                                                                                           FILED
MEMORANDUM DECISION
                                                                                       Apr 21 2016, 8:06 am

Pursuant to Ind. Appellate Rule 65(D),                                                     CLERK
                                                                                       Indiana Supreme Court
this Memorandum Decision shall not be                                                     Court of Appeals
                                                                                            and Tax Court
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                                    ATTORNEYS FOR APPELLEE
Robert J. Palmer                                          Matthew M. Golitko
May Oberfell Lorber                                       Jared A. Harts
Mishawaka, Indiana                                        Golitko & Daly PC
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dukes Health System, LLC,                                 April 21, 2016
d/b/a Dukes Memorial                                      Court of Appeals Case No.
Hospital,                                                 49A02-1506-CT-734
Appellant-Defendant,                                      Appeal from the Marion Superior
                                                          Court
        v.                                                The Honorable John F. Hanley,
                                                          Judge
Christena Seifried,                                       Trial Court Cause No.
Appellee-Plaintiff.                                       49D11-1007-CT-32539




Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CT-734 | April 21, 2016             Page 1 of 12
                                Case Summary and Issue
[1]   Dukes Health System, LLC, d/b/a Dukes Memorial Hospital (“Hospital”)

      appeals the trial court’s judgment in favor of Christena Seifried in Seifried’s

      action for personal injuries she suffered as a result of slipping and falling in one

      of the Hospital’s hallways (“Hallway”). The Hospital raises two issues for our

      review, which we restate as (1) whether the trial court applied an incorrect legal

      standard, and (2) whether the trial court erred in basing its conclusion on a non-

      pleaded issue. Concluding the trial court did not apply an incorrect legal

      standard nor did it base its conclusions on a non-pleaded issue, we affirm.



                            Facts and Procedural History
[2]   On the morning of April 14, 2010, Betsy Wolfe, a Registered Dietician and

      Certified Diabetes Educator at the Hospital, prepared to teach the first of a

      three-part diabetes education class series; the class had been scheduled months

      in advance and was set to begin at 10:00 A.M. The classroom was located on

      the Hospital’s first floor and the Hospital’s lobby was located on the second

      floor. In order to reach the classroom from the Hospital’s lobby, all attendees

      had to travel downstairs—either by stair or elevator—and walk through the

      Hallway. In other words, the attendees could not reach the classroom without

      walking through the Hallway.


[3]   Just before 10:00 A.M., Pamela Tyler, a Hospital employee, mopped the

      Hallway. Tyler mopped the Hallway every day around the same time, but was


      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CT-734 | April 21, 2016   Page 2 of 12
      not aware the Hospital had scheduled a diabetes class that morning. Shortly

      after Tyler finished mopping the Hallway, Wolfe walked down the Hallway,

      observed four “caution wet floor signs,” and adjusted her walking pace.

      Transcript at 10. Wolfe then took the elevator up one floor to the Hospital’s

      lobby to see if any class attendees were searching for the classroom. Wolfe met

      Seifried, who was there to attend the diabetes class, in the lobby. Wolfe then

      escorted Seifried down the elevator because Wolfe thought it would be “easier”

      on Seifried. Id. at 15. Seifried did not observe any warning signs when she

      exited the elevator. Seifried then slipped and fell in the Hallway, suffering a

      complete tear of her left hamstring. After falling, Seifried observed her pants

      were wet. Wolfe claimed the warning signs were still present in the Hallway

      when Seifried fell.


[4]   On July 23, 2010, Seifried filed a complaint for damages against the Hospital,

      alleging the Hospital was negligent:

              4. On or about April 14, 2010, Plaintiff Christena Seifried was
              attending a class at Dukes Memorial Hospital when she slipped
              and fell on water that had been allowed to accumulate on the
              floor.


              5. “Wet floor” signs were not present in the area of the fall.


              6. Defendant Dukes Memorial Hospital was careless and
              negligent in one or more of the following ways:


                       a. Failure to provide a safe environment for its business
                       invitees;

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CT-734 | April 21, 2016   Page 3 of 12
                       b. Failure to warn its business invitees of the hazardous
                       condition;
                       c. Creating a hazardous condition for its business invitees;
                       and
                       d. Failure to discover and remedy the hazardous
                       condition, thereby exposing its business invitees to the
                       hazardous condition[.]


