                                                                                    FILED
                                                                               May 07 2018, 9:16 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Robert A. Plantz                                          Kimberly P. Peil
      Robert A. Plantz & Associates, LLC                        Lauren K. Kroeger
      Merrillville, Indiana                                     Hoeppner Wagner & Evans LLP
                                                                Merrillville, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Frances Dehoyos,                                          May 7, 2018

      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                45A05-1711-CT-2721
              v.                                                Appeal from the Lake Superior
                                                                Court.
      Golden Manor Apartments,                                  The Honorable John M. Sedia,
                                                                Judge.
      Appellee-Defendant.                                       Trial Court Cause No.
                                                                45D01-1509-CT-169



      Darden, Senior Judge


                                      Statement of the Case
[1]   Frances Dehoyos appeals the trial court’s grant of summary judgment in favor

      of Golden Manor Apartments. We reverse and remand.




      Court of Appeals of Indiana | Opinion 45A05-1711-CT-2721 | May 7, 2018                            Page 1 of 12
                                                      Issue
[2]   Dehoyos raises one dispositive issue, which we restate as: whether the trial

      court erred in granting Golden Manor’s motion for summary judgment.


                                Facts and Procedural History
[3]   Golden Manor is a senior citizen living facility located in Hammond, Indiana.

      During the winter of 2013, Golden Manor’s maintenance staff would generally

      arrive at work at 8:00 a.m. to inspect the parking lot and sidewalk for ice and

      snow. In its response to Dehoyos’ interrogatories, Golden Manor indicated

      that its policy was to have staff also apply salt to sidewalks as needed. Golden

      Manor had also contracted with Meier Snow Plow Company to clear snow

      from the parking lot and to apply salt to sidewalks and the parking lot.

      However, under the terms of the contract, Meier performed ice melting

      applications only when directed by Golden Manor.


[4]   Dehoyos lived at Golden Manor. Earlier, in 2013, she had experienced a

      situation wherein Golden Manor’s management had failed to ensure that snow

      was removed from the sidewalks. As she walked toward the building, she

      found herself up to her ankles in icy snow. On that occasion, the building’s

      manager helped her walk through the snow and ice. On other occasions,

      Dehoyos observed that Golden Manor’s management failed to clean snow and

      ice off sidewalks “until late afternoon.” Appellant’s App. Vol. II, p. 49. She

      had also heard other residents complain about a lack of timeliness in clearing

      off ice and snow on the premises.

      Court of Appeals of Indiana | Opinion 45A05-1711-CT-2721 | May 7, 2018     Page 2 of 12
[5]   On the morning of Sunday, December 29, 2013, there was snow on the ground,

      and it had been there for a few days. It was cold. Meier’s workers had applied

      salt at Golden Manor over the previous several days. There is no evidence that

      Golden Manor’s staff inspected the sidewalks or applied salt on the morning of

      December 29, 2013. Between 10:00 a.m. and 11:00 a.m., Dehoyos exited

      Golden Manor’s building. The door she used opened onto a sidewalk that led

      to the parking lot. A portion of the building’s downspout was located on top of

      the sidewalk.


[6]   Dehoyos took approximately two steps onto the sidewalk and then slipped and

      fell on ice, striking her head. Although the sidewalk had initially appeared

      clear, there was a “glaze” of ice on it. Id. at 41, 46. Dehoyos bled from a cut

      on her head. She managed to return to her apartment and called her children,

      and was taken to the hospital. She also sustained an injured ankle. Further,

      after the fall Dehoyos began experiencing recurring headaches and neck pain.


[7]   It appears from Golden Manor’s phone records that Golden Manor called

      Meier shortly before 11:00 a.m. It further appears that Meier’s employees went

      to Golden Manor shortly thereafter and again at approximately 3:30 p.m. that

      day and applied two bags of salt at some point during those visits. On the next

      day, December 30, 2013, Meier’s workers returned to Golden Manor and

      spread six bags of salt on the sidewalks.


