                                                                  FILED
                                                              Feb 08 2019, 7:54 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James R. Browne, Jr.                                      U-PULL-AND-PAY, LLC
Andrew B. Janutolo                                        D/B/A PIC A PART
Abaigeal F. Musser                                        Judy S. Okenfuss
Goodin Abernathy LLP                                      Jenny R. Buchheit
Indianapolis, Indiana                                     Gregory W. Pottorff
                                                          Ice Miller LLP
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

German A. Linares,                                        February 8, 2019
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          18A-CT-276
        v.                                                Appeal from the Marion Superior
                                                          Court
El Tacarajo and U-Pull-And-                               The Honorable Michael D. Keele,
Pay, LLC d/b/a Pic A Part,                                Judge
Appellees-Defendants.                                     Trial Court Cause No.
                                                          49D07-1606-CT-21285



Robb, Judge.




Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019                   Page 1 of 22
                                 Case Summary and Issue
[1]   German Linares suffered injuries when a mobile food truck serving food in the

      parking lot of an automobile salvage business exploded while he waited in line

      for his food. Linares sued both the food truck operator, El Tacarajo, LLC, and

      the salvage business, U-Pull-and-Pay, LLC doing business as Pic-A-Part

      (“UPAP”), for negligence. Linares appeals the entry of summary judgment for

      UPAP, raising one issue for our review: whether summary judgment was

      inappropriate because UPAP owed Linares a duty regarding dangerous

      activities on its property or, in the alternative, because UPAP was engaged in a

      joint venture with El Tacarajo and is vicariously liable for its negligent acts.

      Concluding UPAP did not owe Linares a duty and was not engaged in a joint

      venture with El Tacarajo, we affirm the trial court’s grant of summary judgment

      to UPAP.



                             Facts and Procedural History
[2]   UPAP is an automobile salvage business in Indianapolis, Indiana. In the

      course of its business, flammable materials are sometimes brought onto UPAP’s

      property when junk cars come into the salvage yard. Brian Brownstein, a

      UPAP assistant store manager on duty when this incident occurred, explained

      that when UPAP buys a car, it drains the fluids as part of preparing the car to

      “be out in the yard area where customers can pull parts[.]” Appendix of

      Appellant, Volume II at 135. In addition, UPAP sometimes comes across

      propane tanks or other flammable materials that have been left in cars: “we go

      Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019        Page 2 of 22
      to the auto return auction which tends to have repossessions. People don’t have

      time to take their belongings out of the car, or it was in a serious accident . . .

      there might have been like a tank in the trunk that they didn’t know about[.]”

      Id. at 137. UPAP’s employees have been trained in how to handle the

      flammable materials they come across and the company keeps flammables like

      aerosols, gasoline, and propane in a flame-retardant cabinet to promote safety

      at the salvage yard. UPAP also posts warnings and instructions for customers

      and checks customers’ bags and tool boxes as they enter to ensure they have not

      brought any tools or other materials onto the lot that could lead to fires or

      explosions.


[3]   El Tacarajo operated a food truck that occasionally sold Mexican food from

      UPAP’s parking lot in 2014 and 2015. Brownstein stated that this arrangement

      was “a handshake deal” that had been set up when El Tacarajo approached a

      previous manager and asked if it could come on site to sell food. Id. at 59.

      UPAP’s local store managers knew that El Tacarajo would sell food from the

      parking lot on busy days, usually Saturdays and Sundays, but UPAP had “no

      expectation” about when they would come; “[i]t was just like whenever.” Id. at

      145; see also id. at 154 (Dan Ulrich, general manager for UPAP’s eastern stores,

      stating El Tacarajo would “come in and sell some food and leave. Come and

      go as they please.”). El Tacarajo paid UPAP $25.00 per day on at least some of

      the days they set up in UPAP’s parking lot, but Brownstein was “not sure [the

      payments] were made every time[.]” Id. at 61.




      Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019         Page 3 of 22
[4]   UPAP never asked if El Tacarajo was licensed to sell food. UPAP did not ask

      El Tacarajo whether it had fire safety procedures in place for using gasoline or

      propane to operate its truck. In fact, Brownstein stated at his deposition that he

      never had contact with anyone at the food truck. Ulrich noted that El Tacarajo

      was “not one of our vendors to where we would be checking all of their

      identifications.” Id. at 154. UPAP was not aware of any prior incidents

      involving an explosion, fire, or other dangerous condition created by a food

      truck, gas generator, or grill on its premises at any time prior to June 20, 2015.

