                                                                            FILED
                                                                       Feb 24 2017, 9:23 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
      Mark S. Pantello                                          David C. Jensen
      Benson, Pantello, Morris, James &                         Robert J. Feldt
      Logan, LLP                                                Eichhorn & Eichhorn, LLP
      Fort Wayne, Indiana                                       Hammond, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Elizabeth Roumbos,                                        February 24, 2017
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                45A03-1606-CT-1424
              v.                                                Appeal from the Lake Superior
                                                                Court
      Samuel G. Vazanellis and Thiros                           The Honorable John M. Sedia,
      and Stracci, PC,                                          Judge
      Appellees-Defendants.                                     Trial Court Cause No.
                                                                45D01-1501-CT-2



      Najam, Judge.


                                        Statement of the Case
[1]   Elizabeth Roumbos appeals the trial court’s entry of summary judgment for

      Samuel G. Vazanellis and Thiros and Stracci, PC (collectively, “the law firm”).

      Roumbos raises two issues for our review, which we consolidate and restate as

      whether the trial court erred when it entered summary judgment. We hold that,

      Court of Appeals of Indiana | Opinion 45A03-1606-CT-1424 | February 24, 2017              Page 1 of 11
      although the designated evidence shows that Roumbos, as a business invitee,

      was aware of a dangerous condition on the floor of the business, a genuine

      question of material fact exists with respect to whether the business owner

      should have anticipated Roumbos’ harm despite her knowledge. Accordingly,

      we reverse and remand for further proceedings.


                                  Facts and Procedural History
[2]   On January 18, 2011, Roumbos, who was eighty-five years old at the time,

      visited her husband at St. Anthony’s Hospital (“the hospital”) in Lake County.

      Roumbos had visited her husband at that hospital on a number of prior

      occasions. On this occasion, her husband asked her to bring him a glass of

      water, which she did. When he had finished with the glass of water, he

      returned it to her, and she turned to put the glass on the table from which she

      had obtained it. In doing so, she tripped over some wires that were running

      flush along the floor and under the table, which resulted in a severe injury to

      Roumbos.


[3]   In a later deposition, Roumbos testified as follows:

              Q.       . . . had you walked over [the wires] to get to the table to
                       pour the water?


              A.       Yes, I did.


              Q.       Okay. And did you step over them?


              A.       No.

      Court of Appeals of Indiana | Opinion 45A03-1606-CT-1424 | February 24, 2017    Page 2 of 11
        Q.       You just walked over them?


        A.       Uh-huh.


                                                 ***


        Q.       Okay. Well, you stepped on them, or you stepped over
                 them, one or the other, didn’t you?


        A.       If I step[ped] on [them], I could have fell [sic].


                                                 ***


        Q.       And you agree with me that if you look[ed] down, you
                 would have seen [the wires], wouldn’t you?


        A.       Probably.


        Q.        . . . And when you turned around, you didn’t look down,
                 though, did you?


        A.       No.


                                                 ***


        Q.    But there was no reason why you couldn’t look around
        and see what was on the floor, was there?


        A.       No.




Court of Appeals of Indiana | Opinion 45A03-1606-CT-1424 | February 24, 2017   Page 3 of 11
      Appellant’s App. Vol. II at 93-94, 96.1


[4]   Roumbos hired the law firm to represent her in a negligence claim against the

      hospital, but the law firm failed to file her complaint within the relevant statute

      of limitations. Accordingly, Roumbos filed a complaint for legal malpractice

      against the law firm. Thereafter, the law firm moved for summary judgment.


[5]   On March 24, 2016, the trial court entered summary judgment for the law firm.

      In doing so, the court stated, in relevant part, as follows:

              6. . . . to . . . prove causation [in a legal malpractice action,
              Roumbos] must . . . prove that, but for [the law firm’s]
              negligence, the outcome of the lawsuit against [the hospital]
              would have been more favorable. . . . Roumbos must therefore
              prove that [the hospital] breached its duty to her as a business
              invitee.


                                                        ***


              8. . . . The evidence designated by [the law firm] . . . as set for in
              the deposition testimony of Roumbos . . . [is] that . . . she told
              someone that she tripped on a telephone cord but that she did not
              look down and would have avoided it if she had seen it . . . [,
              which] meets [the law firm’s] initial burden of showing that there
              was no genuine issue of material fact that would allow anything




      1
        In its brief on appeal, the law firm asserts that Roumbos was equivocal about the cause of her fall in her
      deposition testimony. We cannot agree. It is clear from the totality of her testimony that at all times
      Roumbos identified the wires as the cause of her fall. See Appellant’s App. Vol. II at 80-83. Accordingly, we
      reject the law firm’s argument that Roumbos cannot contradict herself to create a genuine question of
      material fact as well as the law firm’s argument that Roumbos’ claim against the hospital was based
      exclusively on the fact of the fall.

      Court of Appeals of Indiana | Opinion 45A03-1606-CT-1424 | February 24, 2017                     Page 4 of 11
              more than a “mere accident” and that [the law firm] is entitled to
              judgment as a matter of law.