[8]   On September 23, 2015, Dehoyos sued Golden Manor, alleging negligence

      arising from the icy condition of the premises. Golden Manor filed an answer,


      Court of Appeals of Indiana | Opinion 45A05-1711-CT-2721 | May 7, 2018   Page 3 of 12
       and the case progressed. Golden Manor took Dehoyos’ deposition in January

       2017. Next, Golden Manor filed a motion for summary judgment with a

       supporting memorandum of law and a designation of evidence. Dehoyos filed

       a response, a memorandum of law, and designation of materials, which

       included her affidavit.


[9]    Golden Manor filed a reply. In addition, Golden Manor moved to strike a

       portion of Dehoyos’ affidavit and a portion of Dehoyos’ response to Golden

       Manor’s motion for summary judgment. The trial court held oral argument,

       after which it granted Golden Manor’s motion to strike. The trial court also

       granted Golden Manor’s motion for summary judgment. The trial court

       concluded, “there is no dispute of material fact “that Golden Manor knew that

       a condition existed that created an unreasonable danger to DeHoyos [sic], or

       should have discovered the condition and its danger.” Id. at 16. This appeal

       followed.


                                     Discussion and Decision
[10]   Dehoyos argues the trial court erred in concluding there were no disputes of

       material fact. She claims there is ample evidence Golden Manor knew or

       reasonably should have known of the ice on which she fell and failed to take

       reasonable steps to protect her against that danger.


[11]   We review summary judgment de novo, applying the same standard as the trial

       court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Summary judgment

       is appropriate “if the designated evidentiary matter shows that there is no

       Court of Appeals of Indiana | Opinion 45A05-1711-CT-2721 | May 7, 2018   Page 4 of 12
       genuine issue as to any material fact and that the moving party is entitled to a

       judgment as a matter of law.” Ind. Trial Rule 56(C). We construe the evidence

       in favor of the nonmovant and resolve all doubts against the moving party.

       Pfenning v. Lineman, 947 N.E.2d 392, 397 (Ind. 2011) (quotation omitted). The

       party moving for summary judgment bears the initial burden to establish its

       entitlement to summary judgment. Id. at 396-97. Only then does the burden

       fall upon the nonmoving party to set forth specific facts demonstrating a

       genuine issue for trial. Id. at 397 (quotation omitted).


[12]   The summary judgment process is not a summary trial. Hughley, 15 N.E.3d at

       1003-04. Indiana consciously errs on the side of letting marginal cases proceed

       to trial on the merits, rather than risk short-circuiting meritorious claims. Id. at

       1004. Further, summary judgment is rarely appropriate in negligence cases

       because such cases 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-South Bend,

       Inc., 32 N.E.3d 227, 231 (Ind. 2015). Nevertheless, a grant of summary

       judgment is clothed with a presumption of validity, and the appellant bears the

       burden of demonstrating that the trial court erred. Id. (quotation omitted).


[13]   Dehoyos’ premises liability claim against Golden Manor is grounded in

       negligence. To recover on a negligence claim, 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. Miller v. Rosehill

       Hotels, LLC, 45 N.E.3d 15, 19 (Ind. Ct. App. 2015).

       Court of Appeals of Indiana | Opinion 45A05-1711-CT-2721 | May 7, 2018     Page 5 of 12
[14]   In Indiana, a person entering onto the land of another is an invitee, a licensee,

       or a trespasser, and the entrant’s status on the land determines the duty that the

       landowner owes to said person. Burrell v. Meads, 569 N.E.2d 637, 639 (Ind.

       1991). The parties do not dispute that Dehoyos was an invitee of Golden

       Manor because she resided on its property. A property owner has a duty to

       maintain its property in a reasonably safe condition for business invitees.

       Miller, 45 N.E.3d at 20. Liability for breach of the duty to maintain property is

       established as follows:

               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.

       Id. at 20 (quoting Restatement (Second) of Torts § 343). “‘[T]he duty of

       reasonable care owed by an inviter to an invitee should in no way be

       diminished by the presence of natural accumulations of ice and snow.’”

       Henderson v. Reid Hosp. and Healthcare Servs., 17 N.E.3d 311, 316 (Ind. Ct. App.

       2014) (quoting Poe v. Tate, 161 Ind. App. 212, 215, 315 N.E.2d 392, 394

       (1974)), trans. denied.