      Appellant’s Appendix at 13-14. After the Hospital filed its answer and the

      parties participated in discovery, the Hospital moved for summary judgment,

      which the trial court granted. Seifried appealed, and in a memorandum

      decision, we reversed the trial court’s judgment and remanded for further

      proceedings. Seifried v. Dukes Health System, LLC, No. 49A02–1305–CT–435,

      slip op. at 4 (Ind. Ct. App. Feb. 19, 2014).


[5]   A bench trial was held on April 21, 2015. At trial, it was undisputed using the

      Hallway was the only way Seifried could get to the classroom, Tyler had

      recently mopped the Hallway, and Seifried slipped and fell in the Hallway. The

      only relevant factual dispute was whether warning signs were present on the

      floor before Seifried slipped and fell. At the conclusion of the evidence, the trial

      court took the matter under advisement.


[6]   On June 10, 2015, the trial court issued its findings of facts and conclusions

      thereon, entering judgment in favor of Seifried:


              (2) The hallway used by [Seifried] and Ms. Wolfe was the only
              route available to persons attending the class. There were only
              two (2) other possible routes to the classroom, both requiring the
              use of stairs: one was in a restricted area and the other was

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CT-734 | April 21, 2016   Page 4 of 12
              characterized as very steep by Ms. Wolfe and available for use by
              staff only. Ms. Wolfe testified that she chose the route because of
              [Seifried’s] diabetes and general physical condition.
              ***
              (4) [Seifried] testified that there were no caution signs placed in
              the hallway at the time of her fall but that they were placed there
              subsequent to her fall. Ms. Wolfe and others disputed [Seifried’s]
              testimony on this point. However, regardless of whether or when
              caution signs were placed in the hallway, [Seifried] slipped and fell on
              a wet floor that had just been mopped by one [Hospital]
              employee . . . and . . . was the route chosen by another [Hospital]
              employee . . . .
              ***
              (11) Based on all of the foregoing, the Court finds that [Seifried]
              has incurred damages, without consideration of fault, in a total
              amount of One Hundred Eighty Thousand and 00/100 Dollars
              ($180,000.00).

              (12) The Court, based on the evidence presented and its findings,
              assigns fault as follows: [Hospital] – 80% and [Seifried] – 20%.
              The Court therefore finds that [Seifried] is entitled to Judgment
              in the amount of One Hundred Forty-Four Thousand and
              00/100 Dollars ($144,000.00).


      Appellant’s App. at 9-10 (emphasis added). The Hospital now appeals.



                                 Discussion and Decision
                                      I. Standard of Review
[7]   Here, the trial court entered findings of fact and conclusions thereon sua sponte.


              Our standard of review under this circumstance is well settled:
              specific findings control only as to issues they cover, and a
              general judgment standard applies to any issues upon which the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CT-734 | April 21, 2016   Page 5 of 12
                 trial court has not made findings. We review such findings by
                 determining whether the evidence supports the findings and
                 whether the findings support the judgment. We will reverse only
                 when the judgment is shown to be clearly erroneous, i.e., when it
                 is unsupported by the findings of fact and conclusions entered
                 thereon, or when the trial court applies an incorrect legal
                 standard. We defer substantially to the trial court’s findings of
                 fact, but we evaluate conclusions of law de novo.


      In re Estate of Stayback, 38 N.E.3d 705, 710 (Ind. Ct. App. 2015) (citations

      omitted). On appeal, we consider only the evidence favorable to the judgment

      and all reasonable inferences flowing therefrom. Samples v. Wilson, 12 N.E.3d

      946, 950 (Ind. Ct. App. 2014). We neither reweigh the evidence nor assess

      witness credibility. Id.


                                    II. Incorrect Legal Standard
[8]   The Hospital contends the trial court applied an incorrect legal standard.1 In

      support of this contention, the Hospital cites to paragraph four of the trial

      court’s order, arguing the trial court used a standard more akin to strict liability.

      In paragraph four, the trial court found, “regardless of whether or when caution

      signs were placed in the hallway,” Seifried slipped and fell on a wet floor that

      had just been mopped by one Hospital employee and was the route chosen by

      another Hospital employee. Appellant’s App. at 10 (emphasis added).

      Specifically, the Hospital claims a finding as to when the caution signs were




      1
          The Hospital does not challenge the trial court’s findings of fact and conclusions thereon.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CT-734 | April 21, 2016              Page 6 of 12
       placed in the Hallway was required to determine (1) Seifried’s knowledge of the

       risk, (2) the Hospital’s exercise of reasonable care, and (3) Seifried’s

       comparative fault. We disagree.


