MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Nov 15 2018, 9:12 am
court except for the purpose of establishing
                                                                            CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEYS FOR APPELLANTS
Dennis F. Cantrell
Ian P. Goodman
Cantrell Strenski & Mehringer, LLP
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Alfred Stanley, et al.,                                 November 15, 2018
Appellants-Defendants,                                  Court of Appeals Case No.
                                                        18A-CT-1354
        v.                                              Appeal from the Vigo Superior
                                                        Court
Dorothy Deverick,                                       The Honorable Michael J. Lewis,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        84D06-1611-CT-7760



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CT-1354 | November 15, 2018               Page 1 of 9
                                               Case Summary
[1]   Dorothy Deverick (“Deverick”) filed a lawsuit against Alfred and Gertrude

      Stanley (the “Stanleys”), claiming that she was injured after tripping on a

      damaged public sidewalk that abuts the Stanleys’ property. The Stanleys filed a

      motion for summary judgment, which the trial court denied. Thereafter, the

      Stanleys pursued this interlocutory appeal.1 Concluding that the Stanleys had

      no common-law duty to maintain the sidewalk and that a municipal ordinance

      related to sidewalk maintenance does not confer a private right of action, we

      reverse and remand for entry of summary judgment in favor of the Stanleys. 2



                                Facts and Procedural History
[2]   In November 2016, Deverick filed a complaint against the Stanleys alleging that

      she injured her leg after tripping and falling on a “public sidewalk” in front of

      property belonging to the Stanleys. App. Vol. 2 at 10. Deverick alleged that the

      Stanleys “had allowed a tree to grow” between “the sidewalk . . .and the curb

      line of the street,” and that the “tree’s roots had grown unabated by [the

      Stanleys],” causing the sidewalk “to become buckled and uneven.” Id.

      Deverick claimed that she “failed to see the defect in the sidewalk” and was

      injured “as a direct and proximate result” of the Stanleys’ negligence. Id. at 11.




      1
          This Court accepted jurisdiction over the discretionary interlocutory appeal on July 20, 2018.
      2
          As we reverse on this basis, we decline to address the Stanleys’ other contentions.


      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1354 | November 15, 2018                    Page 2 of 9
[3]   In July 2017, the Stanleys moved for summary judgment, designating evidence

      that there was a tree stump between the sidewalk and the curb—in a strip of

      land outside their lot lines, within the street right-of-way. There was also

      evidence that neither the Stanleys—nor anyone on their behalf—“ha[d] ever

      performed any work or maintenance to the sidewalk located outside of [their lot

      lines] or the area between the sidewalk and the curb line of the road.” Id. at 41.


[4]   Deverick filed a response to the motion but declined to designate any evidence.

      At an ensuing hearing, the Stanleys argued that they had no common-law duty

      to maintain the public sidewalk. The parties also focused on whether there was

      a viable claim based upon the following city ordinance:


              No owner or occupant of any lot or tract of land fronting on any
              street shall allow the stump of any tree to project above the
              surface of the ground between the property line and the curb line
              within that part of the sidewalk abutting upon such lot or tract of
              land.


      Terre Haute City Code ch. 6, art. 7, § 6-144(b). The court denied the motion

      for summary judgment and later certified its order. The Stanleys appealed the

      order, and this Court accepted jurisdiction over the interlocutory appeal.



                                Discussion and Decision
                                       Standard of Review
[5]   At the outset, we note that Deverick has not filed a brief. When the Appellee

      has declined to file a brief, we need not develop an argument on her behalf.

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1354 | November 15, 2018   Page 3 of 9
      Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 758 (Ind. 2014). Rather, in these

      instances, we may reverse upon a showing of prima facie error, “defined as, at

      first sight, on first appearance, or on the face of it.” Trinity Homes, LLC v. Fang,

      848 N.E.2d 1065, 1068 (Ind. 2006) (quotation marks omitted).


[6]   Summary judgment is appropriate only “if the designated evidentiary matter

      shows that there is no genuine issue as to any material fact and that the moving

      party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). We

      review de novo whether the trial court properly granted summary judgment.

      Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Moreover, to the extent that

      the grant or denial of summary judgment turns on a pure question of law—such

      as “the interpretation of an ordinance”—we review the question of law de novo.

