                                                                                   FILED
                                                                               Dec 09 2019, 8:36 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




         ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
         Steven P. Lammers                                         Andrew B. Miller
         Allyse E. Wirkkala                                        Logansport, Indiana
         Indianapolis, Indiana


                                                     IN THE
             COURT OF APPEALS OF INDIANA

         Buckingham Management LLC,                                December 9, 2019

         et al.,                                                   Court of Appeals Case No.
                                                                   19A-CT-657
         Appellants-Defendants,
                                                                   Appeal from the Tippecanoe
                   v.                                              Superior Court
                                                                   The Honorable Randy J. Williams,
         Tri-Esco, Inc.,                                           Judge
                                                                   Trial Court Cause No.
         Appellee-Defendant.
                                                                   79D01-1701-CT-7



         Altice, Judge.




                                                   Case Summary

[1]   Buckingham Management, L.L.C., d/b/a Bradford Place Apartments (Bradford),

      appeals from the grant of summary judgment in favor of Tri-Esco, Inc. (Tri-Esco).


         Court of Appeals of Indiana | Opinion 19A-CT-657 | December 9, 2019                           Page 1 of 11
      Bradford claims that genuine issues of material fact exist as to whether Tri-Esco

      exercised reasonable care in performing its snow and ice removal duties after the

      plaintiff, Deborah Perez, slipped and fell on ice in Bradford’s parking lot.


[2]   We affirm.


                                          Facts & Procedural History 1


[3]   Bradford is an apartment complex in Lafayette that Buckingham manages. On

      February 23, 2015, at approximately 7:00 a.m., Perez drove to Bradford where her

      daughter lived. Perez was going to pick up her grandchildren and take them to

      school. When Perez arrived at Bradford and was exiting her vehicle in the parking

      lot, she noticed that the lot was “pretty much ice.” Appellant’s Appendix Vol. III at

      47. Perez walked toward her daughter’s residence, balancing herself against her

      vehicle. At some point, Perez slipped and fell and landed on her left arm and

      shoulder. As a result of the fall, Perez claimed that she was injured and was—and

      still is—in physical pain.


[4]   The record shows that on October 17, 2014, Bradford’s owner—Lafayette Housing

      Associates (Lafayette Housing)—entered into a Services Agreement (Agreement)

      with Tri-Esco for snow removal. The Agreement provided that Tri-Esco was to



         1
           Oral argument was held on October 31, 2019 at Hanover Central High School in Cedar Lake, Indiana. We
         extend many thanks. First, we thank counsel for the quality of their oral and written advocacy, for
         participating in post-argument discussions with the audience, and for commuting to Lake County, Indiana.
         We especially thank the staff and administration at the high school for their accommodations and the
         students in the audience for their thoughtful post-argument questions.




         Court of Appeals of Indiana | Opinion 19A-CT-657 | December 9, 2019                         Page 2 of 11
      remove snow and ice from the streets running through Bradford and the parking lot

      where Perez fell. If it snowed at least two inches, Tri-Esco was to clear the ice and

      snow at Bradford without an explicit request by Bradford’s management to do so.

      The initial proposal and the “snow removal specifications” set forth in the

      Agreement provided that Tri-Esco would salt the driveways or parking lots only

      upon Bradford’s specific request. Appellant’s Appendix Vol. II at 48, 90, 113, 119.

      Another clause stated that “[s]alting shall be performed without request as

      warranted by ice/snow conditions for all communities. . . .” Id. at 70, 115, 165.

      Finally, the Agreement provided that the “[s]alting of streets will be authorized by

      the Maintenance Supervisor or Property Manager.” Id. at 68, 113, 163.


[5]   It was undisputed that discretionary salting by Tri-Esco never occurred, and there

      was no requirement that Tri-Esco was to make periodic inspections of the property.

      In short, Tri-Esco salted only upon Bradford’s express request that it do so. All

      provisions of the Agreement were initialed by a Tri-Esco representative.


[6]   The designated evidence established that Tri-Esco did not maintain any consistent

      presence on the premises, unlike Bradford’s onsite maintenance crew. Bradford

      purchases approximately two-and-one-half tons of bagged salt each winter for its

      own snow and ice removal. Bradford has snow removal equipment and a salt

      applicator on the property for the management of its sidewalks.


