MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                        FILED
regarded as precedent or cited before any                           Jan 16 2020, 5:25 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 APPELLANTS                                  ATTORNEY FOR APPELLEE
Paul D. Ludwig                                           Adam Willfond
Redman Ludwig, P.C.                                      Indianapolis, Indiana
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Viola Smith and William Smith,                           January 16, 2020
Appellants-Plaintiffs,                                   Court of Appeals Case No.
                                                         19A-CT-1963
        v.                                               Appeal from the Marion Superior
                                                         Court
City of Indianapolis d/b/a                               The Honorable John M. T. Chavis,
Indianapolis Parks and                                   Judge
Recreation Department,                                   Trial Court Cause No.
Appellee-Defendant.                                      49D05-1703-CT-9046




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CT-1963 | January 16, 2020            Page 1 of 12
                                STATEMENT OF THE CASE
[1]   Appellants-Plaintiffs, Viola Smith (Viola) and William Smith (William)

      (collectively, the Smiths), appeal the trial court’s summary judgment

      determining that there was no genuine issue of material fact precluding

      judgment in favor of the Appellee-Defendant, City of Indianapolis and

      Indianapolis Parks and Recreation (collectively, the City).


[2]   We reverse and remand for further proceedings.


                                                    ISSUE
[3]   The Smiths present two issues on appeal, which we consolidate and restate as

      the following single issue: Whether the trial court erred by granting summary

      judgment in favor of the City.


                      FACTS AND PROCEDURAL HISTORY
[4]   In April 2015, the Smiths were regularly attending aerobics classes at the

      Washington Park fitness center which is owned and maintained by the City. At

      the time, Viola used a walking cane for assistance since she had problems with

      her right leg. Due to Viola’s walking difficulties and the parking lot being far

      from the fitness center, William would drop off Viola at the entrance before

      class began and would retrieve their vehicle to pick up Viola at the entrance

      after the class ended.


[5]   On April 27, 2015, the Smiths attended an aerobics class at the Washington

      Park fitness center. At the start of class, Viola informed the instructor that she

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1963 | January 16, 2020   Page 2 of 12
      was not feeling well. The instructor advised Viola to “take it easy,” and she

      even suggested that Viola not participate in the class. (Appellant’s App. Vol. II,

      p. 119). Notwithstanding the advice, Viola opted to take part in the class. After

      class, Cassandra Shelby (Shelby), an employee of the City, “overheard”

      William instruct “Viola to sit down and wait inside” the fitness center while he

      retrieved their vehicle. (Appellant’s App. Vol. II, p. 116). However, Viola

      exited the fitness center and waited for William at the entrance. Located at the

      entrance of the center, there were some metal posts. Wanting to rest and while

      supporting herself with her cane, Viola leaned on a metal post with her left

      hand. Admittedly, Viola applied some “small amount” of pressure when she

      leaned on the post. (Appellant’s App. Vol. II, p. 73). “[P]robably a few

      seconds” later, the post gave way and she fell to the ground. (Appellant’s App.

      Vol. II, p. 57). As a result, Viola fractured her right wrist. According to Viola,

      she did not observe anything wrong with the post prior to leaning on it, nor was

      there signage to alert her that the post was weak, or that she was barred from

      leaning on it.


[6]   On March 6, 2017, the Smiths filed a Complaint against the City, alleging

      negligence and loss of consortium. The City timely filed its answer. Following

      discovery, the City filed a motion for summary judgment designating excerpts

      from Viola’s and William’s depositions and Viola’s medical records. In

      addition, the City designated three affidavits from City employees, who were

      present on the day Viola fell, alleging that Viola was visibly shaky even with the

      assistance of a waking cane on the day she fell. In its memorandum in support,


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1963 | January 16, 2020   Page 3 of 12
      the City maintained that it was entitled to summary judgment as a matter of

      law because the designated evidence failed to establish that it had a duty to

      maintain the metal post in a “weight-bearing manner so people could lean on

      it,” rather, its duty was confined to maintaining the property, “including the

      sidewalk where Viola leaned on the post.” (Appellant’s App. Vol. II, p. 28).

