MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  Oct 27 2015, 8:03 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
John P. Daly, Jr.                                        EIM, LLC
Golitko & Daly, PC                                       Christopher L. Lafuse
Indianapolis, Indiana                                    American Family Insurance
                                                         Legal Department
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David Tilton,                                            October 27, 2015
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         49A05-1503-CT-135
        v.                                               Appeal from the Marion Superior
                                                         Court
EIM, LLC, John M. Wyatt,                                 The Honorable Cynthia J. Ayers,
Individually and d/b/a Wyatt                             Judge
Construction, and Jennifer                               Trial Court Cause No.
Thompson,                                                49D04-1108-CT-30369
Appellees-Defendants




Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CT-135 | October 27, 2015        Page 1 of 10
                                              Case Summary
[1]   David Tilton appeals the trial court’s grant of summary judgment in favor of

      EIM, LLC, in his personal injury action for damages stemming from his fall

      from a third-story balcony in Jennifer Thompson’s home. 1 We affirm.


                                Facts and Procedural History
[2]   In 2007, Thompson sought financing to purchase and refurbish an old house in

      Indianapolis. She hired EIM by its owner Bruce Everly to serve as a consultant

      under a program established by the Department of Housing and Urban

      Development (“HUD 203(k)”) for rehabilitation and repair of single-family

      homes. HUD 203(k) provides that a prospective homeowner may hire a

      consultant to prepare a proposal to obtain financing for the purchase and

      rehabilitation of a home in need of repair or modernization. Pursuant to HUD

      203(k), the consultant must enter into a written agreement with the prospective

      homeowner explaining the services to be rendered by the consultant. These

      services include conducting an initial inspection to determine the work needed

      on the home; reviewing the work of the prospective homeowner’s chosen

      construction contractor to ensure that it is in compliance with HUD 203(k); and

      releasing the funds from the lender to the prospective homeowner/contractor

      incrementally as the contractor completes the work and the consultant inspects




      1
        John M. Wyatt, individually and d/b/a Wyatt Construction, and Thompson, also designated as
      defendants in the cause below, are not participants in this appeal, but pursuant to Indiana Appellate Rule
      17(A), “A party of record in the trial court or Administrative Agency shall be a party on appeal.”

      Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CT-135 | October 27, 2015            Page 2 of 10
      it for completion. When all the work is completed and the consultant certifies

      the project as complete, the final draw is released from the lender.


[3]   In December 2007, EIM conducted its initial inspection of the property and

      compiled a list of needed repairs. During the walkthrough, EIM’s Everly did

      not note any problem with the balcony railing. He was accompanied by

      Thompson and Tilton, who claimed to be a representative of Kingdom

      Builders. Kingdom Builders later informed EIM that Tilton was not its

      representative. Thompson subsequently hired Wyatt Construction

      (“Contractor”) as the contractor for her project. According to Everly, neither

      Thompson nor Contractor ever notified EIM of a problem with the balcony

      railing.


[4]   During the ensuing seven months, EIM made three or four additional trips to

      the property to observe Contractor’s progress and approve the release of

      disbursements from the lender (“Lender”). In July 2008, the project was

      completed and the final disbursement released.


[5]   On November 12, 2009, Tilton was on the property as Thompson’s invited

      guest. During his visit, he leaned against the railing on the third-floor balcony

      and it gave way. He fell off and sustained injuries.


[6]   Tilton filed a negligence action against EIM, Contractor, and Thompson,

      claiming that the defendants knew or should have known that the railing was

      not secured to the home’s structure. With respect to EIM, Tilton asserted that

      it failed to adequately inspect the balcony railing and see that it was repaired.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CT-135 | October 27, 2015   Page 3 of 10
[7]   EIM filed a motion for summary judgment, with an accompanying

      memorandum and designated evidence, claiming that it did not owe Tilton a

      duty as a matter of law. The trial court denied EIM’s motion, and EIM filed a

      motion to certify interlocutory order for appeal. The trial court held a hearing

      on EIM’s motion and treated it as a motion to reconsider the denial of

      summary judgment. The trial court took the matter under advisement and

      issued findings of fact and conclusions thereon in an order denying EIM’s

      motion to certify for interlocutory appeal, vacating its previous denial of EIM’s

      motion for summary judgment, and granting summary judgment in favor of

      EIM. Tilton now appeals. Additional facts will be provided as necessary.


                                   Discussion and Decision
[8]   Tilton maintains that the trial court erred in granting summary judgment in

      favor of EIM. We review a summary judgment de novo, applying the same

      standard as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).

