                                                              Oct 06 2015, 9:02 am




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
James J. Kenney                                            Cathleen M. Shrader
Saunders, Condon & Kenney, P.C.                            Thomas M. Kimbrough
Chicago, Illinois                                          Barrett McNagny LLP
                                                           Fort Wayne, Indiana
Rori L. Goldman
Justin O. Sorrell
Hill Fulwider, P.C.
Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jill Miller,                                               October 6, 2015
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           48A02-1504-CT-246
        v.                                                 Appeal from the Madison Circuit
                                                           Court
Rosehill Hotels, LLC d/b/a                                 The Honorable Dennis D.
Holiday Inn Express;                                       Carroll, Judge
Intercontinental Hotel Group                               Trial Court Cause No.
d/b/a Holiday Inn Express,                                 48C06-1301-CT-19
Appellees-Defendants.




Brown, Judge.




Court of Appeals of Indiana | Opinion 48A02-1504-CT-246| October 6, 2015               Page 1 of 21
[1]   Jill Miller appeals the trial court’s entry of summary judgment in favor of

      Rosehill Hotels, LLC d/b/a Holiday Inn Express and Intercontinental Hotel

      Group d/b/a Holiday Inn Express (together, the “Hotel”) and the denial of her

      motion to correct error. Miller raises one issue which we revise and restate as

      whether the court erred in entering summary judgment in favor of the Hotel

      and abused its discretion in denying her motion to correct error. We reverse

      and remand.


                                       Facts and Procedural History

[2]   At about 8:00 or 8:30 a.m. on January 19, 2011, Miller exited the Holiday Inn

      Express in Anderson, Indiana, where she had stayed the previous night. Miller

      observed a “dusting of snow” and walked to her vehicle, which was

      approximately thirty feet from the carport. Appellant’s Appendix at 33. By the

      time she reached her vehicle, she noticed that the parking lot was a “little slick.”

      Id. at 35. She entered her vehicle, listened to a weather report on the radio, and

      then cancelled a work appointment scheduled for that day. She then moved her

      vehicle as close as she could to the carport or sidewalk near the carport, exited

      her vehicle, closed the door, and walked behind another car and approximately

      fifteen to seventeen feet to the sidewalk. As she stepped from the parking lot up

      onto the sidewalk, Miller slipped and fell.


[3]   On January 15, 2013, she filed a complaint against the Hotel alleging in part

      that it was guilty of the careless or negligent acts or omissions of failing to

      remove ice or snow from the entrance and exit way from the premises, to

      provide a safe area for her to walk after she had exited her car and was walking
      Court of Appeals of Indiana | Opinion 48A02-1504-CT-246| October 6, 2015    Page 2 of 21
      to the hotel, to properly remove ice or snow from the designated walkway of

      the premises, to warn her of any obstacles present in the path of the entrance

      and exit for the premises, and to make a reasonable inspection of the premises

      when it knew or should have known that inspection was necessary to prevent

      the premises from becoming dangerous. The Hotel filed an answer and asserted

      affirmative defenses including that Miller incurred or assumed the risk of the

      accident and injuries and that her own negligence caused or contributed to the

      alleged accident.


[4]   On October 27, 2014, the Hotel filed a motion for summary judgment, a brief in

      support of its motion, and supporting evidence. An entry in the chronological

      case summary (the “CCS”) dated October 29, 2014, states that Miller had thirty

      days after service of the Hotel’s motion for summary judgment to respond in

      accordance with Ind. Trial Rule 56 and that, if no timely response was filed, the

      Hotel’s motion may be granted without further notice or hearing.


[5]   On November 19, 2014, Miller filed a motion for an enlargement of time, and

      the court granted her motion and ordered Miller to file her response to the

      Hotel’s summary judgment motion on or before January 20, 2015. On

      February 10, 2015, Miller filed her own motion for summary judgment arguing

      that the Hotel had breached its duty to exercise reasonable care as a matter of

      law.


