      MEMORANDUM DECISION
                                                                              Apr 22 2015, 9:55 am
      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 APPELLANT                                    ATTORNEY FOR APPELLEE
      James E. Ayers                                            Jeffrey S. Zipes
      Wernle, Ristine & Ayers                                   Coots, Henke & Wheeler, P.C.
      Crawfordsville, Indiana                                   Carmel, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      John E. Servies,                                          April 22, 2015

      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                54A01-1408-PL-363
              v.                                                Appeal from the Montgomery
                                                                Circuit Court

      The Kroger Company,                                       The Honorable Harry A. Siamas,
      Appellee-Defendant.                                       Judge

                                                                Cause No. 54C01-1211-PL-996




      Najam, Judge.


                                         Statement of the Case
[1]   John E. Servies filed a complaint against The Kroger Company (“Kroger”)

      alleging negligence. Following a bench trial, the trial court entered judgment in

      favor of Kroger. Servies appeals and raises a single issue for our review, which


      Court of Appeals of Indiana | Memorandum Decision 54A01-1408-PL-363| April 22, 2015            Page 1 of 9
      we restate as whether the trial court erred when it concluded that Kroger did

      not breach its duty of care to Servies. We affirm.


                                   Facts and Procedural History
[2]   On May 24, 2011, Servies, then eighty-seven years old, drove to a Kroger store

      in Crawfordsville to pick up prescription medications from the pharmacy.

      Servies parked his car “at the curb in front of the store” and walked up a ramp

      towards a “pharmacy window” on the exterior of the store. Appellant’s App. at

      56-57. Kroger had placed a hanging display of potted plants “above the

      sidewalk in front of the store,” and Servies was trying to negotiate his way

      through a gap between two hanging plants1 when someone called his name

      from nearby. Id. at 56. As he turned to see who had called his name, Servies

      struck his head on a hanging plant, lost his balance, and fell to the ground.

      Servies sustained injuries as a result of the fall.


[3]   On November 15, 2012, Servies filed a complaint against Kroger alleging

      negligence. Following a bench trial, the trial court entered judgment in favor of

      Kroger. In particular, the trial court concluded in relevant part as follows:

              17. Kroger’s placement of the hanging pots was ill-advised.
              The placement certainly was intended to favorably display the
              pots for sale to Kroger customers approaching the grocery from
              the parking lot or passing through the parking lot. Kroger placed



      1
        The plants were hanging from an eight-foot-long cable, and the cable sagged in the middle. “There was an
      approximate [three-]foot ‘gap’ between the hanging pots and a yellow ribbon was tied on each end of the gap.
      Servies had head room to walk under the wire cable from which the pots hung.” Appellant’s App. at 56.

      Court of Appeals of Indiana | Memorandum Decision 54A01-1408-PL-363| April 22, 2015              Page 2 of 9
        the hanging pots in the same location as the short ramp that
        provides access to pedestrians from the parking lot to the
        sidewalk. The purpose of the ramp presumably is to assist
        pedestrians who may have trouble stepping up the curb onto the
        sidewalk. The ramp is near to the Kroger pharmacy walk-up
        window that allows customers to access the pharmacy without
        entering the store. There was a three foot “gap” between the
        pots, and Mr. Servies[,] who was walking up the curb ramp in
        order to get to the pharmacy window[,] was attempting to
        negotiate the pot gap when the accident occurred. The Court
        infers from this that other customers who had difficulty
        navigating the curb because of physical limitations would have
        taken the same route that Mr. Servies was taking in order to
        approach the pharmacy window from the parking lot. It is fair to
        ask why would Kroger make the business decision to hang pots
        in a high traffic area when the pots could have been displayed
        either in a lower traffic area or in a different manner in front of
        the store? If a better decision about placement of the pots had
        been made[,] Servies’ injury may have been avoided.

        18. However, the legal question to be answered by the Court is
        somewhat different than the question posed in paragraph 17.
        Kroger is neither an insurer nor subject to strict liability against
        accidents that its invitees suffer on its property. In this case[,]
        Servies testified that he had seen the hanging pots on prior visits
        to the store and he knew that the pots were hanging in the
        location to which he was walking. He knew that he could not
        walk under the pots but that he would have to walk through the
        three foot gap. Servies is required to prove by the greater weight
        of the evidence that Kroger was negligent in order to hold Kroger
        liable for his accident. This Court must decide whether Kroger
        breached any duty of care that it owed to Servies. The 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


Court of Appeals of Indiana | Memorandum Decision 54A01-1408-PL-363| April 22, 2015   Page 3 of 9
              (Second) of Torts. See Tate v. Cambridge Commons Apartments, 712
              N.E.2d 525 (Ind. Ct. App. 1999).

