      MEMORANDUM DECISION
                                                                            FILED
      Pursuant to Ind. Appellate Rule 65(D),                           May 06 2016, 9:11 am
      this Memorandum Decision shall not be                                 CLERK
      regarded as precedent or cited before any                         Indiana Supreme Court
                                                                           Court of Appeals
      court except for the purpose of establishing                           and Tax Court


      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      R. Daniel Craven                                         Logan C. Hughes
      Craven, Hoover & Blazek, PC                              Reminger Co., LPA
      Indianapolis, Indiana                                    Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Erika Jagger DeHeer,                                     May 6, 2016
      Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                               32A01-1512-CT-2313
              v.                                               Appeal from the Hendricks
                                                               Superior Court
      Ray’s Trash Service, Inc.,                               The Honorable Stephanie LeMay-
      Appellee-Defendant                                       Luken, Judge
                                                               Trial Court Cause No.
                                                               32D05-1410-CT-140



      Crone, Judge.


                                           Case Summary
[1]   Erika Jagger DeHeer brought a negligence action against Ray’s Trash Service,

      Inc. (“Ray’s”), for injuries she suffered when she fell and cut her face on the


      Court of Appeals of Indiana | Memorandum Decision 32A01-1512-CT-2313 | May 6, 2016        Page 1 of 8
      inner rim of her rolling trash bin. The trial court granted summary judgment in

      favor of Ray’s, and DeHeer appeals. Concluding that Ray’s affirmatively

      negated an element of DeHeer’s negligence claim, we affirm.


                              Facts and Procedural History
[2]   The undisputed material facts are as follows. In November 2010, DeHeer

      moved to a five-acre Noblesville farm. Shortly thereafter, she contacted Ray’s

      to commence weekly trash and recycling pickup service. In conjunction with

      Ray’s service, customers use Ray’s standard-issue trash and recycle bins, which

      are large plastic containers with a hinged lid, handles, and two wheels for easy

      transport. Inside the hinged lid is a large printed message, “PLEASE CLOSE

      LID BEFORE MOVING.” Plaintiff’s Ex. 6. For the next year and a half,

      DeHeer used the bins without incident, always closing the lid before moving

      them, a practice which she considered to be “common sense.” Appellant’s

      App. at 40.


[3]   On the evening of May 13, 2012, DeHeer wheeled her trash and recycle bins to

      the end of her dirt and gravel driveway for collection the next morning. On

      May 14, she left around 7:15 a.m. to drive her son to his high school in

      Indianapolis and noticed that the trash and recycling had not yet been collected.

      When she returned about an hour and a half later, she noticed that the bins

      were empty and lying on their sides in her driveway, lids open. She exited her

      vehicle and bent down to grab the trash bin by its handles, which were

      perpendicular to the ground. She did not close the lid. As she attempted to


      Court of Appeals of Indiana | Memorandum Decision 32A01-1512-CT-2313 | May 6, 2016   Page 2 of 8
      turn the bin upright, it rolled away from her and she fell forward, hitting her

      nose and cheek on the plastic inner rim. She sought immediate treatment at the

      plastic surgery center where she had undergone a previous cosmetic procedure.

      Her injuries included a nasal bone fracture, nasal tissue avulsion laceration,

      wounds to her right cheek and eyelid, and pain in her head and shoulder. She

      did not notify Ray’s of the incident and continued to use Ray’s for her trash and

      recycling service for five months thereafter.


[4]   In May 2014, DeHeer filed a negligence action against Ray’s. Ray’s

      subsequently filed a motion for summary judgment, claiming that it did not

      breach a duty to DeHeer and, in the alternative, that DeHeer incurred any risk

      associated with her use of the bins. DeHeer filed a motion in opposition, and

      the parties designated evidence in support of their respective positions.

      Following a hearing, the trial court entered summary judgment in favor of

      Ray’s. DeHeer now appeals.


                                  Discussion and Decision
[5]   DeHeer maintains that the trial court erred in granting summary judgment in

      favor of Ray’s. We review a summary judgment de novo, applying the same

      standard as the trial court and drawing all reasonable inferences in favor of the

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

      conducting our review, we consider only those matters that were designated at

      the summary judgment stage. Haegert v. McMullan, 953 N.E.2d 1223, 1229

      (Ind. Ct. App. 2011). Summary judgment is appropriate if the designated


      Court of Appeals of Indiana | Memorandum Decision 32A01-1512-CT-2313 | May 6, 2016   Page 3 of 8
      evidence shows that there is no genuine issue as to any material fact and that

      the moving party is entitled to judgment as a matter of law. Hughley, 15 N.E.3d

      at 1003; Ind. Trial Rule 56(C).


[6]   The moving party bears the initial burden of demonstrating the “absence of any

      genuine issue of fact as to a determinative issue.” Williams v. Tharp, 914 N.E.2d

      756, 761 (Ind. 2009). Then the burden shifts to the nonmoving party to “come

      forward with contrary evidence” showing a genuine issue for the trier of fact.