[6]   In support of its summary judgment motion, the Hotel designated selected

      pages of Miller’s deposition. In her deposition, when asked to describe what


      Court of Appeals of Indiana | Opinion 48A02-1504-CT-246| October 6, 2015   Page 3 of 21
      happened, she testified that she had gathered her things to go to meetings, that

      she went outside, that “[t]he ground was snow covered,” and that she walked to

      her vehicle. Id. at 31. She testified her vehicle “was parked maybe 30 feet to

      the right from the carport, and . . . about one row out.” Id. She testified that

      she entered her vehicle and turned on the radio to listen to the weather report

      and that the report “was kind of sketchy for the day.” Id. She testified “[s]o

      [she] called [her] contact . . . and let him know that [she] was not going to

      come, because it was a pretty hefty drive from Anderson to the [] facility that

      [she] was going to” and “told him [she] was not going to come in, because the

      weather sounded like it was not great and going to get worse that day.” Id. She

      also testified that she believed she sent an email message to her boss to tell him

      she “was cancelling the conference call because [she] wasn’t willing to die for

      him.” Id. Miller further testified that she “moved [her] car as close as [she]

      could to the carport, the sidewalk that comes from the carport, and gathered

      [her] things,” that she “got [her] coffee and [her] backback,” and that she

      “stepped out of the vehicle went to step up on the curb and went down.” Id. at

      32.


[7]   When asked if she had checked the weather conditions before she departed the

      hotel, Miller replied, “I did not. I looked outside,” and when asked what she

      saw, she stated “[a] dusting of snow.” Id. at 33. When asked what she meant

      by her statement that she cancelled her meeting because she did not want to die,

      she answered “I felt like it was probably going to get bad out, and I didn’t – it

      was treacherous.” Id. at 34. When asked if it was “going to get bad out” or


      Court of Appeals of Indiana | Opinion 48A02-1504-CT-246| October 6, 2015   Page 4 of 21
      “was it already bad out,” Miller testified “[w]ell, I felt like it was a little slick.”

      Id. When asked if she knew when she went to her car that the weather

      conditions were bad, she answered: “I knew when I got to my – by the time that

      I got to my car, yeah.” Id. She also indicated there was less than an inch of

      snow on the ground and did not recall if it was snowing at the time.


[8]   When asked her reason for moving her car, Miller testified “[b]ecause as I

      walked out of the hotel, I had to walk across the parking lot, and that felt a little

      uncomfortable,” and when asked how, she testified “[u]ncomfortable like you

      didn’t know what was under your feet, ice. It was a little slick. The sidewalk

      had been salted that I walked on. So the reason that I moved my car was to get

      closer to the sidewalk beyond the carport so that I could get back. That was my

      best route to getting back onto a safe sidewalk.” Id. at 35. When asked “[s]o

      when you walked out to the car, you knew that there was snow and ice on the

      ground,” Miller said “[b]y the time that I stood on the – as I got closer to my

      car, yes, it was obvious.” Id. at 36. Miller was asked “as I understand it, you

      moved your car because you knew that the conditions were bad and you

      wanted to get closer to the entrance,” and she said “[y]es.” Id.


[9]   Miller was then asked to explain her route of travel from her vehicle to where

      she fell, and she testified that she exited her car, that “there was a car parked to

      the left of me, and then there was a carport, or the sidewalk that goes to the

      carport,” and that she “shut the door, walked behind the car, and stepped up

      onto the curb on that sidewalk past the carport, and from there I went down. I

      stepped up onto the sidewalk.” Id. She testified that she walked from her

      Court of Appeals of Indiana | Opinion 48A02-1504-CT-246| October 6, 2015       Page 5 of 21
       vehicle to the point where she fell “15, 17 feet. Maybe a little bit more.” Id. at

       37. She testified that she had a cup of coffee in her hand and a backpack on her

       shoulder, and that she had been wearing jeans and steel toe shoes as she often

       spends time on the floor of manufacturing and food and beverage facilities.

