      MEMORANDUM DECISION
                                                                       Jun 10 2015, 10:00 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
      Jeffrey S. Sturm                                          Michael G. Getty
      George C. Patrick & Assoc., PC                            Hunt Suedhoff Kalamaros, LLP
      Crown Point, Indiana                                      St. Joseph, Michigan




                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Wayne Bell and Linda Bell,                                June 10, 2015

      Appellants-Petitioners,                                   Court of Appeals Case No.
                                                                56A04-1410-PL-478
              v.                                                Appeal from the Newton Superior
                                                                Court

      Ice River Springs Kentland, LLC,                          The Honorable Daniel J. Molter,
                                                                Judge
      Appellee-Respondent.
                                                                Trial Court Cause No.
                                                                56D01-1302-PL-2




      Mathias, Judge.

[1]   Wayne Bell (“Bell”) and Linda Bell (collectively “the Bells”) appeal the trial

      court’s grant of summary judgment to Ice River Springs Kentland, LLC (“Ice

      River”). The Bells raise one issue, which we restate as whether the trial court

      erred by granting summary judgment to Ice River.


      Court of Appeals of Indiana | Memorandum Decision No. 56A04-1410-PL-478 | June 10, 2015   Page 1 of 8
[2]   We reverse and remand for proceedings consistent with this opinion.


                                    Facts and Procedural History

[3]   During the relevant time period, Bell was employed as a truck driver by MC

      Express, hauling bottled water between stores and distributors. For his normal

      route, Bell traveled from a Hinckley Springs bottled water plant in Chicago to a

      Wal-Mart store in Gas City, Indiana, then to an Ice River bottled water plant in

      Kentland, Indiana. In Gas City, Bell would drop off a trailer filled with bottled

      water, then pick up an empty trailer. When he reached the Ice River plant, Bell

      would drop off the empty trailer then pick up another full one. Bell drove this

      route once or twice a week for three years.

[4]   On February 18, 2011, Bell left the Hinckley Springs plant in Chicago around

      6:15 p.m. and arrived in Gas City sometime between 9:30 and 10:00 p.m. After

      swapping trailers, he drove the three hours to the Ice River plant in Kentland,

      arriving around 2:30 a.m. When he pulled into the unlit Ice River facility

      parking lot, he noticed patches of ice and snow on the ground from a snowfall

      that had occurred earlier that night. Using a flashlight he always kept with him,

      he unhooked the empty trailer he was dropping off and backed his truck up to

      the full trailer he was to pick up. When he exited his truck to attach the full

      trailer, he slipped on a patch of ice and fell, injuring his shoulder.


[5]   Bell and his wife, Linda, filed a complaint against Ice River nearly two years

      later, on February 15, 2013. In their complaint, the Bells alleged that Ice River

      breached its duty of care to Bell, an invitee on property owned by Ice River, by


      Court of Appeals of Indiana | Memorandum Decision No. 56A04-1410-PL-478 | June 10, 2015   Page 2 of 8
      failing to inspect the premises, remove or salt the ice patches, post warnings

      about the icy conditions, or provide proper lighting for the parking lot. Ice River

      filed a motion for summary judgment. The trial court held a hearing on the

      motion on September 2, 2014. On September 9, 2014, the trial court granted

      summary judgment in favor of Ice River, concluding that Ice River did not

      breach its duty to Bell.

[6]   The Bells now appeal.


                                        Discussion and Decision

[7]   The Bells argue that the trial court erred in granting summary judgment in favor

      of Ice River. Specifically, the Bells argue that material issues of fact exist as to

      whether Ice River breached its duty to Mr. Bell as an invitee on Ice River’s

      property.

[8]   We review an appeal from the grant of summary judgment de novo. Eads v.

      Cmty. Hosp., 932 N.E.2d 1239, 1243 (Ind. 2010). Summary judgment is proper

      when no genuine issue of material fact exists, and the moving party is entitled

      to judgment as a matter of law. Indiana Trial Rule 56(C). All facts and

      reasonable inferences drawn from those facts are construed in favor of the

      nonmoving party. Cox v. Paul, 828 N.E.2d 907, 911 (Ind. 2005).


[9]   In this case, the Bells proceeded under a theory of negligence. To sustain an

      action for negligence, a plaintiff must establish: (1) a duty owed by the

      defendant to conform its conduct to a standard of care arising from its

      relationship with the plaintiff; (2) a breach of that duty; and (3) an injury

      Court of Appeals of Indiana | Memorandum Decision No. 56A04-1410-PL-478 | June 10, 2015   Page 3 of 8
       proximately caused by the breach of that duty. Benton v. City of Oakland City, 721

       N.E.2d 224, 232 (Ind. 1999). Summary judgment is “rarely appropriate” in

       negligence cases. Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004) (quoting

       Tibbs v. Huber, Hunt & Nichols, Inc., 668 N.E.2d 248, 249 (Ind. 1996)). This is

       because negligence cases are particularly 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. Rhodes, 805 N.E.2d at 387.


[10]   Here, the parties do not dispute that Bell was an invitee on Ice River’s property

       and that Ice River owed Bell a duty to exercise reasonable care for his

       protection. Instead, the parties dispute whether Ice River breached its duty to

       Bell by failing to clear snow and ice from its parking lot, failing to light the

       parking lot, and failing to post warnings about the icy conditions in the parking

       lot. The determination of a breach of duty, which requires a reasonable

       relationship between the duty imposed and the act alleged to have constituted

       the breach, is usually a matter left to the trier of fact. Mangold ex rel. Mangold v.