      Further, the City asserted that since Viola was already shaky on the day she

      leaned on the post, she was barred from recovery because she was

      contributorily negligent. Finally, the City argued that William’s loss of

      consortium was precluded for the same reasons as Viola’s negligence claim

      because his loss of consortium was derivative in nature.


[7]   The Smiths sought and were granted two extensions of time to respond to the

      City’s summary judgment motion. Also, the parties jointly sought and were

      granted two extensions of time. On June 28, 2019, the Smiths submitted their

      response and their designated evidence included their own affidavits, and two

      pictures of the metal post. On July 2, 2019, without conducting a hearing, the

      trial court issued an Order, without findings of facts or conclusion thereon,

      granting the City’s summary judgment motion. On July 29, 2019, the Smiths

      filed a motion to correct error, and requested a hearing. After the City

      responded and again without a hearing, the trial court issued an order denying

      the Smiths’ motion to correct error.


[8]   The Smiths now appeal. Additional facts will be provided as necessary.




      Court of Appeals of Indiana | Memorandum Decision 19A-CT-1963 | January 16, 2020   Page 4 of 12
                               DISCUSSION AND DECISION
                                            I. Standard of Review

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

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

       Ind. Trial Rule 56(C). “A fact is material if its resolution would affect the

       outcome of the case, and an issue is genuine if a trier of fact is required to

       resolve the parties’ differing accounts of the truth . . ., or if the undisputed facts

       support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756,

       761 (Ind. 2009).


[10]   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. “Any doubt as to any facts or inferences to be drawn

       therefrom must be resolved in favor of the non-moving party.” Goodwin v.

       Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016). The party that

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

       Biedron v. Anonymous Physician 1, 106 N.E.3d 1079, 1089 (Ind. Ct. App. 2018),

       trans. denied.



       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1963 | January 16, 2020   Page 5 of 12
[11]   The summary judgment in this case was entered upon a claim of negligence.

       The Smiths contended that the City was negligent by failing to maintain the

       metal post which Viola leaned on. To prevail on a theory of negligence, the

       Smiths must prove the following three elements: (1) a duty owed to the plaintiff

       by the defendant; (2) a breach of that duty by the defendant; and (3) an injury to

       the plaintiff proximately caused by that breach. See McClyde v. Archdiocese of

       Indianapolis, 752 N.E.2d 229, 232 (Ind. Ct. App. 2001).


[12]   It is well-established that summary judgment is rarely appropriate in negligence

       cases. Kennedy v. Guess, Inc., 806 N.E.2d 776, 783 (Ind. 2004). This is because

       “[i]ssues of negligence, contributory negligence, causation, and reasonable care

       are more appropriately left for the determination of a trier of fact.” Florio v.

       Tilley, 875 N.E.2d 253, 256 (Ind. Ct. App. 2007), trans. denied. Nonetheless,

       questions of law, like whether a defendant had a duty of care as to a plaintiff or

       whether certain facts constitute proximate cause, may be appropriate for

       summary judgment. See id. And while 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, such special findings are not required in summary judgment

       proceedings and are not binding on appeal. AutoXchange.com. Inc. v. Dreyer and

       Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct. App. 2004). However, such findings

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

       facilitate appellate review. Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1963 | January 16, 2020   Page 6 of 12
                                                   II. Analysis

[13]   In the instant case, the Smiths’ negligence claim was based on premises

       liability. The law is well-established that a person entering upon the land of

       another comes upon the land as an invitee, a licensee, or a trespasser. Christmas

       v. Kindred Nursing Ctrs. Ltd. P’ship, 952 N.E.2d 872, 878 (Ind. Ct. App. 2011).

       Thus, the first step in resolving a premises liability case is to determine the

       plaintiff’s status. Id. The status then defines the duty owed by the landowner to

       the visitor. Id. The parties do not dispute Viola’s status as an invitee at the time

       she fell and fractured her hand outside the Washington Park fitness center.