       When asked “[s]o you got out to your car and determined that the conditions

       were bad enough that you were going to cancel your calls,” Miller replied

       “[c]orrect.” Id. at 38. When asked to describe how she fell, she said: “I stepped

       up on the far – you know, if you’re looking at the hotel as far . . . to the right,

       and I stepped up with my right foot, one, and as I picked up my left foot to also

       move it up, things just went out from under me, and I came down.” Id. Miller

       was asked “if I understand your testimony, you were stepping up immediately

       prior to your falling or stepping up onto a curb,” and Miller said “[s]tepping

       onto the sidewalk. There’s a curb, and then the sidewalk begins.” Id.


[10]   In a Decree dated February 12, 2015, the court found that Miller did not file a

       response to the Hotel’s summary judgment motion, that there were no genuine

       issues of material fact, and that the Hotel was entitled to summary judgment as

       a matter of law, and the court entered judgment in favor of the Hotel and

       against Miller. Miller filed a motion to correct error, and the court denied the

       motion. In its CCS entry dated March 25, 2015, the court noted it denied

       Miller’s motion to correct error and stated that her summary judgment motion

       was filed two weeks after the response to the Hotel’s summary judgment

       motion was due, that accordingly the pleading cannot be considered a timely




       Court of Appeals of Indiana | Opinion 48A02-1504-CT-246| October 6, 2015    Page 6 of 21
       response, and that under the circumstances a final judgment had been entered

       and the trial court would take no further action with respect to Miller’s motion.


                                                     Discussion

[11]   The issue is whether the trial court erred in entering summary judgment in

       favor of the Hotel and against Miller or abused its discretion in denying Miller’s

       motion to correct error. We generally review rulings on motions to correct

       error for an abuse of discretion. Ind. Bureau of Motor Vehicles v. Charles, 919

       N.E.2d 114, 116 (Ind. Ct. App. 2009); Speedway SuperAmerica, LLC v. Holmes,

       885 N.E.2d 1265, 1270 (Ind. 2008), reh’g denied. An abuse of discretion occurs

       if the trial court’s decision is against the logic and effect of the facts and

       circumstances before it, or the reasonable inferences drawn therefrom. Lighty v.

       Lighty, 879 N.E.2d 637, 640 (Ind. Ct. App. 2008), reh’g denied.


[12]   We review an order for summary judgment de novo, applying the same standard

       as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). 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. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). Summary

       judgment is improper if the moving 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. Id. 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. Id. In the

       summary judgment context, we are not bound by the trial court’s specific
       Court of Appeals of Indiana | Opinion 48A02-1504-CT-246| October 6, 2015     Page 7 of 21
       findings of fact and conclusions of law. Rice v. Strunk, 670 N.E.2d 1280, 1283

       (Ind. 1996). They merely aid our review by providing us with a statement of

       reasons for the trial court’s actions. Id. 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. Kramer v. Catholic Charities of

       Diocese of Fort Wayne-S. Bend, Inc., 32 N.E.3d 227, 231 (Ind. 2015).


[13]   Miller contends the Hotel is not entitled to summary judgment based upon the

       affirmative defense of incurred risk. She claims that her testimony established

       only that the first sidewalk leading to the parking lot had been salted and that

       no evidence was designated to establish that the parking lot or the sidewalk

       where she fell had been treated with rock salt or that the Hotel took reasonable

       efforts to make the walking areas of the premises safe. She argues that, “[a]fter

       walking into the parking lot[, she] noticed the surface of the parking lot was

       slick . . . .” Appellant’s Brief at 11. She further contends that, while the Hotel’s

       position is that she knew the parking lot was slick, the record establishes that

       her fall occurred not in the parking area but on an adjacent sidewalk near the

       carport which was not salted, that her knowledge that the parking area was slick

       does not establish that she had an appreciation that an adjacent sidewalk was

       also slick and unsalted, and that there is no evidence of “venturousness.” Id. at

       12. She states that, “[h]aving just walked on a salted sidewalk, her act of

       driving to a similar sidewalk which she perceived to be a safe walkway negates

       any voluntary acceptance of the risk” and that “[c]learly [she] took appropriate


       Court of Appeals of Indiana | Opinion 48A02-1504-CT-246| October 6, 2015   Page 8 of 21
       action to avoid the risk when she appreciated it.” Id. She also asserts that the

       court failed to analyze the motion for summary judgment in accordance with

       the Comparative Fault Act.