      Siwinski v. Town of Ogden Dunes, 949 N.E.2d 825, 828 (Ind. 2011).


[7]   “Indiana’s distinctive summary judgment standard imposes a heavy factual

      burden on the movant to demonstrate the absence of any genuine issue of

      material fact on at least one element of the claim.” Siner v. Kindred Hosp. Ltd.

      P’ship, 51 N.E.3d 1184, 1187 (Ind. 2016). Summary judgment is inappropriate

      if the movant fails to carry this burden. Manley v. Sherer, 992 N.E.2d 670, 673

      (Ind. 2013). However, if the movant succeeds, the burden shifts to the non-

      moving party to designate contrary evidence demonstrating the existence of a

      genuine issue of material fact. Id. In conducting our review, we look only to

      the designated evidence, T.R. 56(H), and construe all factual inferences in favor

      of the party who did not seek summary judgment, Manley, 992 N.E.2d at 673.



      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1354 | November 15, 2018   Page 4 of 9
[8]   In this case, Deverick alleged that the Stanleys negligently caused her injury by

      failing to properly maintain the public sidewalk. “[T]o prevail on a claim of

      negligence the plaintiff must show: (1) duty owed to plaintiff by defendant; (2)

      breach of duty by allowing conduct to fall below the applicable standard of care;

      and (3) compensable injury proximately caused by defendant’s breach of duty.”

      Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016)

      (quoting King v. Ne. Sec., Inc., 790 N.E.2d 474, 484 (Ind. 2003)). Absent a duty

      there can be no negligence. Id. “Whether a duty exists is a question of law for

      the court to decide,” id. at 386-87, but “a judicial determination of the existence

      of a duty is unnecessary where the element of duty has ‘already been declared

      or otherwise articulated,’” Rogers v. Martin, 63 N.E.3d 316, 321 (Ind. 2016)

      (quoting N. Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 465 (Ind. 2003)).


                               Duty from the Common Law
[9]   The parties focused on whether the Stanleys could be liable under common-law

      principles of negligence. Indeed, Deverick argued that the Stanleys were liable

      under the common-law doctrine of negligence per se because the Stanleys had

      allegedly violated the municipal ordinance. We note, however, that the

      doctrine of negligence per se “assumes the existence of a common-law duty of

      reasonable care.” Stachowski v. Estate of Radman, 95 N.E.3d 542, 544 (Ind. Ct.

      App. 2018). Thus, the existence vel non of a viable claim based upon this

      doctrine—or upon any other common-law theory of negligence—turns on

      whether the Stanleys owed a common-law duty to Deverick.



      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1354 | November 15, 2018   Page 5 of 9
[10]   It is well-settled that “[a] municipality has a common[-]law duty to exercise

       reasonable care and diligence to keep its streets and sidewalks in a reasonably

       safe condition for travel.” Denison Parking, Inc. v. Davis, 861 N.E.2d 1276, 1280

       (Ind. Ct. App. 2007), trans. denied. Yet, it is also well-settled that “there is no

       similar corresponding duty for owners of property abutting a public sidewalk.”

       Id. (collecting cases). Rather, “[p]ersons are held to have assumed a duty to

       pedestrians on public sidewalks only when they create artificial conditions that

       increase risk and proximately cause injury to persons using those sidewalks.”

       Id. at 1280 (emphasis removed).


[11]   In Indiana, artificial conditions have included constructing a trench in a public

       alley, see Gwaltney Drilling, Inc. v. McKee, 148 Ind. App. 1, 259 N.E.2d 710, 716

       (1970), and leaving sand on a public sidewalk when the sand had been used to

       enhance the appearance of the defendant’s building, see Taylor v. Ind. Bell Tel.

       Co., 147 Ind. App. 507, 262 N.E.2d 399, 401 (1970). However, Indiana courts

       have consistently found that the natural accumulation of ice and snow is not an

       artificial condition. See Denison, 861 N.E.2d at 1280; cf. Personnett v. Great Atl. &

       Pac. Tea Co., 142 Ind. App. 698, 237 N.E.2d 281, 282 (1968) (“It cannot be

       seriously argued that one by inactivity transforms a natural accumulation of ice

       and snow into an artificial condition.”).


