                                                                                       FILED
                                                                                  May 24 2016, 8:18 am

                                                                                       CLERK
                                                                                   Indiana Supreme Court
                                                                                      Court of Appeals
                                                                                        and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      John R. Helm                                               Andrew B. Janutolo
      Schreckengast & Helm                                       James A. Goodin
      Indianapolis, Indiana                                      Goodin Abernathy, LLP
                                                                 Indianapolis, Indiana



                                                   IN THE
           COURT OF APPEALS OF INDIANA

      Kaitlyn Schneider,                                         March 24, 2016
      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 32A01-1511-CT-1858
              v.                                                 Appeal from the Hendricks
                                                                 Superior Court
      Paragon Realty, LLC,                                       The Honorable Mark A. Smith,
      Appellee-Defendant.                                        Judge
                                                                 Trial Court Cause No.
                                                                 32D04-1307-CT-94



      Najam, Judge.


                                         Statement of the Case
[1]   Kaitlyn Schneider appeals the trial court’s entry of summary judgment in favor

      of Paragon Realty, LLC (“Paragon”) on Schneider’s complaint alleging that, as

      a result of the negligence of Paragon and other defendants, Schneider sustained

      personal injuries. Schneider presents a single issue for our review, namely,

      Court of Appeals of Indiana | Opinion   32A01-1511-CT-1858 | May 24, 2016                            Page 1 of 12
      whether there exists a genuine issue of material fact precluding summary

      judgment in favor of Paragon.


[2]   We affirm.


                                   Facts and Procedural History
[3]   On October 19, 2011, Schneider consumed five vodka drinks at her home

      between 6:00 p.m. and 10:00 p.m., when her friend Benjamin Burns picked her

      up in his car and drove her to Bubbaz Bar & Grill (“Bubbaz”) in Camby.

      Bubbaz is located in a strip mall owned by Heartland Landing II, LLC

      (“Heartland”). While at Bubbaz, Schneider consumed three beers and three

      shots of whiskey, and Burns also consumed alcoholic beverages. At

      approximately 2:00 a.m. on October 20, Schneider and Burns left Bubbaz in

      Burns’ vehicle with Burns driving. At approximately 2:30 a.m., Burns lost

      control of his car and crashed into a ditch. A chemical test performed on

      Burns’ blood at 4:10 a.m. that morning indicated that his blood alcohol content

      was .10. Schneider sustained serious injuries as a result of the crash, and she is

      now a paraplegic.




      Court of Appeals of Indiana | Opinion   32A01-1511-CT-1858 | May 24, 2016   Page 2 of 12
[4]   On October 17, 2013, Schneider filed her second amended complaint 1 against

      Bubbaz, Paragon, Heartland, and other defendants2 alleging as follows:


                3. That agents or employees of the Defendants furnished and
                served alcoholic beverages to Kaitlyn Schneider and Benjamin
                Burns with actual knowledge that both Benjamin Burns and
                Kaitlyn Schneider were visibly intoxicated, and they continued to
                furnish and serve alcoholic beverages to both Kaitlyn Schneider
                and Benjamin Burns while they were in an obvious visible state
                of intoxication in violation of Indiana Statutes.

                4. That agents or employees of the Defendants carelessly and
                negligently furnished and served alcoholic beverages to Kaitlyn
                Schneider and Benjamin Burns and continued to serve them
                alcoholic beverages when they knew or should have known that
                Benjamin Burns and Kaitlyn Schneider were intoxicated and
                soon thereafter would be driving in an automobile.

                5. That the Defendants failed to properly hire, train, and
                supervise their employees.

                6. That the Defendants failed to adequately monitor and
                supervise their alcohol sales business activities.

                7. That the Defendants and the agents or employees of the
                Defendants caused and contributed to cause Benjamin Burns and
                Kaitlyn Schneider to become so intoxicated that they had lost
                control of their usual physical and mental capabilities.




      1
          Schneider has not included her original complaint or first amended complaint in her appendix on appeal.
      2
        Heartland is Bubbaz’ landlord, and Paragon is a property management company hired by Heartland.
      Neither Bubbaz nor Heartland joined in Paragon’s summary judgment motion, and they are not parties to
      this appeal.