[14]   The Hotel maintains the designated evidence demonstrates that it breached no

       duty to Miller and thus that summary judgment in its favor was proper. It

       argues that Miller’s deposition testimony “establishes her awareness of the

       adverse conditions and her appreciation of the danger those conditions posed”

       and that she “was personally aware of the slick, snowy, and icy conditions, so

       much so that she canceled planned travel, fearing it posed a mortal danger to

       her and moved her car in an attempt to reduce the distance she had to walk to

       go back inside the hotel.” Appellee’s Brief at 13-14. The Hotel further argues

       the designated evidence does not reveal the condition of the area where Miller

       fell and whether it was salted or unsalted. It argues that Miller knew from

       looking outside that the area was snow covered, experienced the snowy and icy

       conditions first hand once she started walking to her car, yet continued

       knowing the conditions were dangerous, and, returning to the hotel and despite

       the conditions, carried a coffee and a fifteen-pound backpack.


[15]   Miller’s action against the Hotel is a negligence claim. In order to recover on a

       negligence theory, a plaintiff must establish: (1) a duty owed by the defendant

       to the plaintiff; (2) a breach of that duty; and (3) injury to the plaintiff resulting

       from the defendant’s breach. Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2004).

       A defendant is entitled to summary judgment by demonstrating that the

       undisputed material facts negate at least one element of the plaintiff’s claim.

       Court of Appeals of Indiana | Opinion 48A02-1504-CT-246| October 6, 2015      Page 9 of 21
       Countrymark Coop., Inc. v. Hammes, 892 N.E.2d 683, 688 (Ind. Ct. App. 2008),

       trans. denied.


[16]   The parties do not dispute that the Hotel owed a duty to Miller as an invitee.

       “If a duty of care exists, the determination of whether a breach of duty occurred

       is a factual question requiring an evaluation of the landowner’s conduct with

       respect to the requisite standard of care.” Countrymark, 892 N.E.2d at 688

       (citing Douglass v. Irvin, 549 N.E.2d 368, 370 (Ind. 1990)). As a result, summary

       judgment is “rarely appropriate” in negligence cases. Id. (citing Rhodes, 805

       N.E.2d at 387). “This is because negligence cases are particularly fact sensitive

       and are governed by a standard of the objective reasonable person—one best

       applied by a jury after hearing all of the evidence.” Id. (citing Rhodes, 805

       N.E.2d at 387).


[17]   A property owner must maintain its property in a reasonably safe condition for

       business invitees. Id. (citing Douglass, 549 N.E.2d at 369). Indiana has adopted

       the formulation of landowners’ liability to business invitees expressed in the

       Restatement (Second) of Torts. Id. (citing Douglass, 549 N.E.2d at 370); see

       Smith v. Baxter, 796 N.E.2d 242, 244 (Ind. 2003). The Restatement 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

       Court of Appeals of Indiana | Opinion 48A02-1504-CT-246| October 6, 2015       Page 10 of 21
                        (c) fails to exercise reasonable care to protect them against
                        the danger.

       RESTATEMENT (SECOND) OF TORTS § 343. Under this section, an invitee is

       “entitled to expect that the possessor will take reasonable care to ascertain the

       actual condition of the premises and, having discovered it, either to make it

       reasonably safe by repair or to give warning of the actual condition and the risk

       involved therein.” Merrill v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258, 1265

       (Ind. Ct. App. 2002) (citing RESTATEMENT (SECOND) OF TORTS § 343, cmt. d),

       trans. denied.


[18]   In addition, Restatement (Second) of Torts § 343A(1), which addresses known

       and obvious dangers and is meant to be read in conjunction with § 343,

       provides: “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.” The word “known” denotes not only

       knowledge of the existence of the condition or activity itself, but also

       appreciation of the danger it involves, and thus the condition or activity must

       not only be known to exist, it must also be recognized that it is dangerous, and

       the probability and gravity of the threatened harm must be appreciated.

