      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
                                                                                     FILED
      regarded as precedent or cited before any                                 Sep 12 2019, 8:56 am

      court except for the purpose of establishing                                   CLERK
                                                                                 Indiana Supreme Court
      the defense of res judicata, collateral                                       Court of Appeals
                                                                                      and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEES
      Mark K. Leeman                                           Andrew B. Miller
      Leeman Law Office                                        Starr Austen & Miller, LLP
      Logansport, Indiana                                      Logansport, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      James Mark Osburn,                                       September 12, 2019
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               19A-CT-209
              v.                                               Appeal from the Cass Superior
                                                               Court
      Community Newspaper                                      The Honorable James K.
      Holdings of Indiana, LLC,                                Muehlhausen, Judge
      Heredos Enterprises, Inc., and                           Trial Court Cause No.
      Doane Keyes Associates, Inc.,                            09D01-1604-CT-11
      Appellees-Defendants



      Crone, Judge.


                                             Case Summary
[1]   James Mark Osburn went to his local newspaper office to purchase an

      advertisement. As he attempted to sit down on a chair, it collapsed, and he fell
      Court of Appeals of Indiana | Memorandum Decision 19A-CT-209 | September 12, 2019                  Page 1 of 11
      to the floor and sustained injury. He filed a negligence action against the

      newspaper and the chair’s retailer, domestic wholesaler/distributor, and foreign

      wholesaler/distributor. The domestic wholesaler/distributor, Doane Keyes

      Associates, Inc. (“DKA”), sought and was granted summary judgment.

      Osburn appeals that ruling. We affirm.


                                 Facts and Procedural History
[2]   The relevant facts are undisputed. In February 2011, DKA ordered office

      chairs, including the one at issue in this case, from Performance Furnishings

      a/k/a Source Office Furnishings (“Performance Furnishings”). Performance

      Furnishings placed the order with the manufacturer, Goldfine Furniture

      (“Goldfine”), which shipped the chairs directly to DKA. The chairs arrived in

      boxes and were packed four to a box, with the seats detached and each chair

      encased in foam and cardboard around its legs, arms, and back. The seats were

      attachable with four screws. The chairs were not separated for further shipping

      unless a customer ordered a number not divisible by four. In that case, each

      extra chair would be wrapped in a furniture blanket before shipment, with the

      foam and cardboard remaining intact. DKA received the order of chairs in

      June 2011. Three months later, Heredos Enterprises, Inc. (“Heredos”), ordered

      chairs from DKA to be sold by its retail store, Lucas Home Furnishings

      (“Lucas”). Lucas took delivery of the chairs on September 23, 2011. Shortly

      thereafter, the Pharos Tribune (“the Tribune”) purchased the chairs from Lucas

      for use in its offices and guest waiting areas.



      Court of Appeals of Indiana | Memorandum Decision 19A-CT-209 | September 12, 2019   Page 2 of 11
[3]   On April 22, 2014, Osburn went to the Tribune seeking to purchase a

      newspaper advertisement for his upcoming yard sale. He stood in line waiting

      to be helped. When he reached the front of the line and expressed his interest

      in buying an ad, a Tribune employee told him to have a seat. As he attempted

      to sit down, he gripped the armrests to ease into the seat. At that point, the

      chair’s right arm joint failed, and the chair collapsed. Osburn fell and was

      injured. On April 22, 2016, he filed a personal injury action against

      Community Newspaper Holdings, LLC (the owner of the Tribune), the chair’s

      retailer Heredos a/k/a Lucas, wholesaler/distributor DKA, and DKA’s

      Canadian vendor, Performance Furnishings. 1 His complaint alleged that, he

      received painful injuries and incurred medical expenses as a proximate result of

      the Defendants’ negligence.


[4]   In April 2018, DKA filed a motion for summary judgment on Osburn’s claims

      related to the Indiana Products Liability Act. The trial court granted the

      motion from the bench on May 25, 2018. Osburn did not appeal that order.


[5]   In June 2018, DKA filed a motion for summary judgment as to Osburn’s

      negligence claim, asserting that it owed no duty to Osburn as a matter of law.

