                                                                         FILED
                                                                    Mar 08 2019, 5:23 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Daniel H. Pfeifer                                        Edward L. Murphy, Jr.
James P. Barth                                           Lauren R. Deitrich
Pfeifer, Morgan & Stesiak                                Rothberg Logan & Warsco LLP
South Bend, Indiana                                      Fort Wayne, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michelle Converse,                                       March 8, 2019
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         18A-CT-1658
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
Elkhart General Hospital, Inc.,                          The Honorable Michael A.
Appellee-Defendant.                                      Christofeno, Judge
                                                         Trial Court Cause No.
                                                         20C01-1307-CT-119



Robb, Judge.




Court of Appeals of Indiana | Opinion 18A-CT-1658 | March 8, 2019                            Page 1 of 15
                                Case Summary and Issue
[1]   Michelle Converse appeals the trial court’s grant of summary judgment in favor

      of Elkhart General Hospital, Inc. on her claim of negligence. Converse presents

      only one issue for our review, whether the trial court erred when it granted

      summary judgment in favor of Elkhart General. Concluding the trial court

      erred in granting summary judgment in favor of Elkhart General, we reverse

      and remand.



                            Facts and Procedural History
[2]   In early 2012, Converse was an employee of American Nursing Care (“ANC”),

      which conducted its home health care business from a building owned by

      Elkhart General. ANC had leased the building since July 1, 2011, and

      Converse went to the location two to three times per week to pick up or drop off

      paperwork and to attend case conferences before dismissing patients. ANC

      instructed all its employees to use the side door to enter and exit the building.


[3]   After one such conference on April 10, 2012, Converse walked from the side

      door to her car in the parking lot around 9:25 a.m. Converse was returning to

      the building on the clear, sunny morning when she spotted another nurse, Dale

      Fish, with whom she needed to speak. Converse yelled Fish’s name and

      attempted to run after him but fell on the way to Fish’s car. Converse claims

      she lost her balance when she stepped on a landscaping rock that was loose on

      the sidewalk, hit the raised concrete area adjacent to the sidewalk, stepped on


      Court of Appeals of Indiana | Opinion 18A-CT-1658 | March 8, 2019         Page 2 of 15
      another rock, and fell. Converse injured her arm in the fall and required several

      surgeries. Converse claimed that she did not see the rock prior to her fall and

      had never noticed any rocks on the sidewalk before but that she observed

      scattered landscaping rocks on the sidewalk “here and there” after the fall.

      Appellant’s Appendix, Volume 2 at 134.


[4]   On July 22, 2013, Converse filed a complaint for damages against Elkhart

      General, alleging negligence on the basis of premises liability. Elkhart General

      moved for summary judgment on March 5, 2018. The trial court heard

      arguments on May 14 and granted summary judgment in favor of Elkhart

      General on June 21. Converse now appeals.



                                Discussion and Decision
                                      I. Standard of Review
[5]   We review a summary judgment order with the same standard applied by the

      trial court. City of Lawrence Util. Serv. Bd. v. Curry, 68 N.E.3d 581, 585 (Ind.

      2017). Summary judgment is appropriate only when “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). In the summary judgment context, we are not bound by the

      trial court’s specific findings of fact and conclusions of law. Rice v. Strunk, 670

      N.E.2d 1280, 1283 (Ind. 1996). The trial court’s findings and conclusions

      merely aid our review by providing us with a statement of reasons for the trial

      court’s actions. Id.
      Court of Appeals of Indiana | Opinion 18A-CT-1658 | March 8, 2019          Page 3 of 15
[6]   Moreover, our review is limited to those facts designated to the trial court, T.R.

      56(H), and we construe all facts and reasonable inferences drawn from those

      facts in favor of the non-moving party, Meredith v. Pence, 984 N.E.2d 1213, 1218

      (Ind. 2013). On appeal, the non-moving party carries the burden of persuading

      us the grant of summary judgment was erroneous. Hughley v. State, 15 N.E.3d

      1000, 1003 (Ind. 2014). A grant of summary judgment will be affirmed if it is

      sustainable upon any theory supported by the designated evidence. Miller v.

      Danz, 36 N.E.3d 455, 456 (Ind. 2015).


                                      II. Premises Liability
[7]   To prevail on a claim of negligence, Converse must establish: (1) Elkhart

      General owed a duty to Converse; (2) Elkhart General breached that duty by

      allowing its conduct to fall below the applicable standard of care; and (3)

      Elkhart General’s breach of duty proximately caused a compensable injury to

      Converse. Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2004).


