FOR PUBLICATION                                            FILED
                                                        Feb 21, 2012, 9:22 am


                                                                CLERK
                                                              of the supreme court,
                                                              court of appeals and
                                                                     tax court




ATTORNEYS FOR APPELLANTS:                  ATTORNEYS FOR APPELLEES:

DAVID M. HENN                              JEFFREY S. ZIPES
JAMES T. FLANIGAN                          BLAKE N. SHELBY
McClure McClure Davis & Henn               Coots Henke & Wheeler, P.C.
Greenwood, Indiana                         Carmel, Indiana


                           IN THE
                COURT OF APPEALS OF INDIANA

DIXIE DIANA SCHULZ and JOSEPH SCHULZ, )
                                        )
      Appellants-Plaintiffs,            )
                                        )
             vs.                        )          No. 32A05-1107-CT-368
                                        )
THE KROGER COMPANY, KROGER LIMITED )
PARTNERSHIP I, SEVEN-UP AMERICAN        )
BOTTLING CO., THE AMERICAN BOTTLING )
COMPANY, DR. PEPPER/SEVEN-UP INC.,      )
SEVEN-UP DISTRIBUTORS OF SOUTHEAST )
INDIANA, INC., and SEVEN-UP/RC BOTTLING )
COMPANY, INC.                           )
                                        )
      Appellees-Defendants.             )


               APPEAL FROM THE HENDRICKS SUPERIOR COURT
                      The Honorable Karen M. Love, Judge
                        Cause No. 32D03-0706-CT-017


                               February 21, 2012

                        OPINION – FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellants-Plaintiffs, Dixie Diana Schultz (Dixie) and Joseph Schultz (Joseph)

(collectively, the Schultzes), appeal the trial court’s summary judgment in favor of

Appellees-Defendants, the Kroger Company, Kroger Limited Partnership I, (Kroger)

Seven-Up American Bottling Co., the American Bottling Company, Dr. Pepper/Seven-

Up, Inc., Seven-Up Distributors of Southeast Indiana Inc., Seven-Up/RC Bottling

Company, Inc., with respect to Kroger’s knowledge about the existence of a hazardous

condition in its store.

       We affirm.

                                           ISSUE

       The Schultzes present one issue on appeal, which we restate as: Whether the trial

court erred in finding that there was no genuine issue of material fact that Kroger lacked

actual and constructive knowledge of the hazardous condition in its store.

                          FACTS AND PROCEDURAL HISTORY

       On June 23, 2005, Dixie and Joseph went to the Kroger store located in

Brownsburg, Indiana. After being in the store for approximately fifteen minutes, Dixie

walked over to a Seven-Up display in the back of the store to purchase a bottle of Seven-

Up. As she approached the display, she slipped over a clear liquid and fell, hitting her

head and back on the floor. When she stood up, her shirt and pants were wet. Kroger

employee, Jessica McCombs (McCombs), learned of Dixie’s fall almost immediately

after it occurred and arrived at the scene a couple of minutes later.



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       On June 20, 2007, the Schultzes filed their Amended Complaint against Kroger

and various other defendants. Subsequently, on November 24, 2009, all defendants,

except Kroger, were voluntarily dismissed from the action. On February 24, 2011,

Kroger filed its motion for summary judgment and designation of evidence. On May 25,

2011, the trial court conducted a hearing on Kroger’s motion. On June 28, 2011, the trial

summarily issued its judgment in favor of Kroger.

       The Schultzes now appeal. Additional facts will be provided as necessary.

                            DISCUSSION AND DECISION

                                  I. Standard of Review

       Summary judgment is appropriate only when there are no genuine issues of

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

Rule 56(C). In reviewing a trial court’s ruling on summary judgment, this court stands in

the shoes of the trial court, applying the same standards in deciding whether to affirm or

reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d

604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we must determine

whether there is a genuine issue of material fact and whether the trial court has correctly

applied the law. Id. at 607-08. In doing so, we consider all of the designated evidence in

the light most favorable to the non-moving party. Id. at 608. The party appealing the

grant of summary judgment has the burden of persuading this court that the trial court’s

ruling was improper. Id. When the defendant is the moving party, the defendant must

show that the undisputed facts negate at least one element of the plaintiff’s cause of

action or that the defendant has a factually unchallenged affirmative defense that bars the


                                            3
plaintiffs’ claim. Id. Accordingly, the grant of summary judgment must be reversed if

the record discloses an incorrect application of the law to the facts. Id.

       We observe that in the present case, the trial court did not enter findings of fact

and conclusions of law in support of its judgment. Special findings are not required in

summary judgment proceedings and are not binding on appeal. Id. However, such

findings offer this court valuable insight into the trial court’s rationale for its review and

facilitate appellate review. Id.

                                        II. Analysis

       The Schultzes now argue that the trial court erred when it concluded that there was

no genuine issue of material fact that Kroger had no actual or constructive notice of the

dangerous condition which caused Dixie to slip and fall.

