MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             FILED
this Memorandum Decision shall not be
                                                              May 20 2016, 8:58 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                                   ATTORNEYS FOR APPELLEE
John P. Daly, Jr.                                        Mark D. Gerth
Golitko & Daly, PC                                       Michael Wroblewski
Indianapolis, Indiana                                    Kightlinger & Gray, LLP
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jason L. McDonough, as                                   May 20, 2016
Personal Representative of the                           Court of Appeals Case No.
Estate of Donna L. Allen,                                49A02-1507-CT-824
Deceased,                                                Appeal from the
Appellant-Plaintiff,                                     Marion Superior Court
                                                         The Honorable
        v.                                               Heather A. Welch, Judge
                                                         Trial Court Cause No.
Kentucky Avenue Land                                     49D01-1302-CT-7768
Company,
Appellee-Defendant.




Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CT-824 | May 20, 2016     Page 1 of 8
[1]   Jason L. McDonough, as personal representative of the Estate of Donna L.

      Allen (“the Estate”), appeals the trial court’s order granting summary judgment

      in favor of Kentucky Avenue Land Company (“Kentucky Avenue”) in the

      Estate’s claim of wrongful death against Kentucky Avenue. The Estate raises

      two issues, of which we find the following dispositive: whether the trial court

      erred in granting summary judgment in favor of Kentucky Avenue under

      Indiana’s summary judgment standard.


[2]   We reverse and remand.


                                 Facts and Procedural History
[3]   On October 3, 2011, Donna Allen (“Allen”) was employed by Turner Security

      Services Corporation (“Turner”) as a security officer at a premises owned by

      Kentucky Avenue. On that evening, Allen fell on the premises of Kentucky

      Avenue and suffered injuries. No one witnessed Allen’s fall. Allen died on

      May 17, 2012 without giving any sworn testimony as to how the fall occurred

      or what caused her fall. In its complaint, the Estate alleged that Allen fell on a

      staircase owned and maintained by Kentucky Avenue that was “in a

      dilapidated condition, contained no handrails, and was in violation of

      Occupational Safety and Health Administration and building code

      regulations.” Appellant’s App. at 23.


[4]   Bob Beaman (“Beaman”), another Turner employee who was working with

      Allen on the evening of October 3, arrived to assist Allen shortly after her fall.

      The next day, Beaman spoke with the owner of Turner, Edward A. Turner, Jr.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CT-824 | May 20, 2016   Page 2 of 8
      (“Edward”), and told him that the steps were in an unsafe condition. Id. at 79.

      Beaman was never deposed and never gave a sworn statement. Edward also

      spoke to John Russell (“Russell”), Allen’s supervisor, and Russell reported that

      the staircase contained some wobbly boards and all the boards were weathered.

      Id. at 80. Russell was not deposed and did not give a sworn statement. Edward

      also spoke to Allen while she was in the hospital within a couple of days after

      her fall. Allen relayed to Edward that she fell down the stairs and that “she

      [thought] that she stepped on a wobbly board and fell down.” Id. at 73.


[5]   On the day after Allen’s fall, Edward completed the Indiana Worker’s

      Compensation First Report of Employee Injury, Illness. The report contained

      an inquiry regarding how the injury occurred, to which Edward indicated:

      “while walking back from women’s restroom, employee fell from bottom step

      of 7-step wooden stair [sic] on the outside of west loading dock . . . . The steps

      are wobbly and have no handrail. It was dark outside and the outside dock

      lights were NOT on.” Id. at 81. This information was based on what others

      reported to him and not from personal knowledge. In the summer of 2013,

      Kentucky Avenue replaced the steps where the fall occurred and installed a

      handrail.