[8]   Before proceeding to the merits of the parties’ arguments, however, we pause to

      emphasize Indiana’s unique summary judgment standard. Contrary to the

      federal standard which permits the moving party to merely show the party

      carrying the burden of proof lacks evidence on a necessary element, Indiana law

      requires the moving party to “affirmatively negate an opponent’s claim.”

      Hughley, 15 N.E.3d at 1003 (quotation omitted). Or, to put it more simply,

      Indiana law requires a movant to prove their opponent would lose, rather than

      simply showing their opponent is unlikely to win. If, and only if, the movant


      Court of Appeals of Indiana | Opinion 18A-CT-1658 | March 8, 2019        Page 4 of 15
       sustains this burden does the burden shift to the opponent to set forth specific

       facts showing that there is a genuine issue of material fact. Markley Enters., Inc.

       v. Grover, 716 N.E.2d 559, 564 (Ind. Ct. App. 1999). If the movant fails in their

       initial burden or the non-movant successfully designates evidence establishing a

       genuine issue of material fact, summary judgment must be denied. Hughley, 15

       N.E.3d at 1004 (noting “Indiana consciously errs on the side of letting marginal

       cases proceed to trial on the merits, rather than risk short-circuiting meritorious

       claims.”) And, with this “more onerous burden[,]” id. at 1003, in mind, we

       turn to the parties’ arguments.


[9]    Converse’s status at the time of the accident was an invitee. Under Indiana

       premises liability law, a landowner owes the highest duty to an invitee: the duty

       to exercise reasonable care for his protection while he is on the landowner’s

       premises. Burrell v. Meads, 569 N.E.2d 637, 639-40 (Ind. 1991). This duty

       extends to keeping a parking lot safe and providing a safe and suitable means of

       ingress and egress. Vernon v. Kroger Co., 712 N.E.2d 976, 979 (Ind. 1999).


[10]   “When a physical injury occurs as a result of a condition on the land, the three

       elements described in Restatement (Second) of Torts Section 343, accurately

       describe the landowner-invitee duty.” Rogers v. Martin, 63 N.E.3d 316, 322-323

       (Ind. 2016). Section 343 provides:


               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




       Court of Appeals of Indiana | Opinion 18A-CT-1658 | March 8, 2019          Page 5 of 15
                       (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.


                                   A. Unreasonable Risk of Harm
[11]   Applying Section 343 to the facts presented here, the trial court concluded

       Converse failed to designate evidence that the landscaping rocks on the

       sidewalk presented an unreasonable risk of harm. See Appealed Order at 6, ¶

       19. In light of our more onerous summary judgment standard, however, we

       must disagree.


[12]   On summary judgment, Elkhart General designated the following evidence

       from Converse’s testimony:


               (1)     Converse admits she normally looks where she is walking;


               (2)     before the incident, on a clear day, she never saw the rock;


               (3)     after the fall she saw some scattered rocks on the sidewalk
                       and similar landscaping rocks adjacent to the sidewalk;
                       and




       Court of Appeals of Indiana | Opinion 18A-CT-1658 | March 8, 2019              Page 6 of 15
               (4)     she failed to take basic safety measures that are
                       appropriate in just about any situation, such as looking
                       where you’re walking.


       Appellant’s App., Vol. 2 at 49. Elkhart General then argued these statements

       “preclude any reasonable inference that the rock posed an ‘unreasonable’

       danger.” Id. But, rather than affirmatively negating Converse’s claim and

       demonstrating that no genuine issue of material fact remained, Elkhart

       General’s designated evidence actually highlighted several disputes of fact on its

       face, namely: whether Converse was looking where she was walking at the

       time of her fall and whether the landscaping rocks posed an unreasonable

       danger even to those exercising basic safety measures.