      DKA designated materials to show that it had relinquished possession and

      control of the chair nearly three years before Osburn was injured, that until

      Osburn filed his action DKA had no knowledge of the identity of the purchaser




      1
       Performance Furnishings entered into a settlement with Osburn. Neither Heredos nor Community
      Newspaper Holdings is participating in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-209 | September 12, 2019        Page 3 of 11
      or of the circumstances and/or timing of Lucas’s sale of the chair, and that it

      had received no complaints or notice regarding any issues with the chair’s

      structural integrity until April 2016, when Osburn filed his complaint. See

      Appellant’s App. Vol. 2 at 59 (DKA purchasing officer’s affidavit averring that

      to his knowledge no agent or employee of DKA had received any complaints or

      even communications regarding the chairs in the years between its delivery to

      Lucas and the filing of the present action). On January 11, 2019, the trial court

      issued an order granting summary judgment for DKA. Osburn now appeals.

      Additional facts will be provided as necessary.


                                     Discussion and Decision
[6]   Osburn claims that the trial court erred in granting DKA’s motion for summary

      judgment. We review a court’s ruling on a summary judgment motion de

      novo, applying the same standard as the trial court. Hughley v. State, 15 N.E.3d

      1000, 1003 (Ind. 2014). In conducting our review, we consider only those

      matters that were designated to the trial court during the summary judgment

      stage. Biedron v. Anonymous Physician 1, 106 N.E.3d 1079, 1089 (Ind. Ct. App.

      2018), trans. denied (2019).


[7]   Summary judgment is appropriate if the designated evidence shows that there is

      no genuine issue as to any material fact and that the moving party is entitled to

      judgment as a matter of law. Hughley, 15 N.E.3d at 1003; Ind. Trial Rule

      56(C). The moving party bears the onerous burden of affirmatively negating an

      opponent’s claim. Hughley, 15 N.E.3d at 1003. Then, if “the moving party


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-209 | September 12, 2019   Page 4 of 11
      satisfies this burden through evidence designated to the trial court, the non-

      moving party may not rest on its pleadings, but must designate specific facts

      demonstrating the existence of a genuine issue for trial.” Biedron, 106 N.E.3d at

      1089 (quoting Broadbent v. Fifth Third Bank, 59 N.E.3d 305, 311 (Ind. Ct. App.

      2016), trans. denied).


[8]   In determining whether issues of material fact exist, we neither reweigh

      evidence nor judge witness credibility. Peterson v. Ponda, 893 N.E.2d 1100, 1104

      (Ind. Ct. App. 2008), trans. denied (2009). Rather, we must accept as true those

      facts established by the designated evidence favoring the non-moving party.

      Brill v. Regent Commc’ns, Inc., 12 N.E.3d 299, 309 (Ind. Ct. App. 2014), trans.

      denied. “Any doubt as to any facts or inferences to be drawn therefrom must be

      resolved in favor of the non-moving party.” Buddy & Pals III, Inc. v. Falaschetti,

      118 N.E.3d 38, 41 (Ind. Ct. App. 2019) (quoting Goodwin v. Yeakle’s Sports Bar &

      Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016)), trans. denied. The party that lost in

      the trial court bears the burden of persuading us that the trial court erred.

      Biedron, 106 N.E.3d at 1089. We may affirm a grant of summary judgment on

      any legal basis supported by the designated evidence. Harness v. Schmitt, 924

      N.E.2d 162, 165 (Ind. Ct. App. 2010).


[9]   To prevail on a common law negligence claim, the plaintiff must demonstrate

      “(1) duty owed to plaintiff by defendant; (2) breach of duty by allowing conduct

      to fall below the applicable standard of care; and (3) compensable injury

      proximately caused by defendant’s breach of duty.” Buddy & Pals, 118 N.E.3d

      at 41 (quoting King v. Ne. Sec., Inc., 790 N.E.2d 474, 484 (Ind. 2003)). “The
      Court of Appeals of Indiana | Memorandum Decision 19A-CT-209 | September 12, 2019   Page 5 of 11
       duty, when found to exist, is the duty to exercise reasonable care under the

       circumstances.” Id. (quoting Stump v. Indiana Equip. Co., 601 N.E.2d 398, 402

       (Ind. Ct. App. 1992), trans. denied (1993)). Although negligence claims are

       rarely appropriate for summary judgment due to their fact sensitivity, the issue

       of “whether a duty exists is a question of law for the court to decide.” Goodwin,