              9. The burden was then placed upon Roumbos to respond and
              show that a genuine issue of material fact did indeed exist.
              Roumbos’s response . . . demonstrated . . . that she saw, or
              should have seen, any wires on the floor before she fell.


              10. The designated evidence presented by Roumbos does not
              meet the responsive burden of showing that there is a genuine
              issue of material fact that warrants presentation of this case to the
              jury or that she is entitled to judgment as a matter of law. All
              Roumbos could ultimately say was that she slipped and fell near
              a table in a hospital room where wires were plainly visible,
              whether she saw them or not. . . . There is no genuine issue of
              material fact, and the defendants are entitled to judgment as a
              matter of law.


      Id. at 17-18. This appeal ensued.


                                      Discussion and Decision
[6]   Roumbos asserts that the trial court erred when it entered summary judgment

      for the law firm. As our supreme court has stated:

              We review summary judgment de novo, applying the same
              standard as the trial court: “Drawing all reasonable inferences in
              favor of . . . the non-moving parties, summary judgment is
              appropriate ‘if the designated evidentiary matter 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.’” Williams v.
              Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 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
      Court of Appeals of Indiana | Opinion 45A03-1606-CT-1424 | February 24, 2017   Page 5 of 11
              undisputed material facts support conflicting reasonable
              inferences.” Id. (internal citations omitted).


              The initial burden is on the summary-judgment movant to
              “demonstrate [ ] the absence of any genuine issue of fact as to a
              determinative issue,” at which point the burden shifts to the non-
              movant to “come forward with contrary evidence” showing an
              issue for the trier of fact. Id. at 761-62 (internal quotation marks
              and substitution omitted). And “[a]lthough the non-moving
              party has the burden on appeal of persuading us that the grant of
              summary judgment was erroneous, we carefully assess the trial
              court’s decision to ensure that he was not improperly denied his
              day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
              916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
              omitted).


      Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to

      Hughley).


[7]   Further, we acknowledge that the trial court here entered detailed and

      thoughtful findings and conclusions in support of its entry of summary

      judgment for the law firm. Such findings and conclusions are neither “required

      nor prohibited in the summary judgment context.” Knighten v. E. Chicago Hous.

      Auth., 45 N.E.3d 788, 791 (Ind. 2015). And while the court’s findings and

      conclusions “aid our review of a summary judgment ruling[,] they are not

      binding on this Court.” Id. (quotation marks omitted).


[8]   As the trial court correctly recognized, Roumbos’ legal malpractice claim

      against the law firm would have required her, at trial, to “prove a ‘case-within-

      a-case.’” Schultheis v. Franke, 658 N.E.2d 932, 940 (Ind. Ct. App. 1995), trans.

      Court of Appeals of Indiana | Opinion 45A03-1606-CT-1424 | February 24, 2017   Page 6 of 11
       denied. In the summary judgment context, this required the law firm to

       demonstrate that, had it filed Roumbos’ complaint against the hospital in a

       timely manner, she would have been no better off than its alleged negligence

       had placed her. To meet that burden, the law firm sought to negate the element

       of proximate cause in Roumbos’ action against it. And, to do that, the law firm

       argued that the hospital did not breach its duty of care to Roumbos, and,

       therefore, it would not have mattered if the law firm had timely filed her

       complaint against the hospital because, had the law firm done so, the hospital

       would simply have been entitled to summary judgment against Roumbos.


[9]    To prevail on her theory of negligence against the hospital, Roumbos would

       have been required to prove: (1) that the hospital owed her a duty; (2) that it

       breached the duty; and (3) that her injury was proximately caused by the

       breach. Harradon v. Schlamadinger, 913 N.E.2d 297, 300 (Ind. Ct. App. 2009),

       trans. denied. It is undisputed that Roumbos was the hospital’s invitee at the

       time of the fall. Accordingly, as a matter of law the hospital owed her a duty to

       exercise reasonable care for her protection while she was on the premises. Id. at

       300-01. The only question in this appeal is whether the designated evidence

       demonstrates, as a matter of law, that the hospital did not breach its duty to

       Roumbos.


[10]   The standard in Indiana for determining a landowner’s liability to business

       invitees is stated in Section 343 of the Restatement (Second) of Torts, which

       provides that a landowner is liable for harm to invitees if and only if the

       landowner: (1) knew or by the exercise of reasonable care would have

       Court of Appeals of Indiana | Opinion 45A03-1606-CT-1424 | February 24, 2017   Page 7 of 11
       discovered the dangerous condition, and should have realized that it involved

       an unreasonable risk of harm to invitees; (2) should have expected that an

       invitee would not discover or realize the danger, or would fail to protect herself

       from the danger; and (3) failed to exercise reasonable care to protect the invitee

       against the danger. See Smith v. Baxter, 796 N.E.2d 242, 245 (Ind. 2003);

       Countrymark Coop., Inc. v. Hammes, 892 N.E.2d 683, 688 (Ind. Ct. App. 2008),

       trans. denied. However, Section 343A(1), “which is meant to be read in

       conjunction with section 343,” 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.” Countrymark, 892

       N.E.2d at 688-89 (emphasis added; quotation marks omitted).