[6]   On February 25, 2013, the Estate filed a complaint against Kentucky Avenue

      alleging wrongful death due to injuries Allen sustained falling down on

      property owned by Kentucky Avenue. On January 15, 2015, Kentucky Avenue

      filed its motion for summary judgment and designated evidence in support of

      the motion. The Estate filed a motion for enlargement of time to respond to

      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CT-824 | May 20, 2016   Page 3 of 8
      Kentucky Avenue’s summary judgment motion. The motion was granted, and

      the Estate was given until April 15, 2015 to file its response. On April 7, the

      Estate filed its response in opposition to Kentucky Avenue’s motion for

      summary judgment and a cross-motion for partial summary judgment on the

      issue of duty, along with its designated evidence. On April 16, Kentucky

      Avenue filed its reply brief, a motion to strike, and a response to the Estate’s

      cross-motion for summary judgment. On May 5, the Estate filed a response to

      the motion to strike, a reply brief in support of its cross-motion for partial

      summary judgment motion, and additionally, a supplemental designation of

      evidence. Two days later, Kentucky Avenue filed a motion to strike this

      supplemental designated evidence. The trial court held a hearing on all of the

      pending motions and, on June 12, 2015, issued an order granting Kentucky

      Avenue’s motions to strike and motion for summary judgment. The Estate

      now appeals.


                                     Discussion and Decision
[7]   When reviewing the grant of summary judgment, our standard of review is the

      same as that of the trial court. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d

      1167, 1173 (Ind. Ct. App. 2012) (citing Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of

      Ind., Inc., 832 N.E.2d 559, 562 (Ind. Ct. App. 2005)), trans. denied. We stand in

      the shoes of the trial court and apply a de novo standard of review. Id. (citing

      Cox v. N. Ind. Pub. Serv. Co., 848 N.E.2d 690, 695 (Ind. Ct. App. 2006)). Our

      review of a summary judgment motion is limited to those materials designated

      to the trial court. Ind. Trial Rule 56(H); Robson v. Tex. E. Corp., 833 N.E.2d

      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CT-824 | May 20, 2016   Page 4 of 8
      461, 466 (Ind. Ct. App. 2005), trans. denied. Summary judgment is appropriate

      only where the designated evidence shows there are no genuine issues of

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

      T.R. 56(C). For summary judgment purposes, a fact is “material” if it bears on

      the ultimate resolution of relevant issues. FLM, 973 N.E.2d at 1173. We view

      the pleadings and designated materials in the light most favorable to the non-

      moving party. Id. Additionally, all facts and reasonable inferences from those

      facts are construed in favor of the non-moving party. Id. (citing Troxel Equip.

      Co. v. Limberlost Bancshares, 833 N.E.2d 36, 40 (Ind. Ct. App. 2005), trans.

      denied).


[8]   A trial court’s grant of summary judgment is clothed with a presumption of

      validity, and the party who lost in the trial court has the burden of

      demonstrating that the grant of summary judgment was erroneous. Id. Where

      a trial court enters specific findings and conclusions, they offer insight into the

      rationale for the trial court’s judgment and facilitate appellate review, but are

      not binding upon this court. Id. We will affirm upon any theory or basis

      supported by the designated materials. Id. When a trial court grants summary

      judgment, we carefully scrutinize that determination to ensure that a party was

      not improperly prevented from having his or her day in court. Id.


[9]   Although summary judgment is rarely appropriate in negligence cases because

      issues of negligence, contributory negligence, causation, and reasonable care are

      more appropriately left for the determination of a trier of fact, questions of law,

      like whether a defendant had a duty of care as to a plaintiff or whether certain

      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CT-824 | May 20, 2016   Page 5 of 8
       facts constitute proximate cause, may be appropriate for summary judgment.

       Kader v. State of Ind., Dep’t of Corr., 1 N.E.3d 717, 726 (Ind. Ct. App. 2013). The

       tort of negligence has three elements: (1) a duty owed by the defendant to the

       plaintiff; (2) a breach of that duty; and (3) injury to the plaintiff resulting from

       the defendant’s breach. Christmas v. Kindred Nursing Ctrs. Ltd. P’ship, 952 N.E.2d

       872, 878 (Ind. Ct. App. 2011). Summary judgment is appropriate if the

       material evidence negates one of these elements. Id.