[13]   Regardless, even if we were to assume this evidence shifted the burden to

       Converse to designate evidence that the condition posed an unreasonable risk of

       harm, Elkhart General was still not entitled to summary judgment. A condition

       poses an unreasonable risk of harm when there is a “sufficient probability of a

       harmful event occurring that a reasonably prudent person would have foreseen

       it or some similar event as likely to happen.” Cty of Cameron v. Brown, 80

       S.W.3d 549, 556 (Tex. 2002). And, in response to Elkhart General’s motion,

       Converse designated evidence that Elkhart General decorated the area next to

       the sidewalk with rocks of a similar color as the sidewalk and that Elkhart

       General failed to install a border or barrier to keep the rocks from littering the

       sidewalk. Converse then slipped and fell on a rock that she did not see, she

       suspects, because the color blended together. This evidence was sufficient, even


       Court of Appeals of Indiana | Opinion 18A-CT-1658 | March 8, 2019          Page 7 of 15
       if minimally so, to present a question of fact as to whether Elkhart General

       knew or should have known that if the rocks were to litter the sidewalk, they

       would create an unreasonable risk of harm. Moreover, because of the similarity

       in color, this evidence also presents a question of whether Elkhart General

       should have expected invitees to fail to discover the danger or protect

       themselves from it. See Rhodes, 805 N.E.2d at 387.


[14]   Elkhart General could have designated evidence in the form of an affidavit,

       expert opinion, or other evidence that established the landscaping rocks did not

       pose an unreasonable risk of harm. However, because it failed to do so, the

       burden never shifted to Converse, and the trial court therefore erred in granting

       summary judgment.


                             B. Actual or Constructive Knowledge
[15]   Next, Elkhart General designated parts of Converse’s testimony to argue she

       lacked “evidence showing that any other person associated with Elkhart

       General Hospital was aware of any issues related to the alleged condition prior

       to the trip-and-fall.” Appellant’s App., Vol. 2 at 50; see Carmichael v. Kroger Co.,

       654 N.E.2d 1188, 1191 (Ind. Ct. App. 1995) (noting that as an invitor is not the

       insurer of the invitee’s safety, an invitor must have actual or constructive

       knowledge of the danger before liability may be imposed), trans. denied. Once

       again, Elkhart General’s argument misunderstands Indiana’s summary

       judgment standard. Indeed, “it is well-settled that merely alleging that the

       plaintiff has failed to produce evidence on each element of a claim is insufficient


       Court of Appeals of Indiana | Opinion 18A-CT-1658 | March 8, 2019          Page 8 of 15
       to entitle the defendant to summary judgment under Indiana law.” J.H. v. St.

       Vincent Hosp. and Health Care Ctr., Inc., 19 N.E.3d 811, 818 (Ind. Ct. App. 2014)

       (citing Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123

       (Ind. 1994)).


[16]   In this regard, a good example of a defendant meeting Indiana’s burden on

       summary judgment was presented in Schulz v. Kroger Co., 963 N.E.2d 1141 (Ind.

       Ct. App. 2012). There, a customer slipped and fell on a clear liquid near a

       Seven-Up display. The customer brought suit against Kroger and the trial court

       eventually granted summary judgment in Kroger’s favor. On appeal, we

       concluded Kroger had designated sufficient evidence to establish that it lacked

       actual or constructive knowledge of the condition and that Kroger had therefore

       affirmatively negated an element of the customer’s claim. Specifically, Kroger

       designated an affidavit stating that no Kroger employee had been notified of the

       spill near the Seven-Up display. Therefore, in the absence of any evidence to

       the contrary, we concluded Kroger had established that it “did not have actual

       knowledge of the hazardous condition.” Id. at 1144.


[17]   The affidavit also stated that pursuant to Kroger’s policies, an employee had

       been in the area of the spill within five to ten minutes of the fall and that there

       was no clear liquid on the floor. Noting that constructive knowledge is defined

       as a “condition which has existed for such a length of time and under such

       circumstances that it would have been discovered in time to have prevented

       injury if the storekeeper, his agents or employees had used ordinary care[,]” id.

       at 1144, we explained:

       Court of Appeals of Indiana | Opinion 18A-CT-1658 | March 8, 2019          Page 9 of 15
                It is evident from the designated evidence before us that the
                window of time between a Kroger employee being present in the
                area where [the customer] fell and [the customer’s] fall was ten
                minutes at most. Ten minutes prior to her fall, the floor was
                clean and dry. Short of imposing a strict liability standard or
                mandating an employee’s presence in every aisle at all times, we
                conclude that there is no genuine issue of fact in the case before
                us that Kroger did not have constructive knowledge of the
                hazardous condition.


       Id. at 1145.


[18]   Similarly here, Elkhart General could have designated an affidavit

       demonstrating that it lacked actual or constructive knowledge of the condition.

       But, once again, Elkhart General failed to affirmatively negate this element of

       Converse’s claim and summary judgment on this issue was improper.


