MEMORANDUM DECISION                                                               FILED
Pursuant to Ind. Appellate Rule 65(D),                                       Jul 26 2017, 10:10 am

this Memorandum Decision shall not be                                             CLERK
                                                                              Indiana Supreme Court
regarded as precedent or cited before any                                        Court of Appeals
                                                                                   and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
James R. Fisher                                           Aimee Rivera Cole
Miller & Fisher, LLC                                      Travelers Staff Counsel Indiana
Indianapolis, Indiana                                     Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jennifer Benson,                                          July 26, 2017
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          49A02-1702-CT-372
        v.                                                Appeal from the Marion Superior
                                                          Court
Denison Parking, Inc. and City                            The Honorable James B. Osborn
of Indianapolis,                                          Trial Court Cause No.
Appellee-Defendant.                                       49D14-1511-CT-37632




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-372 | July 26, 2017                   Page 1 of 17
                                            Case Summary
[1]   Jennifer Benson (“Benson”) fell on ice on a municipally-owned Indianapolis

      sidewalk six feet from a parking garage owned by the Capital Improvement

      Board of Managers of Marion County, Indiana (“the CIB”), managed by

      Denison Parking, Inc. pursuant to its contract with the CIB. Denison was

      granted summary judgment upon Benson’s negligence claim and she appeals. 1

      Benson presents a single consolidated and restated issue: whether the trial court

      erroneously granted summary judgment to Denison, because Denison was

      unable to demonstrate the absence of its contractual or common-law duty of

      reasonable care to Benson. We affirm.



                             Facts and Procedural History
[2]   On February 21, 2014, at approximately 7:35 a.m., Benson had completed an

      eight-hour shift as a nurse at the Marion County Jail and was walking to her

      vehicle. The vehicle was parked in the Virginia Avenue Garage, a facility

      owned by the CIB and managed by Denison. Benson was on the public

      sidewalk approximately six feet from the pedestrian entrance to the parking

      garage when she slipped on ice and fell, sustaining serious injuries.




      1
       In a separate order of January 31, 2017, the trial court granted summary judgment to the City of
      Indianapolis. That order is not challenged in this appeal.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-372 | July 26, 2017             Page 2 of 17
[3]   On November 12, 2015, Benson filed a negligence complaint against Denison.

      On February 18, 2016, she filed an amended complaint to add the City of

      Indianapolis (“the City”) as a defendant. Benson’s amended complaint alleged

      that Denison and the City each breached a duty “to exercise reasonable care in

      the maintenance of the walking surface on which the Plaintiff fell.” (App. Vol.

      II pg. 75.) On October 13, 2016, Denison filed a motion for summary judgment

      upon Benson’s complaint, asserting that it owed Benson no duty of care;

      Benson filed a cross-motion for partial summary judgment. After a hearing, the

      parties submitted briefs to the trial court addressing whether Denison owed a

      duty of care to Benson.


[4]   On January 13, 2017, the trial court granted Denison’s motion for summary

      judgment. This appeal ensued.



                                 Discussion and Decision
[5]   Benson argues that summary judgment was improvidently granted. She asserts

      that Denison had a common-law duty to exercise reasonable care for her safety

      and also, she is a third-party beneficiary of the management contract between

      CIB and Denison.


[6]   Summary judgment is appropriate only where the evidence shows that there is

      no genuine issue of material fact and the moving party is entitled to judgment as

      a matter of law. Indiana Trial Rule 56(C). To prevail on a motion for

      summary judgment, a party must demonstrate that the undisputed material


      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-372 | July 26, 2017   Page 3 of 17
      facts negate at least one element of the other party’s claim. Winfrey v. NLMP,

      Inc., 963 N.E.2d 609, 612 (Ind. Ct. App. 2012). Once the moving party has met

      this burden with a prima facie showing, the nonmoving party may not rest on

      its pleadings, but must designate specific facts demonstrating the existence of a

      genuine issue for trial. Morris v. Cain, 71 N.E.3d 871, 879 (Ind. Ct. App. 2017).


[7]   In an appeal involving summary judgment, the appealing party bears the

      burden of persuasion, and we assess the trial court’s decision to ensure that the

      parties were not improperly denied their day in court. Shambaugh & Son, Inc. v.