[9]    Seifried’s action against the Hospital is grounded in negligence. In order to

       recover on a claim of negligence, a plaintiff must establish the defendant owed

       the plaintiff a duty, the defendant breached that duty, and as a result of the

       breach, the plaintiff suffered an injury. Miller v. Rosehill Hotels, LLC, 45 N.E.3d

       15, 20 (Ind. Ct. App. 2015). Here, both parties agree Seifried was the

       Hospital’s business invitee and the Hospital therefore owed Seifried a duty.

       Appellant’s Brief at 9.


[10]   In Indiana, a property owner has a duty to maintain its property in a reasonably

       safe condition for business invitees. Id. However, a “landowner is not

       absolutely liable for . . . the invitee’s safety.” Cergnul v. Heritage Inn of Indiana,

       Inc., 785 N.E.2d 328, 331 (Ind. Ct. App. 2003), trans. denied. Rather, Indiana

       has adopted the Restatement (Second) of Torts to address the requisite standard

       of care owed to a business invitee:

               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 | Memorandum Decision 49A02-1506-CT-734 | April 21, 2016   Page 7 of 12
                        (c) fails to exercise reasonable care to protect them against
                        the danger.


       Restatement (Second) of Torts § 343; see also Miller, 45 N.E.3d at 20. In

       addition, Section 343 is meant to be read in conjunction with Restatement

       (Second) of Torts § 343A(1), which 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.” (Emphasis added); see

       also Miller, 45 N.E.3d at 20. Whether there has been a breach of duty in a

       negligence action is generally a question of fact. Christmas v. Kindred Nursing

       Ctrs. Ltd. P’ship, 952 N.E.2d 872, 880 (Ind. Ct. App. 2011).


[11]   We conclude the trial court did not use an incorrect legal standard for three

       reasons. First, we interpret the Restatement (Second) of Torts § 343A(1) as

       providing that a landowner may be liable for a business invitee’s injuries if the

       landowner “should anticipate the harm despite knowledge or obviousness” of

       the danger, regardless of whether the danger is known or obvious to the invitee.

       Therefore, even assuming the trial court found Seifried had knowledge of the

       wet floor or the wet floor was obvious to Seifried, the Hospital still could be

       found negligent for breaching its duty if the trial court concluded the Hospital

       should have anticipated Seifried could suffer harm as a result of walking down

       the Hallway. See id.; see also Restatement (Second) of Torts § 343(b).


[12]   Second, and consistent with our first point,


       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CT-734 | April 21, 2016   Page 8 of 12
               The duty of an invitor to exercise reasonable care for the safety of
               his invitees is an active and continuing one. It does not cease
               simply because the invitee learns of unsafe conditions on the
               premises, but the invitee’s knowledge may . . . be considered in
               determining his fault.


       Get-N-Go, Inc. v. Markins, 550 N.E.2d 748, 751 (Ind. 1990) (citation omitted).

       Therefore, regardless of whether Seifried had knowledge of the danger and

       incurred the risk, it would not be clearly erroneous for the trial court to

       conclude the Hospital breached its “active and continuing” duty to exercise

       reasonable care. See id. Whether Seifried knew of the danger is relevant to her

       fault, which takes us to our final point.

[13]           Incurred risk can operate as a defense to both strict liability and
               negligence claims. Incurred risk involves a mental state of
               venturousness on the part of the actor and demands a subjective
               analysis into the actor’s actual knowledge and voluntary
               acceptance of the risk. Incurred risk will bar a strict liability
               (product liability) claim where the evidence is without conflict
               and the sole inference to be drawn is that the plaintiff had actual
               knowledge of the specific risk and understood and appreciated
               that risk. Incurred risk will eliminate a plaintiff’s recovery in an
               action based on fault (negligence) if the plaintiff’s contributory
               fault is greater than 50%.


       Smock Materials Handling Co., Inc. v. Kerr, 719 N.E.2d 396, 402 (Ind. Ct. App.

       1999) (citations and footnotes omitted). Here, the trial court heard conflicting

       evidence as to whether the caution signs were placed in the Hallway prior to

       Seifried slipping and falling, and the trial court did not specifically make a

       finding one way or the other. Ultimately, however, the trial court concluded


       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CT-734 | April 21, 2016   Page 9 of 12
       the Hospital was liable, Seifried suffered $180,000.00 in damages, the Hospital

       was 80% at fault, Seifried was 20% at fault, and awarded Seifried a reduced

       award of $144,000.00. If the trial court had used a strict liability standard, as

       the Hospital vehemently insists, the conclusion that Seifried incurred the risk

       would have completely barred her recovery. See id. However, the trial court—

       despite finding Seifried was 20% at fault—awarded Seifried a reduced damage

       award, which is consistent with negligence actions. See id. For the foregoing

       reasons, we conclude the trial court did not use an incorrect legal standard.