[14]   Under Indiana premises liability law, a landowner owes the highest duty to an

       invitee: The duty to exercise reasonable care for his protection while he is on

       the landowner’s premises. Burrell v. Meads, 569 N.E.2d 637, 639-40 (Ind. 1991).

       This duty extends to keeping a parking lot safe and providing a safe and suitable

       means of ingress and egress. Converse v. Elkhart General Hospital, Inc., 120

       N.E.3d 621, 626 (Ind. Ct. App. 2019).


[15]   Here, Viola was injured by a metal post erected close by the entrance of the

       Washington Park fitness center. The City correctly argues that Viola’s injuries

       were caused by a condition of the land. “Conditions of the land” are typically

       physical characteristics, such as untreated ice, a decaying tree, or uneven

       flooring. See Linares v. El Tacarajo, 119 N.E.3d 591, 598 (Ind. Ct. App. 2019).

       (addressing premises liability under section 343 when plaintiff slipped on ice on

       sidewalk outside her apartment building) trans. denied; See Marshall v. Erie Ins.

       Exch., 923 N.E.2d 18, 25 (Ind. Ct. App. 2010) (unhealthy tree fell onto
       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1963 | January 16, 2020   Page 7 of 12
       neighbor’s house in urban or residential area), trans. denied; Smith v. King, 902

       N.E.2d 878, 880 (Ind. Ct. App. 2009) (plaintiff fell through hole in floor of

       house under construction). “When a physical injury occurs as a result of a

       condition on the land, the three elements described in Restatement (Second) of

       Torts Section 343, accurately describe the landowner-invitee duty.” Rogers v.

       Martin, 63 N.E.3d 316, 322-23 (Ind. 2016). 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


               (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.


[16]   All three conditions set forth in Section 343 must be met for liability to attach.

       Harradon v. Schlamadinger, 913 N.E.2d 297, 301 (Ind. Ct. App. 2009), trans.

       denied. Additionally, Section 343 of the Restatement (Second) of Torts, which

       discusses known or obvious dangers, is meant to be read along with Section

       343A. Christmas, 952 N.E.2d at 881. That Section “provides, in part, as

       follows: ‘A possessor of land is not liable to his invitees for physical harm

       caused to them by any . . . condition on the land whose danger is known or

       obvious to them, unless the possessor should anticipate the harm despite such

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1963 | January 16, 2020   Page 8 of 12
       knowledge or obviousness.’” Id. (citing Smith v. Baxter, 796 N.E.2d 242, 245

       (Ind. 2003) (quoting RESTATEMENT (SECOND) OF TORTS § 343A)). Indeed,

       “‘[t]he comparative knowledge of a possessor of land and an invitee regarding

       known or obvious dangers may properly be taken into consideration in

       determining whether the possessor breached the duty of reasonable care under

       Sections 343 and 343A of the Restatement (Second) of Torts.’” Id. (quoting

       Smith, 796 N.E.2d at 245).


[17]   The Smiths’ premises liability theory was based upon their claim that the City

       failed to properly maintain the metal post which Viola leaned on. In support of

       its summary judgment motion, the City designated Viola’s and William’s

       deposition. In her deposition, Viola averred that after concluding the aerobics

       class, she exited the fitness center and waited for William outside. Supporting

       herself with her cane, and wanting to rest, she leaned on the metal post with her

       left hand. Moments later, the post gave way, and she fell and fractured her

       right wrist. Viola admitted that she applied some “small amount” of pressure

       when she leaned on the post. (Appellant’s App. Vol. II, p. 73). Then arguing

       that Viola was contributorily negligent, the City additionally designated three

       affidavits from their onsite employees who collectively declared that on the day

       Viola fell and injured her wrist, Viola was shaky and unstable even with the

       assistance of a walking cane. However, none of the three employees indicated

       that the City was not responsible in maintaining the post, or that Viola should

       not have leaned on the metal post.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1963 | January 16, 2020   Page 9 of 12
[18]   In response to the City’s motion, the Smiths designated pictures of the metal

       post that gave way. Also, the Smiths designated their own affidavits. In her

       affidavit, Viola asserted that the metal post “did not have any visible writing or

       warning symbols of any kind advising that it was unstable or otherwise about to

       fall” and further, the deterioration or corrosion of the metal post was not readily

       apparent when she leaned on it. (Appellant’s App. Vol. II, p. 134).