      Summary judgment is properly granted only when the pleadings and designated

      evidence reveal that 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); Brill v.

      Regent Commc’ns, Inc., 12 N.E.3d 299, 309-310 (Ind. Ct. App. 2014), trans.

      denied. In conducting our review, we consider only the evidentiary matter that

      the parties have specifically designated to the trial court. Reed v. Reid, 980

      N.E.2d 277, 285 (Ind. 2012). In determining whether issues of material fact

      exist, we neither reweigh evidence nor judge witness credibility. Peterson v.

      Ponda, 893 N.E.2d 1100, 1104 (Ind. Ct. App. 2008), trans. denied (2009).

      Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CT-135 | October 27, 2015   Page 4 of 10
       Rather, we must accept as true those facts established by the designated

       evidence favoring the nonmoving party and will resolve all doubts against the

       moving party. Brill, 12 N.E.3d at 309.


[9]    Here, the trial court initially denied EIM’s motion for summary judgment but

       reversed its decision during its consideration of EIM’s motion for certification

       of interlocutory appeal, thus ultimately granting summary judgment in favor of

       EIM. “A trial court’s grant of summary judgment is clothed with a

       presumption of validity, and the party who lost in the trial court has the burden

       of demonstrating that the grant of summary judgment was erroneous.” FLM,

       LLC v. Cincinnati Ins. Co., 973 N.E.2d 1167, 1173 (Ind. Ct. App. 2012) (citations

       omitted), trans. denied (2013). “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.” Ind. Trial Rule 56(H).


[10]   Tilton seeks to recover in tort for negligence. Although summary judgment is

       rarely appropriate in negligence cases due to their fact-sensitivity, a

       determination concerning the existence of a duty is generally a matter of law to

       be resolved by the trial court. Sparks v. White, 899 N.E.2d 21, 23 (Ind. Ct. App.

       2008). In cases where the determination of duty is interwoven with factual

       issues such as the foreseeability of harm, it may be a mixed question of law and

       fact to be resolved by the factfinder. Id.


[11]   To recover on a theory of negligence, a plaintiff must establish three elements:


       Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CT-135 | October 27, 2015   Page 5 of 10
               (1) a duty on the part of the defendant to conform his conduct to
               a standard of care arising from his relationship with the plaintiff,
               (2) a failure of the defendant to conform his conduct to the
               requisite standard of care required by the relationship, and (3) an
               injury to the plaintiff proximately caused by the breach.


       Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991).


[12]   Tilton admits that there is no contractual relationship between EIM and

       himself, even as a third-party beneficiary. See e.g., Emmons v. Brown, 600

       N.E.2d 133, 134 (Ind. Ct. App. 1992) (concluding that even borrowers are not

       afforded third-party beneficiary status to Fair Housing Act appraisals). As

       such, he appears to base his claim on premises liability, maintaining that he was

       owed a duty of care as an invitee on the property. Burrell v. Meads, 569 N.E.2d

       637, 639 (Ind. 1991). The parties do not dispute Tilton’s status as a social guest

       of Thompson at the time he fell. See Kopczynski v. Barger, 887 N.E.2d 928, 931

       (Ind. 2008) (reiterating that social guest is invitee to whom the landowner or

       occupier owes duty of reasonable care). However, EIM was neither the owner

       nor the occupier of the property at the time of Tilton’s accident.

               In premises liability cases, the determination of whether a duty is
               owed depends primarily upon whether the defendant was in control of
               the premises when the accident occurred. The purpose of the law is to
               subject to liability the person who could have known of any
               dangers on the land and therefore could have acted to prevent
               any foreseeable harm.


       Peterson, 893 N.E.2d at 1106-07 (citations and internal quotation marks

       omitted) (emphasis added).

       Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CT-135 | October 27, 2015   Page 6 of 10
[13]   Tilton submits that by acting as an inspector 2 of the premises pursuant to HUD

       203(k), EIM assumed a tort duty to him concerning the condition of the

       balcony railing. With respect to assumption of duty, Restatement (Third) of

       Torts: Physical and Emotional Harm § 42 (2012) states in pertinent part,

                An actor who undertakes to render services to another and who
                knows or should know that the services will reduce the risk of
                physical harm to the other has a duty of reasonable care to the
                other in conducting the undertaking if:


                ….


                (b) the person to whom the services are rendered or another relies
                on the actor’s exercising reasonable care in the undertaking.