      Carlisle, 763 N.E.2d 459, 460 (Ind. 2002). In so doing, we accept as true those

      facts alleged by the non-moving party, construe the evidence in favor of the

      non-movant, and resolve all doubts against the moving party. Id. We may

      affirm summary judgment if it is proper on any basis shown in the record.

      Morris, 71 N.E.3d at 879.


[8]   A negligence claim is established by showing (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 proximately caused by

      the breach of that duty. City of Indianapolis v. Johnson, 736 N.E.2d 295, 297

      (Ind. Ct. App. 2000). Summary judgment is rarely appropriate in negligence

      cases because they are particularly fact sensitive and are governed by a standard

      of the objective reasonable person, which is best applied by a jury after hearing

      all the evidence. Winfrey, 963 N.E.2d at 612. However, a defendant may

      obtain summary judgment in a negligence action when the undisputed facts

      negate at least one element of the plaintiff’s claim, such as whether a duty is

      Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-372 | July 26, 2017   Page 4 of 17
       owed to the plaintiff. Winchell v. Guy, 857 N.E.2d 1024, 1027 (Ind. Ct. App.

       2006). “Whether a defendant owes a duty of care to a plaintiff is a question of

       law for the court to decide.” Id.


[9]    In premises liability cases, whether a duty is owed depends primarily upon

       whether the defendant was in control of the premises when the accident

       occurred. Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2004). The rationale is

       to subject to liability the person who could have known of any dangers on the

       land and acted to prevent any foreseeable harm. Id. The entrant’s status on the

       land, as invitee, licensee, or trespasser, is determinative of the particular duty

       that the landowner, or occupier of land, owes. Burrell v. Meads, 569 N.E.2d 637,

       639 (Ind. 1991).


[10]   An invitee is a person who goes onto the land of another at the express or

       implied invitation of an owner or occupant either to transact business or for the

       mutual benefit of invitee and owner or occupant. Markle v. Hacienda Mexican

       Rest., 570 N.E.2d 969, 971 (Ind. Ct. App. 1991).2 Benson asserts that she was




       2
           In Burrell, our supreme court defined a landowner-invitor’s duty to an invitee:

       “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 invitee, 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.” Burrell, 569 N.E.2d at 639-640
                  (quoting Restatement (Second) of Torts § 343 (1965)).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-372 | July 26, 2017                    Page 5 of 17
       Denison’s business invitee, en route to her parked vehicle.3 It is well-settled that

       an invitor owes its invitee a duty to exercise reasonable care while the invitee is

       “on [the invitor’s] premises.” City of Indianapolis, 736 N.E.2d at 298.


[11]   Benson fell on the public sidewalk owned by the City of Indianapolis and thus

       there is no duty on Denison’s part based upon ownership of the sidewalk. As

       for a duty based upon occupancy, Benson argues that the CIB garage

       “premises” managed by Denison were necessarily expanded beyond a legal

       property description, to include a reasonable means of ingress and egress.


[12]   In response, Denison argues that Benson was a public pedestrian at the time of

       her fall and the duty to maintain safe public sidewalk conditions lies solely with

       the City. Denison points to the rationale enunciated in Lawson v. Lafayette Home

       Hosp., Inc., 760 N.E.2d 1126, 1129 (Ind. Ct. App. 2002), an appeal from the

       grant of summary judgment for the defendant hospital after a pedestrian sued

       for injuries he sustained after slipping and falling on a public sidewalk adjacent

       to the hospital:


               It is well settled in Indiana that an owner or occupant of property
               abutting a public street or sidewalk has no duty to clear those
               streets and sidewalks of ice and snow. …Additionally, municipal
               ordinances that require abutting owners or occupiers to remove
               snow and ice from public sidewalks do not, as a matter of law,




       3
         It is undisputed that CIB is the actual property owner of the garage. However, Denison occupied the garage
       as a limited agent of CIB. See Schneider v. Paragon Realty, LLC, 55 N.E.3d 374, 379 (Ind. Ct. App. 2016) (“by
       virtue of the property management agreement, Paragon was a limited agent of Heartland, Bubbaz’
       landlord.”)

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-372 | July 26, 2017             Page 6 of 17
                create a duty under which an owner or occupier can be held
                liable to third party pedestrians.


       (citations omitted; emphasis in original.)


