                                                              FILED
                                                          Apr 12 2018, 3:23 pm

                                                              CLERK
                                                          Indiana Supreme Court
                                                             Court of Appeals
                                                               and Tax Court




                        IN THE

 Indiana Supreme Court
       Supreme Court Case No. 45S03-1710-CT-635

                Elizabeth Roumbos,
                    Appellant (Plaintiff),

                            –v–

              Samuel G. Vazanellis &
              Thiros and Stracci, PC,
                   Appellees (Defendants),


     Argued: November 9, 2017 | Decided: April 12, 2018

            Appeal from the Lake Superior Court
                    No. 45D01-1501-CT-2
             The Honorable John M. Sedia, Judge

  On Petition to Transfer from the Indiana Court of Appeals
                  No. 45A03-1606-CT-1424



                Opinion by Justice Slaughter
Chief Justice Rush and Justices David, Massa, and Goff concur.
Slaughter, Justice.

   This case is nominally about lawyer malpractice but really about
premises liability. Plaintiff was 85 years old when she fell and severely
fractured her leg while visiting her husband in the hospital. Plaintiff
retained Defendants—a lawyer and his law firm—to represent her against
the hospital. Defendants missed the filing deadline by failing to sue the
hospital within the applicable statute of limitations. Under the “trial-
within-a-trial” doctrine, a client alleging legal malpractice must prove not
only that the lawyer’s conduct fell below the governing duty of care but
also that the client would have prevailed had the lawyer not been
negligent. Neither side disputes that missing a filing deadline breaches the
duty of care lawyers owe to clients. So this case is about the second prong:
Would Plaintiff have won her claim against the hospital had the lawyer
timely sued?

   The law firm invokes a defense the hospital would have asserted—that
the hospital did not breach its duty under premises-liability law because
Plaintiff’s fall was caused by a known or obvious condition: the wires and
cords lying on the floor on which she allegedly tripped. We granted
transfer to consider whether, as the Court of Appeals held, the landowner
bears the burden on summary judgment to disprove that the invitee was
distracted from or forgot about a known danger on the premises when the
invitee made no such claim and designated no such evidence herself. But
after oral argument, it is clear this issue is not squarely before us. Both
parties now concede the invitee did not know of the tripping risk that she
claims caused her fall. Although we have previously vacated grants of
transfer when the factual premise for our grant proves false, we elect to
decide this case on its merits.

   We hold that Defendants, as movants on summary judgment, failed to
negate the causation element of Plaintiff’s malpractice claim. Specifically,
Defendants failed to establish, as a matter of law, that Plaintiff would not
have succeeded in her premises-liability claim against the hospital. We
reverse the trial court’s order granting summary judgment for Defendants
and remand.




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Factual and Procedural History
  During the wee morning hours, Plaintiff, Elizabeth Roumbos, called an
ambulance to rush her elderly husband to the emergency room at St.
Anthony Hospital in Crown Point, Indiana. The hospital eventually
admitted him and assigned him to a single-occupancy room. For a few
hours, Roumbos stayed in the room by his side before going home to rest.
At about noon, she returned to the hospital to check on his condition and
spend time with him. After about twenty minutes, he asked for a glass of
water. She got up from her seat and walked around the foot of the bed to a
table on the other side. She poured him some water and handed him the
glass. He took a few sips and returned the glass, which she put back on
the table. As she was returning to her seat, she tripped and fell, fracturing
her femur. Roumbos originally claimed the cause of her fall was a
“dangerous mess of cords and wires on the floor”, which she only saw
after she fell. Most recently, Roumbos specified the telephone cord was the
cause.

   Roumbos retained Samuel Vazanellis and his law firm, Thiros and
Stracci, PC, to sue the hospital for negligence under a theory of premises
liability. The firm did not sue within the applicable statute of limitations,
so Roumbos sued the firm for malpractice. The firm moved for summary
judgment, arguing Roumbos could not prove injury resulting from the
firm’s negligence because she would not have prevailed against the
hospital in any event. The trial court entered summary judgment for the
firm. The Court of Appeals reversed, concluding that summary judgment
was improper because even if Roumbos knew of the tripping hazard, the
firm designated no evidence the hospital could not have reasonably
anticipated the harm Roumbos sustained. We granted transfer, and at oral
argument the parties acknowledged Roumbos did not know of the
telephone cord or other wires on the floor.


Discussion and Decision
  We hold the trial court erred in granting summary judgment for the
law firm. The designated evidence establishes a genuine issue of material


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fact—whether the phone cord and other wires posed an obvious danger.
Although we can imagine scenarios when the dangerous condition is so
clearly obvious that no reasonable factfinder could conclude otherwise,
this is not such a case. We assess obviousness from a reasonable person’s
perspective and hold on this record that obviousness is a question for the
finder of fact. Thus, because the firm failed to prove that Roumbos could
not prevail against the hospital, the firm did not negate the causation
element of her malpractice claim. We reverse and remand.

