Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS:                            ATTORNEYS FOR APPELLEES:

CHET ZAWALICH                                       ROBERT J. KONOPA
The Law Office of Chet Zawalich                     MARK D. KUNDMUELLER
South Bend, Indiana                                 Tuesley Hall Konopa, LLP

                                                                                FILED
                                                    South Bend, Indiana

                                                                             Jan 30 2012, 9:18 am
                              IN THE
                    COURT OF APPEALS OF INDIANA                                       CLERK
                                                                                    of the supreme court,
                                                                                    court of appeals and
                                                                                           tax court




FLETCHER COLEMAN and               )
DOROTHY COLEMAN,                   )
                                   )
      Appellants-Plaintiffs,       )
                                   )
            vs.                    )                        No. 71A05-1106-CT-300
                                   )
NORTHEAST NEIGHBORHOOD             )
REVITALIZATION ORGANIZATION, INC., )
and NORTHEAST NEIGHBORHOOD         )
COUNCIL, INC.,                     )
                                   )
      Appellees-Defendants.        )


                     APPEAL FROM THE ST. JOSEPH CIRCUIT COURT
                          The Honorable Michael G. Gotsch, Judge
                              Cause No. 71C01-0906-CT-79




                                         January 30, 2012



                 MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge

                                      Case Summary and Issues

           After falling in front of an old fire station owned by the City of South Bend and used

by the Northeast Neighborhood Council, Inc. (“NENC”) as a food pantry (the “Property”),

Fletcher Coleman and his wife, Dorothy, filed a complaint asserting claims for 1) negligence

on behalf of Fletcher against the Northeast Neighborhood Revitalization Organization

(“NNRO”); the City of South Bend; South Bend Heritage Foundation, Inc. (the “Heritage

Foundation”); and NENC; and 2) loss of consortium on behalf of Dorothy against the same

defendants. NNRO, NENC, and the Heritage Foundation all filed motions for summary

judgment. Along with their response, the Colemans filed a motion to strike portions of

affidavits which NNRO designated in support of its motion for summary judgment. The trial

court denied the Colemans’ motion to strike and granted summary judgment in favor of

NNRO, NENC, and the Heritage Foundation.

       The Colemans raise three issues for our review, which we restate as 1) whether the

trial court abused its discretion in denying the Colemans’ motion to strike; 2) whether the

trial court erred in granting NENC’s motion for summary judgment; and 3) whether the trial

court erred in granting NNRO’s motion for summary judgment.1 We conclude the trial court

did not abuse its discretion in denying the Colemans’ motion to strike, and the trial court did

not err in granting either NENC’s or NNRO’s motion for summary judgment, and we

therefore affirm.


       1
           The Colemans do not appeal the trial court’s grant of summary judgment in favor of the Heritage

                                                     2
                                    Facts and Procedural History

        On May 30, 2008, Fletcher slipped and fell on loose concrete and/or asphalt in front of

the building on the Property. As a result, his left leg was amputated below his knee. The

Property, once a fire station, has been owned by the City of South Bend for over twenty

years. NENC has occupied the first floor and basement of the Property for several years,

running a food pantry on the first floor and storing food for the food pantry in the basement.

In addition, NENC conducts meetings in the building, other neighborhood groups hold

meetings and activities in the building, and the City uses the building as a polling place for

elections. The food pantry is staffed entirely by volunteers. Fletcher served as a volunteer

for approximately six years prior to his injury, and he was volunteering on the day of the

incident.

        Neither NENC nor NNRO lease the Property. NNRO did lease the Property in the

past, but it has not since 2003 and at the time of the incident NNRO did not use or occupy the

Property. South Bend permits NENC to use the first floor and basement. To aid NENC in its

endeavors, NNRO paid for the cleaning and utilities of the Property. NENC, NNRO, and

South Bend all have keys to the Property, and little oversight exists regarding who has a key

to the Property.

                                      Discussion and Decision

                                        I. Standard of Review

        In ruling on the admissibility of evidence, trial courts enjoy broad discretion, including

rulings on motions to strike affidavits. W.S.K. v. M.H.S.B., 922 N.E.2d 671, 695-96 (Ind.


Foundation, and thus, we need not address it.
                                                 3
Ct. App. 2010). We review such rulings for an abuse of discretion. Id. at 696. When

reviewing a grant of summary judgment, the reviewing court stands in the shoes of the trial

court and applies the same standards as the trial court. Rider v. McCamment, 938 N.E.2d

262, 266 (Ind. Ct. App. 2010). Summary judgment is appropriate only where the evidence

shows there are no genuine issues of material fact and the moving party is entitled to

judgment as a matter of law. Gillespie v. Niles, 956 N.E.2d 744, 748 (Ind. Ct. App. 2011).

All facts and reasonable inferences drawn from those facts are construed in favor of the non-

moving party. Id.