       62 N.E.3d at 290.


[10]   As a preliminary matter, we address what appears to be some confusion as to

       the nature of Osburn’s negligence action. With respect to DKA, Osburn’s

       action cannot properly be deemed a premises liability action because DKA is

       not the owner/possessor of the premises upon which Osburn was injured. See

       Burrell v. Meads, 569 N.E.2d 637, 642 (Ind. 1991) (duty of care to business

       invitee applies only to those who own or possess the property). DKA is the

       wholesaler/distributor of an allegedly defective chair. Although both parties

       cite various provisions of the Products Liability Act in their briefs, we note that

       the trial court granted summary judgment in favor of DKA on Osburn’s

       products liability claims. We do not know the nature of Osburn’s products

       liability claims, because his complaint is phrased only in terms of negligence.

       However, we do know that Osburn did not appeal the previous summary

       judgment and that he admits that his only claim in this appeal is one for

       negligence. Appellant’s Reply Br. at 9. We limit our discussion accordingly.


[11]   Osburn contends that the duty aspect of his negligence claim against DKA must

       be analyzed within the framework of Sections 388 and 392 of the Restatement

       (Second) of Torts. Section 388 reads,

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-209 | September 12, 2019   Page 6 of 11
               One who supplies directly or through a third person a chattel for
               another to use is subject to liability to those whom the supplier
               should expect to use the chattel with the consent of the other or
               to be endangered by its probable use, for physical harm caused by
               the use of the chattel in the manner for which and by a person for
               whose use it is supplied, if the supplier


               (a) knows or has reason to know that the chattel is or is likely to
               be dangerous for the use for which it is supplied, and


               (b) has no reason to believe that those for whose use the chattel is
               supplied will realize its dangerous condition, and


               (c) fails to exercise reasonable care to inform them of its
               dangerous condition or of the facts which make it likely to be
               dangerous.


       McGlothlin v. M & U Trucking, Inc., 688 N.E.2d 1243, 1245 (Ind. 1997) (quoting

       RESTATEMENT (Second) OF TORTS § 388 (1965)).


[12]   Section 392 reads,


               One who supplies to another, directly or through a third person,
               a chattel to be used for the supplier’s business purposes is subject
               to liability to those for whose use the chattel is supplied, or to
               those whom he should expect to be endangered by its probable
               use, for physical harm caused by the use of the chattel in the
               manner for which and by persons for whose use the chattel is
               supplied


               (a) if the supplier fails to exercise reasonable care to make the
               chattel safe for the use for which it is supplied or,



       Court of Appeals of Indiana | Memorandum Decision 19A-CT-209 | September 12, 2019   Page 7 of 11
               (b) if he fails to exercise reasonable care to discover its dangerous
               condition or character, and to inform those whom he should
               expect to use it.


       Id. (quoting RESTATEMENT (SECOND) OF TORTS § 392 (1965)).


[13]   Assuming, without deciding, that Osburn’s reliance on the Restatement is not

       misplaced, we note that the designated evidence does not demonstrate that

       DKA delivered to Lucas a chair that was dangerous and unsuitable to support a

       sitting/seated person. DKA was simply a distributor of the chairs. It received

       them in boxes, kept them in a protected condition for shipment to Lucas, and

       did not perform any assembly of the chairs. Appellant’s App. Vol. 2 at 156.

       Nor did it alter the chairs in any way. Osburn asserts that DKA should have

       tested and inspected each chair to discover its allegedly dangerous condition

       and then informed its customers accordingly. RESTATEMENT (SECOND) OF

       TORTS §§ 388(c), 392(b). In support, he designated excerpts from the report of

       the Tribune’s expert, Nicholas Cunningham. Cunningham reported that he

       conducted a thorough inspection of the chair in question and an intact chair of

       the same model (that presumably had withstood similar stress and strain over

       the nearly three years it had been used at the Tribune). Cunningham found that

       Osburn’s chair failed due to an insufficient amount of glue to secure the

       tenon/mortise (arm) joint and concluded, “This would be a manufacturing

       defect.” Appellant’s App. Vol. 2 at 97. However, Cunningham also concluded

       that the failure was “neither easily anticipatable nor predictable” and that

       “there would have been no physical way for a layperson or even a trained person


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-209 | September 12, 2019   Page 8 of 11
       to inspect for the lack of adhesive within the tenon/mortise joint.” Id. at 97,

       104 (emphasis added). Osburn’s designated evidence simply does not support

       his assertion that DKA should have known the chairs to be dangerous when it

       shipped them to Lucas.