  The law firm also argued that Roumbos equivocated about the
condition of the premises that she contends was dangerous and caused
her fall. The Court of Appeals rejected this argument in its initial opinion,
see Roumbos v. Vazanellis, 71 N.E.3d 64, 66 n.1 (Ind. Ct. App. 2017), and
again on rehearing, 78 N.E.3d 1114, 1115 (Ind. Ct. App. 2017), trans.
granted. We find that Roumbos has consistently identified wires on the
floor generally or the telephone cord specifically as the cause of her fall
and summarily affirm the Court of Appeals on this issue.


I.      The viability of Roumbos’s malpractice claim
        against the law firm turns on the merits of her
        underlying premises-liability claim against the
        hospital.

     A. Causation element of legal-malpractice claim and trial-
        within-a-trial doctrine

   To prevail on her malpractice claim against the law firm, Roumbos has
to prove three things: 1) She retained the firm to represent her legal
interests, so that the firm owes her a duty of care; 2) the firm breached its
duty of care by failing to exercise the ordinary skill and knowledge
expected of lawyers; and 3) the firm’s breach was the proximate cause of
Roumbos’s injury. Reiswerg v. Statom, 926 N.E.2d 26, 30 (Ind. 2010)
(citation omitted). Only the third element—whether the firm’s breach
proximately caused her injury—is at issue here. At least for summary-




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judgment purposes, the firm does not contest that it owed Roumbos a
duty, or that it breached that duty.

   In support of summary judgment, the firm invokes the “trial within a
trial” doctrine that governs claims for legal malpractice. Picadilly, Inc. v.
Raikos, 582 N.E.2d 338, 344 (Ind. 1991), abrogated on other grounds by
Liggett v. Young, 877 N.E.2d 178, 183 (Ind. 2007). Under this doctrine, the
client must show the outcome of the botched representation would have
been more favorable to the client had the lawyer not been negligent.
Flatow v. Ingalls, 932 N.E.2d 726, 729 (Ind. Ct. App. 2010). In other words,
the client must prove the lawyer’s negligence proximately caused her
injury. Hill v. Bolinger, 881 N.E.2d 92, 94 (Ind. Ct. App. 2008). Thus,
Roumbos must prove she would have recovered damages against the
hospital in the underlying premises-liability claim had the firm timely
sued on her behalf.


   B. Elements of premises-liability claim against hospital

  For purposes of this appeal, the parties agree that when Roumbos fell
she was the hospital’s invitee. In Burrell v. Meads, 569 N.E.2d 637 (Ind.
1991), we adopted the Restatement (Second) of Torts Section 332 definition
of invitee, which refers to either a “public invitee” or a “business visitor”.
Id. at 642. Although the parties do not specify which definition applies to
Roumbos, she appears to satisfy at least the definition of a business visitor:
“a person who is invited to enter or remain on land for a purpose directly
or indirectly connected with business dealings with the possessor of the
land.” Id. (citing Restatement (Second) of Torts § 332 (1965)).

   Under Indiana premises-liability law, the owner or possessor of land
owes the highest duty of care to its invitees: the duty to exercise
reasonable care for their protection while they are on the premises. Id. at
639 (citation omitted). Restatement 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




Indiana Supreme Court | Case No. 45S03-1710-CT-635 | April 12, 2018   Page 5 of 11
        (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.


569 N.E.2d at 639-40 (citing Restatement § 343).

   The Restatement instructs that Section 343 should be read together with
Section 343A. Restatement § 343, cmt. a. Under Section 343A, the
landowner is generally not liable for injuries resulting from “known or
obvious” dangers on the land. But there is an exception if a reasonable
landowner would anticipate the harm despite the invitee’s knowledge or
the danger’s obviousness. “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.” Restatement
§ 343(A)(1). See, e.g., Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004)
(quoting Restatement § 343A(1)).

   Based on these principles, the law firm argued on appeal that the
hospital would not have been liable to Roumbos because the telephone
cord was a “known” or “obvious” hazard that the hospital had no reason
to believe she would fail to avoid. What follows from this, according to the
firm, is that “Ms. Roumbos had no premises liability claim against St.
Anthony Hospital and, consequently, has no legal malpractice claim
against the Thiros law firm.”




Indiana Supreme Court | Case No. 45S03-1710-CT-635 | April 12, 2018    Page 6 of 11
II.     Summary judgment for the law firm was improper
        because genuine issues of material fact remain on
        the causation element of Roumbos’s premises-
        liability claim.
   After construing the facts and reasonable inferences in favor of
Roumbos, as required by our summary-judgment standard, we conclude
the firm did not satisfy its burden of negating the proximate-causation
element of her legal-malpractice claim because it did not negate an
essential element of her premises-liability claim against the hospital.
Whether the wires generally, or the phone cord specifically, posed a
danger that was known to Roumbos, or should have been obvious to her,
are factual questions for the finder of fact and not legal questions for the
court.


