MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                   Mar 18 2019, 9:55 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ernest P. Galos                                          Stephanie L. Nemeth
South Bend, Indiana                                      Peter J. Agostino
                                                         Anderson Agostino & Keller, P.C.
                                                         South Bend, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Evelyn M. Gregory,                                       March 18, 2019
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         18A-CT-2328
        v.                                               Appeal from the St. Joseph Superior
                                                         Court
City of South Bend Fire                                  The Honorable Margot F. Reagan,
Department,                                              Judge
Appellee-Defendant.                                      Trial Court Cause No.
                                                         71D04-1506-CT-217



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CT-2328 | March 18, 2019                  Page 1 of 9
                                          Case Summary
[1]   Evelyn M. Gregory (“Gregory”) appeals the trial court’s grant of summary

      judgment to the City of South Bend Fire Department (“the Fire Dep’t”)

      regarding her negligence claim. The only issue she raises is whether the trial

      court erred in granting the Fire Dep’t summary judgment.


[2]   We reverse and remand.



                            Facts and Procedural History
[3]   On June 16, 2013, Gregory felt dizzy and fell against a wall in her apartment.

      On June 17, Gregory went to Dr. Christopher Hall’s (“Dr. Hall”) office. While

      walking to the bus stop after leaving Dr. Hall’s office, Gregory lost

      consciousness. When Gregory regained consciousness, she was on the ground.

      When South Bend firefighters and paramedics arrived, the firefighters helped

      Gregory stand and then walked with her to the ambulance. While walking to

      the ambulance, Gregory lost consciousness again, and when she regained

      consciousness, the paramedics were carrying her—with one holding her by her

      feet and the other holding her under her arms. Gregory has no recollection of

      what happened while she was unconscious on the way to the ambulance. After

      being placed in the ambulance, Gregory noticed that one of her feet was twisted

      and swollen and one of her knees was also swollen. Gregory later learned she

      had sustained a broken bone in that area of her body.




      Court of Appeals of Indiana | Memorandum Decision 18A-CT-2328 | March 18, 2019   Page 2 of 9
[4]   On June 17, 2015, Gregory filed a complaint for damages against the Fire

      Dep’t, and on June 1, 2016, she filed her amended complaint. In her

      complaint, Gregory claimed that the Fire Dep’t was negligent in its care for her

      on June 17, 2013, causing her personal injury. On June 20, 2018, the Fire

      Dep’t filed a motion for summary judgment and designated evidence, including

      affidavits from fire department and paramedic personnel who swore that they

      never dropped Gregory when assisting her during the June 17, 2013, incident.

      Gregory filed a timely response with designated evidence, including portions of

      the transcript from her September 8, 2017, deposition. In her deposition,

      Gregory testified that the firefighters forced her to her feet when she wished to

      lie down. She also testified that she did not have a twisted or swollen foot and

      knee or any fractures before the paramedics carried her to the ambulance on

      June 17, 2013, but she did have those injuries once she was in the ambulance

      and had regained consciousness.


[5]   The trial court granted the Fire Dep’t’s motion for summary judgment, and this

      appeal ensued.



                                 Discussion and Decision
[6]   Gregory maintains that the trial court erred in granting summary judgment to

      the Fire Dep’t. Our standard of review for summary judgment is well settled.

      When reviewing a grant or denial of summary judgment, we apply the same

      standard as the trial court. Holmes v. Celadon Trucking Servs. of Ind., Inc., 936

      N.E.2d 1254, 1256 (Ind. Ct. App. 2010).

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-2328 | March 18, 2019   Page 3 of 9
              The party moving for summary judgment has the burden of
              making a prima facie showing that there is no genuine issue of
              material fact and that the moving party is entitled to judgment as
              a matter of law. Once these two requirements are met by the
              moving party, the burden then shifts to the non-moving party to
              show the existence of a genuine issue by setting forth specifically
              designated facts.