                                       II. Motion to Strike

       In support of its motion for summary judgment, NNRO submitted affidavits from

Pamela Myer, Gary Gilot, Lynn Coleman, and Carl Littrell, all South Bend employees. Each

employee averred that “South Bend, as the owner of [the Property], has been exclusively

responsible for repair, replacement, modification and maintenance (as needed) of all

structural portions of [the Property] including all exterior asphalt located at or near the front,

side and rear of [the Property],” and that South Bend has never asked any other organization

to fulfill these obligations “as all matters related thereto are the responsibility of the City of

South Bend, Indiana, as the owner of said premises.” Appendix to Brief of Appellee,

[NNRO] at 18-50. In addition, the employees’ affidavits include statements concerning the

one-year lease between South Bend and NNRO from 2002 and 2003, and NNRO attached a

copy of the lease to each affidavit.




                                                4
        Affidavits in support of summary judgment motions “shall set forth such facts as

would be admissible in evidence.” Trial Rule 56(E). The Colemans argue the affidavits are

inadmissible because witnesses are prohibited from testifying as to legal conclusions and the

statement that South Bend has been exclusively responsible for maintenance and repair of the

Property is a legal conclusion. See Evidence Rule 704(b). The Colemans also assert that any

statements regarding the expired lease are irrelevant and thus inadmissible. We disagree with

both arguments. The statements of each employee concerning South Bend’s responsibility

for the Property are not legal conclusions. They are statements regarding the relationship

between South Bend and all other parties associated with the Property. Specifically, the

affidavits state that South Bend, rather than anyone else associated with the Property,

assumed the responsibilities of repairing and maintaining the Property. These statements are

facts from which legal conclusions can be drawn, but they are not legal conclusions on their

own. Also, statements regarding the lease are not irrelevant. Although NNRO does not

appear to have been a holdover tenant since it did not physically remain on the premises,2 the

lease, even if expired, gives historical context to the relationships and responsibilities of the

parties associated with the Property when Fletcher fell in 2008. Thus, the trial court did not

abuse its discretion.




        2
         See Houston v. Booher, 647 N.E.2d 16, 19 (Ind. Ct. App. 1995) (“In the absence of an agreement to
the contrary, when a tenant holds over beyond the expiration of the lease and continues to make rental
payments, and the lessor does not treat the tenant as a trespasser by evicting him, the parties are deemed to
have continued the tenancy under the terms of the expired ease.”).

                                                     5
                                  III. Summary Judgment

       In a negligence action the plaintiff must prove three elements to prevail: 1) the

existence of a duty of care owed by the defendant to the plaintiff; 2) a breach of that duty of

care; and 3) injury to the plaintiff proximately caused by the breach of duty. Sizemore v.

Templeton Oil Co., Inc., 724 N.E.2d 647, 650 (Ind. Ct. App. 2000). Whether a duty exists is

a question of law for the court to decide. Id. “In premises liability cases, whether a duty is

owed depends primarily upon whether the defendant was in control of the premises when the

accident occurred. The rationale is to subject to liability the person who could have known

of any dangers on the land and therefore could have acted to prevent any foreseeable harm.”

Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2004). In Risk v. Schilling, 569 N.E.2d 646,

647 (Ind. 1991), in determining whether an owner of property had a duty to exercise

reasonable care, our supreme court focused on whether the owner was a “possessor” of the

area where injury occurred and cited the Restatement Second of Torts for the definition of

“possessor”:

       A possessor of land is
       (a) a person who is in occupation of the land with intent to control it or
       (b) a person who has been in occupation of land with intent to control it, if no
       other person has subsequently occupied it with intent to control it, or
       (c) a person who is entitled to immediate occupation of the land, if no other
       person is in possession under Clauses (a) and (b).


Restatement (Second) of Torts § 328 E (1965).

       The Colemans argue whether or not NENC and/or NNRO owed Fletcher a duty, i.e.

whether either organization was “in control of the premises when the accident occurred,” are



                                              6
genuine questions of material fact. As to NENC, the Colemans rely upon the following facts

in support of their contention that NENC owed a duty to Fletcher: NENC occupies the first

floor and basement of the Property for the use of its food pantry; NENC conducts meetings

and hosts other activities in the building; NENC has keys to the Property; volunteers of

NENC have access to keys to the Property; NENC pays for the telephone line for the

Property; NENC volunteers assist in the maintenance of the parking area and sidewalk in

front of the building; NENC designates the hours of the food pantry, where clients park, and

which doors are for public use to enter the building; and NENC volunteers have at times

swept away broken pieces of asphalt and/or concrete from the front of the building where

Fletcher fell. As to NNRO, the Colemans rely upon the following facts in support of their

contention that NNRO owed a duty: NNRO pays the utility bills for the Property; NNRO

pays the janitor of the building; NNRO has keys to the Property; NNRO hires someone to cut

the grass and remove snow, including removal from the area in front of the building where

Fletcher fell; NNRO pays for the security system for the Property; and the janitor of the

Property, paid by NNRO, has at times removed broken pieces of asphalt and/or concrete from

the front of the building.