[13]   The Lawson Court then addressed the appellant’s argument that the hospital had

       assumed a duty. See id. “In Indiana, persons are held to have assumed a duty to

       pedestrians on public sidewalks only when they create artificial conditions that

       increase risk and proximately cause injury to persons using those sidewalks.” Id.

       at 1130. The hospital’s removal of snow from the sidewalk and placement in

       piles on the ground “did not create an artificial condition increasing the risk of

       harm to Lawson.” Id.4


[14]   Relying upon Lawson, a panel of this Court found no duty on the part of

       Denison in a case involving apparently identical snow removal management

       procedures5 and a factual scenario very similar to the instant case. Denison




       4
         The Lawson Court approvingly cited Halkias v. Gary Nt. Bank, 142 Ind. App. 329, 332, 234 N.E.2d 652, 654
       (1968) for the proposition that “Such [snow removal] efforts to reduce the danger to pedestrians, though they
       may not be legally required, are generally considered desirable and worthy, and should not be discouraged by
       holding such persons liable simply because they endeavor to do so.”
       5
        The language in the Snow Removal section of the Operating Plans, Exhibit A, designated herein, (App.
       Vol. II, pg. 19) is identical to that of the “Snow Removal” section of Denison’s internal employee manual
       quoted in the prior Denison case:
                A company contracted vendor will perform initial snow removal from the roofs and the sidewalks of
       parking facilities, in addition to salting or sanding all applicable areas. After initial snow removal, however,
       each facility is responsible for monitoring and keeping abreast of the need for further snow removal services.
       IT IS IMPERATIVE TO STAY ON TOP OF SNOW REMOVAL! In the event of a long response time
       from a contractor, it becomes the manager’s responsibility to ensure that the facility’s sidewalks are cleared
       and salted or sanded, whether the snowfall occurs during the daytime, evenings, overnight, or on the
       weekend. If for some reason the designated staff person at a particular location cannot remove the snow, a

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-372 | July 26, 2017                 Page 7 of 17
       Parking, Inc. v. Davis, 861 N.E.2d 1276 (Ind. Ct. App. 2007), trans. denied.

       There, the plaintiff, Barbara Davis (“Davis”), had parked her vehicle in a

       Denison-managed garage and headed to work. While walking on the sidewalk

       in front of Market Square Arena, she slipped on a patch of ice. See id. at 1277-

       78. Denison was responsible for snow removal from the sidewalks at Market

       Square Arena pursuant to its management contract with the CIB. See id. at

       1278. Denison moved for summary judgment upon a negligence complaint

       filed by Davis and summary judgment was denied. On appeal, a panel of this

       Court considered whether Denison owed a common law or statutory duty to

       Davis.6 See id. at 1280-81.


[15]   The Court found that Denison had no common-law duty to Davis, observing

       that “a municipality has a common law duty to exercise reasonable care and

       diligence to keep its streets and sidewalks in a reasonably safe condition for

       travel.” Id. at 1280 (emphasis in original). Moreover, the Court stated that a

       like result would ensue under the balancing test set forth in Webb v. Jarvis, 575




       backup person should be designated to provide these services. If not, the manager may have to clear away
       the snow and salt and sand until a contractor can be contacted.
       It is also the manager’s responsibility to ensure that adequate snow removal supplies are kept on hand, such
       as ice melt (plus scoop and spreader), sand, shovels, and snow blower. Make a regular checkup of these
       supplies. DO NOT WAIT UNTIL THE DAY OF A SNOW TO ORDER ICE MELT OR RELATED
       SUPPLIES!
       See Denison, 861 N.E.2d at 1278.


       6
         The statutory claim was premised upon Indianapolis Municipal Code Section 931-102, providing: “A
       registrant under this chapter shall keep the surrounding sidewalks and driveways leading into a commercial
       parking facility reasonably free from dirt, water, ice, sleet and snow and in a safe condition for the travel of
       pedestrians.”

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-372 | July 26, 2017                  Page 8 of 17
       N.E.2d 992 (Ind. 1991).7 Finally, the Court reaffirmed that city ordinances “are

       not enacted for the protection of individuals using the streets but rather are for

       the benefit of the municipality.” Id. at 1281.


[16]   In reaching its decision, the Denison Court reiterated that “In Indiana, persons

       are held to have assumed a duty to pedestrians on a public sidewalk only when

       they create artificial conditions that increase risk and proximately cause injury

       to persons using those sidewalks.” Id. (emphasis in original).8 The Court

       further observed that “the simple removal of the natural accumulation of snow

       and ice from a public sidewalk has never been held to be an artificially created

       condition that increases risk so as to serve as the basis of liability in Indiana.”