[10]   This case illustrates once again the marked difference in summary judgment

       procedure in Indiana as compared to federal practice. Lacy-McKinney v. Taylor

       Bean & Whitaker Mortg. Corp., 937 N.E.2d 853, 865 (Ind. Ct. App. 2010) (citing

       Cole v. Gohmann, 727 N.E.2d 1111, 1113 (Ind. Ct. App. 2000)). Federal

       summary judgment procedure requires summary judgment to be granted

       against a party who fails to come forward with evidence to support an essential

       element of that party’s case as to which that party bears the burden of proof at

       trial. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In contrast,

       under Indiana’s summary judgment procedure, the party moving for summary

       judgment has the burden of establishing that no genuine issue of material fact

       exists. Id. at 865-66 (citing Jarboe v. Landmark Cmty. Newspapers, 644 N.E.2d

       118, 123 (Ind. 1994)).1 Only after the moving party has met this burden with a




       1
         We note that our Supreme Court recently handed down Gaff v. Ind.-Purdue Univ. of Fort Wayne, -- N.E.3d –
       (Ind. 2016), which again reiterates that Indiana’s summary judgment procedure diverges from federal
       summary judgment practice and imposes a “‘more onerous burden’” on the moving party: “‘to affirmatively
       negate an opponent’s claim.’” Id. at – (quoting Hughley v. State, 15 N.E.3d 1000,1003 (Ind. 2014)).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CT-824 | May 20, 2016              Page 6 of 8
       prima facie showing that no genuine issue of material fact exists does the

       burden then shift to the non-moving party to establish that a genuine issue of

       material fact does in fact exist. Id. at 866.


[11]   Here, the dispute between the parties centered on what was the cause of Allen’s

       fall. Therefore, to prevail under Indiana procedural law, Kentucky Avenue, as

       the moving party, had the burden of affirmatively negating the Estate’s claim

       that Kentucky Avenue was negligent in maintaining the stairs and that such

       negligence caused Allen’s fall. Kentucky Avenue failed to do so. It did not

       designate any evidence to demonstrate that it properly maintained the steps or

       that Allen’s fall was not caused by its negligence. Kentucky Avenue only

       demonstrated that there were no witness statements relating to the accident and

       no statements of Allen related to the matter that could be produced in Kentucky

       Avenue’s request for production of documents.


[12]   The trial court found, after striking much of the Estate’s designated evidence,

       that the Estate’s remaining designated evidence did not support a reasonable

       inference that Kentucky Avenue’s negligence caused Allen’s fall and that

       summary judgment should be entered in favor of Kentucky Avenue. Appellant’s

       App. at 19. However, under Indiana’s summary judgment procedure, unlike the

       federal procedure, the burden was on Kentucky Avenue, as the moving party,

       to come forth with evidence to negate the Estate’s claim, which Kentucky

       Avenue failed to do; the burden was not on the Estate. Therefore, we conclude

       that the trial court erred in granting summary judgment in favor of Kentucky

       Avenue because a genuine issue of material fact exists as to whether Allen’s fall

       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CT-824 | May 20, 2016   Page 7 of 8
       was caused by Kentucky Avenue’s negligence. We reverse the grant of

       summary judgment in favor of Kentucky Avenue and remand for further

       proceedings.2


[13]   Reversed and remanded.


[14]   Mathias, J., and Brown, J., concur.




       2
         The Estate also raises contentions that the trial court erred in striking portions of its designated evidence.
       We need not reach these issues because even if we were to hold that the trial court should not have stricken
       the evidence, we would still reverse the trial court’s decision to grant summary judgment in favor of
       Kentucky Avenue. Likewise, the Estate also asserts that the trial court erred in denying its cross-motion for
       partial summary judgment as to the issue of duty. We note, however, that the trial court did not deny the
       Estate’s cross-motion based on the evidence, but instead, found the motion moot due to the trial court’s grant
       of summary judgment in favor of Kentucky Avenue. As we are reversing that grant of summary judgment,
       we remand to the trial court for further proceedings including a determination of this issue.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CT-824 | May 20, 2016                   Page 8 of 8