[14]   Assumption of duty “requires affirmative, deliberate conduct such that it is

       apparent that the actor ... specifically undertook to perform the task that he is

       charged with having performed negligently.” Yost v. Wabash Coll., 3 N.E.3d 509,

       517 (Ind. 2014) (citation and internal quotation marks omitted). “Without the

       actual assumption of the undertaking there can be no correlative legal duty to




       2
         The parties argue over whether EIM was an inspector or an appraiser. Because this distinction is
       unnecessary to our ultimate resolution of this case, we decline to delve into it. That said, we note that a
       HUD 203(k) consultant’s role appears to be a hybrid of both roles. That is, the consultant initially inspects
       the property to determine the extent of repairs needed; he then appraises the property and determines the
       extent of potential repairs for purposes of facilitating financing for the prospective homeowner; and he
       conducts periodic site visits to verify the contractor’s satisfactory completion of the various repairs. EIM’s
       Everly testified in his deposition that he is certified as a HUD 203(k) consultant, but he is not licensed as a
       home inspector. Appellant’s App. at 54.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CT-135 | October 27, 2015               Page 7 of 10
       perform that undertaking carefully.” Id. (citation and internal quotation marks

       omitted).


[15]   Tilton likens his case to Rider v. McCamment, 938 N.E.2d 262 (Ind. Ct. App.

       2010). There, a future homeowner fell and was injured after leaning over the

       railing of a deck that was under construction. Id. at 265. Another panel of this

       Court affirmed summary judgment in favor of the landowner/builder but

       reversed summary judgment in favor of the independent contractor hired by the

       landowner to perform the work on the property. Id. at 269-70. The Rider court

       emphasized that a proper determination concerning duty required examination

       of (1) whether the independent contractor was in control of the construction or

       property, and (2) whether the plaintiff was rightfully on the property at the time

       she was injured. Id. at 269. In reversing summary judgment in favor of the

       independent contractor, the Rider court found that the independent contractor’s

       control over the property was undisputed, and genuine issues of material fact

       existed as to whether it was foreseeable to the contractor that the plaintiff might

       come to the construction site on the day she was injured.


[16]   Tilton’s reliance on Rider is misplaced. Rider’s accident occurred during

       construction, when the contractor was in control of the property, had been

       present on the site that morning, and had merely left for lunch when Rider

       entered the property and fell from the deck. Id. at 265. Here, EIM was not

       present on the day of Tilton’s accident, and the undisputed material facts

       regarding EIM’s presence on the property include the following: (1) EIM’s

       initial HUD 203(k) consultation occurred approximately twenty-three months

       Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CT-135 | October 27, 2015   Page 8 of 10
       before Tilton’s fall; (2) EIM visited the property three or four more times to

       conduct periodic checks on Contractor’s progress; and (3) EIM’s final

       responsibility on the property – the final inspection of the completed

       rehabilitation project – occurred more than fifteen months before Tilton’s fall.


[17]   Notwithstanding EIM’s lack of control on the date of his accident, Tilton

       maintains that EIM assumed a duty to him on the date that Everly conducted

       the initial inspection of the property. In other words, he alleges that EIM should

       have included the balcony railing on its initial list of needed repairs and ensured

       that it was in fact repaired. He cites a checklist contained in the HUD 203(k)

       handbook, claiming that it specifies that exterior safety hazards must be

       rectified. However, he failed to include the handbook or checklist in his

       designated materials. Instead, his designated materials include only brief

       references to those documents in the form of questions in designated excerpts of

       Everly’s deposition and a HUD letter to mortgagees.


[18]   Moreover, Tilton’s argument presupposes that the balcony railing was faulty at

       the time of Everly’s initial walkthrough. Everly’s designated affidavit avers that

       he inspected the entire premises and did not note any problem with the balcony

       railing. Appellant’s App. at 30. Everly also avers that neither Thompson nor

       Contractor notified EIM concerning a subsequent discovery of any issue with

       the balcony railing. Id. EIM’s involvement with the property had ceased more

       than a year before Tilton was injured, and the designated evidence supports the

       trial court’s determination that as a matter of law EIM did not control the

       property at the time of the accident and did not owe or assume a duty to Tilton.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CT-135 | October 27, 2015   Page 9 of 10
[19]   In sum, the evidence specifically designated to the trial court does not support

       reversal of its grant of summary judgment in EIM’s favor. Ind. Trial Rule

       56(H). Accordingly, we affirm.


[20]   Affirmed.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CT-135 | October 27, 2015   Page 10 of 10