       RESTATEMENT (SECOND) OF TORTS § 343A, cmt. b. “Obvious” means that

       both the condition and the risk are apparent to and would be recognized by a

       reasonable person, in the position of the visitor, exercising ordinary perception,

       intelligence, and judgment. Id.


       Court of Appeals of Indiana | Opinion 48A02-1504-CT-246| October 6, 2015    Page 11 of 21
[19]   In Smith v. Baxter, the plaintiff climbed a ladder on a grain bin and fell. 796

       N.E.2d at 245-246. The plaintiff and one of the defendants had commented

       earlier in the day that the ladder was damp with dew. Id. at 246. The trial

       court denied the defendants’ motion for judgment on the evidence. Id. at 243.

       The Indiana Supreme Court discussed Restatement (Second) of Torts §§ 343

       and 343A and stated that consideration of the parties’ knowledge of a risk could

       be appropriate for the determination of both breach of duty and the defense of

       incurred risk. See id. at 243-244. Quoting its previous opinion in Douglass v.

       Irvin, the Court stated:


               For purposes of analysis of breach of duty, a landowner’s
               knowledge is evaluated by an objective standard. This is in
               contrast to the determination of the defense of incurred risk,
               wherein the invitee’s mental state of venturousness (knowledge,
               appreciation, and voluntary acceptance of the risk) demands a
               subjective analysis of actual knowledge. Thus, factual
               circumstances may exist in which a court may find that a landowner’s
               failure to take precautions or to warn may constitute a breach of duty
               because it was reasonably foreseeable that the invitee could suffer harm
               despite knowledge or obviousness of the risk, and at the same time find
               that an invitee had actual knowledge and appreciation of the specific risks
               involved and voluntarily accepted that risk, thus establishing the defense
               of incurred risk.

       Smith, 796 N.E.2d at 244 (quoting Douglass, 549 N.E.2d at 370). The Court

       acknowledged that Douglass had been decided before the adoption of the

       Indiana Comparative Fault Act and observed that, under the Comparative

       Fault Act, while a plaintiff’s conduct constituting incurred risk may not support

       finding a lack of duty, such conduct is not precluded from consideration in


       Court of Appeals of Indiana | Opinion 48A02-1504-CT-246| October 6, 2015        Page 12 of 21
       determining breach of duty. Id. at 244-245. The Court thus concluded that the

       analysis in Douglass has not been altered by the Comparative Fault Act and that

       “[t]he comparative knowledge of a possessor of land and an invitee regarding

       known or obvious dangers may properly be taken into consideration in

       determining whether the possessor breached the duty of reasonable care under

       Sections 343 and 343A of the Restatement (Second) of Torts.” Id. at 245.


[20]   Turning to the defendants’ motion for judgment on the evidence, the Court

       noted that the evidence showed the defendants were aware of risks presented by

       the ladder and that it was also reasonable to infer that the defendants were

       aware that the plaintiff would climb the ladder despite its obvious hazards. Id.

       at 246. The Court concluded that substantial evidence existed that the

       defendants knew or should have known that climbing the ladder involved an

       unreasonable risk of harm and further, that “[i]t is a much closer question as to

       whether there was substantial evidence that (1) the defendants should have

       expected that the plaintiff would not discover or realize the danger, or fail to

       protect himself against it, and (2) the defendants should have anticipated the

       harm despite the plaintiff’s knowledge or the obvious nature of the risk,” that it

       must look only to the evidence and the reasonable inferences most favorable to

       the plaintiff as a nonmoving party, and that “[t]he interpretation of the

       evidence, with the necessary assessments of weight and credibility, was properly

       left to the sound judgment of the jury.” Id.


