Christmas v. Kindred Nursing Centers Ltd. P'ship D/B/A Windsor Estates Health

• Decision Date: 07 September 2011
• Docket Number: No. 34A05–1101–CT–1.,34A05–1101–CT–1.
• Citation: 952 N.E.2d 872
• Parties: Isaiah CHRISTMAS, Appellant,v.KINDRED NURSING CENTERS LIMITED PARTNERSHIP d/b/a Windsor Estates Health and Rehabilitation Center, Appellee.
• Court: Indiana Appellate Court

952 N.E.2d 872

Isaiah CHRISTMAS, Appellant,

v.KINDRED NURSING CENTERS LIMITED PARTNERSHIP d/b/a Windsor Estates Health and Rehabilitation Center, Appellee.

No. 34A05–1101–CT–1.

Court of Appeals of Indiana.

Sept. 7, 2011.

Matthew M. Golitko, Jared A. Harts, Golitko Daly, Kokomo, IN, Attorneys for Appellant.Libby Y. Goodknight, Bryan S. Strawbridge, Krieg DeVault LLP, Indianapolis, IN, Attorneys for Appellee.

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Isaiah Christmas (“Christmas”) appeals the trial court's grant of summary judgment in favor of Kindred Nursing Centers, Limited Partnership d/b/a Windsor Estates and Rehabilitation Center (“Windsor”).

We reverse and remand.

ISSUES

1. Whether the trial court erred in not holding a hearing on Windsor's summary judgment motion.

2. Whether the trial court erred in granting summary judgment.

FACTS

Christmas is a Howard County home detention officer who makes unannounced visits to detainees who are on house arrest but are allowed to work outside their homes and to engage in other approved activities. As a home detention officer, Christmas can make visits at the time and location of his choosing. He can “check on [the detainee] anytime/anywhere,” such as the detainee's residence, place of employment, church, doctor's office, and/or Alcoholics Anonymous meetings. (Christmas's App. 65–66). Officers are not required to make visits to the detainees' places of employment, but they can do so if the detainees' employers “don't mind.” (Christmas's App. 66).

During the daylight hours of February 22, 2007, Christmas visited one of his detainees at Windsor, her place of employment. In its mission statement, Windsor describes itself as “a provider of post-acute health care services with a stated mission of striving to promote healing, provide hope, preserve dignity and produce value for each patient, resident, family member, customer, employee and shareholder it serves.” (Christmas's App. 8).

Although Christmas was not required to visit the detainee at Windsor, he did so because he was already in the neighborhood. He had visited the detainee at Windsor on prior occasions and an unidentified person had provided him with the access code to an employee-only entrance. The detainee was required as a condition of her house arrest to inform Windsor of her detainee status and of the possibility of a visit from a home detention officer, although there is no evidence to indicate whether she did so. Windsor, however, was not required to give permission to the home detention officer to enter the premises.

While Christmas walked toward the building from the adjacent parking lot, he slipped and fell on a concrete path. Christmas saw snow on the sidewalk as he was approaching the facility and observed that the “snow had begun to melt on the walk, so a section of the walk looked like it was melted snow.” (Christmas's App. 13). Christmas stepped into the melting snow and water on this section of the sidewalk near the building, slipped, and fell. Christmas testified at his deposition that what he thought was water on the sidewalk turned out to be ice and that he slipped on the ice.

At the time of the fall, Christmas intended to access Windsor through the employee entrance. Christmas's supervisor testified at his deposition that he did not want home detention officers “to have a code to get into any business” and that he would discourage a home detention officer from using a code to access the premises of a detainee's place of employment “by every means possible.” (Christmas's App. 68). Christmas's supervisor did not know that Christmas had obtained an access code to the employee entrance at Windsor. However, there was no official policy against having the code.

After getting up from the fall, Christmas entered Windsor through the employee entrance and talked for five minutes to the detainee. He then left the building and proceeded to visit a detainee who lived in the housing complex next door to Windsor. Christmas photographed the area approximately twenty minutes after the fall and testified at his deposition that he saw what appeared to be salt on the ground in the general area of where he fell.

On February 5, 2009, Christmas filed a complaint against Windsor, claiming injuries and alleging negligent maintenance of the sidewalk.¹ Specifically, he alleged:

1. That on or about the 22nd day of February, 2007, Plaintiff was an invitee of the Defendant's establishment....

2. That Plaintiff herein was walking on the handicap sloped sidewalk when he slipped on the ice and fell, causing injury to his back.