[7]   On February 21, two days prior to Perez’s fall, Tri-Esco removed snow at Bradford

      with pickup trucks and plows. That same day, Bradford employees applied nine

      bags of ice melt on the premises. Neither Tri-Esco nor Bradford engaged in


         Court of Appeals of Indiana | Opinion 19A-CT-657 | December 9, 2019        Page 3 of 11
      additional snow removal or salt application on the premises after February 21, and

      Bradford did not request Tri-Esco to do so. Bradford conceded that Tri-Esco had

      no contractual obligation to be on site after the initial snow removal because the

      two-inch snowfall provision in the Agreement was not triggered. Bradford further

      admitted that it had no expectation that Tri-Esco would provide any snow removal

      or salting services on February 22 or 23.


[8]   On January 19, 2017, Perez filed a complaint against Bradford and Tri-Esco, seeking

      damages for her injuries, which included compensation for various surgeries. Perez

      alleged that she suffered injury due to the negligence and carelessness of the agents

      and/or employees of Bradford and Tri-Esco for failing to: (1) properly inspect and

      maintain the property in a safe condition; (2) put down salt; (3) remove snow and

      ice; and (4) warn of the dangerous condition. Tri-Esco and Bradford denied the

      allegations and raised affirmative defenses in their answers to the complaint.


[9]   On October 1, 2018, Tri-Esco filed a motion for summary judgment, claiming that

      it was entitled to judgment as a matter of law because the designated evidence

      failed to establish that it had a duty to apply salt to the parking lot during the two

      days prior to the fall. Tri-Esco also asserted that there was no additional snowfall

      during that period that contractually obligated it to perform any services absent

      Bradford’s explicit request that it do so. Tri-Esco claimed that it was under no

      obligation to preemptively inspect and/or provide services to Bradford and,

      therefore, no duty was owed because it lacked any control over the premises.



         Court of Appeals of Indiana | Opinion 19A-CT-657 | December 9, 2019        Page 4 of 11
   Following a hearing on Tri-Esco’s motion, the trial court granted summary

   judgment in its favor on February 21, 2019. Bradford now appeals. 2


                                              Discussion & Decision


[10] When    reviewing the grant of summary judgment, this court applies the same

   standard as the trial court. City of Mishawaka v. Kvale, 810 N.E.2d 1129, 1132 (Ind.

   Ct. App. 2004). The purpose of summary judgment is to terminate litigation if

   there are no genuine, material factual disputes and the issue can be determined as a

   matter of law. Indiana Trial Rule 56(C); Illinois Farmers Ins. Co. v. Wiegand, 808

   N.E.2d 180, 184 (Ind. Ct. App. 2004), trans. denied. A fact is “material” for

   summary judgment purposes if it helps to prove or disprove an essential element of

   the plaintiff’s cause of action. Schrum v. Moskaluk, 655 N.E.2d 561, 564 (Ind. Ct.

   App. 1995), trans. denied. A factual issue is “genuine” if the trier of fact must

   resolve the opposing party’s differing versions of the underlying facts. Sammadar v.

   Jones, 766 N.E.2d 1275, 1279 (Ind. Ct. App. 2002). Once the moving party makes

   a prima facie showing of the nonexistence of a genuine issue of material fact, the

   burden shifts to the nonmoving party to set forth specific facts showing the

   existence of a genuine issue for trial. Dugan v. Mittal Steel USA Inc., 929 N.E.2d

   184, 185-86 (Ind. 2010).




      2
          Perez has not challenged the grant of summary judgment in Tri-Esco’s favor.


      Court of Appeals of Indiana | Opinion 19A-CT-657 | December 9, 2019               Page 5 of 11
[11] Bradford     claims that the trial court erred in granting summary judgment for Tri-

   Esco because there is a genuine issue of material fact as to whether Tri-Esco

   exercised reasonable care in performing the snow removal on February 21, 2015,

   and whether Tri-Esco was required to apply salt to the premises absent a specific

   request by Bradford that it do so.


[12] To   recover under a theory of negligence, a plaintiff must establish the following

   elements: (1) a duty on the part of the defendant in relation to the plaintiff; (2) a

   failure by the defendant to conform his conduct to the requisite standard of care;

   and (3) an injury to the plaintiff proximately caused by the failure. Anderson v. Four

   Seasons Equestrian Ctr., Inc., 852 N.E.2d 576, 580 (Ind. Ct. App. 2006), trans. denied.