[21]   In Countrymark, the plaintiff was on the defendants’ property to pick up

       gasoline. 892 N.E.2d at 686. The meter on the gas racks malfunctioned, and

       Court of Appeals of Indiana | Opinion 48A02-1504-CT-246| October 6, 2015   Page 13 of 21
       the plaintiff could not complete the loading of his fuel. Id. The plaintiff walked

       to a maintenance building and, as he approached the building, noticed ice on

       the pavement in front of both doors. Id. He attempted to walk across the ice

       but fell. Id. The plaintiff sued the defendants for his personal injuries, and the

       trial court denied the defendants’ motion for summary judgment. Id. at 687.


[22]   On appeal, we set forth the relevant standards under the Restatement (Second)

       of Torts §§ 343 and 343A(1) and Smith as discussed above. Id. at 688-690. We

       then concluded that the appropriate standard under Restatement (Second) of

       Torts § 343 was (a) whether Countrymark knew or by the exercise of reasonable

       care would have discovered the dangerous condition and should have realized

       that it involved an unreasonable risk of harm to invitees; (b) whether

       Countrymark should have expected that an invitee would fail to protect himself

       from the danger; and (c) whether Countrymark failed to exercise reasonable

       care to protect the invitee. Id. at 691. We also noted that the plaintiff had

       “admitted that he was aware of the ice and recognized the danger” and thus

       that, “in addition to the aforementioned elements under section 343, under

       section 343A of the Restatement (Second) of Torts, Countrymark is not liable

       unless they should have anticipated the harm despite an invitee’s knowledge of

       the danger or the obviousness of the danger.” Id.


[23]   We noted that we resolve all inferences in favor of the nonmoving party in

       considering a motion for summary judgment, that the plaintiff had a duty under

       Countrymark’s rules to report malfunctions to a Countrymark employee, and

       that while searching for a Countrymark employee the plaintiff fell on ice in

       Court of Appeals of Indiana | Opinion 48A02-1504-CT-246| October 6, 2015   Page 14 of 21
       front of the maintenance building. Id. We concluded that, under the

       circumstances, genuine issues of material fact existed as to whether

       Countrymark, by the exercise of reasonable care, would have discovered the

       dangerous condition and should have realized that it involved an unreasonable

       risk of harm to the plaintiff, whether Countrymark should have expected that

       the plaintiff would fail to protect himself from the danger, and whether it failed

       to exercise reasonable care to protect the plaintiff. Id. We further specifically

       held that “genuine issues exist[ed] as to whether Countrymark should have

       anticipated the harm despite [the plaintiff’s] knowledge of the danger or the

       obviousness of the danger.” Id. at 691-692. We thus held that summary

       judgment was not proper. Id. at 692.


[24]   In this case, the parties do not dispute that the Hotel had a continuing duty to

       maintain its property in a reasonably safe condition for invitees and to deal with

       ice and snow on its property for the safety of its customers. We thus turn to

       whether the designated evidence establishes that the Hotel did not breach its

       duty as a matter of law. The appropriate standard under Restatement (Second)

       of Torts § 343 is: (a) whether the Hotel knew or by the exercise of reasonable

       care would have discovered the dangerous condition and should have realized

       that it involved an unreasonable risk of harm to invitees; (b) whether the Hotel

       should have expected that an invitee would fail to protect herself from the

       danger; and (c) whether the Hotel failed to exercise reasonable care to protect

       the invitee. See Countrymark, 892 N.E.2d at 691. Further, to the extent Miller

       had actual knowledge of and appreciated the risk of a dangerous condition,


       Court of Appeals of Indiana | Opinion 48A02-1504-CT-246| October 6, 2015   Page 15 of 21
       under Restatement (Second) of Torts § 343A, the Hotel is not liable unless it

       should have anticipated the harm despite Miller’s knowledge of the danger or

       the obviousness of the danger. See id.