      Daviess-Martin Cnty. Joint Parks & Recreation Dep’t v. Estate of Abel by Abel, 77

      N.E.3d 1280, 1285 (Ind. Ct. App. 2017) (citations omitted).


[7]   On summary judgment,


              [w]e “resolve all questions and view all evidence in the light most
              favorable to the non-moving party, so as to not improperly deny
              him his day in court.” Alldredge v. Good Samaritan Home, Inc., 9
              N.E.3d 1257, 1259 (Ind. 2014) (internal citation omitted). We
              “consciously err[ ] on the side of letting marginal cases proceed
              to trial on the merits, rather than risk short-circuiting meritorious
              claims.” Hughley [v. State], 15 N.E.3d [1000,] 1004 [(Ind. 2014)].
              In other words, “‘summary judgment is not a summary trial.’”
              Siner v. Kindred Hosp. Ltd. P’ship, 51 N.E.3d 1184, 1190 (Ind.
              2016) (quoting Hughley, 15 N.E.3d at 1004–05) (internal
              quotation omitted). “Defeating summary judgment requires only
              a genuine issue of material fact, not necessarily a persuasive issue
              of material fact.” Id.


      Chmiel v. U.S. Bank Nat’l Ass’n, 109 N.E.3d 398, 407 (Ind. Ct. App. 2018).


[8]   Here, the issue of material fact is whether the firefighters and/or paramedics

      dropped Gregory while carrying her to the ambulance, thus causing her injury.

      The Fire Dep’t designated evidence—firefighter and paramedic affidavits—

      showing that they did not drop Gregory. However, Gregory’s designated

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-2328 | March 18, 2019   Page 4 of 9
      evidence—her deposition—showed that she did not have an injury before the

      Fire Dep’t employees carried her to the ambulance, she lost consciousness

      while being carried to the ambulance, and she did have an injury when she

      regained consciousness in the ambulance.1 Thus, Gregory designated evidence2

      from which a reasonable factfinder could conclude that the Fire Dep’t

      employees dropped Gregory while carrying her to the ambulance, causing her

      injury.


[9]   While the fact-finder in this case may ultimately determine that Gregory’s

      circumstantial evidence is not sufficient to overcome the Fire Dep’t’s evidence,

      that possibility does not justify summary judgment. See Heritage Operating, L.P.

      v. Mauck, 37 N.E.3d 514, 519 (Ind. Ct. App. 2015) (noting we do not assess

      evidentiary weight or witness credibility on a motion for summary judgment),

      trans. denied; see also Jones v. Berlove, 490 N.E.2d 393, 395 (Ind. Ct. App. 1986)

      (“[T]he mere improbability of recovery by a plaintiff does not justify summary

      judgment against him.”). Rather, drawing all reasonable inferences in favor of

      Gregory, as we must, it is clear that there exists a genuine issue of material fact,

      making summary judgment inappropriate. See Mauck, 37 N.E.3d at 519

      (quoting Webb v. Jarvis, 575 N.E.2d 992, 994 (Ind. 1991)) (“We will accept as




      1
        Thus, Gregory provided more than merely a “conclusory statement” that the Fire Dep’t employees
      dropped her. Appellee’s Br. at 5-6.
      2
        While Gregory’s designated evidence is circumstantial, it is well-settled that negligence may be proven by
      circumstantial evidence alone. E.g., Foddrill v. Crane, 894 N.E.2d 1070, 1075-76 (Ind. Ct. App. 2008), trans.
      denied.

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-2328 | March 18, 2019                     Page 5 of 9
       true any ‘[r]ational assertion of fact and reasonable inferences therefrom’ and

       will resolve any doubt as to the existence of a fact or inference in favor of the

       non-moving party.”).


[10]   The trial court erred in granting the Fire Dep’t’s summary judgment motion.


[11]   Reversed and remanded.


       Bradford, J., concurs.
       Brown, J., dissents with opinion.




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2328 | March 18, 2019   Page 6 of 9
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       Evelyn M. Gregory,                                       Court of Appeals Case No.
                                                                18A-CT-2328
       Appellant-Plaintiff,

               v.