       Ind. Dep’t of Natural Res., 756 N.E.2d 970, 975 (Ind. 2001). Only where the facts

       are undisputed and lead to but a single inference or conclusion may the court as

       a matter of law determine whether a breach of duty has occurred. Id.


[11]   Our supreme court has adopted Sections 343 and 343A of the Restatement

       (Second) of Torts to illustrate the contours of a landowner’s duty toward an

       invitee. See Smith v. Baxter, 796 N.E.2d 242, 243 (Ind. 2003). Section 343 of the

       Restatement provides that:



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               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.

[12]   Section 343A of the Restatement 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.”

[13]   In Countrymark Coop., Inc. v. Hammes, 892 N.E.2d 683, 686 (Ind. Ct. App. 2008),

       trans. denied, Turner, a truck driver, came to a gasoline terminal to pick up

       gasoline. As Turner was filling his tanker truck, the meter on the terminal’s gas

       racks malfunctioned, and Turner could not finish pumping gas into his truck.

       Turner attempted to summon assistance from terminal employees, but no one

       responded. Turner walked towards a maintenance building to seek assistance,

       and he slipped and fell on ice, sustaining injuries. Turner sued the terminal, and

       the terminal moved for summary judgment. The terminal asserted that even if it

       owed a duty to Turner as an invitee, the danger posed by the ice was so obvious

       that no breach of duty existed. Id. at 686. The trial court denied the terminal’s

       motion, and Turner prevailed at trial. Id. at 687. On appeal, the terminal argued




       Court of Appeals of Indiana | Memorandum Decision No. 56A04-1410-PL-478 | June 10, 2015   Page 5 of 8
       that the trial court should have granted its motion for summary judgment.

       Another panel of this court rejected the terminal’s claim, concluding that:

               genuine issues of material fact exist as to whether [the terminal],
               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 Turner, whether [the terminal]
               should have expected that Turner would fail to protect himself
               from the danger, and whether [the terminal] failed to exercise
               reasonable care to protect Turner. Further, given [the terminal’s]
               failure to staff the gas racks, genuine issues exist as to whether
               [the terminal] should have anticipated the harm despite Turner’s
               knowledge of the danger or the obviousness of the danger.

       Id. at 691–692.


[14]   In the present case, Bell was familiar with the Ice River facility and its parking

       lot, having swapped trailers there once or twice per week for three years. He

       observed ice patches in the parking lot as he pulled in, and he carried a

       flashlight with him because he knew that the facility kept the parking lot unlit

       overnight. Nevertheless, Bell slipped and fell as he tried to hitch the full trailer

       to his truck, injuring his shoulder. The record is unclear as to whether Ice River

       was aware that its parking lot was icy that night.

[15]   Like the defendant in Countrymark Coop., Inc., Ice River argues that the danger

       of slipping and falling was obvious, and Bell was aware of the danger. Ice River

       maintains that Bell failed to protect himself, and therefore Ice River cannot

       have breached its duty to Bell, as a matter of law. We disagree. Even if the ice

       presented a danger that was obvious to Bell, a dispute of material fact exists as


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       to whether Ice River should have expected its invitees to fail to protect

       themselves from the danger and whether Ice River should have anticipated the

       harm to Bell. A reasonable fact finder might conclude that Ice River should

       expect that truck drivers dropping off trailers overnight would exit their cabs

       and walk on the icy pavement near the loading docks to unhitch and hitch

       trailers, that the drivers would not be able to see the ground clearly in the unlit

       parking lot, and that any flashlight they carry would be used to illuminate the

       task they are performing rather than to look for slippery patches on the ground.

       Furthermore, a reasonable fact finder could conclude that Ice River should have

       salted or lit at least the immediate loading dock area, where it knew truck

       drivers would be driving and walking during the middle of the night.


[16]   Under these facts and circumstances, we conclude a genuine issue of material

       fact does exist as to whether Ice River breached its duty to Bell. See

       Countrymark, 892 N.E.2d at 692 (affirming the trial court’s denial of the

       terminal’s motion for summary judgment because there was an issue of material

       fact as to breach of duty). The question of Ice River’s negligence is better left for

       the trier of fact to determine. Therefore, Ice River is not entitled to summary

       judgment as a matter of law, and the trial court’s entry of judgment must be

       reversed. See Henderson v. Reid Hosp. & Healthcare Servs., 17 N.E.3d 311 (Ind. Ct.

       App. 2014) (material issues of fact as to whether commercial landlord breached

       its duty to maintain its premises in a reasonably safe condition and whether it

       acted reasonably in response to the knowledge of ice accumulation on the

       parking lots and sidewalks of the premises precluded grant of summary


       Court of Appeals of Indiana | Memorandum Decision No. 56A04-1410-PL-478 | June 10, 2015   Page 7 of 8
       judgment to landlord on premises liability claim brought by tenant’s employee,

       who slipped and fell on ice in parking lot) trans. denied.


[17]   Reversed and remanded for further proceedings consistent with this opinion.


       May, J., and Robb, J., concur.




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