      Neither UPAP nor El Tacarajo was aware of any dangerous condition of the

      food truck or its equipment that would have or could have caused an explosion

      at any time prior to June 20, 2015. Linares, who was a regular customer of

      UPAP and who had purchased food from El Tacarajo several times before,

      stated that he had no reason to believe the food truck was dangerous.


[5]   On June 20, 2015, El Tacarajo was on UPAP’s property selling food from its

      food truck. The food truck was positioned in the customer parking lot next to a

      concrete wall partitioning the parking lot from the salvage yard. Linares also

      visited UPAP on that date to purchase automobile glass. After making his

      purchase from UPAP, Linares ordered food from El Tacarajo. As he waited for

      his food, the food truck suddenly exploded and caught fire. Linares was injured

      and taken by ambulance to Eskenazi Hospital for treatment.


[6]   The Indianapolis Fire Department determined the explosion was caused by the

      ignition of gas fumes from an open cooking flame. The Marion County Public

      Health Department made similar findings, concluding that an El Tacarajo

      Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019       Page 4 of 22
      employee caused the explosion when, in order to refill a generator, he opened a

      can of gasoline too close to a flattop grill.


[7]   On June 15, 2016, Linares filed his complaint against UPAP1 and El Tacarajo,

      alleging in Count One that El Tacarajo was negligent in its handling of

      combustible fuels, in failing to have a license from the Marion County Health

      Department, in failing to train its employees, and in failing to inspect its truck

      and equipment. Count Two alleged UPAP was negligent in failing to monitor

      or inspect El Tacarajo’s operations, failing to determine whether El Tacarajo

      was properly licensed, and failing to study the food truck’s safety procedures.

      Count Two also alleged UPAP was vicariously liable for El Tacarajo’s

      negligent acts because it was engaged in a joint venture with El Tacarajo.


[8]   During discovery, UPAP served requests for admissions on El Tacarajo, asking

      El Tacarajo to admit: El Tacarajo did not share profits with UPAP; UPAP did

      not pay El Tacarajo to market or sell food to UPAP’s customers; UPAP and El

      Tacarajo were not engaged in a joint venture; and UPAP did not control any

      aspect of El Tacarajo’s business or operations. Despite participating in this

      litigation by, for instance, filing an appearance, filing an answer and jury

      demand, and attending depositions, El Tacarajo did not respond to the requests

      for admissions.




      1
       Linares first filed his complaint against El Tacarajo and Parts Landlord, LLC d/b/a Pic a Part but later
      amended his complaint to identify UPAP d/b/a Pic a Part as the proper defendant.

      Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019                              Page 5 of 22
[9]    UPAP then filed a motion for summary judgment arguing first that UPAP had

       no duty to protect Linares from the unforeseeable actions of El Tacarajo and

       second that it was not vicariously liable for the negligent acts of El Tacarajo.

       Following a hearing, the trial court granted UPAP’s motion for summary

       judgment and finding no just reason for delay, entered final judgment in favor

       of UPAP. Linares timely filed a notice of appeal on February 9, 2018.



                                  Discussion and Decision                             2




                                        I. Standard of Review
[10]   When reviewing the grant or denial of summary judgment, we apply the same

       test as the trial court: summary judgment is appropriate only if the designated

       evidence shows there is no genuine issue of material fact and the moving party

       is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Sedam v. 2JR

       Pizza Enterps., LLC, 84 N.E.3d 1174, 1176 (Ind. 2017). “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 material facts support conflicting reasonable inferences.”

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




       2
        We heard oral argument in this case on October 25, 2018, at Purdue University. We extend our
       appreciation to the University, the Krannert Executive MBA Program, and the students for their hospitality,
       and to the attorneys for their presentations.

       Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019                             Page 6 of 22
[11]   Our review is limited to those facts designated to the trial court, T.R. 56(H),

       and we construe all facts and reasonable inferences drawn from those facts in

       favor of the non-moving party, Meredith v. Pence, 984 N.E.2d 1213, 1218 (Ind.

       2013). On appeal, the non-moving party carries the burden of persuading us the

       grant of summary judgment was erroneous. Hughley, 15 N.E.3d at 1003. A

       grant of summary judgment will be affirmed if it is sustainable upon any theory

       supported by the designated evidence. Miller v. Danz, 36 N.E.3d 455, 456 (Ind.

