Brown v. Buchmeier

Decision Date18 September 2013
Docket NumberNo. 33A05–1301–PL–13.,33A05–1301–PL–13.
Citation994 N.E.2d 291
PartiesDonna M. BROWN, Appellant–Plaintiff, v. Paul F. BUCHMEIER and Sally M. Buchmeier d/b/a Fashion Trends, Appellees–Defendants.
CourtIndiana Appellate Court


Ronald L. Cross, Andrew J. Sickmann, Boston Bever Klinge Cross & Chidester, Richmond, IN, Attorneys for Appellant.

Neha M. Matta, Travelers Staff Counsel Office, Indianapolis, IN, Attorney for Appellees.


BROWN, Judge.

Donna M. Brown appeals the trial court's order granting summary judgment to Paul F. Buchmeier and Sally M. Buchmeier d/b/a Fashion Trends. Brown raises one issue which we revise and restate as whether the court erred in granting the Buchmeiers' motion for summary judgment. We affirm.


On May 20, 2006, Brown visited Fashion Trends looking for something to wear to a graduation ceremony for her grandchildren. Inside the store, Brown walked over to an area where there were steps for a landing. Earrings were displayed “on a board-like thing or something” and they were “more laid on the steps ... of the landing.” Appellants' Appendix at 44. Brown was “on a step and [she] fell off a step.” Id. There were two steps “between the main floor and the landing in the area [in] which [Brown] fell.” Id. at 47.

On May 16, 2008, Brown filed a complaint for breach of duty of care owed to a business invitee by an owner. Brown alleged that the Buchmeiers: (1) failed to mark the steps with any type of edge marking or other visual attraction that would warn a person traversing the stairs of the changes in elevation; (2) displayed some of their merchandise in areas located on each side of the steps thus inviting the attention of a business invitee to be directed toward the merchandise and diverted away from the stairs; and (3) failed to have a hand railing or other such safety device at any point in or around the stairs. Brown also alleged that she suffered a broken hip, bruises, closed head injury, pain, suffering and permanent impairment of her motor functions as a result of the fall.

On August 13, 2012, the Buchmeiers filed a motion for summary judgment and alleged that they were “entitled to summary judgment because Ms. Brown has no evidence of a breach of a duty or proximate cause as she is unable to identify what caused her to fall.” Id. at 37. The Buchmeiers designated a deposition of Brown in which she indicated that she did not know what caused her fall. Specifically, the following exchange occurred during the direct examination of Brown during her deposition:

A I just, I think what I did was I maybe thought I was up and then just—I don't know. I don't know how I did it.

Q Okay.

A But I mean I'm pretty sure I was on the step and then just fell off.

Q The next thing you know you were down.

A I was down. I don't know how it happened. I really don't.

Q Okay. Do you recall if you tripped on something?

A No.

* * * * * *

Q Can you tell me, though, why you fell?

A No. I don't know.

* * * * * *

Q Do you think that you may have just forgotten you were on a step and stepped off, or do you know?

A I don't know.

Id. at 44–45.

On August 27, 2012, Brown filed a response to the Buchmeiers' motion for summary judgment. Brown designated her complaint and an affidavit in which she stated that she went up some of the steps so that she could look at the earrings, that she forgot that she was standing on steps, took a step backwards and fell off of the steps. Brown also stated: “In my deposition I stated that I wasn't sure why I fell. This statement was meant to convey the idea that my attention had been directed away from the stairs and on to the earrings, and my mind was drawn away from my surroundings.” Id. at 74.

On October 1, 2012, the court held a hearing and the Buchmeiers' attorney argued that Brown's affidavit should be disregarded. On October 26, 2012, the court granted the Buchmeiers' motion for summary judgment. On November 21, 2012, Brown filed a motion to correct error, which was later deemed denied.


The issue is whether the court erred in granting the Buchmeiers' motion for summary judgment. Our standard of review for a trial court's grant of a motion for summary judgment is well settled. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970, 973 (Ind.2001). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmovant. Mangold, 756 N.E.2d at 973. Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. We must carefully review a decision on summary judgment to ensure that a party was not improperly denied its day in court. Id. at 974. In reviewing a grant of summary judgment we face the same issues as the trial court and follow the same process. Klinker v. First Merchs. Bank, N.A., 964 N.E.2d 190, 193 (Ind.2012). Under Trial Rule 56(C), the moving party bears the 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. Id. If it is successful, the burden shifts to the nonmoving party to designate evidence establishing the existence of a genuine issue of material fact. Id.