       Id.; see also Bowman v. Tippmann Enterprises, 868 N.E.2d 1172 (Ind. Ct. App.

       2007) (relying upon Denison to conclude that summary judgment was properly

       granted to Wells Fargo Bank, which did not owe a duty to a pedestrian who




       7
         In Webb, in deciding whether a doctor owed a duty to a third party injured by the doctor’s patient, our
       supreme held that, in order to determine whether a duty exists, courts employ a three-part balancing test: (1)
       the relationship between the parties; (2) the foreseeability of harm; and (3) public policy concerns. 575
       N.E.2d at 995. The Indiana Supreme Court has since clarified that although the Webb three-part balancing
       test is a useful tool in determining whether a duty exists, this is so “only in those instances where the element
       of duty has not already been declared or otherwise articulated.” No. Ind. Public Serv. Co. v. Sharp, 790 N.E.2d
       462, 465 (Ind. 2003).
       8
         Legislation may be drafted to make an abutting landowner liable to a pedestrian injured by a defect in a
       public sidewalk. See Romano v. Leger, 72 A.D.3d 1059, 1059, 900 N.Y.S.2d 346. (“An abutting landowner
       will be liable to a pedestrian injured by a defect in a public sidewalk only when the owner either created the
       condition or caused the defect to occur because of a special use, or when a statute or ordinance places an
       obligation to maintain the sidewalk on the owner and expressly makes the owner liable for injuries caused by a
       breach of that duty.”) (emphasis added.)

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-372 | July 26, 2017                  Page 9 of 17
       slipped on snow and ice where the sidewalk intersected with the entrance into

       the drive-through lanes), trans. denied.


[17]   Benson has not alleged that Denison, by its conduct as the limited agent of CIB,

       increased a risk to Benson or created an artificial condition. The designated

       materials indicate that the accumulation of ice, a natural event, took place

       during Benson’s work shift. Benson walked on a public sidewalk near CIB’s

       garage, managed by Denison, with the expectation that she would return to her

       vehicle; instead, she fell. Benson does not acknowledge or distinguish Denison

       or its progeny. Rather, she argues: “it has long been established that a property

       owner owes a duty to an invitee to provide a safe and suitable means of ingress

       and egress to the business property, for its customers.” Appellant’s Brief at 16.

       She urges that the duty to an invitee may be expanded beyond “the premises”

       pursuant to a “test,” Appellant’s Brief at 17, enunciated in Ember v. B.F.D., Inc.,

       490 N.E.2d 764, 772 (Ind. Ct. App. 1994):


               A duty of reasonable care may be extended beyond the business
               premises when it is reasonable for invitees to believe the invitor
               controls premises adjacent to his own or where the invitor knows
               his invitees customarily use such adjacent premises in connection
               with the invitation.


[18]   To the extent that this language may be said to comprise a “test,” it must be

       read in conjunction with the language preceding it:

               An invitor’s duty normally extends only to its “premises.”
               However, we recognize that in this case “the premises” may not


       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-372 | July 26, 2017   Page 10 of 17
               be limited to the area actually owned or leased by the Pub because
               its business activities extended beyond its legal boundaries.”


       Id. (emphasis added). In Ember, a bar patron had been attacked and beaten by

       three assailants across the street from O’Sullivan’s Italian Pub (“the Pub”). See

       id. at 766. After the patron brought a negligence suit, the trial court concluded

       that the Pub had no duty to the patron in those circumstances. This Court

       reversed a grant of summary judgment in favor of the Pub, observing that a

       reasonable inference could be drawn that the Pub had gratuitously assumed a

       duty to patrol the area in question and possibly failed to perform its duty in a

       reasonable manner. Id. at 773. More specifically, the designated record

       indicated that: “the Pub maintained police and civilian patrols outside its

       premises due to its acknowledged adverse effect on the immediate

       neighborhood9,” id. at 767, “the Pub distributed a flyer emblazoned with its

       phone number which implored area residents to call the Pub before the police in

       case of problems in the neighborhood,” id. at 770, “the Pub knew its parking lot

       was insufficient for its patrons’ use,” id. at 772, and the attack had commenced

       at the entrance to an “overflow” lot. Id. Accordingly, the bar patron had not

       lost his invitee status while waiting outside the Pub’s legal boundaries. Id.