                                           III. Non-pleaded Issue
[14]   The Hospital contends the trial court erred in basing its decision on a theory

       that was neither pled nor tried by implied consent. Specifically, the Hospital

       claims the sole allegation in Seifried’s complaint was the Hospital did not place

       any caution signs warning her the floor was wet. Therefore, when the trial

       court based its decision on the fact a Hospital employee escorted Seifried

       through the Hallway rather than basing it on whether the Hospital placed

       warning signs in the Hallway, the Hospital did not receive notice as to the

       evidence to be presented at trial nor did it consent to the issue being litigated

       pursuant to Indiana Trial Rule 15(B).2




       2
         The Hospital cites to portions of our decision in Columbia Club, Inc. v. Am. Fletcher Realty Corp., 720 N.E.2d
       411, 423 (Ind. Ct. App. 1999), trans. denied, where we discussed the Trial Rule 15(B). See Appellant’s Br. at
       15-16. If a litigated issue is not a part of the pleadings, Trial Rule 15(B) “allows an issue not pleaded by
       either party to be litigated at trial if the parties impliedly consent at trial.” Mercantile Nat. Bank of Ind. v. First
       Builders of Ind., Inc., 774 N.E.2d 488, 492 (Ind. 2002). In determining whether a party has impliedly
       consented to a non-pleaded issue, we consider first whether the opposing party had notice of the issue, and

       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CT-734 | April 21, 2016                      Page 10 of 12
[15]   Indiana utilizes the principles of notice pleading. Shields v. Taylor, 976 N.E.2d

       1237, 1244 (Ind. Ct. App. 2012). “To state a claim for relief . . . a pleading

       must contain: (1) a short and plain statement of the claim showing that the

       pleader is entitled to relief, and (2) a demand for relief to which the pleader

       deems entitled.” Ind. Trial Rule 8(A). A pleading is not required to “adopt a

       specific legal theory of recovery to be adhered to throughout the case[,]” nor is

       it required “to state all elements of a cause of action.” Shields, 976 N.E.2d at

       1244-45. Rather, a complaint need only plead “the operative facts so as to place

       the defendant on notice as to the evidence to be presented at trial.” Id. at 1245.


                [W]hether a complaint sufficiently pleads a certain claim turns on
                whether the opposing party has been sufficiently notified
                concerning the claim so as to be able to prepare to meet it. A
                complaint’s allegations are sufficient if they put a reasonable person on
                notice as to why a plaintiff sues.


       Id. (emphasis added) (citations omitted).


[16]   At the outset, we acknowledge Seifried’s complaint does not specifically allege

       the Hospital was negligent in having a Hospital employee escort Seifried down

       the Hallway. As noted above, a complaint’s allegations are sufficient if they put

       a reasonable person on notice as to why a plaintiff sues. Shields, 976 N.E.2d at

       1245. Here, Seifried’s complaint alleged the Hospital was negligent in allowing




       second, whether the opposing party objected to the issue being litigated at trial. Id. “If the opposing party
       both had notice and failed to object at trial, then that party will have impliedly consented to the non-pleaded
       issue at trial.” Id. at 492-93.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CT-734 | April 21, 2016              Page 11 of 12
       water to accumulate on the floor, and as a result, Seifried slipped on the water,

       fell to the floor, and suffered injuries. With these allegations included in the

       pleadings, the Hospital knew Seifried’s sole issue, claim, or theory, was that the

       Hospital was negligent in allowing water to accumulate on the floor, and at no

       point in the proceedings below did that change; the timing of the mopping,

       whether there were caution signs, the Hallway being the only Hallway an

       attendee could use to get to the classroom, and Wolfe escorting Seifried down

       the Hallway are all facts that could prove the Hospital’s negligence. Therefore,

       we need not conduct an analysis under Trial Rule 15(B). We conclude

       Seifried’s complaint satisfied Indiana’s notice pleading standards and the trial

       court did not base its decision on a non-pleaded issue.



                                               Conclusion
[17]   We conclude the trial court did not use an incorrect legal standard, nor did the

       trial court base its judgment on a non-pleaded issue. Accordingly, we affirm.


[18]   Affirmed.


       Barnes, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CT-734 | April 21, 2016   Page 12 of 12
