MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Jun 26 2018, 8:35 am

regarded as precedent or cited before any                                 CLERK
                                                                      Indiana Supreme Court
court except for the purpose of establishing                             Court of Appeals
                                                                           and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Scott A. Faultless                                       Tammy J. Meyer
Craig Kelley & Faultless, LLC                            Ary Avnet
Indianapolis, Indiana                                    Metzger Rosta, LLP
                                                         Noblesville, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Diana Gilkey,                                            June 26, 2018
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         40A01-1712-CT-2823
        v.                                               Appeal from the Jennings Superior
                                                         Court
Mac’s Convenience Stores, LLC,                           The Honorable Gary L. Smith,
d/b/a Circle K,                                          Judge
Appellee-Defendant                                       Trial Court Cause No.
                                                         40D01-1604-CT-6



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 40A01-1712-CT-2823 | June 26, 2018          Page 1 of 10
                                             Case Summary
[1]   Diana Gilkey fell and was injured shortly after exiting a convenience store

      owned by Mac’s Convenience Stores, LLC, d/b/a Circle K (“Circle K”). She

      filed a negligence action against Circle K, claiming that she fell because of

      Circle K’s failure to properly maintain its sidewalk in a reasonably safe

      condition. The trial court granted Circle K’s motion for summary judgment,

      and Gilkey now appeals, claiming that genuine issues of material fact preclude

      summary judgment. We affirm.


                                  Fact and Procedural History
[2]   One afternoon, Gilkey entered Circle K to prepay for gasoline and purchase soft

      drinks. Minutes later, she exited the store carrying three large soft drinks. After

      she went through the door, she walked a few feet to her left on the front

      sidewalk, preparing to return to the pump where she had parked her vehicle,

      and then stepped out toward the parking lot. When she saw a truck

      approaching the curb, she stepped backward and fell and injured her left arm

      and shoulder.


[3]   Gilkey filed a negligence action against Circle K, asserting that a portion of the

      concrete was chipped and cracked, and that she suffered injuries as a proximate

      result of Circle K’s alleged failure to maintain the concrete surface in a

      reasonably safe condition or its failure to warn her of its allegedly defective

      condition. Circle K filed a motion for summary judgment, accompanied by a

      memorandum and designated evidence, which included Gilkey’s deposition


      Court of Appeals of Indiana | Memorandum Decision 40A01-1712-CT-2823 | June 26, 2018   Page 2 of 10
      and responses to interrogatories, a security camera videotape, and an

      eyewitness’s affidavit. Gilkey filed a motion in opposition to summary

      judgment, accompanied by a memorandum and designated materials, i.e., the

      complaint, excerpts from her deposition, and photographs of the front of the

      convenience store. Circle K filed a reply to Gilkey’s motion in opposition.

      After a hearing on Circle K’s motion, the trial court issued an order granting

      summary judgment in favor of Circle K. Gilkey now appeals. Additional facts

      will be provided as necessary.


                                     Discussion and Decision
[4]   Gilkey contends that the trial court erred in granting summary judgment in

      favor of Circle K. We review a summary judgment de novo, applying the same

      standard as the trial court and drawing all reasonable inferences in favor of the

      nonmoving party. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). In

      conducting our review, we consider only those matters that were designated at

      the summary judgment stage. Haegert v. McMullan, 953 N.E.2d 1223, 1229

      (Ind. Ct. App. 2011). Summary judgment is appropriate if the designated

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

      the moving party is entitled to judgment as a matter of law. Hughley, 15 N.E.3d

      at 1003; Ind. Trial Rule 56(C).


[5]   The moving party bears the initial burden of demonstrating the “absence of any

      genuine issue of fact as to a determinative issue.” Williams v. Tharp, 914 N.E.2d

      756, 761 (Ind. 2009). Then the burden shifts to the nonmoving party to “come


      Court of Appeals of Indiana | Memorandum Decision 40A01-1712-CT-2823 | June 26, 2018   Page 3 of 10
      forward with contrary evidence” showing a genuine issue for the trier of fact.