              The Court concludes that any risk or danger created by the
              hanging pots was known to Servies. He knew that the pots were
              hanging there when he walked toward them up the ramp. He
              knew that he could not walk under the pots. He knew that he
              would have to walk through the gap in order to approach the
              pharmacy window from the ramp. The Court also concludes
              that Servies has failed to prove by [the] greater weight of the
              evidence that Kroger should have anticipated the type of
              accidental injury that Servies suffered when Servies knew that he
              could not walk into or under the pots but that he must either
              walk through the gap or take another route around the pots. The
              condition and risk of the hanging pots would be apparent to and
              recognized by a reasonable man, in the same position as Servies,
              exercising ordinary perception, intelligence and judgment.
              Taking all of this into consideration[,] the Court concludes that
              Servies has not proven that Kroger breached any duty that it owed to
              him.

              19. Taking the evidence presented to the Court and
              considering the application of Sections 343 and 343A of the
              Restatement (Second) of Torts to this evidence[,] the Court must
              conclude that Servies has not proven by the greater weight of the
              evidence that Kroger is liable for the unfortunate injuries that he
              suffered.

              It [i]s [t]herefore [o]rdered, [a]djudged, and [d]ecreed that
              Plaintiff shall take nothing against Defendant.


[4]   Id. at 59-61 (emphases added). This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 54A01-1408-PL-363| April 22, 2015   Page 4 of 9
                                     Discussion and Decision
[5]   Servies contends that the trial court erred when it entered judgment in favor of

      Kroger. Our standard of review is well settled. The trial court entered findings

      of fact and conclusions thereon pursuant to Indiana Trial Rule 52(A). We may

      not set aside the findings or judgment unless they are clearly erroneous.

      Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind. 2000). First, we

      consider whether the evidence supports the factual findings. Id. Second, we

      consider whether the findings support the judgment. Id. “Findings are clearly

      erroneous only when the record contains no facts to support them either

      directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A

      judgment is clearly erroneous if it relies on an incorrect legal standard. Menard,

      726 N.E.2d at 1210.

[6]   In conducting our review, we give due regard to the trial court’s ability to assess

      the credibility of witnesses. Id. While we defer substantially to findings of fact,

      we do not do so to conclusions of law. Id. We do not reweigh the evidence;

      rather, we consider the evidence most favorable to the judgment with all

      reasonable inferences drawn in favor of the judgment. Yoon v. Yoon, 711

      N.E.2d 1265, 1268 (Ind. 1999).

[7]   In his argument on appeal, Servies first appears to contend that the trial court

      erred when it concluded that Kroger did not owe Servies any duty of care. In

      particular, Services maintains that

              [t]he Trial Court has mistakenly confounded what could be
              class[ified] as contributory negligence with the concept of
              incurred risk, where the Plaintiff has voluntarily or knowingly or
      Court of Appeals of Indiana | Memorandum Decision 54A01-1408-PL-363| April 22, 2015   Page 5 of 9
               intentionally risked the hazard. The view of the Trial Court is
               that the act by the Plaintiff absolves the landowner of
               responsibility and erases the duty owed to the invitee. That is
               incorrect.


      Appellant’s Br. at 9 (emphasis original).2 But Servies misunderstands the trial

      court’s findings and conclusions.


[8]   To prevail on a theory of negligence, Servies was required to prove: 1) that

      Kroger owed him a duty; 2) that it breached the duty; and 3) that his injury was

      proximately caused by the breach. Harradon v. Schlamadinger, 913 N.E.2d 297,

      300 (Ind. Ct. App. 2009), trans. denied. Here, it is undisputed that Servies was

      Kroger’s invitee at the time of the fall. Accordingly, as a matter of law Kroger

      owed him a duty to exercise reasonable care for his protection while he was on

      the premises. Id. at 300-01. But, contrary to Servies’ argument on appeal, the

      trial court did not conclude that Kroger owed no duty to Servies. Instead, the

      trial court concluded that the preponderance of the evidence showed that

      Kroger did not breach its duty to Servies. Servies’ contention on this issue is

      without merit.




      2
        Servies cites case law regarding the affirmative defense of incurred risk, but Kroger did not assert that
      affirmative defense in its answer, and the trial court does not refer to incurred risk in its findings and
      conclusions. Instead, the trial court based its judgment on the Restatement (Second) of Torts §§ 343 and
      343A, which we discuss below. Our supreme court has explained the difference between those Restatement
      sections and the affirmative defense of incurred risk as follows: “For purposes of analysis of breach of duty
      [under §§ 343 and 343A], a landowner’s knowledge is evaluated by an objective standard. This is in contrast
      to the determination of the defense of incurred risk, wherein the invitee’s mental state of venturousness
      (knowledge, appreciation, and voluntary acceptance of the risk) demands a subjective analysis of actual
      knowledge.” Douglass v. Irvin, 549 N.E.2d 368, 370 (Ind. 1990).