       2015).


                                      II. Summary Judgment
                                               A. Negligence
[12]   To prevail on his negligence claim, Linares must show: 1) UPAP owed a duty

       to Linares; 2) UPAP breached that duty by allowing its conduct to fall below

       the applicable standard of care; and 3) UPAP’s breach of duty proximately

       caused a compensable injury to Linares. Smith v. Walsh Constr. Co. II, LLC, 95

       N.E.3d 78, 84 (Ind. Ct. App. 2018), trans. denied. The element of duty is

       generally a question of law to be determined by the court, whereas the elements

       of breach and proximate cause generally present questions of fact to be

       determined by the factfinder. Id. Thus, the question of UPAP’s duty to Linares

       is amenable to determination by summary judgment. Id. at 85.


[13]   Linares contends that UPAP had a duty to take reasonable steps to ensure that

       El Tacarajo’s food truck operation did not harm Linares while he was on

       UPAP’s property. He claims that given the nature of UPAP’s business, a gas

       Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019       Page 7 of 22
       explosion of any sort on UPAP’s property was foreseeable and therefore, UPAP

       had a duty to take “reasonable precautionary steps to inspect El Tacarajo’s

       operations[.]” Appellant’s Brief at 11.


[14]   The duty a landowner owes to an invitee is well-established by Indiana

       premises liability law: a landowner must exercise reasonable care for the

       invitee’s protection while the invitee is on the premises. Rogers v. Martin, 63

       N.E.3d 316, 320 (Ind. 2016). When a physical injury occurs as a result of a

       dangerous condition on the premises, the Restatement (Second) of Torts section

       343 accurately describes the landowner-invitee duty.3 Id. at 322-23. However,

       injuries can also occur due to dangerous activities on the premises unrelated to

       the premises’ condition, and landowners owe their invitees the general duty of

       reasonable care under those circumstances, as well. Id. at 323. The “critical

       element” in deciding whether a duty should be extended to a case in which an

       invitee’s injury occurs due to some harmful activity on the premises is

       foreseeability. Id. at 324.




       3
           Restatement (Second) of Torts section 343 (1965) 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.



       Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019                                   Page 8 of 22
[15]   Foreseeability as a component of duty is evaluated differently than

       foreseeability in the context of proximate cause: whereas foreseeability for

       purposes of proximate cause requires an evaluation of the facts of the actual

       occurrence, foreseeability for purposes of duty is a general threshold

       determination that requires a more general analysis of the broad type of plaintiff

       and harm involved, without regard to the specific facts of the occurrence.

       Cosgray v. French Lick Resort & Casino, 102 N.E.3d 895, 900 (Ind. Ct. App. 2018)

       (the “foreseeability analysis”). “[F]or purposes of determining whether an act is

       foreseeable in the context of duty we assess whether there is some probability or

       likelihood of harm that is serious enough to induce a reasonable person to take

       precautions to avoid it.” Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d

       384, 392 (Ind. 2016) (quotation omitted).


[16]   The parties agree that Linares was an invitee on UPAP’s property. The parties

       also agree that UPAP therefore owed Linares the duty to exercise reasonable

       care to keep its premises in a reasonably safe condition and to warn him of

       known dangers or dangers that should have been known to UPAP. The parties

       disagree on the appropriate test to be applied in determining whether UPAP

       had a duty to protect Linares from the food truck explosion.


[17]   Linares first asserts his claim should be evaluated under section 343 of the

       Restatement (Second) of Torts and a committee comment thereto, arguing that

       he was “injured due to a dangerous appliance and the hazardous use of

       explosive materials[,]” and if UPAP had taken “reasonable precautionary steps

       to inspect El Tacarajo’s operations, it could have foreseen and prevented the

       Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019       Page 9 of 22
       explosion[.]” Appellant’s Br. at 11-12.4 Linares concludes UPAP, by the

       exercise of reasonable care, would have discovered the dangerous condition of

       the food truck and should have realized that it involved an unreasonable risk of

       harm to Linares and other business invitees.


[18]   We disagree with Linares that UPAP’s duty should be determined under the

       standard section 343 analysis for injuries resulting from a condition of the land.