[12]   In this case, there is uncontroverted designated evidence that the offending tree

       roots grew into a public sidewalk from a tree within the street right-of-way. We

       cannot say that the owners of property abutting that public sidewalk created an

       artificial condition—and thereby assumed a common-law duty to pedestrians—

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1354 | November 15, 2018   Page 6 of 9
       based merely upon this tree growth. Thus, the Stanleys could not be liable to

       Deverick based upon a common-law duty to maintain the public sidewalk.


                                   Duty from the Ordinance
[13]   Even without owing a common-law duty to the plaintiff, a defendant might

       nevertheless face civil liability for violating a statute or ordinance. Stachowski,

       95 N.E.3d at 545. This type of civil liability exists only where the statute or

       ordinance confers a “private right of action”—that is, where the lawmaking

       body “intended to establish . . . a duty enforceable by tort law.” Id.; see also Doe

       #1 v. Ind. Dep’t of Child Servs., 81 N.E.3d 199, 201-02 (Ind. 2017).


[14]   “The determination of whether a civil cause of action exists begins with an

       examination of legislative intent.” Estate of Cullop v. State, 821 N.E.2d 403, 408

       (Ind. Ct. App. 2005). We “use the same methodology to interpret ordinances

       as . . . statutes.” Siwinski, 949 N.E.2d at 828. We first evaluate whether the

       law is clear and unambiguous on the point in question. Id. If the law is clear

       and unambiguous, then “no room exists for judicial construction.” Id. If,

       however, there is “ambiguity that allows for more than one interpretation,”

       then we construe the law to give effect to the intent of the drafter. Id.


[15]   In this case, the parties focused on the following ordinance:


               No owner or occupant of any lot or tract of land fronting on any
               street shall allow the stump of any tree to project above the
               surface of the ground between the property line and the curb line
               within that part of the sidewalk abutting upon such lot or tract of
               land.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1354 | November 15, 2018   Page 7 of 9
       Terre Haute City Code ch. 6, art. 7, § 6-144(b). Where—as here—the

       ordinance does not expressly establish a private right of action, we make two

       inquiries while remaining “reluctant to infer this unwritten intent.” Doe #1 v.

       Ind. Dep’t of Child Servs., 81 N.E.3d 199, 202 (Ind. 2017) (quotation marks

       omitted). First, we look to whether the law “primarily protects the public at

       large”; if “designed mainly for public benefit, [the law] implies no right of

       action.” Id.; see also Blanck v. Ind. Dep’t of Corr., 829 N.E.2d 505, 509 (Ind. 2005)

       (“[A] private cause of action generally will be inferred where a statute imposes a

       duty for a particular individual’s benefit but will not be where the [l]egislature

       imposes a duty for the public’s benefit.”). Second, we look to whether the law

       “contains an independent enforcement mechanism,” Doe #1, 81 N.E.3d at 202,

       because “courts may not engraft another,” id. at 204.


[16]   This Court has already concluded that—absent more—ordinances like the

       instant ordinance are designed to “aid the municipality in discharging its duty

       to maintain the streets and sidewalks in a reasonably safe condition,” not to

       protect pedestrians. Carroll v. Jobe, 638 N.E.2d 467, 470 (Ind. Ct. App. 1994),

       trans. denied; cf. Lawson v. Lafayette Home Hosp., Inc., 760 N.E.2d 1126, 1129 (Ind.

       Ct. App. 2002) (“[M]unicipal ordinances that require abutting owners or

       occupiers to remove snow and ice from public sidewalks do not, as a matter of

       law, create a duty under which an owner or occupier can be held liable to third

       party pedestrians.”), trans. denied. Furthermore, the Terre Haute City Code

       contains an enforcement mechanism, providing for fines and potential civil

       action brought by the municipality. See Terre Haute City Code ch. 1, § 1-11.

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1354 | November 15, 2018   Page 8 of 9
[17]   In light of the foregoing, we conclude that the ordinance does not confer a

       private right of action supporting Deverick’s claim. Thus, the Stanleys could

       not be liable to Deverick based upon any alleged violation of this ordinance.



                                               Conclusion
[18]   Having discerned (1) no common-law duty and (2) no applicable private right

       of action, we conclude that the Stanleys were entitled to summary judgment.

       We therefore reverse and remand for entry of summary judgment in their favor.


[19]   Reversed and remanded.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-1354 | November 15, 2018   Page 9 of 9