       City of South Bend Fire
       Department,
       Appellee-Defendant.



       Brown, Judge, dissenting.


[12]   I respectfully dissent from the majority’s conclusion that the trial court erred in

       granting the Fire Department’s summary judgment motion. Based upon the

       Fire Department’s designated evidence, which included the affidavits of

       firefighters and paramedics and indicated that they did not drop Gregory, I

       would find that the Fire Department made a prima facie showing that there was

       no genuine issue of material fact and that it was entitled to judgment as a matter

       of law. Thus, the burden shifted to Gregory to show the existence of a genuine

       issue by setting forth specifically designated facts. See Goodwin v. Yeakle’s Sports

       Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).


[13]   The majority states that Gregory fell twice before firefighters and paramedics

       arrived. Specifically, Gregory felt dizzy and fell against a wall in her apartment

       and later lost consciousness while walking to the bus stop and regained

       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2328 | March 18, 2019       Page 7 of 9
consciousness when she was on the ground when firefighters and paramedics

arrived. In her deposition, Gregory stated:


        They took my blood pressure. Then they told me to get up again.
        And I said, “I can’t get up. I can’t walk.”

        So two young guys picked me up. One had one arm, and so they
        picked me up. They was sitting in the park somewhere and
        having a conversation with each other.

        I said, “Look, you all. I can’t just stand here.”

        They ignored me and they kept talking; so I was scared I might
        fall again. So I went to lay back down and when I got halfway,
        they grabbed me and pulled me back up.

        The ambulance is way down there (indicating). And so they was
        walking – well, when they first picked me up, my legs was
        dangling up under me in the air, and I was trying to find the
        ground. I finally found it. Anyways, they was walking me down
        to the ambulance, down the way, and out of the corner of my
        eye, I seen the lady that called the ambulance for me and I waved
        at her. They turned me loose, and that’s when I fell.

        Okay. When I fell, it was just like I blacked out because I don’t
        even remember falling or anything. Just everything went black,
        and I didn’t feel myself hit the ground or anything.

        Okay. Then I became conscious again. When I did that, one
        had my feet and one had me up under my arms, and they carried
        me to an ambulance. And when they finally put me in the
        ambulance, they put me down. My foot was twisted and real big.
        My knee was real big, and I’m thinking to myself, “What
        happened?”

        Evidently, when I fell, I hurt myself and broke the bone.




Court of Appeals of Indiana | Memorandum Decision 18A-CT-2328 | March 18, 2019   Page 8 of 9
       Appellant’s Appendix Volume II at 29-30. Gregory also stated that she did not

       have a memory of being let go or of landing on the ground.


[14]   Based upon Gregory’s deposition, I would find that she did not designate

       evidence to show that she did not have an injury before the Fire Department

       employees carried her to the ambulance or that created an issue of material fact,

       and I would affirm the trial court’s entry of summary judgment in favor of the

       Fire Department. See Brown v. Buchmeier, 994 N.E.2d 291, 297 (Ind. Ct. App.

       2013) (observing that the plaintiff was clear in her deposition that she did not

       know why she fell, holding that the plaintiff’s designated evidence did not

       create an issue of fact, and affirming the trial court’s order granting summary

       judgment to the defendants); Ogden Estate v. Decatur Cnty. Hosp., 509 N.E.2d

       901, 903 (Ind. Ct. App. 1987) (holding that “[n]egligence cannot be established

       by inferential speculation alone,” observing that the plaintiff failed to present

       any factual evidence which would place in issue the defendant’s evidence that

       established a lack of slickness on a floor, and concluding that the plaintiff had

       failed to sustain the burden in opposition to summary judgment), reh’g denied,

       trans. denied.


[15]   For the foregoing reasons, I respectfully dissent and would affirm the trial court.




       Court of Appeals of Indiana | Memorandum Decision 18A-CT-2328 | March 18, 2019   Page 9 of 9