                                C. Known and Obvious Condition
[19]   Next, Converse argues the trial court erred in concluding the landscaping rock

       was a “known and obvious” condition. See Appealed Order at 5, ¶ 17. We

       agree.


[20]   The Restatement instructs that Section 343 should be read together with Section

       343A. Restatement § 343, cmt. a. Section 343A(1) provides:


                A possessor of land is not liable to his invitees for physical harm
                caused to them by any activity or condition on the land whose
                danger is known or obvious to them, unless the possessor should
                anticipate the harm despite such knowledge or obviousness.



       Court of Appeals of Indiana | Opinion 18A-CT-1658 | March 8, 2019          Page 10 of 15
       See, e.g., Rhodes, 805 N.E.2d at 387 (quoting Restatement § 343A(1)). A

       condition on the land or premises is “known” if the plaintiff is both aware of the

       condition and appreciates its danger. Restatement § 343A, cmt. b. A condition

       is “obvious” if both the condition and the risk are apparent to, and would be

       recognized by, a reasonable person in the position of the visitor exercising

       ordinary perception, intelligence, and judgment. Id.


[21]   Our supreme court recently addressed the issue of known and obvious

       conditions in Roumbos v. Samuel G. Vazanellis & Thiros & Stracci, PC, 95 N.E.3d

       63 (Ind. 2018). There, a client brought a legal malpractice action against a law

       firm for missing the deadline to file her premises liability action against a

       hospital where she was injured after tripping on cords lying on the floor. Under

       the “trial-within-a-trial” doctrine, the law firm invoked the defense that the

       hospital would have asserted:


               that the hospital did not breach its duty under premises-liability
               law because [the client’s] fall was caused by a known or obvious
               condition: the wires and cords lying on the floor on which [the
               client] allegedly tripped.


       Id. at 64. Because the client had provided evidence that the wires were

       unknown to her, the issue turned on whether the condition was “obvious.” Id.

       at 67. Our supreme court explained:


               The second prong of our Section 343 analysis asks a similar
               question about the obviousness of the condition, but does so from
               the perspective not of the invitee but of the landowner. Section
               343 considers whether the landowner should expect that invitees

       Court of Appeals of Indiana | Opinion 18A-CT-1658 | March 8, 2019         Page 11 of 15
        will fail to discover or realize the danger, or will fail to protect
        themselves against it. When analyzing breach of duty under
        Section 343, we evaluate a landowner’s knowledge under an
        objective, reasonable-person standard. See Smith v. Baxter, 796
        N.E.2d 242, 244 (Ind. 2003). Thus, the same analysis applies,
        whether viewed from the landowner’s perspective under Section
        343 or from the invitee’s under Section 343A. Either way, it is
        an issue of reasonableness: What should the landowner expect
        will not be discovered under Section 343? And what should be
        obvious to the invitee under Section 343A?


        Whether a risk is obvious is a question courts can sometimes
        resolve on summary judgment. For example, we found no issue
        of material fact regarding a golf-course operator’s objectively
        reasonable expectation that persons on the course would “realize
        the risk of being struck by an errant golf ball and take appropriate
        precautions.” Pfenning v. Lineman, 947 N.E.2d 392, 406 (Ind.
        2011). Viewed through the lens of Section 343A, we could also
        say that the risk of errant golf balls is apparent to and recognized
        by a reasonable person on a golf course exercising ordinary
        perception, intelligence, and judgment.


        We have likewise held that a professional baseball club would
        have no reason to believe that a spectator in the stands would not
        realize the danger of or fail to protect herself from foul balls
        entering the stands. S. Shore Baseball, LLC v. DeJesus, 11 N.E.3d
        903, 910 (Ind. 2014) (holding that danger’s obviousness was
        highlighted by warning printed on her ticket, warning sign in
        aisle near her seat, and public-address announcement made
        before beginning of game). From the vantage point of the
        reasonable invitee, the risk of baseballs entering the stands was
        obvious.


        Unlike the obvious risks in those cases, however, we conclude
        that a material factual dispute remains here: Does the firm’s
        designated evidence establish that the various wires on the
Court of Appeals of Indiana | Opinion 18A-CT-1658 | March 8, 2019          Page 12 of 15
               hospital-room floor and the risks they pose would be apparent to
               a reasonable person? Construing the designated facts most
               favorably to [the client] and drawing all reasonable inferences in
               her favor, we hold that a jury could reasonably find the wires
               were not obvious to the ordinary reasonable person in [the
               client’s] position.


