MEMORANDUM DECISION                                                                        FILED
                                                                                      May 12 2016, 9:20 am

Pursuant to Ind. Appellate Rule 65(D),                                                     CLERK
this Memorandum Decision shall not be                                                  Indiana Supreme Court
                                                                                          Court of Appeals
                                                                                            and Tax Court
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.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Thomas D. Blackburn                                     Roland Clark
Ryan Lindinger                                          Charles C. Hoppe, Jr.
Blackburn & Green                                       Knight, Hoppe, Kurnik & Knight,
Granger, Indiana                                        Ltd.
                                                        Schererville, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Cheryll Lee,                                            May 12, 2016
Appellant-Plaintiff,                                    Court of Appeals Case No.
                                                        46A04-1512-CT-2325
        v.                                              Appeal from the LaPorte Circuit
                                                        Court
Blue Chip Casino LLC,                                   The Honorable Thomas J.
Appellee-Defendant.                                     Alevizos, Judge
                                                        Trial Court Cause No.
                                                        46C01-1402-CT-234



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 46A04-1512-CT-2325 | May 12, 2016    Page 1 of 8
[1]   Appellant-Plaintiff Cheryll Lee slipped and fell as she was entering Appellee-

      Defendant Blue Chip Casino’s establishment. Lee brought suit claiming that

      Blue Chip was negligent for maintaining an unreasonably dangerous premises

      and failing to warn her that the area in front of the entrance was slick and

      dangerous. The trial court awarded summary judgment in favor of Blue Chip

      finding that the area on which Lee slipped was not unreasonably dangerous

      because it was outdoors and wet due to rainwater, and that any potential

      hazard was open and obvious. We reverse.



                            Facts and Procedural History
[2]   On October 31, 2013, Lee visited the Blue Chip Casino with her sister and

      mother. Upon arriving, the group parked their vehicle under the main

      entryway awning where vehicles could be valeted. Lee exited the vehicle and,

      as she approached the doorway leading into the building, she slipped and fell to

      the ground. It had been raining throughout the day and the area underneath

      the entryway awning was wet. Approximately ninety minutes prior to Lee’s

      fall, another patron of the casino fell in the same general area and reported the

      incident to Blue Chip employees.


[3]   On February 11, 2014, Lee filed a complaint against Blue Chip seeking

      damages for injuries allegedly sustained as a result of the fall. Lee alleged that

      Blue Chip was negligent for failing to warn her that the entryway was slick and

      for failing to maintain a reasonably safe premises. On July 10, 2015, Blue Chip

      filed a motion for summary judgment in which it denied breaching any duty to

      Court of Appeals of Indiana | Memorandum Decision 46A04-1512-CT-2325 | May 12, 2016   Page 2 of 8
Lee. Lee filed a response to Blue Chip’s motion on September 9, 2015. After

conducting a hearing on the matter, the trial court granted Blue Chip’s motion

for summary judgment, reasoning as follows:


        17. The condition of the area was open and obvious, of which the
        Plaintiff was aware. Although there was an awning, the area was
        outside. Rain could clearly reach the area, hence having non-slip
        metal grates in place, which purpose was to drain water and
        catch access water off of shoes before invitees enter the casino.
        Thus, Defendant cannot be liable for failure to warn when
        Plaintiff was fully aware that it was wet. Further, Plaintiff
        admitted in her deposition to understanding that rain causes the
        ground to become wet, a wet ground could be slippery, and it is
        possible to fall when the ground is slippery. She also
        acknowledged that it rained that day. This shows that she
        discovered the dangerous condition of the wet ground and
        appreciated its danger. Further, immediately after she fell, she
        walked across the area a few more times to see what caused her
        to slip. The Court notes, she did not fall any of the times that she
        walked over the area pursuant to the original occasion. After
        finding no hidden cause, she continued on with her evening
        without reporting any injuries until the following day.
        18. Plaintiff contends that there is an issue as to notice, when a
        previous invitee slipped in the exact same spot, approximately
        ninety (90) minutes prior to Plaintiff’s fall.
        19. This cannot suffice as proper notice to Defendants. The
        invitee who fell prior to Plaintiff did not valet park, he self-
        parked. Therefore, he walked across the parking lot on the wet
        ground and fell when he got up to the front entrance. The fact
        that said area was possibly dangerous is not notice unless it is
        unreasonably dangerous. A reasonable person would think that
        since the ground was wet and he walked through the wet parking
        lot, he could slip. Again, rain causes the ground to become wet,
        a wet ground could be slippery, and it is possible to fall when the