      A. Not “known”

   A condition to land or premises is “known” under Section 343A if the
plaintiff is both aware of the condition and appreciates its danger.
Restatement § 343A, cmt. b. In its initial opinion, the Court of Appeals
accepted the law firm’s argument that Roumbos knew about the wires.
Roumbos, 71 N.E.3d at 69. Despite this finding, the law firm acknowledged
during oral argument in our Court that Roumbos did not know about the
wires after all. We agree with the firm. Roumbos testified unequivocally
that she did not see the wires until after she had fallen and was lying on
the floor.


       Q.        So you knew that the wires were there when you
                 walked over, didn’t you?


       A.        No.


       Q.        You didn’t see them?

       A.        No.



Indiana Supreme Court | Case No. 45S03-1710-CT-635 | April 12, 2018   Page 7 of 11
We construe all inferences in Roumbos’s favor on the firm’s summary-
judgment motion. Thus, we assume the wires were unknown to her.


    B. Not “obvious”

   Though conceding Roumbos did not know of the wires’ presence, the
firm still claims the hospital did not breach any duty since the wires
should have been “obvious” to her. A condition is “obvious” under
Section 343A 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. Restatement §
343A, cmt. b.

   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 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.




Indiana Supreme Court | Case No. 45S03-1710-CT-635 | April 12, 2018   Page 8 of 11
   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 hospital-room floor and the risks
they pose would be apparent to a reasonable person? Construing the
designated facts most favorably to Roumbos 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 Roumbos’s
position.

   The law firm tries to establish the wires on the floor should have been
apparent to Roumbos. Although Roumbos’s husband had been a patient
at the hospital a “number of times”, the record does not establish that his
prior rooms were all identically configured—or, relevant here, that they
all had wires lying on the floor that posed a tripping risk.

   For all we know, the hospital bed and table obstructed the wires from
view until Roumbos was right on top of them. And by then it was too late.
Roumbos testified the room where she fell had at least three different
wires or cords running along the floor—one each for oxygen, a telephone,
and a computer. The fact that Roumbos acknowledged she “probably”
would have seen the wires if she had been looking down at the floor
makes the issue of obviousness here a close call. But Roumbos testified the
wires ran partially “underneath the table” on the opposite side of the
hospital bed from where she was sitting. The table Roumbos refers to—
where the pitcher of water was resting—is a typical hospital-room table
that could be rolled into place over or alongside the patient’s bed. As
Roumbos explained, it was a “portable kind of table that you could put –
slide in front of him”. The wires were lying flush on the floor but were not



Indiana Supreme Court | Case No. 45S03-1710-CT-635 | April 12, 2018   Page 9 of 11
secured or “held down by anything”. We know Roumbos had already
traversed the wires successfully when she went to the other side of the
room from where she had been sitting to pour her husband’s water. And
only while returning to her seat did she trip over one or more of them and
fall.

  As to the phone cord specifically, Roumbos acknowledged that before
she fell she saw a phone on the table but no cords or wires on the floor.
The firm argues that any adult knows that a telephone has a cord that
connects to the wall. But even if that were true, it misses the point. Some
phones are plugged into the wall only inches from the floor, making it
more likely that a cord runs along the floor. Other phones plug into the
wall well off the floor, meaning the cord may not touch the floor at all,
especially if it is taut, with little or no slack. And yet other hospital-room
phones plug directly into the bed, along with other cords and wires. The
mere presence of a phone on the portable hospital table did not
necessarily mean that a dangerous tripping threat existed on the floor that
should have been obvious from Roumbos’s vantage point. Whether the
wires generally, or the phone cord specifically, were obvious because they
would have been apparent to a reasonable person under the
circumstances is a disputed issue of material fact on this record that
precludes summary judgment.


Conclusion
   For these reasons, we reverse the trial court’s order granting summary
judgment for the law firm and remand to the trial court for further
proceedings not inconsistent with this opinion.


Chief Justice Rush and Justices David, Massa, and Goff concur.




Indiana Supreme Court | Case No. 45S03-1710-CT-635 | April 12, 2018   Page 10 of 11
A TT O RN E YS FO R A P PELL A N T

Mark S. Pantello
Fort Wayne, Indiana


A TT O RN E YS FO R A P PELL EE S

David C. Jensen
Robert J. Feldt
Hammond, Indiana




Indiana Supreme Court | Case No. 45S03-1710-CT-635 | April 12, 2018   Page 11 of 11