      Id. at 762. The nonmoving party cannot rest upon the allegations or denials in

      the pleadings. Syfu v. Quinn, 826 N.E.2d 699, 703 (Ind. Ct. App. 2005). In

      Hughley, our supreme court emphasized that the moving party bears an onerous

      burden of affirmatively negating an opponent’s claim. 15 N.E.3d at 1003. This

      approach is based on the policy of preserving a party’s day in court, thus erring

      on the side of allowing marginal cases to proceed to trial on the merits rather

      than risking the short-circuiting of meritorious claims. Id. at 1003-04.


[6]   In determining whether issues of material fact exist, we neither reweigh

      evidence nor judge witness credibility. Peterson v. Ponda, 893 N.E.2d 1100, 1104

      (Ind. Ct. App. 2008), trans. denied (2009). Rather, we must accept as true those

      facts established by the designated evidence favoring the nonmoving party. Brill

      v. Regent Commc’ns, Inc., 12 N.E.3d 299, 309-10 (Ind. Ct. App. 2014), trans.

      denied. A trial court’s grant of summary judgment arrives on appeal clothed

      with a presumption of validity. Williams, 914 N.E.2d at 762. We may affirm a

      grant of summary judgment on any legal basis supported by the designated

      evidence. Harness v. Schmitt, 924 N.E.2d 162, 165 (Ind. Ct. App. 2010).


[7]   Gilkey’s underlying action is one for negligence. To recover on a theory of

      negligence, a plaintiff must establish three elements:


              (1) a duty on the part of the defendant to conform his conduct to
              a standard of care arising from his relationship with the plaintiff,
              (2) a failure of the defendant to conform his conduct to the
              requisite standard of care required by the relationship, and (3) an
              injury to the plaintiff proximately caused by the breach.
      Court of Appeals of Indiana | Memorandum Decision 40A01-1712-CT-2823 | June 26, 2018   Page 4 of 10
      Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991).


[8]   Gilkey bases her negligence action on premises liability, maintaining that Circle

      K breached its duty of reasonable care for her safety as an invitee on the

      property and thereby proximately caused her injuries. See Burrell v. Meads, 569

      N.E.2d 637, 639 (Ind. 1991) (landowner owes invitee a duty to exercise

      reasonable care for her safety while she is on landowner’s premises, which

      includes maintaining and inspecting property and warning invitee of

      unreasonable risk of harm). Where such actions involve the grant or denial of

      summary judgment, “[n]egligence will not be inferred; rather, specific factual

      evidence, or reasonable inferences that might be drawn therefrom, on each

      element must be designated to the trial court.” Hayden v. Paragon Steakhouse,

      731 N.E.2d 456, 458 (Ind. Ct. App. 2000). “[A]n inference is not reasonable

      when it rests on no more than speculation or conjecture.” Id. “The mere

      allegation of a fall is insufficient to establish negligence, and negligence cannot

      be inferred from the mere fact of a fall.” Taylor v. Cmty. Hosps., Inc., 949 N.E.2d

      361, 364 (Ind. Ct. App. 2011) (quoting Hall v. Eastland Mall, 769 N.E.2d 198,

      206 (Ind. Ct. App. 2002)).


[9]   In Taylor, a woman slipped and fell by a hospital elevator while carrying food

      from the hospital’s cafeteria to her husband’s room. 949 N.E.2d at 362. There

      were no eyewitnesses to her fall. Id. In her complaint for negligence, she

      alleged that she had slipped on a wet floor, but she admitted in her deposition

      that she did not know for a fact that there was something on the floor that had

      caused her to slip and that she had not seen anything on the floor. Id. at 363.