       Although Linares is correct that when an injury occurs as a result of some

       condition on the land, section 343 describes the landowner-invitee duty and a

       foreseeability analysis is not required, Linares was not injured by a condition of

       UPAP’s land. “Conditions of the land” are typically physical characteristics,

       such as untreated ice, a decaying tree, or uneven flooring. See Dehoyos v. Golden

       Manor Apartments, 101 N.E.3d 874 (Ind. Ct. App. 2018) (addressing premises

       liability under section 343 when plaintiff slipped on ice on sidewalk outside her

       apartment building); Marshall v. Erie Ins. Exch., 923 N.E.2d 18 (Ind. Ct. App.




       4
           The comment, quoted by Linares in his brief at page 13, states:

                  f. Appliances used on land. A possessor who holds his land open to others must possess
                  and exercise a knowledge of the dangerous qualities of the place itself and the appliances
                  provided therein, which is not required of his patrons. Thus, the keeper of a
                  boardinghouse is negligent in providing a gas stove to be used in an unventilated
                  bathroom, although the boarder who is made ill by the fumes uses the bathroom with
                  knowledge of all the circumstances, except the risk of so doing. This is true because the
                  boardinghouse keeper, even though a man of the same class as his boarders, is required to
                  have a superior knowledge of the dangers incident to the facilities which he furnishes to
                  them.




       Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019                               Page 10 of 22
       2010) (unhealthy tree fell onto neighbor’s house in urban or residential area),

       trans. denied; Smith v. King, 902 N.E.2d 878 (Ind. Ct. App. 2009) (plaintiff fell

       through hole in floor of house under construction).


[19]   In Jones v. Wilson, 81 N.E.3d 688 (Ind. Ct. App. 2017), the plaintiff attended a

       wrestling event at a county fairgrounds and was injured when she was assaulted

       by an unknown assailant as she walked through a dark parking lot to her car

       after the event. The plaintiff sued the event promoter and the fairgrounds’

       owner, and the trial court granted summary judgment to the promoter. On

       appeal, the parties disagreed over whether section 343 or the foreseeability

       analysis should be applied: the plaintiff argued she was injured because the lack

       of lighting which contributed to her attack is a condition of the land, whereas

       the promoter argued she was injured by an assailant not by, for instance,

       stepping in a hole and therefore she was injured because of activities occurring

       on the land. Id. at 694-95. The court agreed with the promoter: the plaintiff’s

       “injuries resulted from the conduct of a third person” and the foreseeability

       analysis therefore applied. Id. at 695. This situation is similar: although it was

       the stove in the food truck on UPAP’s property igniting that caused the

       explosion, Linares’s injuries resulted from the activities of El Tacarajo’s

       employees in relation to that stove. Therefore, the foreseeability analysis must

       be applied to determine if a duty exists at all.


[20]   Despite claiming his injuries were caused by a condition of the land, and

       despite further claiming that the foreseeability analysis should not apply

       because this case does not involve a criminal or intentional act, Linares does

       Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019       Page 11 of 22
       address the foreseeability analysis. He advocates that in this case, the test

       requires considering whether “a gasoline explosion or fire on UPAP’s property

       that could harm its customers” was foreseeable and concludes that it was.

       Appellant’s Br. at 15. In support of his argument, Linares notes that flammable

       materials regularly come onto UPAP’s property; that its employees are trained

       in safety hazards connected with collecting, storing, and handling those

       materials; and that it takes steps to prevent customers from using ignition

       sources in the yard; therefore, UPAP was at least theoretically aware of the

       hazards associated with flammable materials.5 Linares’s reliance on UPAP’s

       policies and procedures related to its own business are irrelevant for purposes of

       this analysis because it was not the activities surrounding UPAP’s business that

       caused Linares’s injuries. In other words, Linares was not injured by an

       explosion of flammable materials that belonged to or were the responsibility of

       UPAP. For this reason, we also disagree with Linares that the “broad type of

       harm” is any explosion on UPAP’s premises.


[21]   Although the foreseeability analysis for determining duty is a consideration of

       the broad “zone of danger” that could be caused by activities on the land (as

       opposed to the more specific “zone of danger” addressed by proximate cause),

       we do not conduct the analysis in the broadest terms possible. For instance, in




       5
         To the extent Linares relies on the fact that there was a fire on UPAP’s property in the past, Brownstein
       stated at his deposition that a car caught fire during his time working for UPAP, but he could not recall
       whether it occurred before or after the food truck explosion. App. of Appellant, Vol. II at 138. Moreover, it
       was a car in the salvage yard that caught fire, not a food truck or even a car in the parking lot. For both of
       those reasons, that fire does not make the food truck explosion foreseeable.

       Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019                              Page 12 of 22
       Goodwin, the court identified the broad type of harm as “the probability of a

       criminal attack, namely: a shooting inside a bar.” 62 N.E.3d at 393. Thus, it is

       clear that we do not completely divorce this analysis from the circumstances; if

       we were to do so, the broad type of harm in Goodwin would have been

       described as simply the probability of an altercation between two bar patrons.

       See also Estate of Staggs ex rel. Coulter v. ADS Logistics Co., LLC, 102 N.E.3d 319,

       325 (Ind. Ct. App. 2018) (identifying the plaintiffs as motorists and the broad

       type of harm that occurred as “a vehicular accident after commercial cargo

       became unsecured and struck the motorists” rather than the broadest definition

       of the type of harm as simply a “motor vehicle accident”), trans. denied; Polet v.

       ESG Sec., Inc., 66 N.E.3d 972, 983 (Ind. Ct. App. 2016) (identifying the type of

       plaintiff as “a patron of an outdoor concert” and the broad type of harm as “the

       probability or likelihood of a stage collapse caused by a strong wind”).


[22]   Accordingly, Linares’s formulation of the foreseeability analysis is too broad.

       True, UPAP was generally aware that flammable liquids and open flames can

       interact explosively and therefore had a duty to protect its invitees from

       explosions due to the materials that belonged to it. But for purposes of the

       foreseeability analysis, the type of plaintiff is a patron of a business and the

       broad type of harm is the probability or likelihood that an independently

       operated food truck on the premises of that business would explode or catch fire

       due to employee error.


[23]   No one—not UPAP, not El Tacarajo, and not Linares himself—believed or had

       any reason to believe the food truck was defective or dangerous. Had UPAP

       Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019         Page 13 of 22
       inspected the food truck, as Linares believes it should have, first, it is unclear

       what UPAP, as a salvage business, would have been qualified to inspect for,

       and second, there still would not have been any reason to believe the food truck

       was defective, because it was not in fact a defect that caused the explosion but

       rather human error. As for UPAP’s alleged failure to inquire about El

       Tacarajo’s license, the record indicates as of August 2014, El Tacarajo had an

       expired certified food handler certificate and an unpaid licensing fee. It is not

       clear that remained true as of the date of this incident and further, the licensing

       requirement apparently had no bearing on safe operation of the food truck, only

       the safe handling of food. Finally, there was no designated evidence to suggest

       UPAP had knowledge of any food truck explosions anywhere in the past, let

       alone any of the same or similar nature.


[24]   Should food trucks be inspected? Probably. Should UPAP have taken more

       interest in a mobile business it allowed to operate on its premises and sell to its

       customers? Possibly. But should a company in a completely unrelated private

       business which periodically provides a parking space be required to conduct

       that inspection and ensure the food truck is safely maintained and its employees

       properly trained? Even if UPAP had asked the questions Linares and the

       dissent argue it should have, it still would not have been reasonably foreseeable




       Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019        Page 14 of 22
       to UPAP that the food truck would suddenly explode because of an employee’s

       negligence.6


[25]   In a recent case, this court considered whether a lake owner had a duty to

       protect a swimmer from contracting a rare brain infection caused by an amoeba

       found naturally in fresh water. Daviess-Martin Cty. Joint Parks & Recreation Dep’t

       v. Estate of Abel by Abel, 77 N.E.3d 1280 (Ind. Ct. App. 2017), trans. denied. The

       court determined that it was not reasonably foreseeable that a swimmer would

       contract such an infection and held there was no duty. Id. at 1289-90. In that

       case, the landowner’s obligation was to provide a safe lake and yet the court

       found there was no duty and reversed the trial court’s denial of summary

       judgment in favor of the landowners. Here, we are reviewing the grant of

       summary judgment where the defendant is several steps removed from being

       directly responsible for the instrument causing damage.