[15]   The key question is whether Golden Manor breached its duty to Dehoyos to

       maintain its property in a reasonably safe condition. Whether an act or


       Court of Appeals of Indiana | Opinion 45A05-1711-CT-2721 | May 7, 2018      Page 6 of 12
       omission is a breach of duty is generally a question of fact for a jury. N. Ind.

       Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 466 (Ind. 2003). It is a question of law

       only if the facts are undisputed and a single inference can be drawn from those

       facts. Id.


[16]   The Court has previously addressed premises liability cases involving invitees

       who fell on snow and ice. In the Miller case, Miller was staying at a motel and

       went outside to get in her car. 45 N.E.3d at 16. She saw snow on the ground,

       and the parking lot was icy. Miller walked to her car via a salted sidewalk and

       decided to move her car closer to the motel. Next, Miller got out of her car,

       and she fell as she stepped onto a slick curb. She sued, claiming negligence

       based on premises liability. The motel prevailed on summary judgment at the

       trial court, but the Court reversed. The Court concluded there were disputes of

       material fact as to whether the motel should have anticipated that an invitee

       such as Miller would walk in the parking lot and on sidewalks despite the risk

       of danger. Further, the Court determined there were disputes as to whether the

       motel knew or reasonably should have known that the sidewalk was unsafe.


[17]   Similarly, in the Henderson case, a hospital’s maintenance staff was notified

       early one winter morning that slick patches were present in the parking lot. 17

       N.E.3d at 313-14. They assembled a crew, who spread salt on the hospital’s

       parking lots and sidewalks. Henderson parked in the hospital’s lot and slipped

       on a patch of ice as she got out of her car, falling to the ground. Security

       personnel later notified the maintenance staff that the parking lot was

       insufficiently salted. The trial court granted summary judgment to the hospital,

       Court of Appeals of Indiana | Opinion 45A05-1711-CT-2721 | May 7, 2018    Page 7 of 12
       but the Court reversed. The Court concluded there were disputes of material

       fact as to whether the hospital acted reasonably in response to the ice on its

       property as to invitees.


[18]   In Christmas v. Kindred Nursing Ctrs. Ltd. P’ship, 952 N.E.2d 872 (Ind. Ct. App.

       2011), Christmas visited a physical rehabilitation center. He walked through

       snow and water in a parking lot and then stepped onto a sidewalk that appeared

       to be covered in water. The substance was actually ice, and Christmas slipped

       and fell. He had noticed salt on the ground next to the area where he fell. The

       trial court granted summary judgment to the center, but the Court reversed.

       Among other conclusions, the Court determined there were genuine disputes of

       material fact as to whether the rehabilitation center knew or reasonably should

       have known of the condition and the harm it posed to invitees and failed to

       exercise reasonable care to protect against the danger.


[19]   Also in 2011, the Court issued a decision in Bell v. Grandville Coop., Inc., 950

       N.E.2d 747 (Ind. 2011). In that case, in February 2007 Bell was babysitting her

       grandchild at an apartment complex. There were piles of snow in the parking

       lot that had melted and refrozen over the past few days, and on the morning at

       issue the complex’s maintenance staff had placed ice melt around the complex.

       Bell’s daughter, who lived in the complex, had previously informed the

       complex’s managers that ice tended to form in the parking lot outside her

       building. As Bell walked to her car, she slipped and fell on the ice, suffering

       injuries. The trial court granted summary judgment to the apartment complex,

       but the Court reversed. The Court concluded there was a dispute of material

       Court of Appeals of Indiana | Opinion 45A05-1711-CT-2721 | May 7, 2018     Page 8 of 12
       fact as to whether the complex knew or should have known of the threat of ice

       to invitees and took reasonable steps to address it.


[20]   By contrast, in Orth v. Smedley, 177 Ind. App. 90, 378 N.E.2d 20 (1978), a panel

       of the Court affirmed the trial court’s grant of summary judgment to a landlord

       in a renter’s action for premises liability. The renter, Orth, left her apartment at

       6:00 a.m. on a day in January. It had rained the night before, and the rain had

       frozen into ice. Orth slipped and fell on an icy patch of driveway, breaking her

       arm. She saw the ice before stepping on it but was trying to reach a car where

       her coworker was waiting. The landlords did not wake up until 7:30 a.m. The

       Court concluded there was no dispute of material fact as to whether the

       landlords had actual or constructive knowledge of the danger the ice posed to

       invitees because the landlords had not yet woken up and were unaware it had

       stormed and then frozen the night before.