      Court of Appeals of Indiana | Memorandum Decision 40A01-1712-CT-2823 | June 26, 2018   Page 5 of 10
       Another panel of this Court affirmed summary judgment in favor of the

       hospital, concluding that Taylor’s negligence claim was based on speculation

       and conjecture and emphasizing, “She infers that something was on the

       Hospital’s floor because she fell. She, however, admits that she neither saw nor

       felt anything on the floor prior to or in the moments after her fall.” Id. at 366.


[10]   Similarly, in Hayden, a patron fell shortly after he exited a restaurant to retrieve

       his vehicle. 731 N.E.2d at 457. Again, there were no eyewitnesses to the fall.

       Id. at 458. In his complaint for negligence, Hayden claimed that he had slipped

       and fallen on snow and ice that the restaurant had failed to clear or salt. Id. at

       457. Yet, in his deposition, he testified that he did not see any snow on the

       pavement where he fell and did not know whether there was ice in the area. Id.

       at 458. He also testified that he did not recall the pavement being slippery

       before he fell and did not know for sure what caused him to fall but simply

       believed and suspected that he had slipped on something. Id. Finding that

       Hayden had relied on speculation and conjecture as to the proximate cause of

       his injuries instead of coming forward with specific facts demonstrating the

       existence of a negligent condition that caused his fall, the Hayden court affirmed

       summary judgment in favor of the restaurant. Id. at 458-59.


[11]   Here, Gilkey fell shortly after exiting Circle K, a place that she patronized “all

       the time.” Ex. 1 at 16 (Plaintiff’s Deposition at 59). When asked if she had

       ever noticed the imperfection in the pavement when going in and out of the

       store, she replied in the negative, stating, “I don’t look down when I’m

       walking.” Id. (Plaintiff’s Dep. at 60-61). She was wearing flip flops and

       Court of Appeals of Indiana | Memorandum Decision 40A01-1712-CT-2823 | June 26, 2018   Page 6 of 10
       carrying three large soft drinks when she fell. The photographic and video

       exhibits show the cracked and chipped pavement to be directly in front of the

       double doors at the entrance to Circle K. Exs. 3, 17, 18, and 19. The video

       footage from immediately before her fall shows Gilkey exiting through the

       double doors and walking to her left out of the view of the camera, which

       showed the cracked and chipped portion of the pavement directly outside the

       double doors. We agree with the trial court’s observation concerning the video:


               Exhibit 3 is a security video that captures the Plaintiff as she
               leaves the building and turns to her left. The video does not
               show her fall, but clearly shows that she is well to the left of the
               “cracked and chipped” concrete by several feet and has not
               fallen. The video does not show Plaintiff fall, stumble, stagger or
               in any way have difficulty walking in the area of the concrete that
               Plaintiff claims caused her fall.


       Appellant’s App. Vol. 2 at 10-11.


[12]   Moreover, unlike in Taylor and Hayden, where the falls were unwitnessed, an

       eyewitness observed Gilkey’s fall. Circle K designated eyewitness Jeffrey

       Downs’s affidavit, in which he averred, in pertinent part,


               2. On November 13, 2015, I drove my vehicle to the Circle K
               Store …. On this occasion, I drove into the parking lot located in
               front of the store during the early afternoon although I am not
               exactly certain of the time that I arrived there. I intended to park
               my vehicle and to enter the store. I saw a woman walking out of
               the front door to the store. I stopped my vehicle in the parking
               lot because the woman was walking near the area where I
               intended to park. She looked to be about in her forties or early
               fifties. She was to the right of the front door of the store from

       Court of Appeals of Indiana | Memorandum Decision 40A01-1712-CT-2823 | June 26, 2018   Page 7 of 10
                where I was outside the store. She was walking into the parking
                lot and because I was not sure what she was going to do, I
                motioned for her to go on but she motioned back to me to drive
                by. I started to move my automobile. I could see that she was
                moving backward and she was away from the door and not near
                the front entrance to the store but was more to the side. I then
                noticed that she fell to the ground and I saw her fall but I do not
                know why she fell. Based on what I witnessed and where she
                was on the ground, it was evident that she could not have fallen
                on the cracked pavement that was located in the area just outside
                the front door of the store.