[25]   The designated evidence reveals that Miller looked outside before she departed

       the hotel building and saw a dusting of snow. When asked if she knew when

       she went to her car that the weather conditions were bad, Miller answered: “I

       knew when I got to my – by the time that I got to my car, yeah.” Appellant’s

       Appendix at 34 (emphasis added). When asked why she moved her vehicle,

       she stated: “Because as I walked out of the hotel, I had to walk across the

       parking lot, and that felt a little uncomfortable.” Id. at 35. After cancelling her

       meeting, Miller moved her vehicle as close as she could to the carport or

       sidewalk. When asked “[s]o when you walked out to the car, you knew that

       there was snow and ice on the ground,” Miller replied: “By the time that I stood

       on the – as I got closer to my car, yes, it was obvious.” Id. at 36 (emphases

       added). Also, when asked “[s]o you got out to your car and determined that the

       conditions were bad enough that you were going to cancel your calls,” she

       replied “[c]orrect.” Id. at 38 (emphasis added).


[26]   As to whether Miller voluntarily accepted a known and obvious risk of danger

       as a matter of law, we conclude that a reasonable inference from Miller’s

       deposition testimony is that she was not aware of the relative slickness of the

       parking lot and walkways on the Hotel’s property until after she had walked on

       the parking lot either part or all of the way to her vehicle. To satisfy its burden


       Court of Appeals of Indiana | Opinion 48A02-1504-CT-246| October 6, 2015   Page 16 of 21
of making a prima facie showing that it was entitled to summary judgment, the

Hotel was required to designate evidence showing that Miller had actual

knowledge and appreciation of the specific risks involved and voluntarily

accepted those risks. See Smith, 796 N.E.2d at 244. An invitee’s mental state of

knowledge, appreciation, and voluntary acceptance of the risk demands a

subjective analysis of actual knowledge. See id. A reasonable jury could

conclude that, by the time Miller had actual knowledge and appreciation of the

risk or extent of the slick conditions on the Hotel’s property, there was no

reasonable opportunity for her to avoid or escape the risk or the conditions

under the circumstances. Also, Miller testified that the portion of the sidewalk

on which she had previously walked had been salted, that she moved her

vehicle as close as she could to the carport or the sidewalk near the carport, and

that the reason she moved her vehicle “was to get closer to the sidewalk beyond

the carport so that I could get back” and “[t]hat was my best route to getting

back onto a safe sidewalk.” Appellant’s Appendix at 35. The Hotel

acknowledges that the designated evidence does not establish that the area of

the sidewalk on which Miller’s foot slipped had been salted or treated. See

Appellee’s Brief at 15 (stating “an examination of the designated deposition

testimony includes no testimony as to the condition of the area in which Miller

fell, i.e., whether it was salted or unsalted”). Under the circumstances,

including that Miller was attempting to return to the sidewalk area she believed

had been salted or treated and moved her vehicle as close to the carport or

sidewalk as possible once she had actual knowledge of the slick condition of the

parking lot, a reasonable jury could determine that Miller did not have an
Court of Appeals of Indiana | Opinion 48A02-1504-CT-246| October 6, 2015   Page 17 of 21
appreciation of the specific risk of the slick sidewalk, did not have a reasonable

opportunity to avoid the conditions under the circumstances, and did not

voluntarily accept the risk of any dangerous condition once she had actual

knowledge of it. See Get-N-Go, Inc. v. Markins, 544 N.E.2d 484, 485-488 (Ind.

1989) (noting that the plaintiff walked onto Get-N-Go’s icy parking lot and fell

and that she was generally aware of the icy conditions outside but was already

on the parking lot when she realized the extent of the danger, and holding that

“even when a danger is known and appreciated, continued exposure to it does

not amount to incurring its risk where there is no reasonable opportunity to

escape from it” or where “the exposure is the result of influence, circumstances

or surroundings which are a real inducement to continue despite the danger” 1

(citing Hollowell v. Midwest Smorgasbord, Inc., 486 N.E.2d 16, 17-18 (Ind. Ct.

App. 1985) (holding, based upon the designated facts that the plaintiff realized

the floor was wet after he had started to walk over it, that a jury could

reasonably infer that the plaintiff found himself in a position of peril whether he

continued or retreated and that, by walking close to the wall in an effort to

avoid the water, he had exercised reasonable care that an ordinary person

would exercise in similar circumstances, and reversing the trial court’s grant of

summary judgment), reh’g denied, trans. denied)), on reh’g, 550 N.E.2d 748 (Ind.