   Duty is a question of law for the court to decide. Absent a duty, there can be no

   breach of duty and thus no negligence or liability based upon the breach. Wilson v.

   Haimbaugh, 482 N.E.2d 486, 487 (Ind. Ct. App. 1985). Whether the law

   recognizes an obligation on the part of a particular defendant to conform his

   conduct to a certain standard for the benefit of the plaintiff is generally a question

   of law for the court. Helton v. Harbrecht, 701 N.E.2d 1265, 1267 (Ind. Ct. App.

   1998), trans. denied.


[13] Relevant     to our discussion is Peters v. Forster, 804 N.E.2d 736 (Ind. 2004), where

   our Supreme Court addressed a contractor’s liability to third parties. In Peters, a

   contractor installed a wheelchair ramp at a homeowner’s residence. The

   contractor knew that the ramp did not satisfy building code requirements.

   Following the installation, the homeowner’s daughter attached some carpeting to

   the ramp. Peters, who was delivering meals to the residence, slipped on the ramp

          Court of Appeals of Indiana | Opinion 19A-CT-657 | December 9, 2019        Page 6 of 11
   and fell when he was leaving. Peters sued for his injuries, and the trial court

   granted the contractor’s motion for summary judgment, which this court reversed

   on appeal. Peters v. Forster, 770 N.E.2d 414 (Ind. Ct. App. 2002). Our Supreme

   Court granted transfer and determined that Indiana no longer follows the

   “acceptance rule,” which provides that contractors owe no duty of care to third

   parties after the owner has “accepted” the work. Peters, 804 N.E.2d at 738-39.

   Rather, it was determined that a contractor may be liable for injury or damage to a

   third person as a result of the condition of the work “where it was reasonably

   foreseeable that a third party would be injured by such work caused by the contractor’s

   negligence.” Id. at 742 (emphasis added).


[14] Although   Bradford contends that the rationale espoused in Peters should compel

   the same result here because Perez’s injuries were reasonably foreseeable to Tri-

   Esco, we first note that it is undisputed that there was no two-inch snowfall during

   the two days prior to Perez’s fall that would have triggered further services under

   the Agreement. Bradford did not request any salt application or additional snow

   removal from Tri-Esco within that timeframe, and Bradford’s crew did not perform

   any additional snow removal during those two days. Further, Bradford admitted

   that it had no expectation for Tri-Esco to be on the premises at any time after

   February 21, 2015, and Bradford conceded that it was in a better position to know

   the actual condition of the property than Tri-Esco. Had Tri-Esco in some way

   created a dangerous condition on February 21, Bradford had two days to remedy

   such a circumstance through its own employees, or it could have requested Tri-

   Esco to apply additional salt to the affected areas. With no additional work having


      Court of Appeals of Indiana | Opinion 19A-CT-657 | December 9, 2019              Page 7 of 11
   been performed by Bradford, and no follow-up contact made to Tri-Esco for

   additional services, we cannot say that it was reasonably foreseeable to Tri-Esco

   that Perez would be injured two days after Tri-Esco completed its work. Thus, we

   reject Bradford’s reliance on the rationale advanced in Peters in support of its

   contention that summary judgment was improperly entered for Tri-Esco.


[15] Additionally,      the designated evidence establishes that Tri-Esco no longer

   maintained any control over the premises after the initial snow removal. Indeed, a

   defendant’s duty to a plaintiff is often conditioned on his control of the premises at

   the time of the accident. Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2001); Yates v.

   Johnson Co. Bd. of Comm’rs, 888 N.E.2d 842, 847 (Ind. Ct. App. 2008). Control is

   the greatest factor because the law seeks to impose “liability on the person who

   could have known of any dangers on the land and therefore could have acted to

   prevent any foreseeable harm.” Rider v. McCamment, 938 N.E.2d 262, 268 (Ind. Ct.

   App. 2010). The party in control is in the best position to prevent injury on the

   premises. Id.


[16] To   illustrate, in Kostidis v. General Cinema Corp., 754 N.E.2d 563 (Ind. Ct. App.

   2001), trans. denied, the plaintiff was walking in a parking lot owned by the

   defendant who had hired Schostak Brothers to manage the property. Schostak

   Brothers in turn hired L&P to remove snow and ice from the parking lot. Pursuant

   to the contract, L&P was to remove snow from the parking lot after an inch or

   more of snow had fallen.




