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                               Jan 28 2014, 11:33 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                             ATTORNEY FOR APPELLEE:

CHET ZAWALICH                                       JOHN H. HALSTEAD
The Law Office of Chet Zawalich                     Kightlinger & Gray, LLP
South Bend, Indiana                                 Merrillville, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

ELEANOR L. MITCHELL,                                )
                                                    )
       Appellant-Plaintiff,                         )
                                                    )
               vs.                                  )       No. 45A03-1306-CT-226
                                                    )
RIH ACQUISITIONS IN, LLC,                           )
d/b/a RESORTS EAST CHICAGO,                         )
                                                    )
       Appellee-Defendant.                          )


                        APPEAL FROM THE LAKE SUPERIOR COURT
                           The Honorable Calvin D. Hawkins, Judge
                                Cause No. 45D02-0801-CT-25



                                         January 28, 2014


                 MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                     CASE SUMMARY

       On May 29, 2006, Appellant-Plaintiff Eleanor Mitchell visited RIH Acquisitions IN,

LLC, d/b/a Resorts East Chicago (“RIH”) with her friend Teresa Duck. As Mitchell and

Duck were leaving RIH, Mitchell fell and hit her right knee and elbow as she approached the

passenger side of Duck’s vehicle, which was parked on the second floor of the RIH parking

garage. Mitchell claimed that a hole in the concrete caused her fall. After her fall, Mitchell

complained of right knee pain. Mitchell subsequently brought suit against RIH, alleging that

RIH violated its duty to her and, therefore, should be liable for the costs associated with the

injury to her right knee.

       During a jury trial on Mitchell’s claims against RIH, both Mitchell and Duck testified

that Mitchell fell when she stepped in a hole in the parking garage. The jury also heard

testimony, however, from Mitchell, Mitchell’s husband, and the RIH risk manager that when

Mitchell and her husband later returned to RIH and inspected the parking garage with the

RIH risk manager, they did not find any holes in the concrete where Mitchell claimed to have

fallen or evidence that any holes had been filled. Following a jury trial, the jury determined

that RIH was not at fault, and therefore not liable for Mitchell’s claimed injuries. Mitchell

appeals, arguing that the jury’s verdict should be reversed as it is not supported by sufficient

evidence. Concluding that the jury’s verdict is supported by sufficient evidence, we affirm.

                        FACTS AND PROCEDURAL HISTORY

       On May 29, 2006, Mitchell and Duck visited RIH for the purpose of gambling in the

casino. Duck drove herself and Mitchell to RIH and parked her vehicle on the second floor



                                               2
of the five-story RIH parking garage. After gambling for approximately two hours, Mitchell

and Duck returned to Duck’s vehicle to leave. As Mitchell approached the passenger side of

Duck’s vehicle, Mitchell fell and hit her right knee and elbow on the concrete. Mitchell

claimed that she fell after stepping in a hole in the concrete that was about the size of a man’s

fist or a baseball. Mitchell and Duck spoke to an RIH employee before leaving, but could not

provide a definite location of Mitchell’s fall.

       Nine days later, on June 7, 2006, Mitchell returned to RIH with her husband and

spoke with RIH’s risk manager, Sebastian Puntillo. Mitchell, her husband, and Puntillo went

to the second floor of the garage, and Mitchell identified the exact location where she had

fallen. Mitchell was 100 percent certain that they were in the correct location. There was no

hole in the concrete at this location or evidence that a hole had been filled. At Puntillo’s

insistence, they went to look for holes on other floors of the parking garage and found none.

       Following her alleged fall, Mitchell complained of right knee pain. As a result of her

claimed knee pain, Mitchell filed suit against RIH on or about January 28, 2008. On January

13, 2009, Mitchell filed her first amended complaint against RIH, alleging that RIH had

violated the duty it owed to her and, as a result, should be liable for the costs associated with

her knee injury.