      Court of Appeals of Indiana | Opinion   32A01-1511-CT-1858 | May 24, 2016                        Page 3 of 12
        8. That the Defendants and the agents or employees of the
        Defendants then allowed Benjamin Burns and Kaitlyn Schneider
        to leave the premise[s] of the bar, go to Benjamin Burns’ car
        located in the Defendants’ parking lot, and Benjamin Burns to
        drive off with Kaitlyn Schneider as his passenger despite their
        obvious states of intoxication.

        9. That Benjamin Burns ran off the road in his vehicle a short
        distance from Bubbaz Bar & Grill and struck a ditch along the
        side of CR 800 South in Hendricks County, Indiana.

        10. That as a result of this single car collision with the ditch, the
        Plaintiff, Kaitlyn Schneider, was tragically and permanently
        paralyzed from the waist down due to a fractured spine caused by
        the force of the vehicle colliding with the ditch.

        11. That the intoxication of Benjamin Burns was a proximate
        cause of the collision and the injuries sustained by Kaitlyn
        Schneider.

        12. That the Defendants failed to use the reasonable and
        ordinary care necessary to prevent their agents and employees
        from conducting themselves in such a manner which created an
        unreasonable risk of harm to the Plaintiff.

        13. That the Defendant and/or their employees or agents were
        in a habit of misconducting themselves in a manner dangerous to
        others with respect to the sale and distribution of alcoholic
        beverages on their property, and they created and maintained a
        nuisance that was inherently dangerous to the Plaintiff and
        others.

        14. That Defendants . . . are responsible for the acts of their
        employees and agents under the doctrine of respondeat superior
        liability.



Court of Appeals of Indiana | Opinion   32A01-1511-CT-1858 | May 24, 2016   Page 4 of 12
                15. That the Defendants are liable for Kaitlyn Schneider’s
                injuries under the Indiana Dram Shop Act. . . .

                16. That the Defendants are liable for Kaitlyn Schneider’s
                injuries under a common law theory of premise[s] liability.


      Appellant’s App. at 14-15.


[5]   On April 1, 2015, Paragon moved for summary judgment alleging that it owed

      no duty of care to Schneider as a matter of law, and Paragon designated

      evidence in support of its motion. Schneider filed a memorandum and

      designated evidence in opposition to the summary judgment motion. In

      particular, Schneider alleged that Paragon owed her a duty of care as property

      manager of the mall where Bubbaz was located and/or that Paragon had

      assumed a duty of care. Following a hearing, the trial court entered summary

      judgment in favor of Paragon.3 This appeal ensued.


                                        Discussion and Decision
[6]   Our standard of review is well-settled.

                We review summary judgment de novo, applying the same
                standard as the trial court: “Drawing all reasonable inferences in
                favor of . . . the non-moving parties, summary judgment is
                appropriate ‘if the designated evidentiary matter 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.’” Williams v.
                Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A



      3
          This was a final judgment under Trial Rule 54(B).


      Court of Appeals of Indiana | Opinion   32A01-1511-CT-1858 | May 24, 2016   Page 5 of 12
              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.” Id. (internal citations omitted).

              The initial burden is on the summary-judgment movant to
              “demonstrate[] the absence of any genuine issue of fact as to a
              determinative issue,” at which point the burden shifts to the non-
              movant to “come forward with contrary evidence” showing an
              issue for the trier of fact. Id. at 761-62 (internal quotation marks
              and substitution omitted). And “[a]lthough the non-moving
              party has the burden on appeal of persuading us that the grant of
              summary judgment was erroneous, we carefully assess the trial
              court’s decision to ensure that he was not improperly denied his
              day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
              916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
              omitted).


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

      Hughley).


[7]   Our supreme court recently set out the general law underlying Schneider’s

      negligence claims against Paragon as follows:

              The essential elements for a negligence action are “(1) a duty
              owed to the plaintiff by the defendant, (2) a breach of the duty,
              and (3) an injury proximately caused by the breach of duty.”
              Pfenning v. Lineman, 947 N.E.2d 392, 398 (Ind. 2011) (citing
              Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120, 1123
              (Ind. 2010)). Where there is no duty, there can be no breach, and
              thus the party cannot be found negligent. Pfenning, 947 N.E.2d at
              398. Whether a duty exists is generally a question of law for the
              court. Id. In making this determination, “a three-part balancing
              test developed by this Court ‘can be a useful tool.’” Id. (quoting
      Court of Appeals of Indiana | Opinion   32A01-1511-CT-1858 | May 24, 2016      Page 6 of 12
        Kephart, 934 N.E.2d at 1123) (citing N. Ind. Pub. Serv. Co. v.
        Sharp, 790 N.E.2d 462, 465 (Ind. 2003)) (referencing the factors
        enunciated in Webb[, 575 N.E.2d 992 at 995]: “(1) the
        relationship between the parties, (2) the reasonable foreseeability
        of harm to the person injured, and (3) public policy concerns”).
        However, this test is only needed “in those instances where the
        element of duty has not already been declared or otherwise
        articulated.” Sharp, 790 N.E.2d at 465; see also Paragon Family
        Rest. v. Bartolini, 799 N.E.2d 1048, 1053 (Ind. 2003) (“Where, as
        in this case, the alleged duty is well-established, there is no need
        for a new judicial redetermination of duty.”).