       NENC argues that, at best, it occupied the first floor and basement of the Property. It

contends it had no control over the building’s exterior or the surrounding parking and

walking areas. In response to the Colemans’ contention that NENC was a possessor of the

Property, as defined by the Restatement Second of Torts, NENC argues South Bend gave

NENC a license to use the property for its community service purposes and that NENC was



                                              7
nothing more than a licensee. In support of its argument, NENC points to the affidavits of

South Bend employees who all assert that South Bend had the exclusive responsibility for the

repair and maintenance of the exterior of the Property.

       Similarly, NNRO argues it did not exhibit any control over the Property, let alone

sufficient control to be deemed a possessor of the Property. In support of its contention,

NNRO points to the facts that it was not the owner of the Property, did not use the Property,

is not a leaseholder, never made structural repairs to the building or premises, and was never

given authority to make repairs by South Bend. Although NNRO paid for the janitor, snow

removal, lawn care, utilities, and security system for the Property, NNRO asserts this

amounts to nothing more than financially supporting the food pantry.

       The Colemans claim Risk is applicable. There, our supreme court determined the

owner of property which caused an injury was not the possessor of the property because the

owner exhibited no control over it. 569 N.E.2d at 647-48. Unlike Risk, however, here we

have evidence that South Bend did exercise control over the Property and the area where

Fletcher fell. Namely, four employees of South Bend averred that South Bend maintained

exclusive responsibility for structural repairs and maintenance to the Property, including all

exterior asphalt around the building. The Colemans also refer us to our reasoning in Reed v.

Beachy Const. Corp., 781 N.E.2d 1145, 1150 (Ind. Ct. App. 2002), trans. denied, where we

held that the new owners of a home who delayed possession of the premises so that it could

be included in a home show did not owe a duty to patrons touring their newly purchased

home during the show. Unlike Reed, where the owners of the property exhibited no control



                                              8
other than ownership, here the evidence reveals South Bend controlled the Property and the

asphalt surrounding it because it maintained exclusive responsibility for its repair and

maintenance.

       We conclude there is no genuine issue of material fact regarding whether NENC or

NNRO exercise sufficient control over the exterior walkway of the Property to give rise to a

duty of care. Evidence of the obligations and responsibilities assumed by each party includes

the affidavits of several South Bend employees stating that South Bend is and has been

exclusively responsible for the repair, replacement, modification, and maintenance of the

Property’s structure, including the walkway on which Fletcher fell, and that South Bend has

never requested that another organization take on any of those responsibilities.

       Further evidence includes the lease between South Bend and NNRO from when

NNRO leased the Property in 2002 and 2003. Even if NNRO is no longer a tenant and the

lease no longer binding,3 the lease does discuss the obligations of each party. While the lease

may not govern in these circumstances, it does provide insight into the assumed role of South

Bend with respect to the Property:

       5. . . . [NNRO] will keep the interior of the leased premises in good repair,
       and will keep the premises in a clean and healthy condition during the term of
       this lease. . . . [South Bend] shall repair and maintain the structural portion of
       the premises, including, but not limited to, the basic plumbing, air
       conditioning, heating, and electrical systems unless such maintenance or
       repairs are caused by the act, neglect, fault or omission of [NNRO].

Appellants’ Appendix at 89-90. At the very least, the lease provides evidence that during its

lease with NNRO, South Bend assumed responsibility for the structural integrity of the


       3
           See supra note 2.

                                               9
Property. Nothing presented by the Colemans shows that South Bend has taken any less

responsibility or given anyone else more responsibility since the time of the lease.

       As to the courses of action of NENC and NNRO, which the Colemans rely upon in

their contention that both organizations were in control of the Property, the actions of NENC

amount to nothing more than the use of the Property and the actions of NNRO amount to

nothing more than financially supporting the food pantry. These actions do not show that

either organization was in control of the Property and the area in front of the building where

Fletcher fell. Because loss of consortium claims are derivative in nature, see Bender v. Peay,

433 N.E.2d 788, 790 (Ind. Ct. App. 1982), and because NENC and NNRO are entitled to

judgment as a matter of law as to Fletcher’s negligence claim, Dorothy’s loss of consortium

claim also fails.

                                         Conclusion

       We conclude the trial court did not abuse its discretion in denying the Colemans’

motion to strike portions of NNRO’s affidavits, no genuine issues of material fact exist, and

NENC and NNRO are entitled to judgment as a matter of law. We therefore affirm.

       Affirmed.

NAJAM, J., and VAIDIK, J., concur.




                                             10