[19]   Benson also directs our attention to Rawls v. Marsh Supermarket, Inc., 802 N.E.2d

       457 (Ind. Ct. App. 2004). First National Bank & Trust (“First National”)




       9
        In a submission to the Indiana Alcoholic Beverage Commission, the Pub had represented that the officers
       were responsible for maintaining order in the parking lot and any adjoining streets.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-372 | July 26, 2017          Page 11 of 17
       entered a lease agreement with Marsh Supermarket, Inc. (“Marsh”) and

       mounted an ATM on an exterior wall of Marsh’s building. Rawls, an ATM

       customer, struck her foot on a curb as she turned to leave the ATM and fell on

       the ground. See id. at 458. Rawls sued both First National and Marsh; First

       National was granted summary judgment on the basis that it owed no duty to

       Rawls. See id.


[20]   A panel of this Court reversed the grant of summary judgment, concluding “it is

       evident that First National owed Rawls a duty of reasonable care under the

       theory of premises liability.” Id. at 461. The Court elaborated:


               Rawls entered the land as an invitee of First National to conduct
               a transaction at the ATM, which necessarily required her to
               utilize the sidewalk. The likelihood of an invitee such as Rawls
               entering the area near the ATM is obviously significant.
               Moreover, if the sidewalk was actually too narrow (a question for
               the finder of fact), then we cannot say that an accident similar to
               Rawl’s was not foreseeable.


               For the purposes of this case, we need not determine whether
               First National’s duty of reasonable care as a nontraditional
               possessor/occupier includes a continuing duty to inspect the
               areas surrounding each of its ATMs to ensure that they are
               reasonably safe for customers. Here, there is no claim that Rawls
               fell as the result of recent or temporary conditions upon the land
               (e.g., debris or ice), conditions that Marsh would arguably be in
               the best position to protect against. Rather, the allegedly
               dangerous condition existed at the time of the ATM’s placement
               in 1986 or 1987, at a location specifically chosen by First
               National. Under these circumstances, it is sufficient for us to
               conclude that First National owed Rawls a duty of reasonable
               care in selecting the location of its ATM.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-372 | July 26, 2017   Page 12 of 17
       Id.


[21]   In reaching its decision, the Rawls Court found support in Lutheran Hosp. of

       Indiana, Inc. v. Blaser, 634 N.E.2d 864 (Ind. Ct. App. 1994), a case to which

       Benson also directs our attention. There, the Court affirmed a jury verdict in

       favor of an injured pedestrian, and recognized that “[a] duty of reasonable care

       may be extended beyond the business premises when it is reasonable for

       invitees to believe that the invitor controls premises adjacent to his own or

       where the invitor knows his invitees customarily use such adjacent premises in

       connection with the invitation.” Id. at 870.


[22]   In that case, Joy Lee Blaser (“Blaser”), was struck by a vehicle and injured in a

       parking lot driveway near Lutheran Hospital of Indiana at Fort Wayne

       (“Lutheran Hospital”). See id. at 867-68. A jury awarded Blaser damages and

       Lutheran Hospital appealed, contending that it only had a duty to maintain the

       parking lot driveway and did not control the public right-of-way to the

       driveway. See id. at 868. This Court recognized that Lutheran Hospital was a

       business invitor having a duty to guard against subjecting Blaser to dangers of

       which Lutheran Hospital was cognizant of or might have reasonably foreseen.

       Id. The duty extended beyond Lutheran Hospital’s “actual premises” because it

       “creat[ed] a dangerous condition on its premises.” Id. at 873. Lutheran

       Hospital created the dangerous condition by its design selection and failure to

       correct misleading signage. Pedestrians gravitated toward and were not

       discouraged from using a conspicuous mid-block canopied entrance that was

       away from the marked and lighted intersections with crosswalks. See id. at 869.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-372 | July 26, 2017   Page 13 of 17
       Also, drivers were “funneled” into an “entrance” for delivery trucks that was

       intended to be an “exit” for automobiles; Blaser had been struck from behind by

       an automobile turning into the parking lot “exit.” See id.