[26]   Focusing on the harm inflicted on Linares when an employee of a food truck

       UPAP occasionally allowed onto its property—an employee whose job it was

       to operate a mobile food truck that relies on a generator to power its




       6
         Linares concludes that “[a] jury should be left with the task of determining whether, under a complete
       picture of the evidence, UPAP breached a duty owed to Mr. Linares.” Appellant’s Br. at 15. It is unclear
       whether Linares is advocating that we apply the “totality of the circumstances” test that was abandoned by
       our supreme court when it decided Goodwin, see 62 N.E.3d at 389 (“[W]e now recognize that although the
       ‘totality of the circumstances’ test is useful in determining foreseeability in the context of proximate
       causation, it is inappropriate when analyzing foreseeability in the context of duty.”), or whether he is arguing
       that the case should be decided on the factual determination of breach. In either event, determining whether
       UPAP owed Linares a duty using the foreseeability analysis is the threshold determination. See Cosgray, 102
       N.E.3d at 900; Goodwin, 62 N.E.3d at 386 (“Absent a duty there can be no negligence or liability based upon
       the breach.”).

       Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019                               Page 15 of 22
       operations—fueled the generator in too close proximity to an open flame, we

       conclude that such harm was not normally to be expected and thus was not

       reasonably foreseeable by UPAP. Linares’ injury is unfortunate, but UPAP did

       not owe him a duty.


                                         B. Vicarious Liability
[27]   Linares also advanced a claim for vicarious liability alleging UPAP and El

       Tacarajo were engaged in a joint venture. “As in a partnership, the parties to a

       joint venture are jointly and severally liable.” DLZ Indiana, LLC v. Greene Cty.,

       902 N.E.2d 323, 330 (Ind. Ct. App. 2009). A joint venture is “an association of

       two or more persons formed to carry out a single business enterprise for profit.”

       Robbins v. Trustees of Indiana University, 45 N.E.3d 1, 6 (Ind. Ct. App. 2015). In

       a joint venture, “the parties must be bound by an express or implied contract

       providing for (1) a community of interests, and (2) joint mutual control, which

       is an equal right to direct and govern the undertaking that binds the parties to

       the agreement.” Id. A joint venture agreement also must provide for sharing of

       profits. Id. A joint venture is similar to a partnership, except a joint venture

       contemplates a single transaction. Id.


[28]   Although whether a joint venture exists is generally a question of fact, where

       the question can be resolved by looking only at undisputed facts, the existence

       of a joint venture is a question of law appropriate for summary judgment. DLZ

       Indiana, LLC., 902 N.E.2d at 328. Our review of the designated materials

       reveals that to the extent there was an agreement between El Tacarajo and


       Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019      Page 16 of 22
       UPAP, and to the extent such agreement may have been mutually beneficial, it

       is undisputed that any such agreement did not provide for mutual control over

       the venture. El Tacarajo unilaterally decided when to go to UPAP’s premises

       to sell its food, who to employ, what food it would offer, and how much it

       would charge. UPAP unilaterally decided where on its property El Tacarajo

       could park and it could have told El Tacarajo to leave on any given day or to

       leave and never return. No decisions were made jointly by UPAP and El

       Tacarajo in regard to the food truck operation.


[29]   In addition, it is undisputed that even if El Tacarajo occasionally paid UPAP

       for use of its parking lot, it always paid $25.00 and that amount had no

       relationship to the profits El Tacarajo earned during a given sales day. See

       Walker v. Martin, 887 N.E.2d 125, 138 (Ind. Ct. App. 2008) (holding that parties

       were not engaged in a joint venture because they did not share in any profit

       from the sale of logs, although one party paid the other per load based on miles

       traveled or per board feet of wood hauled), trans. denied; Inland Steel v. Pequignot,

       608 N.E.2d 1378, 1382 (Ind. Ct. App. 1993) (holding that a contract for steel

       shipments at predetermined rates is not profit sharing for purposes of

       establishing a joint venture), trans. denied. Thus, any agreement the parties had

       did not provide for profit-sharing.


[30]   The fact that two or more parties agree to work “jointly and in collaboration”

       or “collectively” does not necessarily mean that they are engaged in a joint

       venture. DLZ Indiana, LLC, 902 N.E.2d at 329. Even without considering El

       Tacarajo’s failure to respond to UPAP’s requests for admissions about the

       Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019        Page 17 of 22
       arrangement, the undisputed designated evidence demonstrates that UPAP was

       not engaged in a joint venture with El Tacarajo for the purpose of finding

       UPAP vicariously liable for El Tacarajo’s negligence.



                                                Conclusion
[31]   Linares has failed to carry his burden to show us that the trial court’s decision

       to grant summary judgment in favor of UPAP was improper.


[32]   Affirmed.


       Vaidik, C.J., concurs.