      Court of Appeals of Indiana | Memorandum Decision 54A01-1408-PL-363| April 22, 2015               Page 6 of 9
[9]    Next, Servies contends that, “[t]he Trial Court, by incorrect application of

       assumption of risk[,] has treated Kroger as an entity entitled to the contributory

       negligence defense, has failed to weigh and compare the fault of the parties[,]

       and [has] denied Servies the benefit and right of a comparative fault judgment.”

       Appellant’s Br. at 12. In essence, Servies maintains that the trial court erred in

       its application of case law and the Comparative Fault Act3 (“the Act”) in

       entering judgment in favor of Kroger. We cannot agree.


[10]   “The primary objective of the Act was to modify the common law rule of

       contributory negligence under which a plaintiff was barred from recovery where

       he was only slightly negligent.” Mendenhall v. Skinner & Broadbent Co., 728

       N.E.2d 140, 142 (Ind. 2000). “The Act seeks to achieve this result through

       proportional allocation of fault, ensuring that each person whose fault

       contributed to cause injury bears his or her proportionate share of the total fault

       contributing to the injury.” Id. But where, as here, the factfinder concludes

       that the defendant did not breach its duty to the plaintiff, the plaintiff’s claim is

       barred, and there is no fault to allocate to the defendant. See Ind. Code § 34-51-

       2-6. To the extent Servies contends that the trial court erred in its application of

       the Comparative Fault Act, because the court concluded that Kroger did not




       3
         Indiana Code Section 34-51-2-6 provides in relevant part that, in an action based on fault that is brought
       against one defendant, the claimant is barred from recovery if the claimant’s contributory fault is greater than
       the fault of all persons, including nonparties, whose fault proximately contributed to the claimant’s damages.

       Court of Appeals of Indiana | Memorandum Decision 54A01-1408-PL-363| April 22, 2015                  Page 7 of 9
       breach its duty to Servies, Servies was solely at fault, and his claim was barred

       under the Act.


[11]   To the extent Servies contends that the trial court erred when it concluded that

       Kroger did not breach its duty to Servies, that contention amounts to a request

       that we reweigh the evidence, which we will not do. Our supreme court has

       held that “[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). The standard for determining whether

       there has been a breach of duty with respect to an allegedly obvious danger

       under Section 343 is: (1) whether the landowner knew or by the exercise of

       reasonable care would have discovered the dangerous condition and should

       have realized that it involved an unreasonable risk of harm to invitees; (2)

       whether the landowner should have expected that an invitee would fail to

       protect himself from the danger; and (3) whether the landowner failed to

       exercise reasonable care to protect the invitee. See Countrymark Cooperative, Inc.

       v. Hammes, 892 N.E.2d 683, 691 (Ind. Ct. App. 2008), trans. denied. And

       Section 343A, “which is meant to be read in conjunction with section 343,”

       provides that 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. Id. at 688-89.


       Court of Appeals of Indiana | Memorandum Decision 54A01-1408-PL-363| April 22, 2015   Page 8 of 9
[12]   Here, the evidence supports the trial court’s findings and conclusions on the

       issue of the comparative knowledge of Kroger and Servies regarding known or

       obvious dangers on the premises. The evidence supports the trial court’s

       findings that Servies was aware of the hanging plant display, having seen the

       display on prior occasions, and that he knew he could not walk underneath the

       plants but had to walk through the gap between plants.4 And the trial court’s

       findings support its ultimate conclusion that, because “any risk or danger

       created by the hanging pots was known to Servies,” Kroger did not breach its

       duty of care it owed to him. Appellant’s App. at 60. The trial court’s judgment

       in favor of Kroger is not clearly erroneous.


[13]   Affirmed.


       Baker, J., and Friedlander, J., concur.




       4
         Servies states that there is no evidence to support the trial court’s finding that Servies knew that he could
       not walk underneath the hanging pots. But, as Kroger points out, Servies’ own trial testimony shows that he
       knew that the pots were hanging “to[o] low” to enable him to pass underneath the display. Tr. at 61. Servies
       agreed that he would have had to walk “through the gap” in the hanging pots, which is what he was trying to
       do at the time of his fall. Id.

       Court of Appeals of Indiana | Memorandum Decision 54A01-1408-PL-363| April 22, 2015                 Page 9 of 9