      Id. at 762. The nonmoving party cannot rest upon the allegations or denials in

      the pleadings. Syfu v. Quinn, 826 N.E.2d 699, 703 (Ind. Ct. App. 2005). In

      Hughley, our supreme court emphasized that the moving party bears an onerous

      burden of affirmatively negating the opponent’s claim. 15 N.E.3d at 1003. This

      approach is based on the policy of preserving a party’s day in court, thus erring

      on the side of allowing marginal cases to proceed to trial on the merits rather

      than risking the short-circuiting of meritorious claims. Id. at 1003-04.


[7]   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). Rather, we must accept as true those

      facts established by the designated evidence favoring the nonmoving party. Brill

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

      denied. A trial court’s grant of summary judgment arrives on appeal clothed

      with a presumption of validity. Williams, 914 N.E.2d at 762. We may affirm a

      grant of summary judgment on any legal basis supported by the designated

      evidence. Harness v. Schmitt, 924 N.E.2d 162, 165 (Ind. Ct. App. 2010).
      Court of Appeals of Indiana | Memorandum Decision 32A01-1512-CT-2313 | May 6, 2016   Page 4 of 8
[8]   To recover on a theory of negligence, a plaintiff must establish three elements:

              (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). 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.


[9]   DeHeer bases her negligence claim on Sections 388 and 392 of the Restatement

      (Second) of Torts. Section 388 reads,


              One who supplies directly or through a third person a chattel for
              another to use is subject to liability to those whom the supplier
              should expect to use the chattel with the consent of the other or
              to be endangered by its probable use, for physical harm caused by
              the use of the chattel in the manner for which and by a person for
              whose use it is supplied, if the supplier

              (a) knows or has reason to know that the chattel is or is likely to
              be dangerous for the use for which it is supplied, and

              (b) has no reason to believe that those for whose use the chattel is
              supplied will realize its dangerous condition, and


      Court of Appeals of Indiana | Memorandum Decision 32A01-1512-CT-2313 | May 6, 2016   Page 5 of 8
               (c) fails to exercise reasonable care to inform them of its
               dangerous condition or of the facts which make it likely to be
               dangerous.


       Coffman v. PSI Energy, Inc., 815 N.E.2d 522, 536 n.5 (Ind. Ct. App. 2004)

       (quoting RESTATEMENT (SECOND) OF TORTS § 388 (1965)), trans. denied (2005).


[10]   Section 392 reads,

               One who supplies to another, directly or through a third person,
               a chattel to be used for the supplier’s business purposes is subject
               to liability to those for whose use the chattel is supplied, or to
               those whom he should expect to be endangered by its probable
               use, for physical harm caused by the use of the chattel in the
               manner for which and by persons for whose use the chattel is
               supplied


               (a) if the supplier fails to exercise reasonable care to make the
               chattel safe for the use for which it is supplied or,


               (b) if he fails to exercise reasonable care to discover its dangerous
               condition or character, and to inform those whom he should
               expect to use it.


       McGlothlin v. M & U Trucking, Inc., 688 N.E.2d 1243, 1245 (Ind. 1997) (quoting

       RESTATEMENT (SECOND) OF TORTS § 392 (1965)).


[11]   As a supplier, Ray’s had a duty to provide bins reasonably suitable for their

       intended purpose of holding and transporting trash and recyclables to the curb

       and back. The wheels contribute to this intended use by facilitating the bins’

       transport. The fact that the chief function of a wheel is to roll is open and


       Court of Appeals of Indiana | Memorandum Decision 32A01-1512-CT-2313 | May 6, 2016   Page 6 of 8
       obvious to the user, especially one such as DeHeer, who had used the bins

       without incident for eighteen months prior to her accident. As for the inner rim

       on which DeHeer struck her face, the clearly printed admonition to close the lid

       before moving informs the expected user concerning the safest usage of the bin.

       DeHeer testified that she had made it a habit to always close the lid because it

       was “common sense” to do so. Appellant’s App. at 40. Even so, Plaintiff’s

       Exhibit A depicts an inner rim that appears to be made of the same plastic as

       the bin itself. The condition of the rim would have been readily apparent to

       DeHeer, who for eighteen months had been the primary person responsible for

       opening and closing the lid to load and transport the bin. In short, the chattel

       supplied by Ray’s was neither dangerous nor otherwise unsuitable for its

       intended use.


[12]   As for DeHeer’s assertion that Ray’s breached a duty to ensure that her bins

       would be left in an upright position after collection, she designated no evidence

       to show that Ray’s owed such a duty or otherwise assumed a duty to do so. See

       Yost v. Wabash College, 3 N.E.3d 509, 517 (Ind. 2014) (emphasizing that

       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.”). Even if Ray’s had assumed such

       an expansive duty to ensure that the bins did not tip over during collection, it

       could not possibly ensure that the bins would remain upright between the time

       of collection and the time of retrieval by the customer. Simply put, Ray’s did

       not owe DeHeer a duty to ensure that her bins would be upright when she


       Court of Appeals of Indiana | Memorandum Decision 32A01-1512-CT-2313 | May 6, 2016   Page 7 of 8
       retrieved them. 1 Accordingly, we affirm the trial court’s grant of summary

       judgment.


[13]   Affirmed.


       Najam, J., and Robb, J., concur.




       1
           Because we affirm on this basis, we need not address Ray’s’ alternate theory of incurred risk.


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