MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                       FILED
court except for the purpose of establishing                              Dec 18 2018, 10:44 am

the defense of res judicata, collateral                                         CLERK
                                                                            Indiana Supreme Court
estoppel, or the law of the case.                                              Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Gary L. Griner                                             Adam C. Hawkins
Mishawaka, Indiana                                         Law Offices of Staff Counsel for
                                                           Farmers Insurance Exchange and
                                                           Affiliates
                                                           Chicago, Illinois



                                            IN THE
    COURT OF APPEALS OF INDIANA

Eligio J. Marquez,                                         December 18, 2018
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           18A-CT-1143
        v.                                                 Appeal from the St. Joseph Circuit
                                                           Court
Michael A. Love and Leslie L.                              The Honorable Jenny Pitts Manier,
Love1,                                                     Judge Pro Tempore

Appellees-Defendants.                                      Trial Court Cause No.
                                                           71C01-1511-CT-400




1
 Elsie Love, who was improperly named in the suit as Leslie, was the only defendant to appear in the matter
because Michael Love, who was also named in the complaint, died in 2008.

Court of Appeals of Indiana | Memorandum Decision 18A-CT-1143 | December 18, 2018                   Page 1 of 7
      Bradford, Judge.



                                          Case Summary
[1]   In September of 2015, Eligio Marquez agreed to help his neighbor Jamal Allen

      repair a broken window located on the second story of Allen’s house, which

      required them to work from the roof. The home was owned by Allen’s mother-

      in-law Elsie Love, and she resided there with Allen and his family. After the

      window was repaired, Marquez inspected a weak spot in the roof, misstepped,

      and fell off the roof. In January of 2017, Marquez filed an amended negligence

      complaint against Love. In April of 2018, the trial court granted Love’s motion

      for summary judgment. Marquez contends that the trial court erred by entering

      summary judgment. Because we conclude that there is a genuine issue as to

      whether Love should have anticipated the harm to Marquez despite his

      knowledge of and the obviousness of the weak spot in the roof, we reverse and

      remand.



                            Facts and Procedural History
[2]   On September 1, 2015, Allen asked his neighbor Marquez if he would help

      repair a broken window at Allen’s house. The house was owned by Love, who

      resided there with her son-in-law Allen and his family. The window was located

      on the second story of the house and required Allen and Marquez to complete

      the repair from the roof outside the window. After completing the repair,

      Marquez noticed a weak spot in the southeast corner of the roof, and Allen

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1143 | December 18, 2018   Page 2 of 7
      agreed with Marquez’s assessment. Marquez could tell that the roof was weak

      because the trusses were visible and had noticeable divots between them.

      Marquez had gained some experience from repairing his mother’s roof. As the

      two began to walk towards the weak spot, without any safety equipment and

      having drunk some beer, Allen turned back around and went back inside the

      house without saying anything to Marquez other than that he was going back

      inside to clean up. Once Marquez reached the weak spot, he used his arms to

      maintain his balance as he walked across the trusses. However, about ten to

      fifteen seconds into his inspection, he stepped, missed a truss, and landed on a

      weak spot causing him to fall from the roof. As a result of the fall, Marquez

      broke both feet, and his right foot required reconstructive surgery.


[3]   On January 26, 2017, Marquez filed an amended complaint against Love,

      alleging negligence for personal injuries sustained from the fall. On January 16,

      2018, Love moved for summary judgment, a motion which was granted by the

      trial court on April 10, 2018.



                                Discussion and Decision
[4]   Marquez contends that the trial court erred when it entered summary judgment

      in favor of Love.


              We review an order for summary judgment de novo, applying the
              same standard as the trial court. The moving party bears the
              initial burden of making a prima facie showing that there are no
              genuine issues of material fact and that it is entitled to judgment
              as a matter of law. Summary judgment is improper if the moving

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1143 | December 18, 2018   Page 3 of 7
              party fails to carry its burden, but if it succeeds, then the
              nonmoving party must come forward with evidence establishing
              the existence of a genuine issue of material fact. We construe all
              factual inferences in favor of the nonmoving party and resolve all
              doubts as to the existence of a material issue against the moving
              party.