Court of Appeals of Indiana | Memorandum Decision 46A04-1512-CT-2325 | May 12, 2016   Page 3 of 8
              ground is slippery. It was a reasonable risk under the
              circumstances to realize that one may slip and fall.

      Appellee’s App. pp. 3-4. Lee now appeals the trial court’s grant of summary

      judgment.



                                Discussion and Decision
[4]   Pursuant to Indiana Trial Rule 56(C), summary judgment is appropriate only

      where there are no genuine issues of material fact and the moving party is

      entitled to judgment as a matter of law. Landmark Health Care Assocs., L.P. v.

      Bradbury, 671 N.E.2d 113, 116 (Ind. 1996). “‘A genuine issue of material fact

      exists where facts concerning an issue which would dispose of the litigation are

      in dispute or where the undisputed facts are capable of supporting conflicting

      inferences on such an issue.’” Id. (quoting Scott v. Bodor, Inc., 571 N.E.2d 313,

      318 (Ind. Ct. App. 1991). We construe all evidence and factual inferences in

      favor of the non-moving party and all doubts as to the existence of a material

      issue must be resolved against the moving party. Tibbs v. Huber, Hunt & Nichols,

      Inc., 668 N.E.2d 248, 249 (Ind. 1996).


[5]   “Summary judgment is rarely appropriate in negligence cases.” Id. Such cases

      are fact sensitive and are governed by a standard of the objective reasonable

      person––one best applied by a jury after hearing all of the evidence. Harradon v.

      Schlamadinger, 913 N.E.2d 297, 300 (Ind. Ct. App. 2009). “Nonetheless,

      summary judgment is appropriate when the undisputed material evidence

      negates one element of a negligence claim.” Id.

      Court of Appeals of Indiana | Memorandum Decision 46A04-1512-CT-2325 | May 12, 2016   Page 4 of 8
[6]   In order to recover on a theory of negligence, the plaintiff must establish three

      elements: (1) a duty owed to the plaintiff by the defendant; (2) a breach of that

      duty; and (3) an injury to the plaintiff proximately caused by that breach. Id.

      Lee argues that Blue Chip breached its duty to her, a business invitee, by failing

      to maintain reasonably safe premises and failing to provide some warning that

      its entryway was slick and potentially dangerous.1


[7]   “A landowner owes to an invitee or social guest ‘a duty to exercise reasonable

      care for his protection while he is on the landowner’s premises.’” Pfenning v.

      Lineman, 947 N.E.2d 392, 406 (Ind. 2011) (quoting Burrell v. Meads, 569 N.E.2d

      637, 639 (Ind. 1991). In Burrell, the Indiana Supreme Court adopted the

      Restatement’s analysis for premises liability.

                 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 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 639-640 (quoting Restatement (Second) of Torts § 343 (1965)).

      “‘A possessor of land is not liable to his invitees for physical harm caused to




      1
          Blue Chip appears to concede on appeal that it owed a duty to Lee as an invitee.


      Court of Appeals of Indiana | Memorandum Decision 46A04-1512-CT-2325 | May 12, 2016    Page 5 of 8
      them by an 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.’” Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004)

      (quoting Restatement (Second) of Torts § 343A(1)).