       On May 21, 2013, the trial court conducted a jury trial during which Mitchell and

Duck testified that Mitchell fell after stepping in a hole in the concrete on the second floor of

the RIH parking garage. Mitchell, Mitchell’s husband, and Puntillo also testified that when

Mitchell later identified the location of her fall, there was no hole in the concrete or evidence



                                               3
that a hole had ever been filled. Mitchell claimed that the concrete slab looked new and must

have been replaced. Puntillo outlined the major construction that would be necessary to

replace the concrete slab on the second floor of the parking garage and testified that the slab

had not been replaced since the date of Mitchell’s fall. The jury also heard evidence that at

the time of her fall, Mitchell suffered from a history of dizziness and vertigo and had been

diagnosed with Meniere’s disease.1 In addition, the jury heard evidence that on the date of

her fall, Mitchell did not appear to be taking any medication to treat her condition but began

doing so approximately ten days later.

        Following the conclusion of the parties’ presentation of evidence, the jury returned a

verdict in favor or RIH, and the trial court entered judgment for RIH. Mitchell now appeals.

                                   DISCUSSION AND DECISION

        “It has long been the rule of law that in determining the sufficiency of the evidence we

review all of the evidence and in its consideration we accept as true all facts and all proper

inferences which the jury might draw from the facts that are calculated to sustain the

verdict.” N.Y., C. & St. L. R. Co. v. Mercantile Nat’l Bank of Hammond, 130 Ind. App. 638,

652, 165 N.E.2d 382, 389 (1960); see also Midwest Oil Co. v. Storey, 134 Ind. App. 137,

150, 178 N.E.2d 468, 474 (1961). “This court does not concern itself with conflicts in the

evidence or the credibility of the witnesses.” Bank of Hammond, 130 Ind. App. at 652, 165

N.E.2d at 389; see also Storey, 134 Ind. App. at 150, 178 N.E.2d at 474. When the

sufficiency of the evidence is questioned on appeal, “we do not weigh the evidence, but we


        1
            Meniere’s disease is increased pressure in the inner ear that can cause balance issues and hearing
loss.

                                                       4
examine the record to see if there is any evidence, or any reasonable or logical inference

which may be drawn from the evidence, which if believed by the jury would sustain the

verdict.” Bank of Hammond, 130 Ind. App. at 652, 165 N.E.2d at 390 (citing Butterfield v.

Trittipo, 67 Ind. 338, 342 (1897); Ind. Ins. Co. v. Handlon, 216 Ind. 442, 446, 24 N.E.2d

1003, 1005 (1940)).

       In the instant matter, the jury heard testimony that on May 29, 2006, Mitchell fell

when she stepped in a hole in the concrete that was about the size of a man’s fist or a

baseball. The jury also heard testimony that when Mitchell later went with her husband and

Puntillo to the spot where she was 100 percent positive that she fell, there was no hole and no

evidence that a hole had been filled. Mitchell claimed that this was because the concrete slab

appeared to be new. Puntillo outlined the major construction that would be necessary to

replace the concrete slab and testified that the concrete slab had not been replaced since May

29, 2006. In addition, the jury heard evidence that prior to May 29, 2006, Mitchell suffered

from dizziness and vertigo and had been diagnosed with Meniere’s disease. These conditions

appeared to be untreated on May 29, 2006.

       Upon review, we conclude that the above-stated facts are sufficient to support the

jury’s determination that RIH was not responsible for Mitchell’s fall and therefore should not

be held liable for the costs associated with her claimed injury. Mitchell’s claims on appeal

essentially amount to a request for this court to reweigh the evidence, which we will not do.

See Bank of Hammond, 130 Ind. App. at 652, 165 N.E.2d at 390; Handlon, 216 Ind. at 446,

24 N.E. 2d at 1005; Butterfield, 67 Ind. at 342. As such, we affirm the judgment of the trial



                                              5
court.

         The judgment of the trial court is affirmed.

MATHIAS, J., and PYLE, J., concur.




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