                3. After I saw the lady on the ground, I then got out of my
                vehicle and went over to where she was lying to see if I could
                assist her. She was a fairly large woman and I have a back
                condition and I could not help her. She was on the ground not
                near the cracked pavement in front of the store, but rather in an
                area to the side of the entrance to the store. She had not fallen
                near the cracked pavement in front of the store but rather in an
                area to the side of the entrance and she was lying on the
                pavement.


       Ex. 2.


[13]   Gilkey’s deposition, designated in its entirety by Circle K and in part by Gilkey,

       includes statements such as, “It’s all fuzzy” and “all a blur to me.” and Ex. 1 at

       17-18, 20 (Plaintiff’s Dep. at 63, 76). When asked if she remembered what

       happened when she fell, and “What caused you to fall?” she responded, “I

       don’t remember anything after [the fall]. I don’t even remember falling. I

       remember stepping out and then stepping back, because there was a truck, and

       that’s all I can remember.” Id. at 18 (Plaintiff’s Dep. at 66-67). When she was

       shown Exhibit 17, a photograph depicting the imperfections or rough space

       Court of Appeals of Indiana | Memorandum Decision 40A01-1712-CT-2823 | June 26, 2018   Page 8 of 10
       being in the middle of the doorway, she stated, “I fell more to the left over here.

       I didn’t fall right here …. Q. So you didn’t fall in the middle of the doorway

       area? A. No. Right here.” Id. at 17 (Plaintiff’s Dep. at 65.) “Q. But you

       don’t remember at any point in time where you were on the ground, where you

       were situated?” A. Right.” Id. at 20 (Plaintiff’s Dep. at 77). The video footage

       shows conclusively that Gilkey walked to her left as the door closed and that

       she walked out of the picture and did not fall in the cracked and chipped area.

       This evidence is corroborated by Downs’s eyewitness affidavit and Gilkey’s

       deposition. We therefore find Circle K’s designated materials sufficient to

       affirmatively negate the causation element of Gilkey’s negligence claim.


[14]   With Circle K having made a prima facie showing negating Gilkey’s claim, it

       was then incumbent on Gilkey to come forward with facts to controvert Circle

       K’s designated materials. She designated certain portions of her deposition, but

       not once in the deposition did Gilkey state that she fell because of the cracked

       and chipped pavement. Nor did she submit an affidavit to that effect, as was

       the case in Hughley. See 15 N.E.3d at 1004 (where plaintiff “designated an

       affidavit – albeit a perfunctory and self-serving one – that specifically

       controverted the [appellee’s] prima facie case.”). The deposition excerpt

       designated by Gilkey includes the following exchange concerning her location

       on the sidewalk when she fell (as depicted in Exhibit 18): “What do you think

       happened that made you fall? A. I believe I stepped right there [using

       photograph] and fell. When I went to step off, I believe there was a truck

       coming, and I stepped here, and then I stepped back and stepped right there on


       Court of Appeals of Indiana | Memorandum Decision 40A01-1712-CT-2823 | June 26, 2018   Page 9 of 10
       that, and that’s when I fell.” Ex. 1 at 17 (Plaintiff’s Dep. at 66) (emphases

       added). Her testimony and labels marking her location at the time she fell were

       not unequivocal but instead appeared to be best guesses. See Ex. 18

       (photograph of sidewalk area outside Circle K).


[15]   In sum, the designated evidence established that Gilkey fell but that she does

       not know why, where, or how. Thus, Gilkey’s negligence claim is based on

       mere speculation and conjecture, and “negligence cannot be inferred from the

       mere fact of a fall.” Taylor, 949 N.E.2d at 364. We find no error in the trial

       court’s grant of summary judgment in favor of Circle K. Accordingly, we

       affirm.


[16]   Affirmed.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 40A01-1712-CT-2823 | June 26, 2018   Page 10 of 10