          Court of Appeals of Indiana | Opinion 19A-CT-657 | December 9, 2019         Page 8 of 11
[17] On   January 31, 1996, L&P removed snow from the parking lot, which was the last

   time it rendered any of its services prior to the plaintiff’s fall on February 2. A

   panel of this court concluded that L&P lacked control over the parking lot at the

   time of the fall, thereby precluding liability for the plaintiff’s injuries. In so

   holding, the court stated


                  While L&P had control over snow removal operations in the
                  parking lot and on the sidewalks, there is no evidence suggesting that
                  L&P retained control over the premises once its work was completed. . . .
                  L&P’s completion of its work and its relinquishment of any
                  control it had over the property is . . . evidenced by the fact that
                  Schostak Brothers’s designated property inspector . . . apparently
                  found L&P’s work satisfactory and did not ask L&P to return to perform
                  additional services.


          Id. at 569 (emphases added).


[18] As   were the circumstances in Kostidis, Tri-Esco had no control over Bradford’s

   parking lot at the time of the fall. It had not rendered services to Bradford in the

   two days prior to Perez’s fall, was not on the property on the day of Perez’s fall,

   and Bradford never requested that it return to provide any additional snow and ice

   removal. Moreover, nothing in the Agreement imposed a requirement on Tri-Esco

   to periodically inspect the property. To that end, absent any presence, control, or

   express request from Bradford that Tri-Esco be onsite or perform further snow

   removal, there is no basis on which to find that Tri-Esco owed a duty to Perez.


[19] Finally,   we reject Bradford’s attempt to create a genuine issue of material fact in

   light of conflicting provisions in the Agreement. Even though there is a conflict in


          Court of Appeals of Indiana | Opinion 19A-CT-657 | December 9, 2019             Page 9 of 11
   facts and inferences on some elements of a claim, summary judgment may be

   proper when no dispute exists as to the facts that are dispositive of the litigation.

   Helton, 701 N.E.2d at 1268. Additionally, “[i]f necessary, the text of a disputed

   provision [in a contract] may be understood by reference to other provisions within

   the four corners of the document.” Claire’s Boutiques, Inc. v. Brownsburg Station

   Partners LLC, 997 N.E.2d 1093, 1098 (Ind. Ct. App. 2013). Where a contract is

   ambiguous or uncertain in its terms, the intent of the parties must be determined by

   extrinsic evidence. First Federal Sav. Bank v. Key Markets, Inc., 559 N.E.2d 600, 604

   (Ind. 1990). Rules of contract construction and extrinsic evidence may be

   employed in giving effect to the parties’ reasonable expectations. Id.


[20] Here,   the requirement that Tri-Esco receive specific authority from Bradford before

   applying salt or ice melt is found twice in the Agreement, as opposed to the

   provision stating that “[s]alting shall be performed without request as warranted by

   ice/snow conditions for all communities,” which is only stated once. Appellant’s

   Appendix Vol II at 70, 115, 165. Moreover, the parties’ standard practice was that if

   there was a two-inch snowfall, Tri-Esco would go to Bradford—without an explicit

   request—to remove snow from the parking lots and driveways. Under paragraph

   seven of the initial proposal and the one page “snow removal specifications” in the

   Agreement, Tri-Esco would salt the driveways or parking lots only if Bradford

   specifically requested that it do so. Appellant’s Appendix Vol. II at 48, 90, 113, 119.

   Bradford admitted that discretionary salt applications by Tri-Esco, as provided in

   paragraph ten of the multiple page specification, never occurred. Rather, the

   undisputed facts are that Tri-Esco salted only upon Bradford’s explicit request that

       Court of Appeals of Indiana | Opinion 19A-CT-657 | December 9, 2019       Page 10 of 11
   it do so, which was pursuant to the parties’ past performance. Hence, the

   conflicting provisions in the agreement do not create a genuine issue of material

   fact as to whether Tri-Esco should have applied salt and other snow removal

   services after February 21 without Bradford’s request. For the foregoing reasons,

   we affirm the trial court’s grant of summary judgment in Tri-Esco’s favor.


[21] Judgment   affirmed.


   Robb, J. and Bradford, J., concur.




      Court of Appeals of Indiana | Opinion 19A-CT-657 | December 9, 2019      Page 11 of 11