[14]   Also significant is the fact that the chair in question did not fail until 942 days

       after DKA relinquished possession and control of it to Lucas. 2 In the interim,

       the chair was in the control of the Tribune. Tribune safety leader Amy

       Newcom confirmed that she conducts a monthly inspection of every chair in

       the reception area to detect any looseness. Id. at 100, 111. Tribune marketing

       consultant Renee LoCoco reported that ten to fifteen customers a day, or as

       many as twenty-five customers a day during busy season, had sat in the

       allegedly defective chair. Id. at 101. The designated evidence indicates that the

       chair had safely supported thousands of seated persons before Osburn

       attempted to sit in it and therefore was neither dangerous nor unsuitable for its

       intended use as of the date that DKA relinquished control of it. 3




       2
         To the extent that Osburn appears to rely on DKA’s three-year warranty, we note that he did not raise
       breach of express warranty here or in his complaint or materials in opposition to summary judgment. Nor
       did he raise assumption of duty based on the warranty. Consequently, these theories are unavailable for
       consideration on appeal. See Messmer v. KDK Fin. Servs., Inc., 83 N.E.3d 774, 781 (Ind. Ct. App. 2017) (issues
       not raised before trial court on summary judgment are not preserved for appeal); see also Ward v. First Plaza
       Joint Venture, 725 N.E.2d 134, 137 (Ind. Ct. App. 2000) (“A party cannot change its theory in opposition to
       summary judgment and on appeal raise an issue that was not properly presented to the trial court.”), trans.
       denied.
       3
         DKA’s Robert Schrader testified that at the time of its sale to Lucas, DKA did not know that the chairs
       were eventually going to be sold by Lucas to the Tribune, let alone the identities of persons who might sit on
       the chairs. Appellant’s App. Vol. 2 at 174. He explained that a notation “Tag: Pharos-Tribune” was added


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-209 | September 12, 2019                 Page 9 of 11
[15]   Osburn also maintains that DKA had and breached a duty to include

       instructions concerning the attachment of the seat, which was performed at

       some point after delivery, either by Lucas or by the Tribune. We find his

       designated evidence insufficient to show that DKA did not include such

       instructions. Instead, it indicates only that Schrader did not know whether

       there were seat assembly instructions included inside the boxes of chairs and

       that, during the discovery phase of the proceedings, Lucas was unable to locate

       any such instructions. As such, Osburn’s claims concerning seat assembly

       instructions are based on conjecture. See Hayden v. Paragon Steakhouse, 731

       N.E.2d 456, 458 (Ind. Ct. App. 2000) (“Negligence will not be inferred; rather,

       specific factual evidence, or reasonable inferences that might be drawn

       therefrom, on each element must be designated to the trial court. However, an

       inference is not reasonable when it rests on no more than speculation or

       conjecture.”) (citation omitted).


[16]   In sum, DKA was three degrees removed from Osburn in the chain of

       distribution and nearly three years removed from its relinquishment of control

       of the chairs. Osburn failed to designate materials in opposition to summary

       judgment to demonstrate that the chair was dangerous when delivered and that

       DKA had a duty that extended to him, as a remote user of a chair with a defect

       nearly impossible even for experts to detect. As a matter of law, we conclude




       after the contract of sale, probably just before shipment, because “evidently someone had contacted us after
       the fact to tag that for Lucas.” Id.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-209 | September 12, 2019               Page 10 of 11
       that DKA did not owe Osburn a duty. As such, the trial court did not err in

       granting summary judgment for DKA. Accordingly, we affirm.


[17]   Affirmed.


       Bradford, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-209 | September 12, 2019   Page 11 of 11