       As “a person who is invited to enter or remain on the land for a purpose directly or

indirectly connected with business dealings with the possessor of the land,” the Schultzes

became business invitees when they entered Kroger. Burrell v. Meads, 569 N.E.2d 637,

642 (Ind. 1991). Therefore, Kroger owed the Schultzes a duty to exercise reasonable care

for their protection while they remained on the premises. Id. This duty is further

delineated by the Restatement (Second) of Torts § 343 (1965), which 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

       (a) knows or by 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


                                              4
       (c) fails to exercise reasonable care to protect them against the danger.

       See also Golba v. Kohl’s Dept. Store, Inc., 585 N.E.2d 14, 15 (Ind. Ct. App.

1992), reh’g denied, trans. denied. Thus, while a landowner’s duty to a business invitee

includes a duty to exercise reasonable care to protect the invitee from foreseeable dangers

on the premises, there is no duty to insure a business invitee’s safety while on the

premises. Booher v. Sheeram, LLC, 937 N.E.2d 392, 395 (Ind. Ct. App. 2010), reh’g

denied, trans. denied. As an invitor is not the insurer of the invitee’s safety, and before

liability may be imposed on the invitor, it must have actual or constructive knowledge of

the danger. Carmichael v. Kroger Co. 654 N.E.2d 1188, 1191 (Ind. Ct. App. 1995),

trans. denied.

                                   A. Actual Knowledge

       The designated affidavit of McCombs, Kroger’s employee, establishes that Kroger

did not have actual knowledge of the hazardous condition. Specifically, McCombs stated

that “I was not nor, to the best of my knowledge, was any Kroger employee notified of

the existence of any foreign substance(s) or potential hazard(s) on the floor at any time

prior to the alleged fall.” (Appellants’ App. p. 47).

                                B. Constructive Knowledge

       Turning to constructive knowledge, we note that we have defined constructive

knowledge 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.” Wal-Mart Stores, Inc. v.



                                              5
Blaylock, 591 N.E.2d 624, 628 (Ind. Ct. App. 1992), trans. denied (citing F.W.

Woolworth Co. v. Jones, 130 N.E.2d 672, 673 (Ind. Ct. App. 1955)).

       The designated evidence reflects that Dixie slipped on a clear liquid, resembling

water, near the Seven-Up display at the back of the store. McCombs stated in her

affidavit that

       3. To the best of my knowledge, the alleged fall occurred at about 4:10
       p.m. and happened near the [Seven-Up] display in the back portion of the
       store (in front of the back room swinging doors.) I learned of the alleged
       fall almost immediately after it occurred. I arrived at the accident scene
       only a couple of minutes after the fall occurred.

       4. I, and fellow Kroger employees, Julie Bryant and Lucian Adamson, had
       been in the area where [Dixie] had fallen approximately 5-10 minutes
       before [Dixie’s] fall occurred. In the 5-10 minute period of time before the
       alleged fall, I did not, nor to the best of my knowledge did any other Kroger
       employee, observe any foreign substance(s) or potential hazard(s) on the
       floor. The floor was clean and dry.

       ***

       6. Pursuant to Kroger’s store policies, its management team continually
       monitors and inspects store floor surfaces in order to keep them safe and
       free of any hazardous conditions. Additionally, all Kroger employees are
       charged with the duty to inspect, maintain, and monitor store floors for the
       presence of any potentially hazardous condition. In the event a Kroger
       employee observes or is notified of the presence of any foreign substance(s)
       or hazard(s) on the floor, such employees are trained and instructed to (a)
       immediately pick up/clean up the foreign substance(s); (b) immediately
       place signs/cones to alert customers of the foreign substance(s) and of the
       potential danger created by the foreign substance(s); or (c) immediately
       notify management of the potentially dangerous situation. These steps
       were not taken by any Kroger employee because Kroger employees were
       neither notified nor aware of the presence of any hazardous condition with
       respect to the floor at any time prior to [Dixie’s] fall.

(Appellants’ App. pp. 46-47). There is no designated evidence contradicting or disputing

McCombs’ statements recorded in her affidavit.


                                            6
        It is evident from the designated evidence before us that the window of time

between a Kroger employee being present in the area where Dixie fell and Dixie’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. Therefore, we

affirm the trial court’s grant of summary judgment in favor of Kroger.1

                                           CONCLUSION

        Based on the foregoing, we find that Kroger was entitled to summary judgment as

there was no genuine issue of material fact that Kroger lacked actual or constructive

knowledge of the hazardous condition in its store.

        Affirmed.

FRIEDLANDER, J. and MATHIAS, J. concur




1
  Additionally, the Schultzes claim that Kroger’s reliance on its Requests of Admissions in support of its
motion for summary judgment was erroneous because “[t]he entitlement to summary judgment must be
established by affirmative evidence, not by the absence of evidence.” (Appellants’ Br. p. 13). The
Schultzes argue that “[t]o the extent that the trial court relied on the Requests for Admission in granting
summary judgment in favor of Kroger, such reliance was erroneous.” (Appellants’ Br. p. 13). First,
because the trial court summarily granted judgment in favor of Kroger, we cannot discern the trial court’s
rationale for its decision. Second, Kroger also designated parts of Dixie’s deposition and McCombs’
affidavit in support of its motion. Upon review of those documents, we reach the conclusion that
affirmative evidence establishes the absence of a material issue of fact.


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