[8]   Blue Chip argues, and the trial court found, that it cannot be held liable because

      (1) the condition of its entryway was not unreasonably dangerous and (2) any

      dangerous condition was open and obvious and so did not merit a warning.

      While these issues would appear to be factual questions for the jury, Blue Chip

      argues that because no reasonable jury could find that it breached its standard

      of care, the question of breach becomes a question of law for the court. Cox v.

      Paul, 828 N.E.2d 907, 912-13 (Ind. 2005) (“The question of the breach of a duty

      is usually one for the trier of fact. However, if any reasonable jury would

      conclude that a specific standard of care was or was not breached, the question

      of breach becomes a question of law for the court.”) (citations omitted).


[9]   We cannot agree with Blue Chip’s contention that no reasonable jury could find

      that it breached its duty of care. Lee submitted evidence that another patron

      slipped and fell in the same area just ninety minutes prior to her, that patron

      reported his fall to Blue Chip staff, and an internal incident report was created

      by Blue Chip. This supports the inference that the area was unreasonably

      dangerous and that Blue Chip was aware of the danger. Furthermore, while it

      is obvious that rain can cause slick surfaces, it may not have been obvious that

      the grating on which Lee slipped was wet, as it was underneath an awning. Lee

      stated that, prior to her fall, she did not notice that the ground was wet.

      Court of Appeals of Indiana | Memorandum Decision 46A04-1512-CT-2325 | May 12, 2016   Page 6 of 8
       Additionally, it is unclear whether the grating increased the risk of slipping.

       Blue Chip concedes that it did not post any warning signs that the area was

       slippery.


[10]   In Christmas v. Kindred Nursing Centers Ltd. Partnership, we addressed a factually

       similar situation when a man slipped on ice and fell as he was walking toward

       the entrance of a nursing home. 952 N.E.2d 872, 875 (Ind. Ct. App. 2011).

       The plaintiff, Christmas, stated that as he approached the facility he stepped in

       what he thought to be melting snow on the sidewalk which turned out to be ice,

       causing his fall. The trial court granted the defendant’s motion for summary

       judgment. On appeal, this court reversed, finding as follows:


               From this evidence, a trier of fact could infer from the designated
               evidence that Windsor (1) knew or by the exercise of reasonable
               care would discover the condition, and should have realized that
               it involved an unreasonable risk of harm to Christmas; (2) should
               have expected that Christmas would not discover or realize the
               unreasonable risk of harm of ice hidden by water and snow; and
               (3) failed to exercise reasonable care to protect Christmas against
               the danger. In short, there is a genuine issue of material fact
               pertaining to whether Windsor breached its duty of care.


       Id. at 881-82 (emphasis added).


[11]   It could be argued in Christmas that the danger of hidden ice on a sidewalk that

       is covered in a snow is an open and obvious danger. Nonetheless, determining

       whether the condition of the sidewalk was unreasonably dangerous was a

       material question of fact not appropriate for summary judgment. The same

       logic applies to the instant case. Determining whether Blue Chip’s entryway
       Court of Appeals of Indiana | Memorandum Decision 46A04-1512-CT-2325 | May 12, 2016   Page 7 of 8
       posed an unreasonable risk, and whether that risk was open and obvious, are

       factual questions left to the trier-of-fact. We again note that summary judgment

       is generally disfavored as an alternative to trial, particularly in fact-sensitive

       negligence cases. See Simon Prop. Grp., L.P. v. Acton Enterprises, Inc., 827 N.E.2d

       1235, 1240 (Ind. Ct. App. 2005); see also Harradon, 913 N.E.2d at 300. Because

       there is a genuine issue of material fact regarding whether Blue Chip breached

       its duty of care, we find that the trial court’s award of summary judgment was

       inappropriate.


[12]   The judgment of the trial court is reversed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 46A04-1512-CT-2325 | May 12, 2016   Page 8 of 8