1
  Although Get-N-Go, like Douglass, was decided prior to the adoption of the Comparative Fault Act, as noted
above the Indiana Supreme Court held in Smith that a plaintiff’s conduct constituting incurred risk may still
be considered with respect to whether there was a breach of duty. See Smith, 796 N.E.2d at 245 (“The
comparative knowledge of a possessor of land and an invitee regarding known or obvious dangers may
properly be taken into consideration in determining whether the possessor breached the duty of reasonable
care under Sections 343 and 343A of the Restatement (Second) of Torts.”).


Court of Appeals of Indiana | Opinion 48A02-1504-CT-246| October 6, 2015                       Page 18 of 21
       1990); see also Handy v. P.C. Bldg. Materials, Inc., 22 N.E.3d 603, 611 (Ind. Ct.

       App. 2014) (holding in part that reasonable people could differ as to whether

       certain countertops leaning against a wall represented an obvious danger to the

       plaintiff), trans. denied. As a result, based on the designated evidence, we cannot

       say that Miller voluntarily accepted the risk of a known and obvious danger as a

       matter of law.


[27]   In addition, under these circumstances a trier of fact could reasonably

       determine that the Hotel should have anticipated that Miller would attempt to

       walk from her vehicle back to the carport or sidewalk despite the obviousness of

       the risk or danger. See Countrymark, 892 N.E.2d at 686-692 (observing that the

       plaintiff noticed ice on the pavement in front of both doors and nevertheless

       attempted to walk across the ice and holding that genuine issues of fact existed

       as to whether Countrymark should have anticipated the harm despite the

       plaintiff’s knowledge or the obviousness of the danger); see also Smith, 796

       N.E.2d at 246 (concluding it was a close question as to whether the defendants

       “should have anticipated the harm despite the plaintiff’s knowledge or the

       obvious nature of the risk”). Based on the designated evidence, genuine issues

       of material fact exist as to whether the Hotel should have anticipated that its

       customers would attempt to walk from their vehicles to the carport or sidewalk

       despite their knowledge or the obviousness of the risk.


[28]   Further, the Hotel did not designate evidence that it did not know of, or by the

       exercise of reasonable care would not have discovered, the conditions of the


       Court of Appeals of Indiana | Opinion 48A02-1504-CT-246| October 6, 2015   Page 19 of 21
       parking lot or walkways on its property, that it did not expect its invitees to

       walk from their vehicles to the carport or sidewalk, that the condition of the

       portion of the sidewalk upon which Miller’s foot slipped was not unreasonably

       unsafe or that it had treated that area, or that it had taken steps constituting

       reasonable care to protect its invitees under the circumstances. See Christmas v.

       Kindred Nursing Centers Ltd. P’ship, 952 N.E.2d 872, 881-882 (Ind. Ct. App.

       2011) (noting that the defendant had argued that the danger of slipping on ice

       was known or obvious to the plaintiff, holding in part a trier of fact could infer

       from the designated evidence that the defendant should have expected that the

       plaintiff would not realize the unreasonable risk of harm of ice hidden by water

       and snow, concluding there was a genuine issue of material fact pertaining to

       whether the defendant breached its duty of care, and reversing the trial court’s

       entry of summary judgment).


[29]   Construing all factual inferences in favor of Miller as the nonmoving party, we

       conclude that the Hotel failed to carry its burden of establishing that Miller

       voluntarily accepted a known and obvious risk as a matter of law or that it did

       not breach its duty to maintain its property in a reasonably safe condition for its

       invitees as a matter of law. Accordingly, the entry of summary judgment in

       favor of the Hotel was improper. See Countrymark, 892 N.E.2d at 691-692.


                                                    Conclusion

[30]   For the foregoing reasons, we reverse the entry of summary judgment in favor

       of the Hotel and against Miller and remand for further proceedings.


       Court of Appeals of Indiana | Opinion 48A02-1504-CT-246| October 6, 2015   Page 20 of 21
[31]   Reversed and remanded.


       Riley, J., and Altice, J., concur.




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