       Id. at 67-68.


[22]   Returning to the facts presented here, the evidence establishes that Converse did

       not see the rock and she did not know of any rocks on the sidewalk before that

       point. See Appellant’s App., Vol. 2 at 133; Meredith, 984 N.E.2d at 1218 (noting

       that we construe all factual inferences in favor of the nonmoving party).

       Therefore, the condition could not, under our summary judgment standard,

       have been “known” by Converse. See Restatement § 343A, cmt. b. The

       question then becomes, as in Roumbos, whether the condition was “obvious[.]”

       95 N.E.3d at 67.


[23]   To that point, Elkhart General claims this case is on “all fours” with this court’s

       recent decision in Podemski v. Praxair, Inc., 87 N.E.3d 540 (Ind. Ct. App. 2017),

       trans. denied. Brief of Appellee at 13. There, the court applied Section 343 and

       343(A)(1) where a truck driver slipped and fell on air hose running downward

       from a post into a grate in a darkened area of the facility. Id. at 542. The

       designated evidence established that the truck driver had been at the facility

       roughly every day for “many years[,]” was aware the facility had lacked lighting

       in that area for over five years, and carried a flashlight which he used to “look

       around[.]” Id. at 548. The court therefore concluded the “condition presented

       Court of Appeals of Indiana | Opinion 18A-CT-1658 | March 8, 2019        Page 13 of 15
       by the air hose and the illumination of the area around the hose was known and

       obvious.” Id.


[24]   We view the facts presented here as distinguishable from Podemski. The truck

       driver in Podemski visited the facility almost every day and had “known” of the

       area’s insufficient lighting and the dangers that may entail. Converse, however,

       only visited the building two to three times per week and was unaware of the

       landscaping rocks. See Appellant’s App., Vol. 2 at 138. In that sense, these

       facts are similar to the client in Roumbos who had been to the hospital a

       “number of times” but there was no evidence that the prior rooms she visited

       were identically configured or that there were wires on the floor. 95 N.E.3d at

       68; see Appellant’s App., Vol. 2 at 138 (Converse testified that she did not

       normally walk on the area of the sidewalk where she fell).


[25]   In light of these factual similarities with Roumbos, we ask the same question:

       Does Elkhart General’s designated evidence establish that the rocks on the

       sidewalk and the risks they pose would be apparent to a reasonable person?

       Unlike the errant golf ball in Pfenning, 947 N.E.2d at 406, the foul ball in S.

       Shore Baseball, LLC, 11 N.E.3d at 910, or the air hose concealed by darkness in

       Podemski, 87 N.E.3d at 542, our answer is no. Therefore, whether the

       landscaping rocks generally, or the rocks littering the sidewalk specifically,

       posed a danger that was “known” to Converse, or that such danger should have

       been “obvious” to her, are factual questions which remain for trial. See

       Roumbos, 95 N.E.3d at 67.



       Court of Appeals of Indiana | Opinion 18A-CT-1658 | March 8, 2019         Page 14 of 15
[26]   In sum, Elkhart General remains free to argue these questions to the jury.1 Or,

       should Elkhart General designate sufficient evidence to affirmatively negate an

       element of Converse’s claim in a future motion for summary judgment and

       should Converse fail to designate sufficient evidence to show a question of fact,

       Elkhart General could avoid these questions altogether. However, on the facts

       presented here, we conclude the trial court erred in granting summary judgment

       in favor of Elkhart General and we therefore reverse the trial court’s order and

       remand for further proceedings.



                                                Conclusion
[27]   For the reasons stated above, we reverse the trial court’s order granting

       summary judgment in favor of Elkhart General and remand to the trial court for

       further proceedings consistent with this opinion.


[28]   Reversed and remanded.


       Riley, J., and Kirsch, J., concur.




       1
         Under the Comparative Fault Act, “[t]he comparative knowledge of a possessor of land and an invitee
       regarding known or obvious dangers may properly be taken into consideration in determining whether the
       possessor breached the duty of reasonable care under Sections 343 and 343A of the Restatement (Second) of
       Torts.” Smith v. Baxter, 796 N.E.2d 242, 245 (Ind. 2003).

       Court of Appeals of Indiana | Opinion 18A-CT-1658 | March 8, 2019                            Page 15 of 15
