy was a factor in causing Walters’s fall.

       Court of Appeals of Indiana | Opinion 64A03-1702-CT-421 | September 7, 2017                           Page 7 of 8
Kirsch, J. and Mathias, J., concur.




Court of Appeals of Indiana | Opinion 64A03-1702-CT-421 | September 7, 2017   Page 8 of 8