“In order to prevail on a claim of negligence, a plaintiff is required to prove: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an injury to the plaintiff proximately caused by the breach.” Wabash Cnty. Young Men's Christian Ass'n, Inc. v. Thompson, 975 N.E.2d 362, 365 (Ind.Ct.App.2012) (quoting Peters v. Forster, 804 N.E.2d 736, 738 (Ind.2004)), reh'g denied, trans. denied. “In negligence cases, summary judgment is ‘rarely appropriate.’ Id. (quoting Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind.2004)). “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. (quoting Rhodes, 805 N.E.2d at 387). “Nevertheless, a defendant is entitled to judgment as a matter of law when the undisputed material facts negate at least one element of the plaintiff's claim.” Id. This court has long held that ‘negligence cannot be inferred from the mere fact of an accident, absent special circumstances.’ Taylor v. Cmty. Hosps. of Ind., Inc., 949 N.E.2d 361, 364 (Ind.Ct.App.2011) (quoting Hale v. Cmty. Hosp. of Indianapolis, Inc., 567 N.E.2d 842, 843 (Ind.Ct.App.1991)). Moreover, negligence cannot be established through inferential speculation alone. Id. The mere allegation of a fall is insufficient to establish negligence, and negligence cannot be inferred from the mere fact of a fall. Id. “The question of the breach of a duty is usually one for the trier of fact.” Cox v. Paul, 828 N.E.2d 907, 911 (Ind.2005). “However, if any reasonable jury would conclude that a specific standard of care was or was not breached, the question of breach becomes a question of law for the court.” Id. at 912.

Brown argues without citation to the record that she “has designated evidence, both in her Complaint and Affidavit that show that the Appellee's store offered merchandise for resale located on stair-steps on which she was forced to stand in order to view the merchandise.” Appellant's Brief at 11. Brown also argues without citation to the record that she “designated to the Trial Court that there were no edge-markings or hand-rails on or near the stair-steps to alert her to a change in elevation or to assist in traversing or standing on the stair-steps” and that “as a result of the placement of the merchandise on steps, she forgot about her surroundings and took a step backwards, causing her to fall and sustain injuries.” 1Id. Brown also contends that she “offered the Affidavit to the Trial Court to cure her mistaken statement in her Deposition.” Id. at 12.

The Buchmeiers argue that they did not breach a duty of reasonable care to Brown, that Brown cannot point to any defects with the steps or any other negligent condition in the store which caused her fall, that Brown has “absolutely no idea how or why she fell,” and that Brown has provided no basis in fact or reasonable inference to establish that a condition existed such that the Buchmeiers breached their duty of reasonable care to her. Appellees' Brief at 8. The Buchmeiers also contend that Brown's affidavit “serves only to squarely contradict her prior sworn deposition testimony which clearly indicates that Brown has no idea what caused her to fall.” Id. at 10.

The Buchmeiers designated evidence that Brown did not know what caused her fall which was sufficient to meet their initial burden of showing that there was no genuine issue of material fact that would allow a trier of fact to find anything more than a mere accident and that the Buchmeiers were entitled to judgment as a matter of law. Accordingly, the responsive burden was placed on Brown to show that a genuine issue of material fact did indeed exist. See Scott Cnty. Family YMCA, Inc. v. Hobbs, 817 N.E.2d 603, 604–605 (Ind.Ct.App.2004).

To the extent that Brown relies upon the allegations in her complaint, we observe that a nonmovant may not rest upon the pleadings when a movant meets his initial burden. See Crawford v. City of Muncie, 655 N.E.2d 614, 619 (Ind.Ct.App.1995) (“To survive summary judgment, the nonmoving party may not merely rely upon the allegations in his complaint, but must come forward with sufficient factual allegations to establish the existence of genuine issues.”), reh'g denied, trans. denied;Ind. Trial Rule 56(E) (“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by...

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