        With respect to claims of liability against an owner for injuries
        sustained on the premises, the duties of a landowner are well
        established. “A landowner owes to an invitee or social guest ‘a
        duty to exercise reasonable care for his protection while he is on
        the landowner’s premises.’” Pfenning, 947 N.E.2d at 406
        (quoting Burrell v. Meads, 569 N.E.2d 637, 639 (Ind. 1991)). To
        delineate this duty we have adopted the Restatement (Second) of
        Torts § 343 (1965):

                 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   32A01-1511-CT-1858 | May 24, 2016      Page 7 of 12
              Id. (quoting Burrell at 639-40). Within the contours of this duty,
              we have held that landowners “have a duty to take reasonable
              precautions to prevent foreseeable criminal acts against invitees.”
              L.W. v. Western Golf Ass’n, 712 N.E.2d 983, 985 (Ind. 1999); see
              also Delta Tau Delta, Beta Alpha Chapter v. Johnson, 712 N.E.2d
              968, 973 (Ind. 1999). However, when the landowner is a lessor
              and the lessee is in operational control of the premises, such duty
              rarely exists. “[A] landlord under many circumstances has no
              liability to tenants or others for injuries on the property when the
              tenant is in full control of the leased premises.” Dutchmen Mfg.,
              Inc. v. Reynolds, 849 N.E.2d 516, 525 (Ind. 2006). “[I]n the
              absence of statute, covenant, fraud or concealment, a landlord
              who gives a tenant full control and possession of the leased
              property will not be liable for personal injuries sustained by the
              tenant or other persons lawfully upon the leased property.” Olds
              v. Noel, 857 N.E.2d 1041, 1044 (Ind. Ct. App. 2006) (citation
              omitted), trans. not sought; cf. Rossow v. Jones, 404 N.E.2d 12, 14
              (Ind. Ct. App. 1980) (holding that a landlord has a duty of
              reasonable care over common areas or other areas over which the
              landlord has retained control), trans. not sought.


      Yost v. Wabash College, 3 N.E.3d 509, 515-16 (Ind. 2014).


[8]   This is an unusual premises liability case in that Paragon is not a “landowner”

      but a property management company hired by Heartland, which is the

      landowner. Indeed, in support of its summary judgment motion, Paragon

      argued that, as property manager of the mall where Bubbaz is located, it “had

      no control over the premises or over the events that led to Schneider’s injury

      and was essentially three steps removed from any connection” to Schneider.

      Appellant’s App. at 129. Paragon designated evidence showing that, under its

      property management contract, its duties entailed the following:


      Court of Appeals of Indiana | Opinion   32A01-1511-CT-1858 | May 24, 2016   Page 8 of 12
              1. To collect rents and fees from tenants;

              2. To maintain the property in good condition and effectuate
              repairs as necessary;

              3. Plan and manage capital improvements to the property;

              4. To select and employ workmen for the maintenance of the
              property;

              5. To contract with utilities for the property;

              6. To pay taxes and mortgages on the property;

              7. To deposit monies received on behalf of the owner;

              8. To work with tenants and negotiate the Lease Agreements
              with them. The form of the Lease Agreement was provided by
              Heartland Landings and Paragon specifically was directed to
              utilize that form without material change to the terms;

              9. To render owner advice regarding matters of property taxes
              and eminent domain.


      Id. at 127. Thus, Paragon alleged that it owed no duty of care to Schneider to

      protect her from the accident in Burns’ car.