[19]   If the metal post presented a known and obvious danger, then the City probably

       would not be liable. As noted, “[t]he Restatement instructs that Section 343

       should be read together with Section 343A.” Roumbos v. Samuel G. Vazanellis &

       Thiros & Stracci, PC, 95 N.E.3d 63, 66 (Ind. 2018). In particular, Section

       343A(1) 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.” Id. While the City was justified

       in this case to expect Viola to use caution on the day she fell since she was

       unstable and shaky even with the assistance of a cane, the evidence on

       summary judgment does not show that Viola failed to protect herself from that

       risk. Without signs signaling that no persons should lean on the post, there is

       nothing necessarily unreasonable about leaning on a post, and the evidence

       does not compel the inference that Viola knew that leaning on the post would

       lead her to falling down and fracturing her wrist. See Handy v. P.C. Bldg.

       Materials, Inc., 22 N.E.3d 603, 611 (Ind. Ct. App. 2014) (holding in part that

       reasonable people could differ as to whether certain countertops leaning against


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1963 | January 16, 2020   Page 10 of 12
       a wall represented an obvious danger to the plaintiff), trans. denied. As a result,

       based on the designated evidence, we cannot say that Viola voluntarily

       accepted the risk of a known and obvious danger as a matter of law. A

       reasonable jury could conclude that, by the time Viola had actual knowledge

       and appreciation of the risk the metal post possessed, there was no reasonable

       opportunity for her to avoid or escape the risk or the conditions under the

       circumstances.


[20]   Moreover, even if the danger was obvious, that does not resolve the issue as

       questions remain whether the City: (1) knew or by the exercise of reasonable

       care should have realized that the metal post in question involved an

       unreasonable risk of harm to Viola; (2) should have expected that Viola would

       not realize the unreasonable risk of harm of leaning on the metal post; and (3)

       failed to exercise reasonable care to protect Viola against the danger. See Rhodes

       v. Wright, 805 N.E.2d 382, 388 (Ind. 2004). Indeed, the City did not designate

       evidence that it did not know of, or by the exercise of reasonable care would not

       have discovered, that the metal post on its property was weak, that it did not

       expect its invitees to lean on such posts, that the metal post was not

       unreasonably unsafe, or that it had taken steps constituting reasonable care to

       protect its invitees under the circumstances. In short, based on Viola’s status as

       an invitee on the premises, genuine issues of material fact remain as to whether

       the City breached its duty of care to her.


[21]   Construing all factual inferences in favor of the Smiths as the nonmoving

       parties, we conclude that the City failed to carry its burden of establishing that

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1963 | January 16, 2020   Page 11 of 12
       Viola voluntarily accepted a known and obvious risk as a matter of law or that

       it did not breach its duty to maintain its property in a reasonably safe condition

       for its invitees as a matter of law. We are mindful that even if this Court

       believes that the nonmoving party will not be successful at trial, summary

       judgment should not be granted where material facts conflict or conflicting

       inferences are possible. Dunaway v. Allstate Ins. Co., 813 N.E.2d 376, 384 (Ind.

       Ct. App. 2004). Accordingly, we hold that the summary judgment in favor of

       the City was improper and therefore, we reverse the trial court’s entry of

       summary judgment and remand for further proceedings consistent with this

       opinion.


                                             CONCLUSION
[22]   For the foregoing reasons, we reverse the trial court’s summary judgment in

       favor of the City and remand for further proceedings.


[23]   Reversed and remanded.


[24]   Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-1963 | January 16, 2020   Page 12 of 12