[11]   Here, the law firm’s designated evidence answers the first question under

       Section 343(A)(1), namely, that Roumbos knew of the wires in her husband’s

       room at the hospital and further recognized their danger. Roumbos testified

       that she saw the wires when she was getting a glass of water for her husband.

       She further testified that she consciously avoided the wires because, had she

       stepped on them, she could have fallen. She then testified that, as she was

       returning the glass of water to the table, she did not look down to see where the

       wires were, and that, had she done so, she “[p]robably” would have seen the

       wires again. Appellant’s App. Vol. II at 94. In other words, Roumbos testified

       that she knew the wires were there and that she had already avoided them once,

       but she had stopped paying attention and, as a result, tripped and fell. There is


       Court of Appeals of Indiana | Opinion 45A03-1606-CT-1424 | February 24, 2017   Page 8 of 11
       no question in light of that evidence that Roumbos knew of the dangerous

       condition, which satisfied the first component of Section 343(A)(1).


[12]   The trial court’s analysis ends there, but that is not the end of the inquiry.

       Rather, Section 343(A)(1) continues by qualifying the circumstances in which

       landowners are not liable for known or obvious risks and states that, despite

       such knowledge or obviousness, nonetheless liability may attach if “the

       possessor should anticipate the harm despite such knowledge or obviousness.”

       Restatement (Second) of Torts § 343(A)(1). In the comments to Section

       343(A)(1), the Restatement explains:

               There are, however, cases in which the possessor of land can and
               should anticipate that the dangerous condition will cause
               physical harm to the invitee notwithstanding its known or
               obvious danger. In such cases the possessor is not relieved of the
               duty of reasonable care which he owes to the invitee for his
               protection. This duty may require him to warn the invitee, or to
               take other reasonable steps to protect him, against the known or
               obvious condition or activity, if the possessor has reason to
               expect that the invitee will nevertheless suffer physical harm.


               Such reason to expect harm to the visitor from known or obvious dangers
               may arise, for example, where the possessor has reason to expect that the
               invitee’s attention may be distracted, so that he will not discover what is
               obvious, or will forget what he has discovered, or fail to protect himself
               against it. . . .


       Id. cmt. f (emphasis added). And the Restatement provides the following

       illustration of that law:



       Court of Appeals of Indiana | Opinion 45A03-1606-CT-1424 | February 24, 2017      Page 9 of 11
               The A Drug Store has a soda fountain on a platform raised six
               inches above the floor. The condition is visible and quite
               obvious. B, a customer, discovers the condition when she
               ascends the platform and sits down on a stool to buy some ice
               cream. When she has finished, she forgets the condition, misses
               her step, falls, and is injured. If it is found that this could
               reasonably be anticipated by A, A is subject to liability to B.


       Id. illus. 3.


[13]   We conclude that the above illustration provided in the Restatement is

       analogous to the facts designated in the instant appeal and is consistent with

       Indiana law. Indeed, as the Indiana Supreme Court has stated, “[t]he

       determination of whether a breach of duty occurred is a factual question

       requiring an evaluation of the landowner’s conduct with respect to the requisite

       standard of care. In this factual assessment, the issue of the landowner’s and

       the invitee’s comparative knowledge becomes relevant.” PSI Energy, Inc. v.

       Roberts, 829 N.E.2d 943, 959 (Ind. 2005) (quotation marks omitted), abrogated in

       part on other grounds by Helms v. Carmel High Sch. Vocational Bldg. Trades Corp.,

       854 N.E.2d 345 (Ind. 2006). And we have previously acknowledged, in the

       summary judgment context, that “a trier of fact could reasonably determine that

       the [the landowner] should have anticipated that [the invitee] would attempt to

       walk from her vehicle back to the carport or sidewalk despite the obviousness of

       the risk or danger [from snow in the parking lot].” Miller v. Rosehill Hotels, LLC,

       45 N.E.3d 15, 24 (Ind. Ct. App. 2015). And we have held that summary

       judgment is not proper where “genuine issues exist[ed] as to whether [the

       landowner] should have anticipated the harm [from ice on the ground] despite

       Court of Appeals of Indiana | Opinion 45A03-1606-CT-1424 | February 24, 2017   Page 10 of 11
       [the invitee’s] knowledge of the danger or the obviousness of the danger.”

       Countrymark, 892 N.E.2d at 691-92.


[14]   Accordingly, to demonstrate that it was entitled to summary judgment, the law

       firm was required to designate evidence that demonstrated that the hospital

       could not have reasonably anticipated that, despite actual prior knowledge of

       the dangerous condition of the wires running along the floor of its room, an

       invitee might forget about the condition and later be injured by it. See Hughley,

       15 N.E.3d at 1003-04; see also Restatement, supra, § 343(A)(1) cmt. f and illus. 3.

       The law firm designated no such evidence. Accordingly, it is not entitled to

       judgment as a matter of law. The trial court’s entry of summary judgment for

       the law firm is reversed, and we remand for further proceedings.


[15]   Reversed and remanded for further proceedings.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 45A03-1606-CT-1424 | February 24, 2017   Page 11 of 11