       Kirsch, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019      Page 18 of 22
                                                  IN THE
          COURT OF APPEALS OF INDIANA

      German A. Linares,
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                18A-CT-276
              v.

      El Tacarajo and U-Pull-And-
      Pay, LLC d/b/a Pic A Part,
      Appellees-Defendants.



      Kirsch, Judge, dissenting.


[1]   Food truck explosions occurred in Traverse City, Michigan in 2013;

      Philadelphia, Pennsylvania in 2014; Foggy Bottom, District of Columbia in

      2016; Portland, Oregon in 2017; Downtown, District of Columbia in 2017; and

      in Southwest Washington, District of Columbia, in 2018.




      Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019                   Page 19 of 22
[2]   In the Philadelphia explosion, two people were killed; nine others were injured.

      The explosion shook buildings in the area and sent a fireball 200 feet into the

      air. The leaking propane tank was sent ninety-five feet onto neighboring

      property. The subsequent lawsuit was settled for One Hundred and Sixty

      Million Dollars, believed to be the largest pre-trial personal injury settlement in

      the state.


[3]   Food trucks carry flammable materials in close proximity to open-fire grills. As

      such, they pose inherent dangers. The National Fire Prevention Journal reported

      that “A standard 20-gallon propane tank has the same explosive capability in

      170 sticks of dynamite.” NFPA Journal, May-June 2015.


[4]   Beginning in 2014, El Tacarajo operated a food truck from time to time upon

      the premises of U-Pull-and-Pay, LLC (“UPAP”). El Tacarajo routinely paid

      UPAP $25.00 for each day it parked its truck on their premises and sold food

      which was cooked on its truck to UPAP’s customers.


[5]   On June 20, 2015, German Linares came upon UPAP’s property to conduct

      business with UPAP. While there, he stood in line at the El Tacarajo food

      truck which was parked upon the UPAP premises. While he was waiting, the

      food truck exploded, injuring Linares. It was later determined that the

      explosion was caused by an El Tacarajo employee who opened a can of

      gasoline too close to a hot grill on the truck.




      Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019      Page 20 of 22
[6]   Linares was on the UPAP property for a business purpose. He was a business

      invitee and was owed a duty of reasonable care. He sustained physical harm

      caused by the accidental or negligent acts of an El Tacarajo employee.


[7]   UPAP was well aware of the risks of explosions from handling flammable

      materials. Indeed, as noted in the majority opinion, UPAP trains its employees

      in handling flammable materials and posts warnings and instructions for its

      customers about the dangers.


[8]   Notwithstanding its knowledge of the risks of mishandling gasoline, propane,

      and other flammable materials, UPAP made no inquiry or investigation of El

      Tacarajo’s use of flammable substances on its property in close proximity to its

      customers. UPAP failed to make reasonable inquiries about El Tacarajo’s

      operations and failed to determine whether such operations posed an

      unreasonable risk of harm to its customers.                 Indeed, nothing in the record

      before us indicates that UPAP made any inquiry regarding (1) whether El

      Tacarajo was licensed to sell food in the conduct of its business, (2) whether it

      trained its employees in the handling of flammable substances in close

      proximity to heat sources, (3) whether it used gasoline or other flammable

      substances in its operations, (4) whether it had proper fire safety procedures in

      place, or (5) whether it complied with legal and safety requirements.


[9]   Restatement of the Law 2d, Torts (1965), Section 344 provides:


              A possessor of land who holds it open to the public for entry for
              his business purposes is subject to liability to members of the
              public while they are upon the land for such a purpose, for
      Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019                 Page 21 of 22
               physical harm caused by the accidental, negligent, or intentional
               harmful acts of third persons or animals, and by the failure of the
               possessor to exercise reasonable care to


               (a) discover that such acts are being done or are likely to be done,
               or


               (b) give a warning adequate to enable the visitors to avoid the
               harm, or otherwise to protect them against it.


[10]   Summary judgment is rarely appropriate in negligence cases and, from my

       perspective, is not appropriate here. These cases are fact sensitive and are

       governed by a standard of the objective reasonable person. The determination

       of liability should be made by a jury after hearing all the evidence. Rhodes v.

       Wright, 805 N.E.2d 382, 387 (Ind. 2004).


[11]   I would reverse the judgment of the trial court and remand for further

       proceedings.




       Court of Appeals of Indiana | Opinion 18A-CT-276 | February 8, 2019       Page 22 of 22