[21]   To summarize, in the Henderson, Christmas, and Bell cases, the Court took note

       of evidence that employees and contractors of the defendants had been aware of

       icy and snowy ground and tried to address it, thus giving rise to disputes of

       material fact as to whether: (1) the defendants were aware or reasonably should

       have been aware of the danger; and (2) took reasonable steps to correct it. By

       contrast, in the Orth case the property owners were asleep when ice formed at

       their property, and there was no dispute of material fact as to whether the

       property owners reasonably should have been aware of the danger to their

       invitee.



       Court of Appeals of Indiana | Opinion 45A05-1711-CT-2721 | May 7, 2018     Page 9 of 12
[22]   The current case more closely resembles the Miller, Henderson, Christmas, and

       Bell cases rather than the Orth case. Golden Manor does not dispute the fact

       that it operated a senior citizen living center and had contracted with Meier

       Snow Plow Company to clear snow from the building’s parking lot and to apply

       salt on its sidewalks only as directed by Golden Manor. Earlier in 2013,

       Dehoyos alleges that she had encountered trouble with ice and snow, and the

       building’s manager had assisted her in walking through a dangerous area. In

       addition, she alleges that she had noticed inadequate efforts to remove ice and

       snow at the building. At times, snow and ice was not removed until the

       afternoon. In addition, Dehoyos claimed she had heard complaints from others

       on that topic.


[23]   On the morning of December 29, 2013, snow remained on the ground at

       Golden Manor and had been there for several days. Meier employees had

       applied salt to Golden Manor sidewalks over the past several days. Between 10

       a.m. and 11 a.m. on December 29, Dehoyos fell on a sidewalk that initially

       looked safe but had a glaze of ice on it. Dehoyos’ inability to see the ice further

       distinguishes this case from the Orth case, where the plaintiff saw the ice but

       chose to walk on it anyway.


[24]   The record indicates that shortly before 11:00 a.m., Golden Manor called

       Meier. Afterwards, Meier’s employees went to Golden Manor twice that day,

       and apparently spread two bags of salt on the sidewalk during their visits. On

       the next day, December 30, Meier spread six bags of salt on the sidewalks.



       Court of Appeals of Indiana | Opinion 45A05-1711-CT-2721 | May 7, 2018   Page 10 of 12
[25]   We conclude from the foregoing evidence that there are disputes of material

       fact as to whether Golden Manor knew or reasonably should have known on

       the morning of December 29, 2013, of the risk posed by ice on the sidewalk

       where and before Dehoyos fell and whether Golden Manor took reasonable

       care to address the risk.


[26]   Golden Manor argues Dehoyos has failed to provide any evidence showing

       when the ice formed, speculating that it could have formed after Golden

       Manor’s building staff was supposed to have inspected the property in the

       morning. Golden Manor points to no evidence that its staff did, in fact, inspect

       the sidewalks before 10:00 a.m. the morning of December 29, 2013. It is

       undisputed that cold winter conditions existed at the time of the incident and

       that snow had been present at Golden Manor for several days. Further,

       Dehoyos testified in her deposition that it was cold outside and had been for

       several days. Given this evidence, and Golden Manor’s failure to point to any

       evidence of drastic weather changes on the morning of December 29, one could

       reasonably infer that the ice formed prior to Dehoyos’ slip and fall on the

       morning of December 29. Dehoyos has carried her burden of demonstrating

       error in the trial court’s grant of summary judgment.


[27]   Dehoyos also argues the trial court erred in granting Golden Manor’s motion to

       strike, but we do not need to address that issue. There is other evidence in the

       record that amply establishes disputes of material fact, and we do not need to

       consider the statements that Golden Manor moved to strike.



       Court of Appeals of Indiana | Opinion 45A05-1711-CT-2721 | May 7, 2018   Page 11 of 12
                                                 Conclusion
[28]   For the reasons stated above, we reverse the judgment of the trial court and

       remand for further proceedings.


[29]   Reversed and remanded.


[30]   Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 45A05-1711-CT-2721 | May 7, 2018   Page 12 of 12