      Miller v. Rosehill Hotels, LLC, 45 N.E.3d 15, 18–19 (Ind. Ct. App. 2015) (internal

      citations omitted). In negligence cases, a defendant is entitled to summary

      judgment by establishing that the undisputed facts negate at least one element

      of plaintiff’s claim. Podemski v. Praxair, Inc., 87 N.E.3d 540, 547 (Ind. Ct. App.

      2017), trans. denied. “Generally, 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.” Id. The court as a matter of law, however, may

      determine whether a breach of duty occurred where the undisputed facts lead to

      but a single inference or conclusion. Id.


[5]   To recover on negligence theory, a plaintiff must establish: (1) a duty owed by

      defendant to plaintiff, (2) a breach of that duty, and (3) injury to plaintiff

      resulting from defendant’s breach. Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind.

      2004). Neither party disputes that Marquez was an invitee at the time of the

      fall. Therefore, as a matter of law, Love owed him a duty of reasonable care

      while he was on Love’s premises. The only question on appeal is whether, as a



      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1143 | December 18, 2018   Page 4 of 7
      matter of law, the designated evidence established a question of fact as to

      whether Love breached that duty of care.


[6]   The standard Indiana has adopted for determining landowner liability to

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

      to be read in conjunction with Section 343A. Roumbos v. Samuel G. Vazanellis &

      Thiros & Stracci, PC, 95 N.E.3d 63, 66 (Ind. 2018). Section 343 provides:


              A possessor of land is subject to liability for physical harm caused
              to his invitees by a condition on the land if, but only if, he

              (a) knows or by the exercise of reasonable care would discover
                  the condition, and should realize that it involves an
                  unreasonable risk of harm to such invitees, and

              (b) should expect that they will not discover or realize the danger,
                  or will fail to protect themselves against it, and

              (c) fails to exercise reasonable care to protect them against the
                  danger.


      RESTATEMENT (SECOND) OF TORTS § 343 (AM. LAW INST. 1965). In addition,

      section 343A(1) provides that “a possessor of land is not liable to his invitees for

      physical harm caused to them by any activity or condition on the land whose

      danger is known or obvious to them, unless the possessor should anticipate the harm

      despite such knowledge or obviousness.” RESTATEMENT (SECOND) OF TORTS §

      343A(1) (emphasis added). The comments to section 343A(1) further explain:


              There are, however, cases in which the possessor of land can and
              should anticipate that the dangerous condition will cause

      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1143 | December 18, 2018   Page 5 of 7
              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.


[7]   We conclude that the danger of the weak spot on the roof was known and

      obvious to both Marquez and Love. Marquez made his observation of the

      exposed trusses and divots known to Allen, and Allen agreed that it made for a

      weak spot in the roof. That said, we conclude that the designated evidence

      generates an issue of material fact as to whether Love should have anticipated

      that Marquez would be harmed despite his knowledge of and the obviousness

      of the weak spot. On the one hand, there is designated evidence that Marquez

      had some experience working on roofs and that he knew to step cautiously on

      the trusses while inspecting the roof as to avoid harm. This designated evidence

      could lead a reasonable fact-finder to conclude that Love anticipated the

      possible harm to Marquez, but Marquez was fully capable of protecting himself

      against the danger presented by the weak spot. On the other hand, there is




      Court of Appeals of Indiana | Memorandum Decision 18A-CT-1143 | December 18, 2018   Page 6 of 7
      designated evidence that Allen2 never took any steps to assist Marquez in

      protecting himself against the potential harm, despite the facts that Allen knew

      Marquez had drunk beer and was without any safety equipment. This

      designated evidence could lead a reasonable fact-finder to conclude that Love

      should have anticipated the possible harm to Marquez and that Love failed to

      take any measures to protect him from that harm. To obtain summary

      judgment, Love was required to designate evidence to establish that there were

      no genuine issues of material fact, which she has not done. Because the

      undisputed facts do not lead to a single inference or conclusion, the

      determination of breach of duty, as a matter of law, was improper. Podemski, 87

      N.E.3d at 547.


[8]   The trial court’s entry of summary judgment is reversed and remanded.


      Najam, J., and Crone, J., concur.




      2
        Although not directly addressed by either party, all seem to be operating under the assumption that Allen is
      Love’s agent, and that his actions maybe imputed to her. See, e.g., Prudential Ins. Co. of Am. v. Winans, 325
      N.E.2d 204, 206 (Ind. 1975) (“Generally, the knowledge of an agent acting within the scope of his authority
      is imputed to his principal.”).

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