[9]   On appeal, Schneider contends that Paragon owed her a duty of care because

      she “was an invitee on the property owned or operated or controlled by

      Paragon[.]” Appellant’s Br. at 24. In support of that contention, Schneider

      directs us to her designated evidence purporting to show that a management

      agreement between Heartland and Paragon


      Court of Appeals of Indiana | Opinion   32A01-1511-CT-1858 | May 24, 2016   Page 9 of 12
               gave [Paragon] the duty and obligation to maintain, operate,
               control, and supervise the common areas, including the parking
               lot in front of the bar, and to hire the necessary employees to
               police the area and the right to prevent or restrain the use of the
               common areas by people whose conduct or appearance was
               objectionable.


       Appellant’s Br. at 8. Schneider alleges that, in light of its duties and obligations

       to its invitees, Paragon should have known that Burns was too intoxicated to

       drive and should have stopped him from leaving the parking lot.


[10]   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 therefore could have acted to prevent any foreseeable harm. Id. (citing

       Harris v. Traini, 759 N.E.2d 215, 225 (Ind. Ct. App. 2001), trans. denied). Here,

       by virtue of the property management agreement, Paragon was a limited agent

       of Heartland, Bubbaz’ landlord. Paragon’s duty to Bubbaz’ invitees was

       explicitly limited to maintaining the physical integrity of the common areas

       used by invitees. For example, had Schneider tripped over uneven pavement in

       the parking lot and sustained injuries, Paragon might have been held liable.


[11]   In particular, under the property management agreement with Heartland,

       Paragon agreed in relevant part “to perform certain administrative services,”

       including maintaining “the Property and common areas thereof including . . .

       parking lots[.]” Appellant’s App. at 628. Contrary to Schneider’s assertion on

       Court of Appeals of Indiana | Opinion   32A01-1511-CT-1858 | May 24, 2016     Page 10 of 12
       appeal, there is no designated evidence showing that Paragon had a duty or had

       assumed a duty4 to “police” the parking lot or any obligation to invitees beyond

       physical maintenance of the property. Paragon owed no duty of care to

       Schneider related to the allegations of negligence she asserts in her complaint. 5

       Under the circumstances here, we hold, as a matter of law, that Paragon did not

       owe Schneider a duty to protect her from the dangers associated with getting in

       a car with an intoxicated driver. The trial court did not err when it entered

       summary judgment in favor of Paragon.6


                                                        Conclusion

[12]   Considering the designated evidence on summary judgment, none of

       Schneider’s contentions support a claim against Paragon. As Heartland’s

       property manager, Paragon was responsible for physical maintenance and

       administrative duties, such as collecting rents. While Schneider was Paragon’s

       invitee with respect to the physical integrity of the common areas outside of




       4
         Schneider’s only contention on the issue of assumption of duty is that Paragon assumed a duty “by
       entering into the Management Agreement[.]” Appellant’s Br. at 22. Because we address Paragon’s alleged
       duty pursuant to that Agreement, we need not make a separate analysis under the law of assumed duty.
       5
          Schneider also contends that, even if no duty is established under premises liability law, “a duty can still be
       found to exist under a Webb analysis[.]” Appellant’s Br. at 41. However, a Webb analysis is only appropriate
       “in those instances where the element of duty has not already been declared or otherwise articulated.” Sharp,
       790 N.E.2d at 465; see also Bartolini, 799 N.E.2d at 1053 (“Where, as in this case, the alleged duty is well-
       established, there is no need for a new judicial redetermination of duty.”). Here, because a landowner’s duty
       to an invitee is established as a matter of law, Webb is inapplicable.

       6
         Schneider also contends that Paragon acted in a “joint venture or partnership” with the other defendants
       and Paragon is, therefore, jointly liable for the alleged negligent acts of each of the defendants. Appellant’s
       Br. at 45. We do not address this issue, however, because Schneider does not direct us to any designated
       evidence to show that Paragon was engaged in a joint venture or partnership with any party.

       Court of Appeals of Indiana | Opinion   32A01-1511-CT-1858 | May 24, 2016                           Page 11 of 12
       Bubbaz, there was no contractual or other relationship between the parties with

       respect to the allegations against Paragon set out in her complaint. Neither as a

       matter of law nor as a matter of fact did Paragon exercise control over, or have

       any responsibility for, the manner in which Heartland’s tenants conducted their

       businesses. The trial court properly entered summary judgment in favor of

       Paragon.


[13]   Affirmed.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion   32A01-1511-CT-1858 | May 24, 2016   Page 12 of 12