3. That Defendant was negligent in that it failed to properly maintain its sidewalk.

4. That as a proximate result of the negligence of the Defendant, Plaintiff suffered injury to his person.

5. That Plaintiff has suffered pain, discomfort and medical expenses, all as the proximate result of the negligence of the Defendant.

(Christmas's App. 6).

On July 26, 2010, Windsor filed its motion for summary judgment, and soon thereafter, the trial court set a hearing on the motion for October 28, 2010. On October 27, 2010, the trial court cancelled the hearing and notified counsel by telephone that it would rule on the motion for summary judgment based upon the parties' briefs and designated evidence. On November 5, 2010, nine days after canceling the hearing, the trial court entered summary judgment in favor of Windsor. The trial court stated:

The Plaintiff admits there are no material facts in dispute (see pg. 1 of Plaintiff's response). The Court agrees with this conclusion. Accordingly, it is up to the Court to determine the law applicable to those facts.

The Plaintiff was not an invitee. Apparently, he did not follow the procedure of his employer when visiting the Defendant's nursing home; there is no allegation that he obtained permission before checking on a detainee. Furthermore, he was using an emergency exit which, had the facility known he was doing so, he would have been barred from so doing. Therefore, the Court determines Plaintiff was a licensee.

As such, no duty was owed the Plaintiff by Defendant, unless it knew, or should have known, of a latent defect, in which case it had a duty to warn. Here, there was no latent defect.

(Christmas's App. 87).

Christmas subsequently filed his “Plaintiff's Motion To Correct Error And Request For Hearing,” which stated in pertinent part:

1. Defendant filed its Motion for Summary Judgment on July 26, 2010.

2. On July 30, 2010, the Court scheduled Defendant's motion for hearing on October 28, 2010.

3. Plaintiff timely filed his response on September 29, 2010. At the time of Plaintiff's response the court had already scheduled Defendant's motion for hearing. Accordingly, Plaintiff did not request a hearing because such a request would be redundant.

4. On October 27, 2010, the day before the scheduled Summary Judgment Hearing, the Court canceled the hearing and by Order dated November 5, 2010, granted Defendant's Motion for Summary Judgment without holding a hearing.

5. Plaintiff requests that the following errors be corrected:

(a) The Court incorrectly concluded that Defendant owed no duty to Plaintiff. In support of this position Plaintiff incorporates by reference, his Response and Brief in Opposition to Defendant's Motion for Summary Judgment and corresponding Designation of Evidence. Plaintiff requests that the court deny Defendant's Motion for Summary Judgment.

(b) The Plaintiff is entitled to a hearing on Defendant's Motion for Summary Judgment and the Court erred in canceling the hearing. Indiana Rule of Trial Procedure 56(C) requires that the court hold a hearing if requested by the parties. In this case the court set a hearing on Defendant's Motion almost immediately after the Motion was filed and long before Plaintiff's response was due. Given that the matter was already set for hearing, Plaintiff did not specifically request a hearing because such request would have been redundant. Plaintiff is entitled to a hearing and the Court erred when it cancelled the hearing. Accordingly, the Plaintiff requests that this matter be set for hearing.

(Christmas's App. 89–90).

On December 6, 2010, the trial court summarily denied Christmas's motion to correct error and his request for hearing. Christmas now appeals.

DECISION

1. Necessity of a Hearing

Christmas contends that the trial court erred on procedural grounds when it removed the motion for summary judgment hearing from its docket and entered summary judgment without a hearing. He argues that the trial court's procedure deprived him of a right to a hearing on Windsor's motion for summary judgment. He notes that while Indiana Trial Rule 56(C) no longer contains an absolute requirement that the trial court set a hearing on every motion for summary judgment, the rule does preserve the right to a hearing upon request made by a party “no later than ten (10) days after the response was filed or due....” Christmas states that it is “axiomatic that summary judgment procedure must be applied with extreme caution so that a party's right to a fair determination of a genuine issue of fact is not jeopardized.” Christmas's Br. at 19 (citing Jones v. City of Logansport, 436 N.E.2d 1138, 1143 (Ind.Ct.App.1982)). Christmas concludes that because the hearing was vacated “ after Christmas's time to request a hearing had expired; after his written arguments had been prepared and submitted with the expectation that a hearing would follow, and after the filing of Windsor's Reply,” the procedure outlined in Trial Rule 56(C) was not applied with the “extreme caution required by law.” Christmas's Br. at 19–20. (emphasis in original).

Trial Rule 56(C) provides that the trial court may conduct a hearing on a summary judgment motion, but the court is not required to do so unless one of the parties requests a hearing. Under the rule, it was not a redundant act for Christmas to request a hearing because without the...