[23]   In sum, we have recognized a duty extending beyond the actual premises of a

       business invitor where the invitor extended its business activities into abutting

       property or the invitor implemented measures that increased the risk to patrons

       in abutting property. Here, by contrast, the designated record reveals no such

       expansion of business activity into abutting property. Without an expansion of

       business activity, there is no basis for expansion of business premises like that

       recognized in Ember, Rawls, or Lutheran Hospital. The designated facts here are

       not distinguishable from those of Denison, supra; they do not support an

       expanded scope of premises for purposes of determining premises liability.


[24]   Additionally, Benson asserts that she is a third-party beneficiary of the contract

       between the CIB and Denison. “Under Indiana law, one who is not a party to

       a contract may enforce the contract by demonstrating that they are a third-party

       beneficiary.” Nat. Bd. of Examiners v. American Osteopathic Ass’n, 645 N.E.2d

       608, 618 (Ind. Ct. App. 1994). A third-party beneficiary contract exists when

       (1) the parties intend to benefit a third party; (2) the contract imposes a duty on

       one of the parties in favor of the third-party; and (3) the performance of the

       terms of the contract renders a direct benefit to the third party intended by the

       parties to the contract. Id. Among these three factors, the intent of the

       contracting parties to benefit the third party is the controlling factor. Id. The

       intent to benefit may be shown by specifically naming the third party or by

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-372 | July 26, 2017   Page 14 of 17
       other evidence. The intent is that the promising party “shall assume a direct

       obligation to” the third party. Id.


[25]   Here, the contract provides that Denison, the Parking Contractor, is to perform

       services pursuant to operating plans set forth in Exhibit A to the contract. The

       operating plans include bullet points and, under the “Customers” heading, the

       following language appears: “Remove snow and ice build up that may restrict

       the safety of pedestrian traffic.” (App. Vol. II pg. 18). A section entitled

       “SNOW REMOVAL” provides that a company-contracted vendor will

       perform initial snow removal from the roofs and sidewalks of parking facilities,

       in addition to salting or sanding all applicable areas. (App. Vol. II pg. 19.)

       After the initial snow removal, each facility is to be responsible for monitoring

       the need for further snow removal services.


[26]   Jeffrey Lee Allsup, the project manager for CIB parking properties,10 explained

       in his deposition the process employed for snow removal:

               Typically, whenever there’s snow predicted, I get with our snow
               team, as I call it. We have a maintenance services group which
               works specifically for Denison Parking that does major snow
               removal. Then I have, as I call them, my snow team in house
               that does minor snow removal; spread salt, what have you. . . .
               [The maintenance service group] basically take[s] care of the roof




       10
        This job title could suggest that Allsup is employed by CIB. However, Allsup stated in his deposition:
       “We simply are the management company.” (App. Vol. II pg. 53.)

       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-372 | July 26, 2017           Page 15 of 17
               there. They don’t do the sidewalks. Sidewalks are done by my
               in-house staff.


       (App. Vol. II pg. 54.)


[27]   Benson argues that, because the language “Remove snow and ice build up that

       may restrict the safety of pedestrian traffic” appears within the Exhibit A

       section “a. Customers,” (App. Vol. II pg. 18), and she was a Denison parking

       customer, she was “an intended, specifically designated third party beneficiary

       of Denison’s written contract with the CIB.” Appellant’s Brief at 10. To the

       extent that Benson may now be understood to say that a genuine issue of

       material fact exists as to whether Denison assumed a direct obligation to her,

       this argument is raised for the first time on appeal. Benson’s complaint does

       not assert that she was a third-party beneficiary of a contract and she did not

       raise the issue in opposition to Denison’s motion for summary judgment. A

       party may not change its theory of the case on appeal and argue an issue which

       was not properly presented to the trial court. Nat. Bd. of Examiners, 645 N.E.2d

       at 618. As such, Benson’s claim that the trial court improvidently granted

       summary judgment to Denison because Benson was a third-party beneficiary of

       Denison’s contract with the CIB is waived. See also Trial Rule 56(H) (“No

       judgment rendered on the motion shall be reversed on the ground that there is a

       genuine issue of material fact unless the material fact and the evidence relevant

       thereto shall have been specifically designated to the trial court.”)



                                               Conclusion
       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-372 | July 26, 2017   Page 16 of 17
[28]   The trial court did not err in granting summary judgment in favor of Denison

       upon Benson’s negligence claim.


[29]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1702-CT-372 | July 26, 2017   Page 17 of 17
